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Entertainment Law Flashcards

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1
Q

What are the two ways to defame someone?

A
  1. Libel: written/published defamatory statement

2. Slander: spoken defamatory statement

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2
Q

Elements of Defamation? (3)

A
  1. Publication (spoken or written)
  2. False Statement
  3. Identification of person being defamed
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3
Q

How many people does it take to satisfy the publication element of Defamation?

A

ONE

but this one person cannot be the plaintiff; must be another third party person

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4
Q

What is the absolute defense to the false statement element of Defamation?

A

Truth

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5
Q

False statements of opinion are/are not considered defamation.

A

Are not

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6
Q

Types of Defamation (2)

A

Defamation per se

Defamation per quod

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7
Q

Who can be defamed?

A

Private and public figures

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8
Q

Types of Public Figures (2)

A
  1. All purpose/general public figures

2. Limited public figures

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9
Q

Limited Public Figure 2 Part Test

A
  1. Public controversy, and

2. Individual injected themselves into the controversy (was not dragged into the controversy)

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10
Q

What is the difference between public and private figures?

A

Public figures must prove actual malice whereas private figures only have to prove negligence

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11
Q

Elements of Actual Malice

A
  1. Knew of or should have known the statement was false, or

2. Recklessly disregarded the statement’s falsity

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12
Q

What must be proven to receive punitive damages?

A

Actual malice

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13
Q

Damages allowed for defamation?

A
  1. General damages
  2. Special damages
  3. Punitive damages
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14
Q

General Damages and Defamation per se/quod

A

Per se: no evidence needed for damages to be awarded

Per quod: evidence required for damages to be awarded

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15
Q

Special Damages and Defamation per se/quod

A

Per se and per quod require evidence to award special damages

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16
Q

Punitive Damages and Defamation per se/quod

A

Actual malice must be proven to receive any punitive damages whether per se or per quod

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17
Q

Privileges (2)

A
  1. Absolute privileges

2. Qualified privileges

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18
Q

When do absolute privileges apply?

A

Apply all the time no matter what to:

  1. What is said in court or legislature
  2. Official comments and statements made by public officials
  3. Personnel recommendations

Cannot be held liable for any statements in the above situations ever

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19
Q

When do qualified privileges apply?

A

Typically in regards to mass media:

  1. Completely,
  2. Fairly, and
  3. Accurately reported.
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20
Q

TX Retraction Statute

A

P must request a retraction

P may still sue even though D issued a retraction

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21
Q

What does SLAPP stand for?

A

Strategic Lawsuit Against Public Participation

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22
Q

What is a SLAPP suit?

A

Attempt by the wealthy to silence the press or critics through threat of litigation

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23
Q

TX has Anti-SLAPP legislation; what does it entail?

A

P must show that he has a likelihood of success before the suit may continue; discourages frivolous lawsuits

If P can’t prove likelihood of success, then he must pay D’s attorney’s fees.

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24
Q

Is a defamatory statement against a deceased person actionable?

A

No, the estate/family cannot bring defamation suit

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25
Can defamation apply to fictional work?
Yes, must be able to prove the elements of defamation | publication, false statement, identification
26
Main Areas of Privacy Law (3)
1. Publication of private facts 2. Intrusion upon seclusion 3. Appropriation of likeness
27
Elements of Public Disclosure
1. Public disclosure, 2. Of private facts, 3. Which would offend a reasonable person, and 4. Is not of legitimate public concern.
28
Is disseminating true, newsworthy material actionable?
No, not if of legitimate public concern
29
Factors of Newsworthy
Must look at: 1. Social value, 2. Degree of intrusion, and 3. How famous P is.
30
What are the two competing societal interests of the Privacy law?
The right to privacy and the right to know
31
Intrusion Upon Seclusion Elements
1. Intrusion into private place, and | 2. Highly offensive to a reasonable person.
32
How to know if have a zone of privacy?
In a zone of privacy if there is a reasonable expectation of seclusion or solitude
33
Seclusion is relative to what facts?
1. Who is being intruded upon, and 2. Nature of the intrusion. Remember: intrusion upon seclusion protects against the physical act of intrusion, not republication
34
Is the workplace considered a private place?
The workplace itself is not private, but there is an expectation of privacy in that what is said in the workplace will not be disseminated to the public.
35
Appropriation Elements
1. D's use of P's name, likeness, or identity, 2. Usually without P's consent 3. For commercial use or other advantage to D, and 4. Resulting in injury to P.
36
Claims under Appropriation (2)
Right to Privacy (emotional/mental anguish) | Right to Publicity (economic value attached to the use of someone's likeness)
37
In regards to appropriation, is consent optional?
Not usually, but it can be optional when something is a legitimate public concern
38
Which prevails in a conflict between the 1st Amendment right to Freedom of Expression and Publicity?
1st Amendment if the work is transformative | Right to Publicity if the work is a literal copy
39
How to determine if work is transformative and what is a good example of transformative work?
Look at economic value of transformative work: - Does the work have value because of the celebrity who is printed on it or because of the artist's talent, creativity, or reputation? Good example of transformative work: Andy Warhol and Marilyn Monroe
40
What can be consented to?
1. Intrusion upon seclusion 2. Public disclosure of private facts 3. Defamation
41
Scenes a Faire Test
Substantial Similarity Test (factor test) 1. Traits, 2. Themes, 3. Plots, 4. Settings, 5. Sequences, and 6. Pace. Total concept and feel of these traits
42
Character Delineation Test
How the character develops over the story - specifically developed: character copyrightable through expression - general character type: not copyrightable
43
Story Being Told Test
If the character is essential to the story being told: copyrightable If the character is only a pawn the overall story: not copyrightable
44
Things not copyrightable (9)
1. Facts, 2. Ideas, 3. Research, 4. Themes, 5. Plots, 6. Non-creative titles 7. Slogans, 8. Methods, and 9. Formulas/equations.
45
Joint work elements
1. Parties must intend to work together 2. There must be at least two parties 3. Merger must be inseparable or interdependent
46
How long does a copyright last if there is a sole author?
Til the death of the author + 70 years
47
How long does a copyright last for a joint work?
Til the death of the last author + 70 years
48
How long does a copyright last if it is a work for hire or no identifiable creator?
120 years after the work was created, or 95 years after the work was first published (whichever ends sooner)
49
Instances where Work Made for Hire arises (2)
1. Employee/employer relationship | 2. Independent contractor
50
Independent Contractor Elements
1. Work ordered and commissioned, 2. Agreement in writing, and 3. Work falls within 1 of 9 categories.
51
Categories of Work covered by Independent Contractors
1. Parts of a movie 2. Audiovisual work 3. Compilations 4. Supplemental works 5. Translations 6. Instructional texts 7. Tests 8. Answers to tests 9. An atlas
52
Exclusive Rights of Copyright (4)
Exclusive right to: 1. Reproduce 2. Distribute 3. Derivative works 4. Perform publicly
53
First Sale Doctrine
Allows someone who purchases a legal copy of a work has the right to watch/read/listen, sell, lend, or lease the copy to someone else This an exception to the exclusive right to distribute
54
Public Performance Test
1. Is the space normally open to the public? 2. Is the space where a substantial number of people outside the normal family/social acquaintances can view? If yes: public space If no: private space
55
Compulsory or Mechanical Licenses
Allows for adaptation of the work so long as the new version did not pervert the original This is an exception to the exclusive right to reproduction
56
All transfers of writing must be...
In writing
57
Copyright Infringement is a _______ _________ concept.
Strict Liability | Can subconsciously infringe; no intent necessary
58
How to determine if something is substantially similar?
Compare factors such as: 1. Plots 2. Mood 3. Characters 4. Setting 5. Pace 6. Themes
59
Types of Copyright Infringement (2)
1. Vicarious Liability | 2. Copyright Infringement
60
Vicarious Liability Elements
Someone can be held liable for someone else's infringement if the first person has the: 1. Right and ability to supervise, and 2. Financial interest.
61
Copyright Infringement Elements
Someone can be held liable if they: 1. Knew or should have known about infringement, and 2. Encouraged or assisted in the infringing act (material contribution) Knowledge can be actual or constructive
62
Fair Use Doctrine Factors to consider
Factor test, not an elements test 1. Purpose and character of infringing work 2. Nature of original work 3. Amount and substantiality of the original work used 4. Effect on the market for the original work
63
Purpose and Character of the Infringing Work
If the infringing work is transformative: fair use | If the infringing work is commercial use: unfair
64
Nature of the Original Work
If the original work is creative: unfair | If the original work is factual/informative: fair use
65
Amount and Substantiality of the Original Work Used
If a parody: must use enough of the original work to make sense
66
Effect on the Market
If substantial impact on the original work's market: unfair If subtle impact on the original work's market: fair use If parody: can never be considered a market substitute for the original
67
Preemption Test
Federal law trumps state law 1. Substantial matter 2. Equivalent rights think if making promise to do something, is it a promise to pay or a promise not to infringe? - if promise to pay: not covered by Copyright Act and preemption does not come into play - if promise not to infringe: covered by the Copyright Act and preemption prevails
68
Damages available under Copyright
1. Injunctive relief 2. Lost value of the license 3. Lost profits Punitive damages not allowed
69
Statutory Damages, Willful Infringement, and Innocent Infringement
Statutory: $750 - $300,000/work infringed Willful Infringement: up to $150,000/work infringed Innocent Infringement up to $200/work infringed Treat all parts of a compilation as ONE work (if individual songs, more works infringed; if CD as a whole, less works infringed)

Entertainment Law (1 decks)

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