J385: Communication Law Home Page

J385 - Final Exam Model Answers - Winter 2002

1. Molly Maven files a false light invasion of privacy suit against the National World. Will her suit be successful? YES or NO? Explain your answer.

Yes, Molly Maven's false light suit will be successful. In Reesman v. Highfill, 965 P.2d 1030 (Ore., 1998), the Oregon Supreme Court noted that it has not recognized the false light tort, but declined to address that question. At the same time it noted that "[f]or over a decade…the Court of Appeals has held that a person who places another in a false light may be liable for resulting damages." Until the Supreme Court rejects the tort, we can assume that Oregon does recognize the tort of false light.

In order to win this case, Maven must show that the publication leaves a false impression; the publication is highly offensive; and that the defendant acted with actual malice (website; Middleton, p. 187) Maven will have no difficulty proving her case. The use of Maven's photo in relation to the headline leaves the false impression that she is the host of "wild parties." While the highly offensive standard is subjective, the use of her photo with a story about "wild parties" is an example of distortion (Middleton, p. 188) and a jury could reasonably find it to be highly offensive. The defendant knew that the photo was of Maven, yet it used it to illustrate a story unrelated to Maven and made no effort to get her permission. Clearly it acted with actual malice. This analysis is supported by the 8th Circuit Court of Appeals ruling in Peoples Bank and Trust Company v. Globe International Publishing, Inc., where the court upheld a jury's finding of actual malice and awarded damages in a similar case.



2. He files an appropriation suit against SellMore Advertising and Bay Beer. Will his suit be successful? YES or NO? Explain your answer.


In California, the 9th Circuit Court of Appeals has held that it "is a tort…for advertisers to deliberately imitate the distinctive voice of a widely known professional singer to sell a product. (Middleton, p198). SellMore Advertising found a singer to "sound-alike" Large for its Bay Beer ad campaign after Large had refused to participate in the campaign. As in the Bette Mider and Tom Waits cases, where juries awarded the singers damages and the 9th Circuit upheld the awards, it is likely that Large will win his case.


3. Because Internet content is delivered via cable and telephone lines, which are regulated by the government, the Internet should be regulated using a broadcast model. True or False? Explain your answer.

False

A best answer for this question will include a discussion of the following points:

If the answer to the question is "true," then the answer must explain why the Supreme Court's Reno decision is wrong.



4. Will Kelly's appropriation and private facts claims be successful? Yes or No? Explain your answer.

Kelly claims appropriation and private facts. In order to win the appropriation suit she will have to prove that the publication has a commercial purpose; that her name or likeness was used; and that the use lacked consent.

To win the private facts suit in Oregon, she will have to prove not only that private facts were published, but also that the "information gathered or published in a manner or for a purpose wrongful beyond the unconsented publication."

Appropriation:

It is highly unlikely that Kelly will win the appropriation claim. Book's mystery novel is an editorial use. He is not offering a product for sale or engaging in any other sort of "transactional speech." In addition, Kelly will have a difficult time proving that her name or likeness have been appropriated. The name of the character in the book is similar but not the same and the description of the character is also similar, but not the same. Given the fact that the plaintiff will fail on the first two requirements, the lack of consent is not enough to win the case.

Private Facts:

Kelly's private facts suit will also fail. Because this is a work of fiction and the character in the book is only similar in name and characteristics to the plaintiff, her ability to claim that private facts about her were made public is highly questionable. Even if she is able to make the case that private facts were published, Kelly will not be able to prove that the information was
"gathered or published in a manner or for a purpose wrongful beyond the unconsented publication." Book created a work of fiction in which he used his life experiences to create characters. We have no evidence that he intended to embarrass the plaintiff.


5. Under the test developed in Central Hudson Gas and Electric v. Public Service Commission, the First Amendment places a significant burden on the government to demonstrate that regulation of commercial speech directly advances a legitimate state interest. True or False? Explain your answer.

True

The answer should state the parts of the Central Hudson test and then focus on the Court's move toward a higher level of scrutiny. Professor Youm discussed this trend in his guest lecture and focused on the opinions in 44 Liquormart to illustrate the debate on the court. It was also addressed in our discussion of Lorillard Tobacco Co. v. Reilly

It is also noted in Middleton:
"Since Posadas, the Supreme Court has been less willing to assume, without evidence, that a government regulation will serve a government interest. Instead of deferring to state regulators, the Court now says that states must present evidence that a regulation will advance a legitimate interest (citing Edenfield) (Middleton, p 308)

And, the best answer will address the fourth prong. Middleton provides an overview of the Court's interpretation of the 4th prong:
"Besides directly advancing a legitimate state interest, a constitutional regulation on truthful commercial speech for a lawful product must be narrowly drawn. Courts have sometimes interpreted the fourth Central Hudson requirement to mean that a regulation on commercial speech has to be the 'least restrictive' possible. However, the Supreme Court ruled in Board of Trustees v. Fox that the restrictions on commercial speech may be constitutional even if they are not the least restrictive. (Middleton, p. 309)

The text then illustrates the Court's use of the prong to find several regulations in several cases, e.g. Cincinnati v. Discovery Network and 44 Liquormart, failed to meet its reasonable fit standard.


6. Shooter sues Wild Rivers for copyright infringement. Will his suit be successful? Yes or No? Explain your answer.

Shooter's suit will be successful.

Prior to the Supreme Court's decision in CCNV v. Reid, it was common practice for publishers to assume the copyright of works created by freelancers when the freelancer cashed a check. CCNV changed the law and established criteria for determining when an employee-employer relationship exists. Under current law Middleton tells us that "Freelancers who are not employees create a work for hire if both parties "expressly agree" in a written contract that "the work shall be considered a work made for hire."' (Middleton, p. 223)

Shooter cashed a check for a photo assignment. To the best of our knowledge, he had not signed a contract with Wild Rivers. Nor do we have any indication that the check included language that would constitute an agreement to transfer copyright ownership. Since no agreement had been signed, Shooter retains the copyright for the photographs. If he has not registered the copyright he must do so before filing suit.

7. Will the FTC find the Golden Glow campaign to be deceptive? Yes or No? Explain your answer.

No, Golden Glow's campaign is substantiated truthful advertising.

The FTC Deceptive Advertising Policy (1984) established the following criteria for determining deception:

The Golden Glow claim that their shampoo "is good for the environment. It is biodegradable" is a material claim. It is a claim about the performance of the product. The use of "green" claims by advertisers is a major trend in advertising because consumers do make purchasing decisions based on this product attribute.

The product is marketed to a general adult audience so the reasonable consumer has no special knowledge, nor is the consumer a child.

In order to prove that the claim is not deceptive, Golden Glow must show a reasonable basis for the claim. In this case the FTC has provided guidance as to what evidence will satisfy the advertisers burden to substantiate the claim. In its "GUIDES FOR THE USE OF ENVIRONMENTAL MARKETING CLAIMS, the FTC said that "competent and reliable scientific evidence demonstrating that the product, which is customarily disposed of in sewage systems, will break down and decompose into elements found in nature in a short period of time," satisfies the advertiser's burden when making a claim that shampoo is biodegradable."

Golden Glow has met the FTC's standards and the ad is not deceptive.



8. Is KWAK-FM in violation of either the equal time or the personal attack rules? Yes or No? Explain your answer.

Votegetter is in violation of neither the equal time (i.e., equal opportunity) rule nor the personal attack rule.

Under the Equal time rule (Section 315 of the Communications Act) when a broadcaster permits one legally qualified candidate for a public office to use its facilities, it must afford equal opportunity for all such legally qualified candidates for the same office.

Vicky Votegetter is not a candidate for office, therefor Section 315 does not apply in this case. If Votegetter was as candidate, it is unlikely that Section 315 would be triggered by her appearance on a regularly scheduled call-in radio program. The program is likely to fall into the exempt category of "news interviews and documentaries." (Middleton, p. 534-535)

In 1999, the District of Columbia Court of Appeals found the Personal Attack and the Political Editorials rule to be in conflict with the First Amendment and ordered the FCC to eliminate the rules. (RTNDA v. FCC, In the Matter of Repeal or Modification of the Personal Attack and Political Editorial Rules.)

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