Thursday, October 12, 2017

Company that Owns Muhammad Ali sues Fox over Tribute to Late Boxer

By Professor Jennifer E. Rothman

This post originally appeared on Rothman's Roadmap to the Right of Publicity.

The company that owns and manages former boxing great Muhammad Ali's right of publicity and trademarks has sued Fox Broadcasting in federal district court in Illinois. The complaint filed today claims that Fox's broadcast of a memorial to Muhammad Ali leading up to the broadcast of the 2017 Super Bowl violated Ali's right of publicity under Illinois law and the federal Lanham Act. The Lanham Act claim is that the broadcast falsely suggested that Muhammad Ali Enterprises (the plaintiff company) endorsed the short film.

The edited spot runs approximately 3 minutes in length and uses newsreel and sports footage of Ali, combined with footage of football greats, like Joe Montana and Tom Brady, to celebrate the spirit of legendary athletes and to honor the deceased Ali. Although some journalists have characterized the short as an advertisement, and one could see it as promoting the feel-good-spirit of the Super Bowl and Fox's upcoming broadcast, it is clearly styled as a tribute to Muhammad Ali who had died the year before. As such, I think there are strong arguments that it is not an advertisement and is not commercial speech. It therefore should receive full First Amendment protection.

Muhammad Ali Enterprises, now reportedly owned by Authentic Brands, was no doubt emboldened by Michael Jordan's victory against two supermarkets that used his name and jersey number in an issue of Sports Illustrated to celebrate his induction into the Basketball Hall of Fame. Jordan won more than $9 million in those cases. But those cases are quite different than this one. There was little dispute that the use of Jordan's name promoted the markets, and one of the one-page spreads included a coupon for a steak underneath the message about Jordan. It is not clear that this longer form celebration of Ali and athletics is so clearly directed at selling a product or show. (I also note, as I have written elsewhere, that greater latitude should have been given to the supermarkets to simply congratulate Jordan, though perhaps not to sell steaks with his name above them.)

Wednesday, October 11, 2017

Major Victory for Fantasy Sports against College Athletes

By Professor Jennifer E. Rothman

This post originally appeared on Rothman's Roadmap to the Right of Publicity.

Last week while a California trial court let the right of publicity run roughshod over the First Amendment in a case involving a docudrama, an Indiana district court in Daniels v. Fanduel rejected the right of publicity claims brought by former NCAA football players, Akeem Daniels, Cameron Stingily, and Nicolas Stoner against fantasy sports leagues run by FanDuel and DraftKings.

The former student-athletes complained about both websites using their names, statistics and likenesses to operate and promote the fantasy sports games. The players claimed the uses violated Indiana’s right of publicity law. The defendants asserted a number of defenses, including that the uses fell under Indiana’s statutory exemptions, were allowed by (and protected by) the First Amendment, and were barred by federal copyright law.

There was no challenge to the fact that the use of the players’ identities was for a commercial purpose as required by Indiana law. The websites are pay sites and the court noted that in 2015 the fantasy sports industry generated $3 billion in “customer entry fees.”


Thursday, October 5, 2017

The Plot (and Feud) Thickens

By Professor Jennifer E. Rothman

This post originally appeared on Rothman's Roadmap to the Right of Publicity.

On Friday, a California superior court agreed with two-time Oscar winner Olivia de Havilland that her lawsuit against FX Networks could proceed. FX had sought to put a swift end to her lawsuit arising out of her portrayal in the network’s critically acclaimed miniseries, Feud. The series chronicled the longstanding conflict between Joan Crawford and Bette Davis. My prior post on the lawsuit discusses in more detail the miniseries and de Havilland's claims, but since that post de Havilland wisely amended her complaint to include false light and defamation claims.

FX had sought to have de Havilland’s Second Amended Complaint tossed using California’s anti-SLAPP law (Strategic Lawsuit Against Public Participation), which allows for the early dismissal of lawsuits that limit free speech. But when courts determine that there is a likelihood of success―at least if a plaintiff’s version of the facts is true―courts often let the cases proceed. This is what happened here.

No written order with legal conclusions has been released yet, but the court issued an order denying FX’s motion to strike de Havilland’s complaint. According to reports from the courtroom, California superior court judge Holly Kendig thought that de Havilland had met her burden of showing a likelihood of success on her defamation, false light, and right of publicity claims.

De Havilland’s defamation and false light claims merit some discovery, even though they will likely fail. Showing that FX and the creators of the show demonstrated actual malice toward de Havilland will be an uphill battle. Unless they knew that the portrayal was false or had reason to know that it was, her claims cannot stand. The defamation claim also is weak because her portrayal was not one that would negatively reflect on her. The false light claim may have more staying power because it has no such requirement. Still a false light claim must overcome the actual malice hurdle. Determining whether de Havilland was defamed or falsely portrayed, and whether this was done with actual malice will require fact-finding, and therefore the judge legitimately allowed those claims to proceed―even if FX will likely prevail on them.

Selection Bias: The Character of Policing on the Street

By Professor Eric Miller 

This post originally appeared on Prawsblawg, where Prof. Miller is guest blogging.

Criminal procedure scholars tend to think of policing in terms of the way the Constitution permits or restricts certain police practices; and more narrowly, in terms of what rights may be asserted by criminal suspects against the police. But most of what counts as policing is low visibility: out of sight of the courts that could enforce these constitutional regulations. Of much more importance to policing are the laws and policy decisions about who gets to be a police officer, and what training they receive. The selection and training issue has become especially pressing with he “rise of the warrior cop,” and the ways in which the discussion of policing selection and police training has been insulated from public and political scrutiny.

The core case on police selection is Washington v. Davis, which is often thought of as a Title VII and civil rights case. Davis was, however, a police selection case seeking to diversify the police force of Washington, D.C. And hidden behind Davis is a story of who gets to control the standards used to train the D.C. Metropolitan Police Department. By 1976, African American police officers were making strides in admittance to the department; by 1978, the Chief of Police was African American, as were the majority of the officers. Nonetheless, just two years earlier, Davis had argued that the police test was having a discriminatory impact; the Court sided with the police in requiring a showing of discriminatory intent.

Thursday, September 14, 2017

Policing and Procedural Justice in an Unjust Society

By Professor Eric Miller 

This post originally appeared on Prawsblawg, where Prof. Miller is guest blogging.

There is a sense, at least among a chunk of people, that policing in this country is broken: that the police are an authoritarian group that too often ignore the rights of minorities, especially African Americans, but also Latinos and other minority groups. The police hold these groups in contempt, and engage in unwarranted violence against minorities without being held properly to account. The popular reform proposed for this kind of police violence is "procedural justice": training the police to allow the people they encounter to given their side of the story before engaging in further action, increasing the chances that the civilian will voluntarily comply. The upside for the public is that "procedural justice" lowers the likelihood of police violence. The downside is that it is touted as real reform. But "procedural justice" is an inherently conservative response to problems with policing, and ignores—and perhaps even obfuscates—the need for real change. Worse, it potentially places the police in harms way in a manner that has longlasting moral and political (and perhaps psychological) costs for the police and the public. Here's why.

One way of seeing the problem is to realize that "procedural justice" explains the psychological impact on civilians of procedural due process. If police officers adhere to a form of procedural due process on the streets, civilians are more likely to comply with their directives. From a justice-oriented perspective, however, introducing procedural due process as a standard operating procedure for the police seems like a mealy mouthed—and long overdue—reform.

A standard critique of procedural due process is that it is insensitive to background considerations of justice. Procedural due process simply ensures that the parties get a chance of a hearing before someone who does not have a clear interest in the outcome of some dispute. But if the background equities are stacked against one of the parties, then that party has a much harder chance of success, even though the procedure used is just (in the sense of ensuring the parties get the right amount of participation). Worse, having committed to the procedure, the parties are bound by the results. The loser is disempowered from protesting her loss (except by means provided by the procedure, such as an appeal to some other authority, if such a right exists). Systems of procedurally just systems are often substantively unjust because a fair procedure in a system that is otherwise unfair cannot ensure that the parties receive their distributive or corrective due. Such inequities are often a feature of majoritarian political systems which are stacked against minorities; some form of substantive due process is often introduced as a means of mitigating against this sort of majority advantage.

Tuesday, September 12, 2017

"Procedural Justice" Is Not Procedural Justice

By Professor Eric Miller

This post originally appeared on Prawsblawg

"Procedural justice" has recently become a big deal in the politics of policing. It was a core recommendation of the President's Task Force on 21st Century Policing; and has spawned a whole literature of its own, both in North America and in the United Kingdom. The basic idea is that certain ways in which speakers interact with targets during face-to-face encounters have an important psychological effect on the target of the encounter. The target feels that the speaker is justified in making demands upon the target, so that the target under an obligation to comply with the speaker's directives. Importantly, the target feels that way whether or not the speaker is, normatively, justified in making those demands; that is, whether or not an obligation to comply exists.

While "procedural justice" may be a useful tool in inducing compliance, it is distinct from actual, normative procedural justice. Justice is a normative concept, not a psychological one. And so a way of treating a target may be normatively unjust even if it fits the psychological theory of "procedural justice." Here's why.

Thursday, August 31, 2017

Spokeo Ruling is Important for Consumers, Employees in California

By Professor Lauren Willis

This op-ed originally appeared in the August 31, 2017, edition of the Los Angeles Daily Journal.

The 9th U.S. Circuit Court of Appeals recently decided Robins v. Spokeo, DJDAR 7859 (Aug. 16, 2017), a case remanded from the U.S. Supreme Court. This decision is important for consumers.

Today, whether you will be given a job interview or apartment, or how much you will pay for a loan or car insurance, often depends on information about you that companies called “consumer reporting agencies” collect and sell to employers, landlords, banks and insurance companies. These companies must design their operations carefully, or all sorts of unfair errors can happen. A consumer reporting agency’s database might catalog a person as Julie C. Jones when she is actually Juliet C. Jones — and Julie might have a criminal record or unpaid debts when you do not.

Even "positive" information, if it is false, can be damaging. For example, if a company sells an employer a report saying that someone has an advanced degree but his level of schooling was high school, the employer might assume he is overqualified for a position when he actually would be a perfect fit. Any mismatch between a person’s job application and the information in a report about them could raise the suspicion that the applicant is dishonest, and no employer wants a dishonest employee.