Category Archives: First Amendment

Alert for Reality TV producers.  Filming or photographing celebrities’ kids will soon be a crime.

Alert for Reality TV producers. Filming or photographing celebrities’ kids will soon be a crime.

Should celebrities' kids be off-limits for photographers and video crews?

California's new law.

A California law set to go into effect next January makes it a criminal offense to take photographs or videographic images of a star's child under some circumstances. The new law is codified at Section 11414 of California's Penal Code, and imposes fines and even imprisonment as penalties.

Jail Time?!

First offenders face a maximum $10,000 fine, plus jail time. A second violation carries a five-day jail sentence and a maximum $20,000 fine. A third offense? 30-days in the clink, and $30,000 fine. And, the law creates civil liability, too. A lawsuit by the parent or guardian could include punitive damages.

State Sen. Kevin de Leon introduced the bill, which provides strong protection for minors under age 16 who are children of celebrities are protected against individuals who intentionally harass a person's child “because of that person's employment.” The law defines harassment as intentional conduct that “seriously alarms, annoys, torments or terrorizes” the minor and “serves no legitimate purpose.” Encompassed within the definition is “conduct occurring during the course of any actual or attempted recording” of the child's image or voice by following the youth without parental permission.

But is it constitutional?

Media and Free Speech advocates have raised concerns that the new law is unconstitutionally vague and overbroad, and is likely to catch too many people engaged in protected newsgathering activities in its net. The law, apparently, even applies to shooting in public places, where neither celebrities nor their kids have historically been entitled to a ‘reasonable expectation of privacy'. Finally, we should note that the law does NOT apply to photographers who harass, alarm, annoy, etc., kids whose parents aren't famous. Did California lawmakers really just legally define celebrity kids as a different class of citizens with broader rights than the rest?

Guidelines for reality tv and newsgathering folks. (and average citizens with camera phones, for that matter)

Bottom line: If you're in the Reality TV productoin biz, and a celebrity with kids arrives in your shot, you'd have to stop shooting, or risk being charged with violating the statute. And, are you just supposed to know that that kid walking down the street happens to be the son or daughter of someone famous? Better give your camera crews some clear guidelines, and the phone number of a criminal defense attorney who's ready to fight on this issue. (if you need one, contact me for a referral)

Obviously, the law was created to address a problem. Celebrities' kids are being deprived of the opportunities other kids have to just be kids. But this law strikes me as being a bad one. Freedom of the press is among our most important rights. Attempts to curb press and media activities should always be suspect.

I'd be surprised if the media rights organizations don't jump on this one quickly, the first time the law is enforced. Until then… we'll watch and see.

What do you think about all this? Leave a comment below!

9th Circuit ruling could limit publication of private celebrity photos, videos, sex tapes.

Treacherous waters ahead for news mediaPapparazzi through blinds

Things just got more treacherous for publishers and news organizations to run private photographs and videos of celebrities.    This week, the 9th Circuit Court of Appeals issued a ruling in Monge v. Maya Magazines  in which it addressed the question of whether a tabloid magazine  had the right under the “Fair Use” provisions of U.S. Copyright law, to publish stolen photographs of a secret wedding between two celebrities.

A sticky copyright issue

This is one of the stickiest issues in copyright law, and the Court's ruling that the magazine did not have such rights strikes a blow to the common business practice of tabloids and tv gossip shows buying photos and footage of celebrities without regard for how those items were obtained.

Monge v. Maya Magazines   involved photos of the secret wedding between Latina singer and model Noelia Lorenzo Monge and her manager/producer Jorge Reynoso.  The wedding took place in 2007, and was kept secret (even from the couple's families) for 2 years before an acquaintance  of the couple found the photos (taken by a witness at the Las Vegas wedding, using Reynoso's camera).  That acquaintance sold the photos to Maya for $1,500 allegedly after attempts  to extort the couple proved fruitless.  

The photos were registered with the U.S. Copyright office in the couple's name, and the suit followed.

The Court Rulings

The lower court  threw out the case on fair use grounds, but the appeals court has now ruled otherwise, pointing out that newsworthiness is but a single factor in the fair use analysis, and finding that the other factors weighed more heavily against a finding of fair use.  Since the photos were used in their entirety, for commercial purposes, and were not “transformed” in a meaningful way by the defendant publication, the Appeals court held that  the case for infringement may proceed.

Fair Use is a defense to copyright infringement cases based on the First Amendment's guarantee of freedom of speech and press, but it's not absolute.  

Ammunition for celebrities

The potential ramifications of this ruling are far-reaching.  In recent years numerous incidences of private photos and videos (including more than a few sex-tapes) featuring celebrities have been brought to light under circumstances similar to this case.   Monge gives celebrities a new weapon in fighting publication of such materials. Now, news organizations, tabloids, TV gossip shows and websites will need to more carefully examine the pedigree and ownership of the material they purchase and publish.    The Fair Use analysis just got trickier for journalists, editors and publishers.  Even the major news media will have to consider more carefully whether certain material they publish really is  defensible as  fair use.  Damages for copyright infringement can be significant, and courts can issue injunctions against publication, or  order infringing material taken down from websites.

Unanswered Questions about copyright ownership

I. however, am  a little bit puzzled by unanswered questions regarding ownership of the photos.  Ordinarily, unless the person is an employee, or under a work-for hire contract, a photographer owns the copyright in photos he or she takes, regardless whose equipment is used,.  So, I'm wondering how the couple was able to claim ownership.  The Courts' opinion does not address this question, and the existence of a registration is prima-facie evidence of ownership.  

Smoking Bans and the First Amendment…free speech goes up in smoke in Colorado.

no_smokingThe Colorado Supreme Court has dealt another blow to the First Amendment, holding that public health concerns trump the First Amendment in cases involving bans on smoking.
Curious Theatre v. Colorado Department of Health and Public Environment

The Colorado Clean Indoor Air Act (which went into effect in 2006) prohibits indoor smoking of tobacco and other products  in most public places, including theatres… even where the smoking is part of an actor's performance, or mandated by the text of a play.

Curious Theatre and two other theatre companies sued the Department of Health, claiming that the ban on smoking onstage is an infringement of playwrights' producers' and actors' rights of free expression.  The state agency countered with the argument that there are workable substitutes for actual cigarette smoke, which do not endanger public health.

At trial, actors and other theatre professionals testified about the various problems  with these substitutes, referring to one situation in which audiences laughed at the fake-smoke effect at a crucial dramatic moment.  The Court however, was not swayed in favor of the free expression arguments.

Today, the Colorado Supreme Court finally weighed in on the case.  In the majority opinion,  Justice Nathan Coats held that even assuming smoking can sometimes be protected conduct, the smoking ban can’t be called unconstitutional because it is narrowly tailored for a specific purpose.   (protection of public health and safety).    “Like the theatrical use of substitutes for virtually every other type of dangerous or illegal conduct”, Coats wrote, [artificial cigarette smoke] ” is capable of amply communicating to an audience an intended message.”

Justice Gregory Hobbs dissented, arguing that  the ban is not, in fact,  narrowly tailored because it bans the smoking of any plant matter, not just tobacco, which “renders alternative means of the protected First Amendment expression untenable and even laughable”.

The battle over smoking bans in theatre rages on in several other states.  Perhaps before long, we'll see the U.S. Supreme Court weigh in on the issue.

Legal pitfalls for reality and documentary producers.

The  Hollywood Reporter’s lawyer-oriented site, THR, Esq. Entertainment & Media Law Blog: has a great piece by Eriq Garder that surveys  the Top 5 ways reality shows can get sued. Recommended reading for all up-and-coming producers of reality shows, documentary films, and other media featuring real-world situations. Continue Reading

The YouTube plot thickens…

Further follow up to my post on Wednesday regarding YouTube’s automated audio-muting of user-generated videos containing unlicensed music….. According to this piece at the Hollywood Reporter.. YouTube is taking things a step further… allowing users to REPLACE offending music in video soundtracks with pre-cleared music….  (automatically?) I ask you again…  does this kind of filtering… Continue Reading

Summary: FCC v. Fox Television Stations

Recommended reading: Andrew J. Contigula’s blog has a good summary of last week’s Supreme Court argument in  FCC v. Fox Television Stations.  The case is being closely followed by entertainment and communications lawyers, and  deals with the Federal Communications Commission’s enforcement efforts against ‘indecent’ speech and broadcasts containing “fleeting expletives”, such as those uttered by… Continue Reading

First Amendment protection for online posting of video/audio obtained unlawfully.

The First Circuit Court of Appeals today decided an interesting case concerning first amendment protection for the publisher of materials obtained unlawfully. In the case, Jean v. Massachusetts State Police video footage was recorded by a nanny-cam during an arrest and warrantless search of the arrestee’s private residence. After the arrest, the arrestee gave the… Continue Reading

'Bloggers are Journalists' says Court of Appeals

Win some, lose some. Apple computer lost its appeal in a case involving a blog’s early disclosure of the company’s upcoming new products. Last year, following a number of incidents, Apple sued a ‘rumor site’ which had broken several stories about forthcoming Apple products. Apple argued that the site was violating the company’s trade secrets,… Continue Reading

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