MediaTech Law


Podcast #8: “Street Art”: Fair Use of Prior Copyrights?

In today’s podcast, we discuss “street art”, which evidently isn’t just your grandfather’s graffiti anymore!  Street art has lately been in the news particularly because of several prominent copyright infringement cases, and most notably fallout from Shepard Fairey’s 2008 Obama “Hope” posters.  An even more recent controversy came out of the Oscar-nominated documentary film by Banksy, “Exit Through the Gift Shop”.

Along the way, we will touch on Run DMC, Thierry Guetta (aka “Mr. Brainwash”), “pop-art”, photography, Andy Warhol and Robert Rauschenberg.

Joining me to discuss copyright, fair use, street art, what is street art and all that we can cover in 15 minutes … I’m joined by Brooke Jimenez.  Brooke is a second-year law student at Georgetown University Law Center with a focus on international law, and a creative mind on issues of media law.

Stories mentioned in the podcast include this from The Art Newspaper, and this from George Will in the Washington Post.  Please click the audio player link below for the podcast. Enjoy.

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Twitter Chat: App Development/API Legal Issues with Andrew Mirsky and Joy Butler

The following is our first twitter chat on trending legal issues. This one focused on legal issues involved with app development and APIs and featured thoughts from attorneys Andrew Mirsky and Joy Butler (@joybutler). Be sure to stay tuned to the @MirskyLegal twitter account for more information on the next #lawchat and please tweet in using the provided unique hashtag!

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Twitter Chat Tues 4/5 12:15pm – Twitter Chat – App Development/API Legal Issues, Live from PJ Clarke’s

Please join me (@mirskylegal) and fellow DC media law attorney Joy Butler (@joybutler) for a Twitter chat (hashtag: #lawchat1) discussing App Development/API legal issues, Tues 4/5, 1215pm, live @ PJ Clarke’s, 1600 K Street, NW, WDC (downstairs Sidecar restaurant).  Limit 8 seats in person, please RSVP to Join us in person, or join the discussion via twitter hashtag #lawchat1.

Possible topics:

  • Compliance with third party requirements (Facebook, Twitter, Google) for use of APIs
  • Permissible access to and use of customer data
  • Use of open source code for development of software
  • Development contract issues, including:
    • copyright ownership (“work for hire” or partial license? To what extent can developer use functionality/code on work for subsequent clients?)
    • warranties, reps, indemnification
    • importance of defining scope of work (work often done in phases)
    • developer’s duty to fix bugs and provide maintenance after delivery
    • international law/enforcement issues if developer and client are not both US based
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Podcast #7: Privacy vs. 1st Amendment – Supreme Court case of IMS Health v. Sorrell


In January, the Supreme Court agreed to hear arguments in the case of IMS Health v. Sorrell, an appeal of a ruling in November in favor of data aggregator IMS Health by the U.S. Court of Appeals for the 2nd Circuit. The case involves a 2007 Vermont statute, similar to laws in many other states, that prohibits the use, sale and transfer of prescriber-identifiable data (referred to as “PI Data”) for marketing purposes, unless a prescriber (meaning: a physician) opts in to allow use of his or her PI Data. The State of Vermont and its supporters argue that any 1st Amendment challenges to the law by users of the PI Data are sufficiently overcome by substantial privacy interests of doctors and their patients.

To discuss these issues, my guest today is John Verdi, Senior Counsel of the Electronic Privacy Information Center (EPIC).  John and EPIC have filed an amicus brief in the Supreme Court in support of Vermont’s position, and I’ve asked John to join me today to briefly discuss the privacy issues involved.

Please click the link below for the podcast.

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Copying of Entire Article a Fair Use? Maybe. Sort of. Not Normally.

The Las Vegas copyright fair use loss for Righthaven last week was probably less meaningful – and less amusing – than the “money quote” (as Wall Street Journal blogger Ashby Jones put it) from the federal Judge James Mahan, who reportedly mused, “I realize this is going to be appealed.  I tell litigators ‘that’s why God created San Francisco’” – site of the 9th Circuit federal appeals court.

At first glance, the case is a breathtaking blow for newspapers and media organizations (including, presumably, bloggers), because it upheld a fair use defense against copyright infringement where the newspaper story was copied in its entirety.

This case would seem to run afoul of every fair use guideline ever published, including the fair use law itself, and particularly the frequent characterization of a “fair” use as a “transformative” use:

… whether the new work “merely supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).

But that’s first glance.  Judge Mahan hasn’t yet issued his Order, so we know only wha the Las Vegas Sun reported from the hearing.  

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Do Corporations Have Personal Privacy Rights?

Thanks to Andrew Mirsky for contributing research and feedback to this post.

Does a corporation have the same rights as a person?

It really depends on the context. In the context of personal privacy, the answer is no.

In a unanimous ruling this month, the Supreme Court found that corporations are not entitled to the same “personal privacy” rights as individuals under the Freedom of Information Act (FOIA).

After a 2004 investigation by the Federal Communications Commission (FCC) into AT&T’s billing practices, a trade group including AT&T competitors submitted a FOIA request to the FCC seeking records of the inquiry. The FCC protected some of AT&T’s trade secrets and customers’ personal information, but refused AT&T’s request under the personal-privacy exemption in FOIA to protect certain other information.  The FCC ruled that AT&T’s records should be publicly released under FOIA because the company could not claim “personal privacy.”

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Who Needs a Privacy Policy?

A privacy policy?  Who needs a privacy policy?  Privacy is a mess.  You’re building an online business, and you figure you have to have a privacy policy.  But why?  Is “because everyone else has one” a good enough reason?  Ever wonder what you really need to know about privacy law?  I mean … what you have to comply with as a business operating in an online environment?

Here, then, the first of several Frequently Asked Questions about privacy policies.  Or to be more precise, here now some practical answers on privacy practices:

FAQ #1: Can I simply post a privacy policy and forget about it?  Short Answer: No.  Longer Answer: No, because as between posted statements and actual compliance, actual compliance is what’s required.  

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Podcast #6: Music Streaming with Grooveshark, Pandora, and Friends: Legal and Business Discussion


Today we’ll be looking at some of the prominent music streaming sites, including Grooveshark, Pandora, Spotify and others, looking at legal and business issues in a quickly shifting landscape. The New York Times recently reported on the very recent revival of venture capital and public market interest in the music industry after a bit of a funk period. The money seems to be flowing again, and where it’s flowing tells as much about the technology and business as it does about legal issues involved.

To talk about these issues, my guest today is Jake Kring, Co-Founder of Jake, along with his other co-founder Mack Kolarich, founded GetSpontaneous, a social event discovery platform optimized for a fundamentally mobile world.

Please click the link below for the podcast.

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Podcast #5: Corporate and LLC Reporting and Meeting Requirements in NY and DC


In today’s podcast, we discuss some practical operational differences between limited liability companies (or, “LLCs”) and corporations.  We’re specifically interested in covering what corporate formalities are required for the 2 different types of business entities, and what are the differences and similarities.

One of the big attractions (to some) of LLCs is the almost complete LACK of legal requirements for annual corporate formalities.  I want to drill down a bit on this and examine how true this is, both in legal reality and in practical reality.

My guest today is Michael Steger, Principal of Law Offices of Michael D. Steger, PC, a firm with offices in New York City.  Mike’s practice focuses on litigation, intellectual property, entertainment, media, and corporate and other business matters.

Please click the link below for the podcast.

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Innovation is Collaborative: What about Noncompetes?

In a recent podcast, Neal Seth and I discussed protection of ideas, focusing particularly on the problem where someone has a business plan, a concept, a script, or really just an idea for doing something. They want to pursue it somehow, but they’re worried that sharing it with anybody will open them up to all sorts of problems.

What’s the solution? There’s always the most traditional and perhaps the most primitive solution: Lock up the idea. Meaning: Do everything you can to make sure that anything that anyone does for you as a developer, contractor, employee, business partner, vendor or whatever is owned by you or your new company.

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Podcast #4: Inline Links, Embedded Videos and Copyright Infringement


In today’s podcast, we discuss copyright issues, specifically the distinctions – practical and legal – between “inline” or “hot” or “embedded” links and downloaded images.  This comes up usually in the context of using video, but the principles should apply to any uses of images on websites, blogs, twitter, Facebook and other social media.

I am joined today by my colleague Thomas Yarnell.

In a series of cases starting around 2002 (a case called Kelly v. ArribaSoft) and accelerating in 2007 (a series of cases involving Google and Amazon and a photography database called “Perfect 10”), web hosting companies, search engines and sites like Amazon were accused of copyright infringement when they used thumbnail images of copyrighted works for their search or catalog results.  So for example, Google Images routinely shows images from copyrighted works in search results.  Google (based on the Kelly case and subsequent caselaw) argued that the use of the images was a “fair use”, in that the search engine’s cataloguing of images was a “transformative” type of use that should be protected under copyright’s fair use doctrine.

In the more recent cases involving Perfect 10, Google (and Amazon) were initially successful in arguing that their use of copyrighted images wasn’t copyright infringement at all – making a fair use defense unnecessary.  Those cases were appealed and reversed, but only partially.  The big point that was upheld was that a search web user’s (Google, Amazon, or anybody else for that matter) embedding of inline links would not constitute direct copyright infringement.

Please click the audio player below for the podcast.

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Update: Social Media Policies Violate Federal Labor Law?

Last month I wrote about an NLRB complaint against a Connecticut ambulance company, American Medical Response (AMR), for wrongful termination of an employee who had complained on Facebook about her supervisors and the company. The NLRB had begun proceedings against AMR for violating the employee’s rights under the National Labor Relations Act, specifically rights to take “concerted activity” related to working conditions.

The New York Times reported yesterday that the company had reached a settlement with the NLRB. In particular, The Times reported that the company agreed to modify its workplace policies “to ensure that they do not improperly restrict employees from discussing wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”

It is believed that this case was the first of its kind, where the NLRB took action against an employer related to an employee’s comments and conduct on a social media site like Facebook.

According to the San Jose Business Journal, the company reached a separate private settlement with the fired employee, the terms of which were not disclosed by the NLRB, the company or the employee.

Interestingly, while the case obviously did not get to a full precedent-setting decision, a publicly-acknowledged condition to the settlement was the company’s acknowledgment that outside discussions of work conditions could not be acted upon detrimentally by the company. And without explicitly stating so, these outside discussions obviously included facebook and other social media outlets.

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