J385 Communication Law - Final Exam - Spring 96

180 points (6 questions, each worth 30 points)
DEADLINE: 10:30 a.m., Monday, June 10. NO LATE EXAMS ACCEPTED.
PLEASE DELIVER EXAMS TO PROFESSOR GLEASON'S OFFICE (203 ALLEN) OR HIS MAILBOX IN 201 ALLEN. ANSWERS MUST BE TYPED, DOUBLE-SPACED, WITH STANDARD MARGINS.

GRADING: We expect complete, concise, organized answers (ONE page should be adequate). You should be able to answer the questions using the book, the J385 Home page, and lecture notes; however, you are welcomed to use other authorities should you think it worthwhile.
A premium will be placed on accuracy, precision and the application of the appropriate legal standards to the facts presented. Answers that are "sort of" right will receive few points.
The questions are intended to be ambiguous. In some instances it may be quite possible to reach different conclusions concerning the outcome of a given fact situation. We are most interested in the reasoning you use to reach a conclusion. Put maximum effort into clearing explaining the law and logic you use to reach your conclusion.

The Rules:
You are free to discuss the questions with other members of the class. Friends (especially law students), parents, lawyers and others shall not be consulted.

Once you are ready to write your answers, please do it alone without any help from others.

I will be available to discuss general questions about the class material. I will not answer any question directly related to a specific fact situation in the exam, except to clarify the facts. If you have questions, please ask, but I reserve the right to decline to answer.

1. Cliff Cute, a 25-year-old graduate student in Business Administration at Anywhere University, had a brief career as a model between the ages of ten and twelve. He was the goofy looking kid in a series of print and television ads for SWEET STUFF, a fruit drink. At that time, his mother signed a consent agreement with the photographer shooting the print ad campaign. She gave the photographer "the absolute and irrevocable right and permission to use and sell... all photographs taken as part of the SWEET STUFF campaign." Last year, Cute learned that the ad agency creating a campaign for HEALTHY STUFF, a new fruit beverage targeted at middle-age baby boomers, planned to use photos of Cliff taken for the SWEET STUFF campaign in the new campaign. At that time Cliff wrote a letter to the agency in which he said that he was "excited about the concept and looked forward to working with the agency as it developed the campaign." The agency responded with a letter thanking Cute for his endorsement of the campaign. Cute had no additional communication with the agency until after the campaign ad appeared in national publications.
The campaign started several months ago. In the print ads, the picture of 10-year-old Cliff is in the lower right part of the ad with the statement "When we were young we wanted a sweet drink, but that was then. In the 90s we want HEALTHY STUFF.
Cliff Cute believes that the use of the photograph is the commercial use of his image for commercial purposes and he brings suit against HEALTHY STUFF and the advertising agency. He claims that the consent signed by his mother is invalid and that even if the consent is valid for some uses, the use of the photo in the context of the ad constitutes an endorsement of the product. Under no circumstances, he argues, could the signed consent extend to the endorsement of a product that didn't exist at the time.
Will Cute's suit be successful? YES or NO? Explain your answer.

2. Anywhere University has an administrative rule prohibiting unapproved commercial activity on campus. Under the rule, only university-authorized vendors may sell products anywhere on campus. The rule was enacted to protect the "campus learning environment" and to protect students from "fraudulent vendors who might take advantage of unsophisticated college students."
Harry Hippie sells incense, candles and books on the street fair circuit. Many of books he sells advocate the legalization of marijuana. This spring Harry decided to set up his portable booth on the Anywhere U. campus. He found a nice spot on the campus at the intersection of two pedestrian paths near the student union. A business district known as the "university district" was a block away. Several thousand students passed his booth during the day, yet he was off the paths so that he was not interfering with pedestrian traffic.
Shortly after Hippie opened his booth for business and made a couple of quick sales, campus police cited him for violation of the administrative rule prohibiting unauthorized commercial activity and ordered him to take down the booth.

Hippie took down his stand, but then filed suit against the university. He claims a violation of his First Amendment rights under the Central Hudson standard. Also, he claims that the university's action was content-based. He claims the university's "real goal" was to suppress the ideas in the books Hippie sells. Will Hippie's suit be successful? YES or NO? Explain your answer.

3. Karen Kop and Nathan Narc were undercover police officers. During five years undercover the two lived a life worthy of a television mini-series. They used cocaine and heroin on a daily basis, took bribes, lied under oath in order to convict drug dealers, survived attacks from gun-toting bad guys and when it was all over ended up in jail convicted of violating the civil rights of several falsely arrested individuals.
While in jail Kop signed a book contract to do a novel based on her life undercover. When she got out of jail, Kop divorced Narc, moved to Portland and wrote the novel "FAST LIFE." It was a great success. Before it was published she signed a $1 million movie deal and a Book-of-the-Month contract for another $500,000.
Shortly after publication Narc filed suit against Kop and the book publisher claiming appropriation. He claims the book and the ad campaign for the book constitute the commercial use of his name and likeness for commercial purposes. While Narc is not named in the book, many people who know him recognize the character "Larry Louse" in the book as being based on Narc. In the book Louse is an undercover police officer who becomes a drug addict, is thrown off the police force for accepting bribes and is convicted of perjury.
The advertising for the book says: "FAST LIFE--A novel based on the true life story of two cops who went bad--It doesn't get any more real than this." In print ads published in newspapers and magazines, a picture of Kop and Narc taken while they were on the police force is used with the names of the fictional characters in the book. In media interviews Kop acknowledges that the Larry Louse character is based on Nathan Narc.
a. Narc files an Appropriation suit against Kop and the book publisher? Will the appropriation suit be successful? YES OR NO? Explain your answer.

b. Narc also files a false light suit claiming that he is identified in the book and that the Larry Louse character leaves a false impression of his real beliefs and actions. Will the false light suit be successful? YES OR NO? EXPLAIN YOUR ANSWER.

4. Rep. Joseph Kennedy (D. Mass.) has introduced the Children's Protection from Alcohol Advertising Act of 1996. Under the provisions of the bill, alcohol advertising would be restricted in a variety of ways. You are an advocate for unrestricted alcohol advertising. Under the Supreme Court's current interpretation of the commercial speech doctrine, outline the strongest constitutional arguments against this proposal.

5 a. Larry Loudmouth, a loyal KWAK-TV viewer, is very upset over the station's reporting about the Oregon Country Fair. In a letter to the station he wrote:
"Over the last year and a half your coverage of the Oregon Country Fair lacked any sense of balance. I've kept a log and of the 200 minutes of news programming devoted to the Country Fair, all of it favored those long-haired, dope-smoking hippies. You keep presenting them in a favorable light. When are you going to expose the Country Fair for what it is? When are you going to let those of us who think the Fair is an immoral abomination have our say?
I am a loyal viewer, but I am going to file Fairness Doctrine and Section 315 complaints with the FCC. The lack of balance in your coverage is an outrage!"
You are KWAK-TV's station manager. Briefly outline the points you would make in writing a response to the legal issues raised in Loudmouth's letter.

5 b. Morality in Broadcasting filed an indecency complaint against KWAK-FM. In a morning news broadcast reporting on the criminal trial of a reputed organized crime boss, the station included a 45-second section of tape from the trial in which the crime boss repeatedly used vulgar language. Citing Pacifica v. FCC, the complaint alleges that the language was indecent for broadcast during the morning since many children would be in the listening audience.
Will the complaint be successful? Yes or No? Explain your answer.

6 a. STUFFIT TRASHBAGS, a new product in the trash bag market, is advertised as being "the First Environmentally Safe Trash bag. It's Photodegradable!"
An environmental marketing watchdog group files a complaint with the Federal Trade Commission charging that the ad campaign is deceptive.
Will the complaint be successful? Yes or No? Explain your Answer.

6b. The Acme Oil Co. is marketing a new gasoline called "Acme 107." The advertising for Acme 107 claims that "the high octane rating of the gasoline plus a secret additive designed by our research division guarantee better gas mileage." To substantiate the claim of better gas mileage, the company provided test results from three different scientific tests using special test cars driving on a test track. In test drives in which highly trained test car drivers ran the test cars at 55 miles per hour for six hours without stopping the cars achieved a higher miles-per-gallon than the most recent national averages reported by the federal government.
The Guzzler Gas Co. filed a complaint with the FTC alleging that the Acme ads are deceptive. Will the complaint be successful? YES or No? Explain your answer.