Welcome to the Citizen Media Law Brief, a monthly newsletter highlighting recent blog posts, media law news, legal threat entries, and other new content on the Citizen Media Law Project's website, as well as upcoming events and other announcements. You are receiving this email because you have expressed interest in the CMLP or registered on our site, www.citmedialaw.org. If you do not wish to receive this newsletter, you can unsubscribe by following the link at the bottom of this email or by going to http://www.citmedialaw.org/newsletter/subscriptions.

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News from the Citizen Media Law Project...

It's been a busy fall over here at the CMLP, but fortunately we have some new help. The CMLP is delighted to introduce Jillian Stonecipher, a 2L here at Harvard Law, who is helping us with all of our initiatives. Jillian joins us with an extensive background in both legal issues and practical journalism experience, having previously served as Editor in Chief of The Daily Texan, the student newspaper of the University of Texas. Please join us in welcoming Jillian to the team!

With the election rapidly approaching, the CMLP will be releasing our 2012 guide to documenting the vote later this week. This is a follow-up to a similar guide we developed for the 2008 election, exploring how the law treats those that plan to record and report on activity in and around their polling place. Our guide will suggest best practices nationwide, as well as a brief overview of applicable law and administrative interpretations in all 50 states and the District of Columbia, with a special focus on the states that are most likely to influence the result of the election. Stay tuned for more information.

The CMLP is also happy to report that we received a favorable outcome in Jenzabar Inc. v. Long Bow Group Inc., a case in which we filed an amicus brief back in January. Jeff and Andy co-wrote a blog post dissecting the opinion, and flagging the issues that will need to be addressed should the case proceed up to the Supreme Judicial Court of Massachusetts. Speaking of blog posts, the blog has been quite busy recently with analysis of several recent news events, including the Innocence of Muslims controversy, and the now-infamous 47% Video (which Jeff addressed in a two-parter). (We've also had two different posts get picked up by Techdirt in one week, which is always a treat.) 

This has also been a big month for the Online Media Legal Network, with a record-breaking number of new matters in one week and continuing growth in client interest. We need good lawyers to help meet our demand, so if you are a lawyer and not yet an OMLN member, we strongly encourage you to come join! We have matters available to fit most every practice, including business and nonprofit law, intellectual property, media law and newsgathering, and commercial disputes and contract negotiation. You can apply here.

Much more will come over the next few weeks, including an appearance by Jeff at an upcoming symposium hosted by the HLS Committee on Sports and Entertainment Law on November 16th. Stay tuned!

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The latest from the Citizen Media Law Project blog...

Andrew Mirsky does a thorough treatment on the various content liability issues inherent in Pinterest.
Pinterest: Fair Use of Images, Building Communities, Fan Pages, Copyright

We recap the recent decision in the Massachusetts Court of Appeals regarding trademark and critical speech.
DMLP Victory! Mass. Appeals Court Finds No Trademark Infringement in Critical Website

Marie-Andrée Weiss examines the French privacy and free expression laws surrounding a recent European photo scandal.
Honni Soit… French Republic Protects the Privacy of Commoners and of Kings

Andy Sellars looks at a trademark dispute surrounding a smoothie at a local wrap shop.
No, No, Nutella! A Trademark Dispute Over a Hazelnut Milkshake

Eric Robinson picks up a trend in cases where dentists and doctors sue based on online reviews: they get dismissed.
Lawsuits by Doctor, Dentist Over Patients' Reviews Dismissed

Kristin Bergman brings us the unintentionally-defamatory consequences in Germany of Google's autocomplete function.
Defamation Case Attacks Google Autocomplete Results

In a two-parter, Jeff Hermes dives into the wiretapping implications of the now-infamous "47 percent" video.
A Camera Records in Boca, Part One
A Camera Records in Boca, Part Two

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Threats recently added or updated in the CMLP Threats Database...

Seaton v. TripAdvisor, LLC
Posted Oct. 22, 2012

Garcia v. Nakoula
Updated Oct. 19, 2012

Jenzabar, Inc. v. Long Bow Group, Inc.
Updated Oct. 18, 2012

New York County v. Twitter, Inc. (subpoena)
Updated Sept. 21, 2012

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Other media law news and commentary...

Illinois High School Suspends 10 for Tweets
Student Press Law Center - 10/27/12

Worst Lawsuit of the Week
Rebecca Tushnet's 43(B)log - 10/26/12

4th Estate Project Brings Transparency to Journalist-Source Relations
PBS MediaShift - 10/25/12

EFF and MuckRock Have Filed Over 200 Records Requests On Drones And The Results Are Pouring In
EFF Deeplinks Blog - 10/22/12

"Innocence of Muslims" Actress' Restraining Order Request Denied
The Wrap - 10/18/12

Twitter Blocks Nazi Account in Landmark Move
Al Jazeera English - 10/18/12

Why It's Almost Impossible To Get Punished For A Bogus DMCA Takedown
Techdirt - 10/17/12

Trademark Infringement in the Presidential Election?
Blog Law Blog - 10/17/12

A Few Words On Reddit, Gawker, and Anonymity
Popehat - 10/16/12

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The full(er) Brief...

"When using Pinterest (and Flickr and YouTube and Facebook and on and on), what copyright, fair use, trademark and other issues weigh on building communities and corporate use of fan pages and social media generally? A hypothetical 'Company' has plans for its Pinterest 'community', and in particular, wonders about  these situations: Using Images of Identifiable People; Fair Use and Images; Trademarks: When is a “Fair Use” Argument Strongest?; Why Attribution and Linking to Original Sources is Important.  . . .  [If someone] used to be a paid Company sponsor or spokesperson [and they] are no longer[, can] the Company continue to post a photo of the old sponsor to Pinterest?  . . .  Can the Company post a photo of a fan of the Company?  . . .  Can the Company post a photo of a Coca-Cola bottle on its Pinterest page? Below is discussion of these issues, with guidelines at the end."
Andrew Mirsky, Pinterest: Fair Use of Images, Building Communities, Fan Pages, Copyright

"The DMLP is pleased to announce that the Massachusetts Appeals Court has ruled in favor of the result we advocated in an amicus brief in Jenzabar v. Long Bow Group, Inc. . . .  [T]he case concerns Long Bow, a documentary film company that released a film concerning the Tienanmen Square protests. The film is critical of many of the student leaders, including a protester named Ling Chai. The film company created a website related to the film, which, among other things, criticized Chai on a particular webpage. As Chai had since moved to Boston and co-founded an educational software company called Jenzabar, the page was titled "Jenzabar," and included terms related to Jenzabar in the metadata. After the website was published, Jenzabar sued Long Bow for various trademark claims, as well as for defamation and trade libel.  . . .  The opinion affirmed summary judgment for Long Bow, but for more narrow reasons than the DMLP hoped. The court did not take the opportunity to reject initial interest confusion on the Internet or apply a standard other than 'likelihood of confusion' to claims based on critical speech."
Jeff Hermes and Andy Sellars, DMLP Victory! Mass. Appeals Court Finds No Trademark Infringement in Critical Website

"On September 14, French weekly gossip magazine Closer published several pictures of the Duke and Duchess of Cambridge taken without their consent while they were spending a weekend at a private villa in the South of France. Some of the pictures showed the Duchess wearing only the bottom of a bikini suit. France may have a liberal attitude towards female nudity and half-naked women are routinely seen sunbathing on its beaches, but it also has strong privacy laws, including the court-created droit à l’ image -- the right to the privacy in one’s image.  . . .  Article 9 of the French civil Code provides that “[e]veryone has the right to respect for his private life.” This is not merely an aspirational statement, but an enforceable right, as Article 9 gives courts the power to prescribe any measures appropriate to prevent or to end an invasion of personal privacy. In case of emergency, those measures may even be provided for by interim order. Even though Article 9 does not specifically mention a right over one’s image, the French courts have interpreted it as giving individuals a droit à l’image. What is protected is not the image itself, but a person’s right not be photographed without her consent. Article 9 provides protection regardless of whether the person is famous, or even royalty."
Marie-Andrée Weiss, Honni Soit… French Republic Protects the Privacy of Commoners and of Kings

"Anyone who went to college in Boston over the past decade probably knows Boloco, a local wraps-and-smoothies chain with locations at or near most of the colleges in the metro-Boston area, with scattered other locations at other college towns in New England. Among the shakes and smoothies that Boloco sells is a 'Nutella Milkshake,' made with Nutella, skim milk, and frozen yogurt.  . . .  Boloco CEO John Pepper sent a Tweet yesterday saying, 'After 14 yrs as their faithful advocate, Nutella's lawyers have sent us an immediate cease & desist on the use of their name.' According to subsequent reporting by the Boston Herald, the dispute appears to be over the use of the word 'Nutella' in the name of the milkshake, because, according to Pepper, '[t]hey don’t endorse the use of Nutella or the Nutella brand in frozen beverages.' Nutella says that Boloco can continue using the product, but cannot use the name."
Andy Sellars, No, No, Nutella! A Trademark Dispute Over a Hazelnut Milkshake

"A doctor in New York and a dentist in Oregon have both found out that it may not be easy to sue for libel over online reviews of their services, after their separate lawsuits were both dismissed. And it turns out that most of the dentists and doctors who have sued over online reviews have reached similar results. . . .  These cases stand as data points showing growing trend. According to this list of lawsuits  brought by doctors and dentists over online reviews of their services compiled by Eric Goldman of Santa Clara School of Law, physicians have not been very successful in such suits. . . .  Others have been dismissed under section 230 of the Communications Decency Act. Other cases were withdrawn, and some settled. None of the cases actually ended with court awards to the doctors."
Eric Robinson, Lawsuits by Doctor, Dentist Over Patients' Reviews Dismissed

"Google searches employ two features: autocomplete and Google instant. These work together to complete your search terms and to automatically load search results while you're typing. While you're probably thankful for the few seconds this saves, or the way it triggers a connection you couldn't recall, Bettina Wulff (wife of former German President Christian Wulff) would be unlikely to agree with you these days. Type Wulff's name into Google, and the first autocomplete suggestions you'll see are 'Bettina Wulff escort,' and 'Bettina Wulff prostituierte.' Wulff is now suing Google for defamation, along with German TV host Günther Jauch and over 30 bloggers and media outlets. Wulff's suit against Google focuses on the results of this autocomplete feature."
Kristin Bergman, Defamation Case Attacks Google Autocomplete Results

"As is now commonly known, on May 17, 2012, presidential candidate Mitt Romney made a series of very candid comments at a private fundraiser held in the Boca Raton home of private equity manager Marc Leder. As Mother Jones reported on September 17, someone present at that fundraiser (we have no idea whether it was a guest or someone working at that event) planted a video camera in the room and captured portions of the audio and video of Romney’s talk. I will leave the political import of this event to others . . . , but I wanted to take a closer look at whether the recording violated any laws and the consequences of that determination. As will be discussed below, there are a patchwork of laws on this topic, but the ultimate determination will largely turn on two issues: (1) whether there was consent to the recording that would protect the individual who made the video against liability; and (2) whether there was a reasonable expectation of privacy in Romney’s remarks."
Jeff Hermes, A Camera Records in Boca, Part One
A Camera Records in Boca, Part Two

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