JUMP CUT
A REVIEW OF CONTEMPORARY MEDIA

Notes

 1. Marbury v. Madison (1803) accessed on July 5, 2016, https://supreme.justia.com/cases/federal/us/5/137/case.html.

2. American Express v. Italian Colors Restaurant (2013)(upholding the contract between American Express and merchants that mandated arbitration and barred class action lawsuits, notwithstanding the claim that such an agreement violated the U.S. anti-trust laws and effectively barred individual merchants from obtaining relief given the expense of non-class action arbitration), accessed July 5, 2016, http://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf.

3. See, for example, Roe v. Wade (1973), accessed July 5, 2016, http://caselaw.findlaw.com/us-supreme-court/410/113.html.

4. Citizens United v. Federal Election Commission (2010)(invalidating under the First Amendment a ban on certain corporate financial contributions to political campaigns), accessed July 5, 2016, http://www.supremecourt.gov/opinions/09pdf/08-205.pdf.

5. While the concept of an open marketplace of ideas can be traced back centuries to John Milton’s Areopagitica (1644), the view that the First Amendment encourages a “marketplace of ideas” originated in Justice Holmes’s famous dissent in Abrams v. United States (1919) in which he criticized the majority’s affirmance of a criminal prosecution for the violation of an amendment to the Espionage Act of 1917. 

“The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

For a criticism of this concept, see, for example, Stanley Ingber,  “The Marketplace Of Ideas: A Legitimizing Myth,” Duke Law Journal, Vol. 1984, No. 1, accessed July 5, 2016, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2867&context=dlj.

6. California Code of Civil Procedure, Section 425.16.

7. Sarver v. Chartier (9th Cir. 2016) accessed July 5, 2016,
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/17/11-56986.pdf.

8. Fola Akinnibi, “9th Circ. Denies Rehearing In 'Hurt Locker' Ruling,” Law360, April 22, 2016, accessed July 5, 2016,
http://www.law360.com/articles/788135/9th-circ-denies
-rehearing-in-hurt-locker-ruling
.

11. See “NCAA reaches settlement in EA video game lawsuit,”
June 9, 2014,” accessed July 5, 2016,
http://www.ncaa.org/about/resources/media-center/press-releases/ncaa-reaches-settlement-ea-video-game-lawsuit.

12. See letter dated December 3, 2015, from Sarver’s attorney to the Ninth Circuit’s Clerk of the Court, accessed on July 5, 2016,
http://www.rightofpublicityroadmap.com/sites/rightofpublicityroadmap.com
/files/pdfs/voltage-sarver_-_sarver_status_letter_to_ninth_circuit.pdf
and Order dated December 24, 2015, July 5, 2016,
http://www.rightofpublicityroadmap.com/sites/
rightofpublicityroadmap.com/files/pdfs/sarver_resubmit.pdf
.

13. Makaeff v. Trump University, LLC (9th Cir. 2013), accessed July 5, 2016,
 http://cdn.ca9.uscourts.gov/datastore/opinions/2013/04/17/11-55016.pdf

14. Ibid., 21-22.

15. The U.S. Supreme Court had recognized decades ago that movies are entitled to protection under the First Amendment in Joseph Burstyn, Inc. v. Wilson (1952), accessed July 5, 2016, https://scholar.google.com/scholar_case?case=
5628256980652867975&hl=en&as_sdt=6&as_vis=1&oi=scholarr
.

16. Keller v. Electronic Arts (9th Cir. 2013), 6-7, accessed September 16, 2016, https://www.eff.org/files/keller_v._ea_-_ninth_circuit.pdf. Keller, in fact, involved nine student athletes, and the extent to which EA sought to duplicate these athletes’ characteristics (as well as others in this class action lawsuit) is evident in the Court’s description of EA’s football video game:

“Every real football player on each team included in the game has a corresponding avatar in the game with the player’s actual jersey number and virtually identical height, weight, build, skin tone, hair color, and home state. EA attempts to match any unique, highly identifiable playing behaviors by sending detailed questionnaires to team equipment managers. Additionally, EA creates realistic virtual versions of actual stadiums; populates them with the virtual athletes, coaches, cheerleaders, and fans realistically rendered by EA’s graphic artists; and incorporates realistic sounds such as the crunch of the players’ pads and the roar of the crowd.”

17. Ibid., 9.

18. Ibid.,10.

19. Comedy III Productions v. Gary Saderup (Ca. 2001), 141, accessed July 5, 2016, https://scholar.google.com/scholar_case?case=
6376074772628774470&hl=en&as_sdt=6&as_vis=1&oi=scholarr
.

20. Ibid., 6 and 18.

21. “The Third Circuit [applying the “transformative use” test developed by the California Supreme Court] came to the same conclusion in Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013). In Hart, EA faced a materially identical challenge under New Jersey right-of-publicity law, brought by former Rutgers quarterback Ryan Hart.”  Ibid., 19.

22. Ibid., 21.

23. Ibid., 30.

24. In distinguishing video games as mere entertainment and hence entitled to less protection, the Ninth Circuit echoes the U.S. Supreme Court’s refusal at the turn of the twentieth century to recognize that the First Amendment protects movies. In Mutual Film Corp. v. Industrial (1915), 242, 243 and 244, accessed July 5, 2016, https://scholar.google.com/scholar_case?case=
7270078849202844362&hl=en&as_sdt=6&as_vis=1&oi=scholarr
, when respectable society viewed movies as entertainment for the urban, often immigrant masses and a corrupting influence on the spiritual values of the dominant culture, the Court upheld local censorship of movies based on those dominant cultural values.

“[T]hey may be used for evil, and against that possibility the statute was enacted. Their power of amusement and, it may be, education, the audiences they assemble, not of women alone nor of men alone, but together, not of adults only, but of children, make them the more insidious in corruption by a pretense of worthy purpose or if they should degenerate from worthy purpose. Indeed, we may go beyond that possibility. They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to. Besides, there are some things which should not have pictorial representation in public places and to all audiences." ...

"They, indeed, may be mediums of thought, but so are many things. So is the theatre, the circus, and all other shows and spectacles, and their performances may be thus brought by the like reasoning under the same immunity from repression or supervision as the public press, — made the same agencies of civil liberty." ...

"They are mere representations of events, of ideas and sentiments published and known, vivid, useful and entertaining no doubt, but, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition.”

25. Ibid., 43.

26. Davis v. Electronic Arts (9th Cir. 2015), 4, accessed July 5, 2016, http://cdn.ca9.uscourts.gov/datastore/opinions/2015/01/06/12-15737.pdf.

27. Ibid., 5. Like Keller, Davis included a class action with representative plaintiffs.

28. Keller involved student athletes whose teams were members of the National Collegiate Athletic Association (NCAA), a non-profit association which regulates such athletes at colleges and universities in the U.S. and Canada. Given the highly commercial nature of such “non-professional” athletics in the US, some have argued that student athletes should routinely be compensated. See, for example, Joe Nocera, “A Way to Start Paying College Athletes,” The New York Times, January 8, 2016, accessed July 5, 2016, http://www.nytimes.com/2016/
01/09/sports/a-way-to-start-paying-college-athletes.html
. In fact, the settlement in Keller resulted in compensation to these athletes from the NCAA’s licensing arm.  Tom Farrey, “Players, game makers settle for $40M,” ESPN, May 31, 2014, accessed July 5, 2016, http://espn.go.com/espn/otl/story/_/id/11010455/
college-athletes-reach-40-million-settlement-ea-sports-ncaa-licensing-arm
.

Moreover, in finding that the NCAA rules that bar compensation for the use of such student athletes’ name and likeness are subject to US anti-trust laws, the Ninth Circuit has specifically upheld, under a “rule of reason”, a trial court’s mandating as an alternative to the NCAA’s rule “allowing NCAA members to give scholarships up to the full cost of attendance.” O’Bannon v. NCAA (9th Cir. 2015), accessed July 16, 2016, http://www.scotusblog.com/wp-content/uploads/2016/04/ncaa-op-below.pdf .

In contrast, Davis involved professional athletes whose teams are members of the National Football League, a for-profit trade association that regulates American football for such athletes in the US.

29. Sarver v. Chartier (9th Cir. 2016), 16, July 5, 2016, https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/17/11-56986.pdf.

30. Ibid., 23.

31. Ibid., 25

32. Ibid., 25 and 26.

33. Ibid., 26.

34. Sarver at 26-27.

35. Cariou v. Prince (2nd Cir. 2013), 18, accessed July 5, 2016, https://www.law.berkeley.edu/files/Cariou_v_Prince_-_2d_Cir_2013.pdf

36. It is questionable whether the Court would have approved an unknown photographer’s use of images of Prince’s canvasses as “raw material,” considering the substantial market value of Prince’s canvasses. The Court was seemingly aware of that issue when it distinguished in Prince its line of cases in which the producers and copyright owners of celebrated television shows and movies had successfully prevented the publication of “complete guides”, quiz books and lexicons based on those shows and movies. See, for example, Castle Rock Entertainment v. Seinfeld Carol Publishing (2d Cir. 1998) (trivia quiz book based on Seinfeld TV show); Twin Peaks v. Publications International (2d Cir. 1993)(“complete guide” to Twin Peaks TV show); Warner Bros Entertainment v. RDR Books (SDNY 2008)(lexicon on the Harry Potter series). In these cases, the Court had held that such books affected the producers’ licensing market. Thus, in contrast to Prince’s “transformative” canvasses, these books, according to the Court in Prince, merely presented “the same material but in a new form,” and hence were “derivative” and infringed. Economic value frequently determines what’s fair and hence in the public interest.

37. For a thorough, legal analysis of how courts have increasingly adopted a “raw material” doctrine in areas of copyright and right of publicity and a critique of that adoption, see Andrew Gilden, “Raw Materials and the Creative Process,” 104 Geo. L. J. 355 (2015-2016). 

38. Sarver at 8.

39. Ibid., 9.

40. Ibid., 29.

41. Bleistein v. Donaldson Lithographing Company (1903), 251, accessed July 5, 2016, https://scholar.google.com/scholar_case?case=
3277054592305773876&hl=en&as_sdt=6&as_vis=1&oi=scholarr
. In that case Justice Holmes refused to deny the copyrightability of commercial posters for a circus.

42. Rosa and Raymond Parks Institute for Self Development v. Target (11th Cir. 2016), 14, accessed July 5, 2016, http://media.ca11.uscourts.gov/opinions/pub/files/201510880.pdf.

43. The differing standards in defamation cases as applied to public persons as opposed to private persons finds its origins in New York Times v. Sullivan (1964). The U.S. Supreme Court in Sullivan mandated under the First Amendment a higher standard of proof, namely a showing of “actual malice,” where a “public official” alleged a claim for libel against The New York Times.

44. Makaeff v. Trump University, Order Regarding Plaintiff Tarla Makaeff’s Motion To Withdraw, March 21, 2016, 8, accessed July 5, 2016, http://www.politico.com/f/?id=00000153-9f99-d022-ad57-ffddf4d80002.

45. Reid J. Epstein, “Trump Attacks Federal Judge in Trump U Case,” The Wall Street Journal, May 27, 2016, accessed on July 5, 2016, http://blogs.wsj.com/washwire/2016/05/27/trump-attacks-federal-judge-in-trump-u-case/. Thus, Trump told the crowd attending a rally for his presidential candidacy, “I have a judge who is a hater of Donald Trump, a hater. He’s a hater. His name is Gonzalo Curiel.” He also added, “What happens is the judge, who happens to be, we believe, Mexican, which is great. I think that’s fine.” Moreover, having advocated for the construction of a wall between the U.S. and Mexico in order prevent unlawful immigrants from entering the US, Trump later claimed that an “inherent conflict of interest” should bar Judge Curiel from hearing the case given that he was of “Mexican heritage”. Scot Bixby, “Donald Trump says judge in university court case biased by 'Mexican heritage,'” The Guardian, July 5, 20016, accessed June 3, 2016, http://www.theguardian.com/us-news/2016/jun/03/donald-trump-judge-curiel-university-case-biased-mexican?utm_source=esp&utm_medium=Email&utm_campaign=GU+Today
+USA++morning+briefing+2016&utm_term=175528&subid=7931573&CMP
=ema_a-morning-briefing_b-morning-briefing_c-US_d-1
.

There are, of course, additional, recent and well-publicized instances where the application of the anti-SLAPP laws might also be appropriate. For example, a jury awarded Hulk Hogan a $140 million judgment against Gawker Media for publishing a video showing Hogan engaged in a sexual relationship with a friend’s wife. It was only revealed, however, post-trial that investor Peter Thiel had funded the lawsuit as a means of taking revenge on and putting out of business Gawker Media for its reporting several years ago that Thiel was gay. See Katie Rogers and Danielle Ivory, “For Gawker, Legal Issues Beyond Hogan,” The New York Times, July 5, 2016, accessed May 31, 2016, http://www.nytimes.com/
2016/05/31/business/media/gawker-lawsuits.html?ref=todayspaper
. Thiel’s funding of that lawsuit had its intended impact upon Gawker Media. After filing for bankruptcy protection, Gawker Media shut down the site gawker.com as well as offered for sale its remaining assets. Univision eventually purchased Gawker Media’s assets and has since eliminated those online postings that are the subject of litigation, accessed September 14, 2016,  https://www.cnet.com/news/gawker-medias-new-owner-tries-to-wipe-the-slate-clean/.  

46. “Matthew Perlman, “9th Circ. 'Hurt Locker' Ruling Could Harm Athletes: Unions,” Law 360, March 14, 2016, accessed July 5, 2016, https://www.law360.com/articles/770918.

47. Boal had, in particular, authored and then had published in Playboy in 2005 an article recounting his experience as an embedded journalist in Iraq and focusing on Sarver with whom Boal was embedded. Sarver claimed that he did not consent to the publication of the article.

48. The U.S. Supreme Court in the context of a libel claim has characterized the “involuntary public figure” as “exceedingly rare.” Gertz v. Robert Welch (1974), accessed July 5, 2016, https://supreme.justia.com/cases/federal/us/418/
323/case.html
.   An example of an “involuntary public figure” may, however, be found in Dameron v. Washington Magazine, Inc., (D.C. Cir. 1985), accessed July 5, 2016, https://law.resource.org/pub/us/case/reporter/F2/779/779.F2d.736.84-5082.84-5056.html, where an air traffic controller was on duty at the time of a fatal crash, a major public event. As such, he became an “involuntary public figure” for purposes of that crash and hence subject to a higher standard of proof in seeking compensation for his defamation claim.

49. Thus, for example, while identifying no right of privacy in the U.S. Constitution, the U.S. Supreme Court has upheld the rights of contraception and abortion, struck down sodomy laws and upheld a right to marriage by persons of the same sex by relying up an implied constitutional right of privacy or “liberty interest” under various constitutional guarantees, such as the right to due process. See Griswold v Connecticut (1965) (contraception), Roe v. Wade (1973) (abortion), Lawrence v. Texas (2003) (sodomy) and Obergefell v. Hodges (2015) (same sex marriage).

50. Other countries obviously differ in their values. The EU’s controversial decision on the “right to be forgotten” underscores the greater value that the EU places on individual privacy. Press Release No. 70/14, Court of Justice of the European Union, Luxembourg, May 13, 2014, accessed July 5, 2016, http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140070en.pdf.

51. William Prosser, “Privacy”, California Law Review (August 1960), Vol. 48, Issue 3, 389, accessed July 5, 2016, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3157&context
=californialawreview
.

52. Samuel Warren and Louis Brandeis, “The Right to Privacy,” The Harvard Law Review, Vol. IV, No. (1890), 204 and 205, accessed July 5, 2016, http://faculty.uml.edu/sgallagher/Brandeisprivacy.htm.

54. Edward Snowden in 2013 revealed the most startling evidence of U.S. government surveillance. Laura Poitras’ movie CitizenFour (2014) and Glen Greenwald’s book No Place to Hide (2014) then documented those revelations. There is a veritable “cottage industry” documenting and discussing surveillance by private corporations. See, for example, Cullen Hoback’s movie Terms and Conditions May Apply (2013) and such books as Lawrence Lessing’s Code, Version 2.0 (2006) and Theresa Peyton/Theodore Claypoole’s Privacy in the Age of Big Data (2014)

55. Since the U.S. Copyright Act now enables copyright owners to secure exclusive rights to copyrighted material for the life of the author plus 70 years, 17 U.S. Code § 302, this means, for example, that The Jazz Singer (1927), the movie generally identified as the first “talkie,” theoretically remains under copyright protection and its current owner retains exclusive rights to this movie for several more years. The Act also bars access to material, regardless of its copyrightability or whether it remains under copyright, through the breaking of anti-circumvention technology or “locks” – even for purposes of fair use – unless the Librarian of Congress has expressly permitted by regulation such access. 17 U.S. Code § 1201; MDY Industries, LLC v. Blizzard Entertainment, Inc. (9th Cir. 2010), accessed July 5, 2016, http://cdn.ca9.uscourts.gov/datastore/opinions/2011/02/17/09-15932.pdf. Until recently, for example, teachers in the U.S. could not copy excerpts from Blue Ray discs (as opposed to DVDs) even for purposes of showing such movie excerpts in classes on the movies themselves.

56. Jack Valenti made that argument in testifying before a U.S. Congressional Hearing in 1982 following the Ninth Circuit’s decision in the “Betamax” case in which the Court had held that consumers through their use of Sony’s Betamax recorder infringed the copyrights of motion picture producers. See Hearings before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary House Of Representatives, Ninety-Seventh Congress Second Session, accessed July 5, 2016, http://cryptome.org/hrcw-hear.htm. The U.S. Supreme Court later reversed the Ninth Circuit’s decision. However, Valenti’s argument ultimately prevailed, resulting, for example, in the U.S. Digital Millennium Copyright Act (“DMCA”) that includes the prohibition on anti-circumvention technology, the Office of the U.S. Intellectual Property Coordinator that acts to protect against violations of the rights of IP owners, and the Trans-Pacific Partnership Agreement (“TPP”) whose copyright provisions largely track and in some instances expand upon the restrictions of the DMCA.