Social Media in the workplace – wide-ranging overview now available

In a recent blog post regarding Sam Moore‘s claim for publicity rights in a fictional film, I provided a general update on publicity rights law because such laws are now being used as part of the social media agreement between the public and such companies as Google and Facebook.

The discussion about continuing evolution of publicity rights doctrine is part of a larger review I have written on the role of social media across the spectrum of media law.  That working paper, Social Media in the Workplace – From Constitutional to Intellectual Property Rights is now available at SSRN: http://ssrn.com/abstract=2348779 or for download.

Social media has become a dominant force in the landscape of modern communications. From political uprisings in the Middle East to labor disputes in Washington State, social media has fundamentally disrupted the way in which communications take place. As noted constitutional scholar Erwin Chemerinsky explained, “technology has changed and so has First Amendment doctrine and American culture. It now is much more clearly established that there is a strong presumption against government regulation of speech based on its content.” Just as the government must tolerate more speech, the same thing is true about employers. Chemerinsky further notes that “for better or worse, profanities are more a part of everyday discourse.” Abrasive speech may be coarse from the word choice or may more readily upbraid the objects of the speech. Whether foul or abusive, such speech now pervades commercial and social media.

Social media fundamentally upends the notion of the traditional commercial media environment and with that, it reverses the established legal doctrine from constitutional assumptions to everyday rules involving copyright, defamation, and unfair labor practice. For employers, these rules are particularly important to navigate because they effect the manner in which the companies communicate with the public, how employees communicate with each other, and how laws are restructuring the employee-employer relationship. The transformation is taking place with changing policies affecting trade secrets, confidential information, copyrighted material, aggregated data, trademarks, publicity rights, and endorsements.

This article highlights the nature of the changes as they present the new paradigm shift and provides some guidance on how to prepare policies for the transitional model. The article tracks the rise of the many-to-many model of social media, its effect on commercial speech, intellectual property, and labor law. The article concludes with suggestions on employment policies geared to managing these changes in the modern workplace.

There will be a CLE program sponsored by the Dayton Intellectual Property Law Association on Friday November 8, 2013 featuring these materials.

Sam Moore loses publicity rights dispute with The Weinstein Company while the use of the Transformative Use Test is applied again

Publicity Rights continue to vex courts and counsel. An October 31^st decision of the Sixth Circuit in Moore v. Weinstein provides yet another unfortunate twist to the judicial approach to balancing publicity rights with free speech rights.

The litigation stems from the 2008 film Soul Men produced by The Weinstein Company starring Samuel L. Jackson and Bernie Mac. Grammy winning artist, Sam Moore claimed the movie was an unauthorized life story because of the title, story-line, and music used in the film. Having lost on appeal, Moore took his fight to the Sixth Circuit where the court again sided with The Weinstein Company.

The problem with the decision is not the outcome. Instead the concern is that the court interpreted a state law which relied on the Restatement (Third) of Unfair Competition to determine the scope of publicity rights but still insisted on adding an additional opportunity for plaintiffs to stop communicative works if the defendants could not prove the works were transformative.

State law protection of publicity rights are constrained by free speech concerns.[1] Publicity rights are protected as a common law extension of privacy,[2] but like other common law doctrine affecting speech, many aspects have been constitutionalized.[3] Publicity rights are properly considered a form of limitation on commercial speech and should be subject to legitimate content regulation as is allowed by the FCC and FTC, namely intermediate scrutiny.[4] Traditional publicity rights doctrine first asks whether the use of the name or likeness involves a commercial transaction.^[5] The commercial transaction may be the sale of a commercial item or an endorsement of a good or service.[6] If the use of the publicity rights constitutes an endorsement, then the FTC endorsement guidelines offer further liability for unauthorized use.

In theory, formulations such as that embodied in the Restatement (Third) of Unfair Competition should provide clear breathing room between expressive works and their commercial cousins. As the Sixth Circuit recently stated, “A viable right-of-publicity claim usually requires (1) defendant’s use of plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to the defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.”[7]

Section 47 of the Restatement sets an explicit limit on the scope of publicity rights:

The name, likeness, and other indicia of a person’s identity are used “for purposes of trade” under the rule stated in § 46 if they are used in advertising the user’s goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user. However, use “for purposes of trade” does not ordinarily include the use of a person’s identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses.[8]

The scope of publicity rights explicitly excludes news, entertainment, and creative works.[9] The limitation embodied in the Restatement is written to be categorical, which provides for greater certainty and reinforces the importance of free speech rights and avoidance of a chilling effect caused by fear of litigation involving a person’s identity in a communicative work. Comment d. to the Restatement recognizes this concern by stating “[b]roader restrictions on the use of another’s identity in entertainment, news, or other creative works threaten significant public and constitutional interests.”[10]

Nonetheless, in practice, publicity rights are tested under a variety of inconsistent court-fashioned doctrine which do not balance commercial and speech interest nearly as cleanly as does the Restatement. “Various commentators have noted that right of publicity claims—at least those that address the use of a person’s name or image in an advertisement—are akin to trademark claims because in both instances courts must balance the interests in protecting the relevant property right against the interest in free expression.”[11]

The Rogers test[12] most squarely distinguishes between commercial works and communicative works. Under that test, a court should not “permit the right of publicity to bar the use of a celebrity’s name in a movie title unless the title was ‘wholly unrelated’ to the movie or was ‘simply a disguised commercial advertisement for the sale of goods or services.’”[13] This test most closely mirrors the FTC commercial endorsement guidelines, particularly if the recognition of disguised commercial advertisements extends to the various undisclosed endorsements.

The Predominant Use test loosely balances the free speech rights of the publisher against the economic goals of that publisher.[14] Works that predominantly exploit the commercial value of identity must certainly include all celebrity magazines, ESPN, and the Sunday section of the New York Times. The fact that a work is published under a profit motive does not transform the content into commercial speech.[15] The Predominant Use Test is ineffectively under-inclusive and over-inclusive, making it unhelpful for jurisprudential guidance.[16]

The third common test flows from copyright law rather than trademark law. Based upon the Supreme Court jurisprudence involving fair use, the California Supreme Court adopted the transformative test from the first factor of copyright fair use to determine the right of publicity free speech doctrine.

According to the Supreme Court as applied by the California Supreme Court,

the central purpose of the inquiry into this fair use factor ‘is to see … whether the new work merely “supercede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”[17]

To the first factor of the copyright test embodied in Transformative Test, the California Supreme Court obliquely reintroduced the copyright fair use test’s fourth factor: the effect on the potential market for the work.[18]

Virtual worlds and video games may trigger the most direct conflict between publicity rights and free speech jurisprudence.[19] The communicative nature of video games highlighted in Brown v. Entm’t Merchs. Ass’n should require the medium be treated like any other.[20] Nonetheless, both video game manufacturers and the courts tend to continue to treat these works as if they are commercial products rather than works of expression protected by the First Amendment.[21] As products, they are commercial works subject to the Transformative Test or another of the balancing tests rather than excluded from the limitation in publicity rights that such rights only apply to commercial products or the advertisements for such goods and services.

The communication in a video game generally is not a proposal of a commercial transaction or the sale of a product, so rights of publicity simply do not apply.[22] If instead, the media is used to make an endorsement or advertise a commercial product, then the FTC endorsement guidelines and the state publicity rights come back into play.[23]

This distinction should guide the behavior and social media policies of employers. To the extent they are creating content as media broadcasters, there are no publicity rights constraints and no endorsement concerns.[24] If instead the content is designed to promote commercial transactions, serve as advertisements, or sell merchandise, then permission is required from the endorser and the endorser must be providing factual, honest information.

The confusion surrounding publicity rights raises serious chilling effects. As reported in the Hollywood Reporter, the NCAA is trying to take up an appeal in Keller v. EA Sports despite the settlement in the case following a ruling unfavorable to EA based on an application of the Transformative Use Test. The NCAA petition for cert (read here) provided:

[T]he interplay between right-of-publicity claims and the First Amendment is an issue on which the lower courts are badly divided. It is also important, affecting the fundamental rights of a wide array of speakers—from movie and television producers (e.g., The Social Network) to biographers and songwriters (Bob Dylan’s Hurricane), to videogame makers, like one of the defendants here.

Something must be done to restore to return the presumption of free speech and eliminate the chilling effect of publicity rights claims against communicative works. Publicity rights are very important economic and personal rights which should be enforced against commercial theft of identity, but that does not mean they should be used to stifle the ability of other authors and artists. A Supreme Court decision in Keller will be unlikely to develop the balance needed to restore the law. Instead federal legislation is a more likely tool to get the balance correct.

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[1] See, e.g., Donahue v. Warner Bros. Pictures Distributing Corp., 272 P.2d 177 (Utah 1954) (publicity rights statute limited to the use of name or likeness in advertising, or the sale of “some collateral commodity.”); Cal. Civ. Code § 3344(a) (West 1997) (limiting protection to use “on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent.”).

[2] See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). See also William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 383–85 (1960).

[3] Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 577 (1977) (In distinguishing between defamation, false light and publicity cases, the Court explained that the “Constitution does not prevent Ohio from … deciding to protect the entertainer’s incentive” to perform.)

[4] See Sorrell, 131 S. Ct. 2653, supra note 53 at 2663; Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 562 (1980); Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978) (upholding state lawyer advertising regulation); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-772 (1976) (establishing First Amendment protection for commercial speech and recognizing right of recipients of commercial speech to have access to the content).

[5] See, e.g., Comedy III Productions, Inc. v. Gary Saderup, Inc., 21 P.3d 797, 802 (Cal. 2001).

[6] Id. at 802 (although the speech was not an “advertisement, endorsement, or sponsorship of any product,” defendant nonetheless “used the likeness of The Three Stooges on . . . products, merchandise, or goods within the meaning of the statute.”).

[7] Moore v. Weinstein Co. LLC, 12-5715, (6^th Cir. Oct. 31, 2013) (unreported) quoting Restatement (Third) of Unfair Competition.

[8] Restatement (Third) Unfair Competition §47 (1995).

[9]  Id.  at cmt. c. (“the use of a person’s name or likeness in news reporting, whether in newspapers, magazines, or broadcast news, does not infringe the right of publicity. The interest in freedom of expression also extends to use in entertainment and other creative works, including both fiction and nonfiction.”).

[10] Id. at cmt. d.

[11] Hart v. Elec. Arts, Inc., 717 F.3d 141, 155 (3d Cir. 2013).

[12] Rogers v. Grimaldi, 875 F.2d 994 (2d Cir.1989).

[13] Id.  at 1004.

[14] Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo.2003) (en banc).

If a product is being sold that predominantly exploits the commercial value of an individual’s identity, that product should be held to violate the right of publicity and not be protected by the First Amendment, even if there is some “expressive” content in it that might qualify as “speech” in other circumstances. If, on the other hand, the predominant purpose of the product is to make an expressive comment on or about a celebrity, the expressive values could be given greater weight.

Id.  at 374.

[15] See New York Times v. Sullivan, 376 U.S. 254, 265 (1964). See also Valentine v. Chrestensen, 316 U.S. 52, 55 (1942) (commercial speech cannot evade regulation by appending protected first amendment content).

[16] See Hart, supra note 73 at 154 (“By our reading, the Predominant Use Test is subjective at best, arbitrary at worst, and in either case calls upon judges to act as both impartial jurists and discerning art critics.”).

[17] Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 404 (2001) (quoting Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 579 (1994) (citations omitted).

[18] Id.  at 407.

Furthermore, in determining whether a work is sufficiently transformative, courts may find useful a subsidiary inquiry, particularly in close cases: does the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted? If this question is answered in the negative, then there would generally be no actionable right of publicity. When the value of the work comes principally from some source other than the fame of the celebrity—from the creativity, skill, and reputation of the artist—it may be presumed that sufficient transformative elements are present to warrant First Amendment protection. If the question is answered in the affirmative, however, it does not necessarily follow that the work is without First Amendment protection—it may still be a transformative work.

[19] See Hart, supra note 73 at 152-53; O’Bannon v. NCAA, 2010 U.S. Dist. LEXIS 19170 (N.D. Cal. Feb. 8, 2010) (dismissing Keller v. Elec. Arts, Inc., 2010 WL 530108 (N.D. Cal. 2010) to substitute anti-trust claims for publicity rights claims); In re NCAA Student-Athlete Name & Likeness Licensing Litig., 2011-2 Trade Cas. (CCH) ¶ 77, 549 (N.D. Cal. 2011) (ongoing litigation emphasizing anti-trust implication of refusing to negotiate rights with former NCAA players).

[20] Brown v. Entm’t Merchs. Ass’n, supra note 37 at 2737 n.4.

[21] See Hart, supra note 71 at 148-49 (“Appellee [EA Sports] concedes, for purposes of the motion and appeal, that it violated Appellant’s right of publicity; in essence, misappropriating his identity for commercial exploitation.”)

[22] Cf. Comedy III, supra note 71 at 802; Hart, supra note 75 at 149.

[23] Garon, supra note 52 at 615, 624.

[24] See Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1017 (3d Cir. 2008) (quoting U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 933 (3d Cir. 1990)).

The Estate contends that the program is commercial speech, and we agree. Our Court has “three factors to consider in deciding whether speech is commercial: (1) is the speech an advertisement; (2) does the speech refer to a specific product or service; and (3) does the speaker have an economic motivation for the speech.”

When are video games unlike movies – when publicity rights are at stake

In a 2-1 vote, the Third Circuit Court of Appeals reversed a district court ruling in favor of EA Sports, finding that the publicity rights of Former Rutgers football player, Ryan Hart, were violated by depicting Hart in the videogame NCAA Football in 2004-06. The decision is a step forward for collegiate players seeking compensation from the exploitation by the NCAA and its licensing partners. The suit highlights the inability for players to receive compensation even after they have left college and NCAA eligibility rules no longer bar them from receiving payment.

The decision is step backwards for free speech advocates who seek clearer and more consistent protection from claims of publicity rights when celebrities and athletes are depicted in communicative works like films and video games. While the decision provides a thoughtful roadmap through the various legal tests applied to publicity rights, the court’s application of New Jersey law is at odds with the same test’s application in California. This will likely lead to increased confusion and more rounds of litigation until new statutes are enacted or cases decided.

The decision focuses on the exactitude of the video game in reproducing the player but unfortunately pays less attention to the exactitude of the Supreme Court/s recent decision in Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011). The Third Circuit quoted Brown on the protection afforded video games under the First Amendment. “[V]ideo games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).”

Although the court recognizes that “video games enjoy the full force of First Amendment protections,” it highlights the limits of those rights. “As with other types of expressive conduct,” the court explains, “the protection afforded to games can be limited in situations where the right of free expression necessarily conflicts with other protected rights.”

Seeking to apply the best balancing test between the First Amendment and state publicity rights, the court reviews and rejects both the “Predominant Use Test” and the “Rogers Test.” Under the Predominant Use Test, the Missouri Supreme Court held that “[i]f a product is being sold that predominantly exploits the commercial value of an individual’s identity, that product should be held to violate the right of publicity and not be protected by the First Amendment,   even   if   there   is   some ‘expressive’ content in it that might qualify as ‘speech’ in other circumstances.” Unfortunately the Missouri Supreme Court then treated a comic book as such a commercial product and found the use Tony Twist’s likeness a commercial misappropriation when transformed into the evil Anthony “Tony Twist” Twistelli. The Third Circuit correctly rejected this application of such a test.

By our reading, the Predominant Use Test is subjective at best, arbitrary at worst, and in either case calls upon judges to act as both impartial jurists and discerning art critics. These two roles cannot co-exist.

The Third Circuit similarly rejected the Rogers Test, which relies on trademark considerations.

In analyzing the right of publicity claim under Oregon law, the Second Circuit noted Oregon’s “concern for the protection of free expression,” and held that Oregon would not “permit the right of publicity to bar the use of a celebrity’s name in a movie title unless the title was wholly unrelated to the movie or was simply a disguised commercial advertisement for the sale of goods or services.”

The application of the Rogers test to the content of a work almost leads to a finding of free speech, although the content would violate the test where the content was really an advertisement. For example, where the paid ad were an advertorial, a newspaper column of paid content, or in the case of a TV episode which was little more than an infomercial for a forthcoming product. In these cases the content was also a disguised commercial advertisement for sale of goods or services. Unless the content were an advertisement, the Rogers Test would permit the publisher to succeed over the publicity rights.

The Third Circuit adopted the Transformative Use Test developed in California, which is based upon the Copyright Act’s fair use standard. Specifically, that court, in Comedy III Prods., Inc. v.  Gary Saderup, Inc., 21 P.3d 797, 804-08 (Cal. 2001), adopted the first fair use factor, “the purpose and character of the use,” as the sole determinant test to balance the publicity rights claims and free speech claims. In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)), the Supreme Court explained the meaning of this fair use factor:

whether the new work merely “supercede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”

The Transformative Use Test has been applied inconsistently in California:

• Tee-shirts depicting The Three Stooges to be insufficiently transformative to protect the free speech rights of the artist.
• Comic books depicting Johnny and Edgar Winter as “villainous half-man, half-worm creatures, both with long white hair and albino features” sufficiently transformative to be free speech.
• Video game depicting musician Kierin Kirby sufficiently transformative to protect Sega’s free speech rights to incorporate her image in a video game.
• Avatars depicting No Doubt in video game Band Hero were life-like depictions and therefore violation of contractual limitation on publicity rights was a violation of those rights.

The Third Circuit applied this transformative test and in a 2-1 decision found that the literal depiction of Hart’s avatar was insufficiently transformative to protect the free speech rights of the video game makers. The dissent emphasized the video game’s creative and transformative elements as a whole rather than the particular depiction in isolation.

Unfortunately both the majority and dissent ignored this highly inconsistent and arbitrary nature of the Transformative Use Test. Like the Predominant Use Test rejected by the court, the application of the Transformative Use Test remains a rather arbitrary rule. Since both the Hart decision and the Kierin Kirby decision were summary judgment decisions, the courts were basing their decisions on stipulations that the individuals were depicted in the games.

More troubling, if the First Amendment decision of Brown is to be given full effect, then this analysis should apply to television coverage of sports as well. If Hart’s image is exploited in a video game, is it not also exploited when broadcast? The NCAA cannot make any claim to the publicity rights of its former players or players who are no longer eligible under its rules. (Whether the nation’s colleges should be able to strip undergraduates of their privacy and publicity rights as a condition of college eligibility is a broader question best left to a different analysis.) I cannot distinguish between’ Hart’s avatar and a Tina Fey sketch on Saturday Night Live depicting Sarah Palin. Frankly, judges should be empowered to make that distinction either.

I have advocated for a different outcome,[1] based more closely on the Rogers Test of the Second Circuit that emphasizes that publicity rights only exist when the name or likeness is used for a commercial transaction. As such newspapers, news broadcasts, comic books and video games are immune from publicity rights claims unless they are used to promote a commercial transaction, in other words, they are a disguised advertisement for sale of a good or product.

In addition, a second category of commercial appropriation similarly exists when substantially then entire person’s act is exploited. Thus if a news station were to broadcast all of a concert under the guise of covering that concert, it would steal the commercial exploitation of the work itself. That approach accommodates the Supreme Court decision in Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977). In Zacchini, the entire act of the Human Cannonball was broadcast on the news and Zacchini sued for damages as a result. The Supreme Court explained that free speech rights must provide balance with state publicity rights, agreeing that a cause of action for Zacchini’s right of publicity was appropriate under Ohio law.

When a publisher of communicative content takes a substantial portion of the commercial work, then a fair use style balancing is essential to be sure that the communicative work has not usurped the marketplace of the commercial work. Such a test will protect the magicians, comedians, musicians, poets, and trapeze artists of the world. Depicting an athlete in a video game or in a fantasy sports league hardly usurps the athlete’s entire performance; it remains communicative rather than a product or service. It should not matter whether the depiction is accurate or transformed, for that decision is precisely an aesthetic decision inappropriate for determination by judges and courts.

The Hart decision may increase the importance of the Transformative Use Test outside of California, but it does not provide a more thoughtful or more predictable distinction between free speech and publicity rights. The time for a uniform state statute is finally at hand.

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[1] Garon, Jon M., Beyond the First Amendment: Shaping the Contours of Commercial Speech in Video Games, Virtual Worlds and Social Media (November 20, 2011). Available at SSRN: http://ssrn.com/abstract=1962369 or http://dx.doi.org/10.2139/ssrn.1962369;

Garon, Jon M., Playing in the Virtual Arena: Avatars, Publicity and Identity Reconceptualized through Virtual Worlds and Computer Games (March 26, 2008). Chapman Law Review, Vol. 11, No. 3, 2008. Available at SSRN: http://ssrn.com/abstract=1334950 or http://dx.doi.org/10.2139/ssrn.1334950.

2013 Informatics Symposium announced – focusing on informatics in labor and employment issues.

2013 Law + Informatics Symposium on Labor and Employment Issues The annual NKU Chase Law + Informatics Symposium will be held this academic year on February, 15, 2013 focusing on issues in labor and employment related to informatics, including such topics as candidate screening practices, employee privacy, data security and appropriate policies, gamification in training, and social media use. The program will include a day-long seminar and reception. Presentations delivered at the conference will be published by the Northern Kentucky Law Review. More information is provided below in the conference call for papers. A PDF of the Call for Papers is available.

Call for Papers The Northern Kentucky Law Review and Salmon P. Chase College of Lawseek submissions for the Law + Informatics Symposium on February 15, 2013. The focus of the conference is to provide an interdisciplinary review of issues involving privacy, data aggregation, security, communications, social media management and related topics affecting the legal and business practices involving labor and employment law. The symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas and explore emerging issues in informatics law as it applies to working conditions and employment practices. Interdisciplinary presentations are encouraged. Authors and presenters are invited to submit proposals on topics such as the following:

Privacy Application of the Americans with Disabilities Act Federal/state employment regulations regarding privacy HIPAA, FERPA, COPPA, GLBA & other sector-specific privacy issues EU & global privacy laws & policies Bioinformatics in the workplace Data mining of employee information Social media and political change Collective Bargaining Use of informatics tools for collective bargaining Collective bargaining positions on internet usage, data aggregation and social media Online dispute resolution Ownership of databases & data Contracting & enforcement of agreements over sharing of data Assessment of significant commercial expansions of informatics practices affecting public expectations & norms

Social Media Employee discipline for internet and social media use NLRB responses to social media Use of social media in employee screening Implications for privacy and discrimination lawsuits   Training and Security Gamification in training Computer security Data protection & obligations regarding data breaches Data reliability, including people’s rights to review & correct collected data Retraining and employee obsolecense   Other Issues Discrimination and access to public and semi-public information Employee ownership of intellectual property and data information Post-termination obligations of employers and employees Employee contracting and end user license agreements Global issues for similarly situated employees in multiple jurisdictions

Submissions & Important Dates: 

• Please submit materials to Nkylrsymposium@nku.edu
• Submission Deadline for Abstracts: October 1, 2012
• Submission Deadline for Articles: February 1, 2013
• Symposium Date: February 15, 2013

Law Review Published Article:  The Northern Kentucky Law Review will review, edit and publish submissions in the 2013 Spring Symposium issue.  Articles, as well as case studies and abstracts of research in progress, will be considered for the symposium program for presentation purposes.  Only complete articles, however, will be published in the law review.  Abstracts for these papers will be due no later than the October 1, 2012 deadline and will be accepted on a rolling basis until that time.

Presentations (without publication) based on Abstracts:  The Northern Kentucky Law Review will review and select presentations for the symposium.  If you are interested in presenting without submitting a publishable article, an abstract of the presentation must be submitted by the October 1, 2012 deadline and will be accepted on a rolling basis until that time.

About the Law and Informatics Institute:  The Law + Informatics Institute at Chase College of Law provides a critical interdisciplinary approach to the study, research, scholarship, and practical application of informatics, focusing on the regulation and utilization of information – including its creation, acquisition, aggregation, security, manipulation and exploitation – in the fields of intellectual property law, privacy law, evidence (regulating government and the police), business law, and international law. Through courses, symposia, publications and workshops, the Law + Informatics Institute encourages thoughtful public discourse on the regulation and use of information systems, business innovation, and the development of best business practices regarding the exploitation and effectiveness of the information and data systems in business, health care, media, and entertainment, and the public sector.

For More Information Please Contact:

• ProfessorJon Garon, Symposium Faculty Sponsor: garonj1@nku.edu or 859.572.5815
• Lindsey Jaeger, Director of Centers and Institutes Administration: JaegerL1@nku.edu or 859.572.7853
• Brad Andress, Symposium Editor: andressb1@nku.edu or 812.343.6822

LII Presents Ethics in Informatics Program on proposed changes to ABA guidelines and SEC Technology Guidance

Information and registration for our next even is now available.

Ethics in Informatics:

Changing Ethics Rules and New SEC Guidance Redefine the Competency of the Lawyer

featuring

Dean Dennis R. Honabach, Chair of the ABA’s Standing Committee on Professionalism

Professor Jon M. Garon, Director of the NKU Chase Law & Informatics Institute

Friday, May 4, 2012

Cincinnati, Ohio

The practice of law has largely gone digital in the past decade.  In response, the American Bar Association’s Commission on Ethics 20/20 is examining technology’s impact on the legal profession.  It has proposed a revision to the Model Rules of Professional Responsibility to make explicit the affirmative duty to prevent “the unintended disclosure of, or unauthorized access to, information relating to the representation of a client” to data privacy, security and reliability.  Not to be outdone, the Corporate Finance Division of the Securities and Exchange Commission has taken steps of its own to require greater awareness, disclosure and reporting of issues relating to technological knowledge held by a company – including its lawyers.

This program provides attendees guidance on three key areas:

• The existing and proposed ethical rules regarding technologically mediated client confidentiality;
• The lawyer’s role in assisting clients meet their affirmative duties of disclosure; and
• The lawyer’s duties regarding social media and cloud computing in the context of client communications, ex parte communications, and interactions with the judiciary in social media and cyberspace.

Date:	Friday, May 4, 2012
Time:	7:30 a.m. to 9:35 a.m. Continental Breakfast will be served from 7:30 a.m. to 8:00 a.m.
Location:	Wood, Herron & Evans, Floor 36, 441 Vine Street, Cincinnati, OH 45202
Registration fee:	$99.00 for general public and $89.00 for alumni
CLE credits:	1.5 Ethics CLE in Ohio & KY
For more information:	www.lawandinformatics.org/breakfastseries
Online registration:	Register online
Fax Registration:	Download a fax registration form
Call in registration:	(859) 572-7853 to reach Admin. Dir. Lindsey Jaeger

Dean Dennis R. Honabach is the co-author of D&O Liability Handbook and the Proxy Rules Handbook. He has published law review articles on topics ranging from managerial liability and Enron to toxic torts and legal education. Dean Honabach is the chair of the ABA’s Standing Committee on Professionalism, the co-chair of the Business Law Education Committee of the ABA’s Business Law Section and a member of the Misconduct and Irregularities Subcommittee of the LSAC.

Jon M. Garon is an attorney and professor of informatics, entertainment, intellectual property and business law. He has extensive practice experience in the areas of entertainment law (including film, music, theatre and publishing), data privacy and security, business planning, copyright, trademark, and software licensing.

“Ethics in Informatics” is the first presentation in the Law & Informatics Breakfast Series, which will address various topics on privacy, data security, social media and ethics. These programs will be hosted in downtown Cincinnati. We are very grateful to the law firms of Wood Herron & Evans LLP, Frost Brown Todd LLC, Baker & Hostetler LLP and Dinsmore & Shohl LLP for their support as hosts for this coming year’s program.

                         

Publishers are Free to use Athlete and Celebrities in Video Games without Permission

In Brown v. Entertainment Merchants Association (2011), the Supreme Court stated unequivocally that video games are entitled to the same broad First Amendment protections as those afforded to other media. But just as laws and regulations distinguish newspaper, magazine and television content from the advertising sold in those media, new policies are required to distinguish the communicative content of video games, virtual worlds and social media from the advertising and commercial purpose activity conducted in those media. Particularly in the area of publicity rights, states and courts have struggled to delineate those contours.

This article explains the emerging contours of commercial speech under recent First Amendment jurisprudence, highlighting the free speech rights of publishers, participants and players while shielding individuals from unfair commercial exploitation and protecting the public from misleading advertising.

By comparing the court decisions and statutes involving state publicity rights to the regulations of the FTC regarding commercial endorsements and the FCC involving broadcast advertising and sponsorships, states and courts can more carefully delineate what is appropriate for publicity rights and endorsements in video games, virtual worlds and social media.

What may be the most surprising aspect of this analysis is that the use of a sports figure or celebrity in a video game or virtual world should be treated as fully protected speech and those identities are free for the publisher and player to use. Recent cases involving Sam Keller, Ed O’Bannon, Ryan Hart have highlighted such unauthorized use. Only when the celebrity or athlete’s identity is used to sell some goods or services – other than the game itself – do the rights of publicity properly come into play. Of course, there are many good business reasons for acquiring the license and cooperation of celebrities, so the legal dispute will likely affect only controversial content of the licensing of athletes governed by the NCAA.

So What is Law & Informatics and Why Study it in Law School?

On November 4th the NKU Chase Law & Informatics Institute held our opening reception at the beautiful, new LEED certified Griffin Hall, host to the NKU College of Informatics. Well over one hundred attorneys, business leaders, faculty and students attended, including representatives of NKU and many other Tri-State universities.

Among the presentations made by NKU President, Dr. James Votruba, deans Dennis Honabach (Law) and Kevin Kirby (Informatics) was a short video directed by Informatics undergraduate student Kyle Breitenstein.

You can see the video here:

We are very grateful for the time and effort from everyone who worked on the event and attended the event.

As you watch the short video, I hope you find the answers to the questions of this post. Please let me know.

What is Law & Informatics? Visit YouTube to learn more: http://www.youtube.com/watch?v=Muk5n1aDX0k

Case Against Hurt Locker Dismissed

Federal district court judge Jacqueline Nguyen finalized her ruling dismissing the claims by Sgt. Jeffrey Sarver that he was the person depicted in the film. The original claim included claims for violation of publicity rights, defamation, false light and intentional infliction of emotional distress, but most of those claims had been dismissed earlier in the proceedings.

For filmmakers, the case is particularly important because the California district court awarded the defendants attorneys’ fees in the case.

As a legal matter, narrative films can certainly be held accountable for defamation if the film is “of or concerning” the plaintiff. A similar issue arose at the end of the movie, American Gangster, the Ridley Scott film starring Denzel Washington. At the end of the film a tag line read “collaboration [with law enforcement] led to the conviction of three quarters of New York City’s Drug Enforcement Agency.” In reality, according the defamation suit opinion, Lucas’ cooperation, “did not lead to the conviction of a single agent of the New York City office of the USDEA or any member of the NYPD, or any other law enforcement official in New York or elsewhere.” Unlike many of the defamation lawsuits, the filmmakers were clearly caught making an outright fabrication. In this case, however, the suit was dismissed because the defamation was of a large group – 400 current and former DEA agents. No particular agent was identified.

A similar threshold issue occurs in with Sgt. Sarver’s claim. Although Sarver claimed screenwriter Mark Boal based the film exclusively on him, Boal denied the allegation. “The Hurt Locker was inspired by many soldiers I met and interviewed during my time reporting in Iraq and elsewhere,” Boal wrote.

Judge Nguyen noted “[d]efendants unquestionably contributed significant distinctive and expressive content to the character of Will James.” If the character is a composite of many individuals and further transformed though the writing, directing and acting process, it is hard to show that the threshold question of “of or concerning” can be met.

There must certainly be a balance between the rights of an individual to be free of defamatory attacks and the rights of journalists and artists to express themselves. But the court here struck the right balance.