Jackson Browne's 1977 iconic song "Running on Empty" is the focal point of a federal court lawsuit which highlights the tension between the First Amendment's strong protection for political speech and the rights of an artist to control his work. Browne sued the Republican National Committee (RNC), Senator John McCain and the Ohio Republican Party (ORP) because the ORP used "Running on Empty" in a web ad during the 2008 presidential campaign without Browne's permission. Browne, a well known activist who favors liberal causes and candidates, sued.

Someone at the ORP had the bright idea of using a song -- downloaded from iTunes no less -- as the backdrop for a political web ad. Undoubtedly lured by Browne's provocative lyrics -- "Running on -- running on empty, running on -- running blind, running into the sun but I'm running behind" -- the ORP used the song to critique then-candidate Obama's energy program and his suggestion that people conserve gas by properly inflating their tires. No one "cleared" the song -- i.e. obtain a proper license -- to use in the commercial.

Browne sued in federal court in Los Angeles, and the RNC filed a special motion to strike under California's anti-SLAPP statute over Browne's right of publicity claim. The RNC challenged only one of Browne's claims -- his right of publicity claim. If it had succeeded on its motion, the RNC would be entitled to an award of its attorneys' fees in bringing the motion.

The RNC advanced three arguments why Browne's publicity claim should be barred. First, it argued that its use of the song in the political commercial was in the "public interest." Next, it claimed protection for its political speech under the First Amendment. Finally, it argued that its use of the song was a "transformative" use.

The Court (Judge Gary Klausner) rejected all of these arguments. You can download the order here.

LESSONS TO BE LEARNED

In reading the order in this case, I noticed that the RNC did not argue that the publicity claim was preempted by the Copyright Act and limited their arguments to First Amendment-related defenses. Preemption under the Copyright Act generally occurs when the essence of the claim is that the publication of the work violates someone's copyright. The facts of this case may present some hurdles for that argument -- since Browne also objected to the implicit association with Senator McCain's campaign.

The RNC may have problems with Browne's copyright infringement claim -- since they (stupidly) used the song without a proper license. However, my instincts also tell me that the RNC's motion should have been granted as to the publicity claim.

The problem of course is getting the judge to agree with you. This case will be interesting to follow.

The manner in which we view television programs has changed. The advent of digital video recorders like Tivo means that viewers are regularly "copying" content. While copying for personal use has been upheld by the courts, new technologies allowing cable companies to provide digital video recorders from a remote, central location have given rise to a number of cases across the country.

In August 2008, the Second Circuit considered the issue of whether such a "remote digital recorder" violated content providers' copyrights. That court reversed a ruling in the Southern District of New York and held that these remote DVRs did not infringe upon the providers' rights. However, just last month, the United States Supreme Court requested the government to weigh in on the issue -- requesting that the Solicitor General submit a brief to express the government's view of the law.

Should content providers really be complaining about a DVR system which appears to be more secure against piracy? Stay tuned to see if your cable's DVR will be upheld to be legal.

The new remote DVRs use a slightly different technology than the set top Tivo-type DVRs to which we have become accustomed. The complete technical details are set forth in the Second Circuit's opinion, Cartoon Network v. CSC Holdings, 536 F.3d 121, 124-25 (2d Cir. 2008).

In summary, the cable companies' remote DVR has the same controls and "box" that the stand alone set top DVRs do. However, those controls are linked to a remote, central server which stores all of the content. In contrast, the stand alone, set top DVRs store all of the content on a hard drive inside the unit.

The programming received by the cable company is split into two streams of data. The first goes "live" to the viewers. The second goes to the the company's server which houses the remote DVR programing. That data is first recorded for 1 to 2 seconds to a primary "buffer." If a customer has asked for that programming to be recorded, that data is moved into a secondary buffer and then stored on a portion of the server dedicate to that customer. If that programming was not requested, then the primary buffer is overwritten.

Thus, the content providers like Cartoon Network complained that the cable companies were violating their copyright through these two instances of "copying" -- the first "buffer" copy and the second recording as requested by the customer. The district court in New York held that both "copies" violated the content providers' copyrights and enjoined the cable companies from using the new technology. The Second Circuit reversed.

The Second Circuit held that the buffer copy was not a violation of copyright since it was only for a "transitory duration" -- the "duration requirement." So while the buffer copy was enough for the work to be "capable of being reproduced" from that medium -- the "embodiment requirement" -- both requirements had to be satisfied for there to be a copyright violation.

THE DECISION MAY NOT BE FINAL

The Second Circuit's decision paved the way for cable companies to offer their remote DVR service to consumers. However, in January 2009, the United States Supreme Court invited the Solicitor General to submit a brief setting forth the government's position on the issue of DVR copying. The practical question is whether the remote system described above -- which copies programming content and stores that programming for cable customers on a remote server -- is any different from the stand alone DVRs to which consumers have become accustomed.

The limitation on those stand alone boxes has always been the amount of storage capacity on the local hard drives. While hard drives have become larger, and there are companies who specialize in modifying DVRs to expand such storage capacity, a cable company will have the ability to provide virtually unlimited storage capacity to its customers.

The bottom line is that there is no practical difference between having programming copied on to a local hard drive versus a remote server where a portion of that server is dedicated to a specified customer. In fact, as a further safeguard against piracy, I would think that content providers would prefer that the actual media files be stored in locations where a customer cannot physically access those files. It remains to be seen if the Solicitor General, and the United States Supreme Court, feel the same way. However, the litigation brought by content providers like Cartoon Network seem shortsighted to me. Unless content providers can prevent copying by all DVRs, the remote storage of programming seems to benefit content providers since potential piracy would be more difficult.

The task of protecting celebrities from public humiliation is difficult and complex. In a recent post, I discussed strategies to protect celebrities and, in particular, the need to be absolutely sure about the true facts before embarking upon aggressive response strategies. Recent revelations about the use of performance enhancing drugs in baseball illustrate the problems for celebrities facing scandalous allegations.

The way different players handle these difficult issues can provide lessons on how to deal with such accusations against any celeb.

In my prior post, I wrote about athletes who steadfastly denied any involvement with performance enhancing drugs. Barry Bonds denied "knowingly" using steroids and is now being prosecuted for perjury in San Francisco. Marion Jones sued her accuser, BALCO founder, Victor Conte, for defamation shortly before admitting she committed perjury in denying her steroid use. Roger Clemens is still pursuing his defamation case against his former trainer and accuser. As I wrote, the aggressive litigation response is a valid strategy -- as long as the truth of the denial is clear. Otherwise, like with Jones, the strategy can backfire.

THE CONTRITE APOLOGETIC RESPONSE

The news cycle of the past few days illustrates a different approach. Sports Illustrated reported this weekend that New York Yankees third baseman, Alex Rodriguez, tested positive for performance enhancing drugs in 2003. (I will write a post about the supposed confidentiality of those 2003 tests, and the recent leak thereof to the press, soon.) In the face of Rodriguez's stern denials of drug use in 2007 on CBS' 60 Minutes, Rodriguez seemed destined to be the latest player to fall from grace -- the latest player disgraced by evidence directly contradicting denials of steroid use.

Yesterday, Rodriguez made his first, stunning response to the Sports Illustrated report. In an interview broadcast on ESPN, Rodriguez admitted using steroids during a three year period while with the Texas Rangers. Rodriguez apologized and attributed his mistake to his being "naive" and desire to live up to lofty expectations.

Rodriguez's admissions followed a similar path to two of his Yankee teammates, Jason Giambi and Andy Pettitte, who have apologized for their steroid use and who have seemingly moved on. Of course, the question remains whether a player of Rodriguez's stature can also put this revelation behind him.

There is precedent in Hollywood for public acceptance of such a contrite apology. In 1995, actor Hugh Grant was arrested for lewd conduct in a public place when he was caught in the act with a prostitute. The arrest came shortly before Grant's first big movie was to be released. Instead of hiding from the scandal, Grant kept his media appointments -- particularly his interview on the Tonight Show with Jay Leno. Grant won the public over with his willingness to accept responsibility for his actions and refusal to make excuses. His movie, Nine Months, grossed almost $70 million in the United States and twice that worldwide.

THE BOTTOM LINE

So what we can learn from these examples is that denying scandalous accusations can backfire if the accusations are actually true. On the other hand, admitting to a "mistake" and making a sincere apology in the face of a scandal might lead to a full recovery.

It's been said that "a good reputation is more valuable than money." When it comes to celebrities -- and most recently sports figures -- reputation is both valuable and easily tarnished. In this electronic age, damaging information can circulate instantly through cyberspace. Rumor quickly becomes generally accepted fact. Pictures can go "viral" and disseminated to millions at the speed of light. Once established, public perception becomes very difficult if not impossible to change.

So what can be done to protect a celeb's privacy and reputation -- and at what cost?

The public loves looking into the private lives of celebrities. Successful (and undoubtedly profitable) websites like TMZ.com and perezhilton.com revel in sordid details about celebrities' private lives. Modern cell phones with cameras and video capabilities, coupled with the explosion of YouTube and social networking sites like Facebook, provide virtually anyone with the means to record and publish information -- instantaneously -- to millions of people. Even traditional media isn't immune from the desire to feed the public's fascination with scandal -- as recently proven by the news' helicopter coverage of Britney Spears and her recent problems.

Truth and any respect for privacy can often become lost in the quest for the juiciest tidbit of information. Paparazzi engage in often dangerous stunts to get what they want. Keanu Reeves discovered as much when a photographer injured himself -- and sued Reeves -- trying to get a photo. (Reeves won the case after having to endure a trial.) Compromising photographs and videos of the famous are worth a hefty ransom -- often without regard to the legitimacy of the source.

AN AGGRESSIVE RESPONSE

Information about celebrities (true or false ones) often comes from a discreet, identifiable source. However, if that information is republished by major publications or wire services, then the damage could be irreparable.

When the potentially damaging information is private information that was illegally obtained, then aggressive legal action can and should be taken to prevent any dissemination. Celebs have successfully obtained injunctions against the publication of compromising photos or videos which were stolen or taken without permission.

Those are the easy cases.

THE DEFAMATION LAWSUIT

It's more difficult to assess are situations involving stories or statements about the celeb which may (or may not) be defamatory. Often, the emotional reaction to an unfavorable story is to lash back -- sometimes in the courts. Indeed, there are many recent examples where the famous have filed -- or threatened to file -- defamation cases to "prove" their innocence in the face of unfavorable press.

In 2004, Marion Jones sued BALCO founder, Victor Conte, after stories based on Conte's statements about her steroid use were published. Last year, Roger Clemens did the same in Texas, suing his former trainer, Brian McNamee, over statements McNamee made about Clemens' alleged use of performance enhancing drugs. Last month, University of Mississippi head basketball coach, Andy Kennedy, reportedly filed a defamation suit against a cab driver who accused him of assault and racial slurs and after Kennedy was arrested for the alleged assault. Finally, earlier this month, NFL star, Adam "Pacman" Jones threatened to sue ESPN for a story the network ran about Jones' alleged involvement in a shooting which reportedly led to Jones' release from the Dallas Cowboys.

The burden upon a public figure in the United States to prove defamation is great. Because of First Amendment concerns, public figures are held to a much higher standard than a private individual. For this reason, some celebrities -- Lance Armstrong being the most notable, recent example -- have chosen to file their defamation lawsuits in the United Kingdom, which does not have the same legal hurdles as we do here in the United States.

A defamation lawsuit is certainly a valid (if aggressive) strategy to vindicate your reputation against libelous accusations. However, a celebrity -- and more importantly his or her representatives -- must be certain that the story and/or accusations are false and that there are no other "character" issues that may detract from the ultimate goal of vindicating the celeb's name. Defamation suits in the United States are difficult enough without any side shows.

Here, any analysis must consider the difficulty of succeeding in the case as well as the potential for further embarrassment if the facts aren't as solid as originally thought. For example, Jones had to backtrack significantly and settle her civil case when she pled guilty to lying about her steroid use to a grand jury. Clemens has had embarrassing personal details about his relationships revealed to the public -- since such facts arguably pertain to his reputation and character allegedly damaged by McNamee's statements. Kennedy and Jones will face similar obstacles if they choose to pursue their claims.

THE BOTTOM LINE

A lawsuit is an aggressive, proactive strategy which can be an effective tool to prevent dissemination of private and/or embarrassing information and to redress false defamatory statements made against you. However, particularly for possible defamation suits, you must take extreme care to ensure that the accusations are false and that there are no potential embarrassing facts that may be revealed during the course of any litigation. Celebrity representatives must ask tough questions before advising on any strategy and defuse any emotion-driven desire to "get even." Otherwise, a lawsuit may do more harm than good.