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Chapter 11

Visual Communication Law

Visual works, like other communications,


are subject to a variety of laws. For example,
billboard advertising along primary and
interstate highways is subject to the Highway
Beautification Act (HBA), a federal statute first
passed by the U.S. Congress in 1965, and
amended many times since. The HBA makes
federal highway funding to states contingent on
states controlling billboard advertising within
660 feet of interstate roadways. Exceptions to
this control are areas zoned for commercial or
industrial use, allowing fast food restaurants,
hotels and gas stations to use large signs to
advertise their presence to passing cars. In
addition, two dozen states allow billboards to be
erected along highways in unzoned areas,
leading environmentalist groups such as Scenic
America (www.scenic.org) to complain that the
purpose of the HBA has been undermined by
states and the billboard industry, which lobbied
for this exception, because most rural areas are
unzoned.
Another statute affecting visual communications is the Copyright Act. Copyright confers

on the authors of works the sole right to


reproduce the work. Simply put, copyright is the
right to make copies of original works. Original
works include writings, drawings, lithographic
and silkscreen prints, paintings, photographs,
sculptures, motion pictures, videos, web pages
and even written and recorded musical
compositions.
Only the copyright owner can make copies
of these works. If you buy a book, a CD or a
DVD, you can sell the copy that you bought, but
you cannot legally make a copy of itexcept as
a backup for your own use. To make hard or
digital copies of the work for anyone else is a
violation of the Copyright Act.
Types of Law
Although the term law is commonly used
to refer to statues passed by state and federal
legislatures, such as the Highway Beautification
Act and the Copyright Act, statutory law is but
one of several types of law. There are several
other types of law that affect visual works:

The Highway Beautification Act is a federal statute regulating billboard or outdoor advertising.

Visual Communication Law


constitutional law, administrative law, and
common law.
Constitutional Law. The second type of law
is constitutional law. Although listed second,
constitutional law is the most important type of
law because the U.S. Constitution is the supreme
law of the land; all statutes, regulations and
other laws must not contradict the constitution.
If a law contradicts the constitution, courts will
strike it down. This is essentially what
constitutional law iscourt rulings about the
meaning of the federal and state constitutions,
and whether statutes and regulations are
consistent with, or contradict, the constitutions.
In the context of visual communication, the
most important part of the U.S. Constitution is
the First Amendment, which states:
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to
assemble, and to petition the government for a
redress of grievances.

The establishment clause of the First


Amendment clearly states that government
cannot promote religion. Promotion includes
visual displays, such as nativity scenes during
Christmas or crucifixion scenes during Easter.
This does not mean that nativity scenes cannot
be included in government-sponsored winter

holiday displays; it means that the primary


purpose of the display cannot be religious. In
Lemon v. Kurtzman (1971), the U.S. Supreme
Court established a test to determine whether a
religious visual display is legal or not. The test,
called the Lemon Test, states that the
governments action must:
(1) have a secular legislative purpose;
(2) not have the primary effect of either advancing or
inhibiting religion and not result in an excessive
government entanglement with religion.

Based on the Lemon Test, if a nativity scene is


part of a larger seasonal display that includes
Santa, snowflakes, kinara candles, a Chanukah
Menorah, and an assortment of other seasonal
visuals, then the display is legal. If the
government-sponsored religious display is
purely religious, such as displaying a nativity
scene alone, then it is probably unconstitutional.
The passage of the First Amendment that
applies to most visual communications is:
Congress shall make no law abridging the
freedom of speech, or of the press. The
passage stating that Congress shall make no
law was interpreted literally until 1925that is,
the constitution only protected citizens from
U.S. Congressional infringements of speech or
press, not state infringements. As a consequence,
many states adopted a variety of laws that

Under the Lemon Test, established by the U.S. Supreme Court, governments
cannot sponsor Christmas nativity displays if the primary function is to celebrate a religious holiday.

Editorial cartoon of the Industrial Workers of the World (I.W.W.) from 1912. The I.W.W.
advocated syndicalism or worker ownership of factories. To keep the union from organizing, many states
passed Anti-Syndicalism Laws, which were also called Criminal Anarchy Laws. Several important
Supreme Court cases addressed these laws.

restricted speech and the press during much of


the nineteenth and early twentieth century.
Southern slave states, for example, adopted laws
that prohibited the advocacy of abolition and
prohibited teaching slaves to read or write. In the
early twentieth century, many states adopted
laws to curb radical unions, such as the Industrial Workers of the World. These anti-union
laws were referred to as criminal syndicalism
laws, and made it illegal to visually or verbally
advocate a change of industrial ownership using
violence. Violence included factory
occupations, anti-strike breaking activities, and
industrial sabotage, such as taking parts of
assembly line machinery to keep factories from
operating during strikes. It was not until 1925
that the U.S. Supreme Court concluded that the
First Amendment applied to states, in addition to
Congress.
In Gitlow v. New York (1925), the Supreme
Court ruled that the 14th Amendment to the U.S.
Constitutions due process clause made the First
Amendment applicable to the states. The
Fourteenth Amendment was adopted in 1868,
shortly after the end of the Civil War, to keep
southern states from adopting statutes to restrict

the rights of newly-freed slaves. The 14th


Amendment, in part, states: No State shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
The historic 1925 Supreme Court case
concerned Benjamin Gitlow, a member of the
Socialist Party. He was arrested in 1919 for
violating New York states criminal syndicalism
or criminal anarchy law for publishing a Left
Wing Manifesto in a radical weekly newspaper,
The Revolutionary Age. The Manifesto stated,
The world is in crisis. Capitalism, the
prevailing system of society, is in process of
disintegration and collapse. Out of its vitals is
developing a new social order, the system of
Communist Socialism; and the struggle between
this new social order and the old, is now the
fundamental problem of international politics.
Gitlow and others were arrested for publishing
the tract because it called for the replacement of
capitalism with socialism.
In a New York state court, Gitlow was

Visual Communication Law


statutes restricting expression. Today, the Court
uses the imminent lawless act test to judge
expression. Inciting a riot is a crime, so that
yelling to a mob, Theres a policeman. Lets
get him and beat him would be illegal under the
current standard, but demanding that a police
force be disbanded would not be.
A few years after the Gitlow decision, the
U.S. Supreme Court essentially abolished states
abilities to restrain publications prior to their

Benjamin Gitlows arrest for publishing the Left


Wing Manifesto in The Revolutionary Age led to
the landmark Surpeme Court decision, Gitlow v.
New York (1925), which ruled that the First
Amendment protected citizens from state
infringements on freedom of the press.

convicted of violating the states criminal


anarchy law and sentenced to 5 to 10 years in
prison. The American Civil Liberties Union,
which was organized in 1920 because the
Supreme Court consistently ruled against free
speech, represented Gitlow during his appeal to
the U.S. Supreme Court. The Supreme Court
upheld Gitlows conviction, but nonetheless
ruled that the First Amendment applied to state
laws, as well as federal laws, because of the due
process clause of the 14th Amendment. However, the Court held that New York States
criminal anarchy law was constitutional because
state authorities had a legitimate right to curtail
speech that advocated violence. The Court
reasoned that if communications had a bad
tendency, then they could be curbed. This was
called the bad tendency test, which is no
longer used to judge the constitutionality of

Mug shot of Benjamin Gitlow following his arrest


in New York for violating the states criminal
anarchy law. Gitlows conviction was upheld by
the U.S. Supreme Court, which also ruled that the
First Amendment applied to the states, not just
Congress.

being distributed. In Minnesota, authorities


attempted to permanently halt the publication of
a newspaper, The Saturday Press, published by
Jay M. Near and Howard A. Guilford. The
authorities claimed the newspaper was antiSemitic, anti-Catholic and anti-black because it
claimed that government officials were corrupt
and were colluding with Jewish gangsters,
whom it claimed virtually ruled Minneapolis.
The authorities went to court and asked that The
Saturday Press be permanently enjoined from
publishing under the states 1925 Public
Nuisance Law. The law allowed the state to
permanently enjoin the publication of a

malicious, scandalous and defamatory


newspaper, magazine or other periodical." The
Public Nuisance Law was also known as the
Minnesota Gag Law. A lower court issued an
injunction, temporarily halting The Saturday
Presss publication. Near and Guilford appealed
to the Minnesota Supreme Court, which upheld
the injunction, stating that a newspaper that
"annoys, injures and endangers the comfort and
repose of a considerable number of persons was
indeed a public nuisance. After the Minnesota
Supreme Court upheld the temporary injunction,
the lower court issued a permanent injunction,
which virtually shut down The Saturday Press.
The Minnesota Supreme Court upheld the
permanent injunction.
Near appealed to the U.S. Supreme Court. In
Near v. Minnesota (1932), the Supreme Court
ruled that the Minnesota Gag Law
unconstitutionally restricted freedom of the
press. The court noted: The fact that the liberty
of the press may be abused by miscreant
purveyors of scandal does not make any the less
necessary the immunity of the press from
previous restraint in dealing with official
misconduct. In effect, the court ruled that all
prior restraints on publishing are unconstitutional, even if the publication contains
falsehoods. If the publication contains

falsehoods, there are remedies for this, such as


libel laws, the court said.
Although the court decision in Near v.
Minnesota (1931) ended prior restraint for
newspapers and magazinesand the
photographs, drawings and infographics in
themthe decision did not apply to all visual
media. Motion pictures were considered a
business, not a form of public communication,
until 1952. In Mutual Film Corporation v.
Industrial Commission of Ohio (1915), the
Supreme Court concluded that the exhibition of
moving pictures is a business, pure and simple,
originated and conducted for profit not to be
regarded as part of the press or as organs of
public opinion. The court equated motion
pictures with the theater, the circus, and all
other shows and spectacles, which it likewise
said were not protected by the First Amendment.
Based on this logic, the Supreme Court ruled
that it was legal for states and cities to establish
film censorship boards that issued permits for
films, allowing them to be screened. If a board
found a film to be indecent, scandalous or
sacrilegious, it could prohibit the public
screening of the film by withholding a permit. In
effect, the ruling approved prior restraint for
motion pictures. First Amendment protection
was extended to motion pictures in 1952 by the

The Miracle (1950), a film by Italian director Roberto Rossellini, was


the focus of a court case, Burstyn, Inc. v. Wilson (1952), which led the Supreme Court to extend First
Amendment protection to films.

Visual Communication Law


U.S. Supreme Court approximately 40 years
after the Mutual Film Corporation decision. In
Burstyn, Inc. v. Wilson (1952), the Supreme
Court belatedly ruled that a New York film
censorship boards refusal to give a permit to a
sacrilegious film, The Miracle, was
unconstitutional. The Miracle was a film by
Italian director Roberto Rossellini about a rogue
who impregnates a mentally incompetent
woman, who then believes she is the Virgin
Mary.
The Supreme Court concluded the film
boards powers "violate the First Amendment as
a prior restraint upon freedom of speech and of
the press" and are invalid under the same
Amendment as a violation of the guaranty of
the separation of church and state. The court
added that the state has no legitimate interest in
protecting any or all religions from views
distasteful to them which is sufficient to justify
prior restraints upon the expression of those
views. The court concluded that government
can restrict certain types of depictions, such as
obscenity, but it cannot restrict them using prior
restraint.
First Amendment protection was extended to
advertising even later than to motion pictures.
In 1942, the Supreme Court upheld a New York
City ordinance that banned the distribution of
commercial handbills on city streets. The case
involved an entrepreneur named F. J.
Chrestensen, who purchased a U.S. Navy
submarine and docked it on the East River in
Manhattan, where he charged admission for
tours. The city stopped him from passing out
handbills advertising the tours. The case
eventually went to the Supreme Court, which
ruled that the streets are proper places for the
exercise of freedom of communicating
information and disseminating opinion, and
governments cannot stop political expression
there, but that the Constitution imposes no such
restraints on government as respects purely
commercial speech (Valentine v. Chrestensen,

1942). This case established the commercial


speech doctrine, which stated that commercial
speech, including advertising, personal selling
and public relations, has very limited First
Amendment protection.
The commercial speech doctrine was in effect
until the 1970s, when the Supreme Court took
the first step toward extending First Amendment
protection to advertising. In a 1976 case,
Virginia State Board of Pharmacy v. Virginia
Citizens Commercial Council, Inc., the Supreme
Court ruled that consumers have a First
Amendment right to receive information, even if
it is from commercial sources. In Virginia, at the
urging of drug retailers, a state statute was
adopted that prohibited price advertising by
pharmacists. The rationale for the statute was
that price advertising by pharmacists would
divert their attention from professional services
to marketing, making them mere retailers rather
than medical professionals.
The statute was challenged by a consumer
and two nonprofit consumer groups, one of them
named the Virginia Citizens Commercial
Council, Inc. The consumer groups showed that
prices of prescription drugs varied greatly within
Virginia cities and argued that the ban on price
advertising limited consumers access to prices,
often times forcing them to pay higher prices
than if competitive price information were
available. The Supreme Court agreed with the
consumer groups, stating:
consumers interest in the free flow of commercial
information may be as keen, if not keener by far,
than his interest in the days most urgent political
debate. Advertising, however tasteless and
excessive it sometimes may seem, is nonetheless
dissemination of information as to who is producing
and selling what product for what reason and at what
price.

Although the Virginia State Board of


Pharmacy Supreme Court decision stated that
consumers have a right to receive advertising
information, a 1980 Supreme Court decision
created a four-prong test for determining

whether commercial speech is protected by the


First Amendment. Central Hudson Gas &
Electric Co. v. Public Service Commission of
New York (1980) arose when the Public Service
Commission of New York barred the Central
Hudson Gas & Electric Co. and other electric
utilities from promotional advertisinga ban
imposed during the oil embargo of 1973-1974.
The purpose of the ban was to keep electric

utilities from promoting electricity use when the


United States was confronting an energy
shortage. The oil embargo occurred when
members of the Organization of Arab Petroleum
Exporting Countries imposed an embargo on oil
exports to the United States because of the
United States decision to provide military
supplies to Israel during the Yom Kippur War.
The embargo was lifted in March 1974.

The Arab oil embargo of 1973-1974 led to gas rationing and rules on energy use. The Public Service
Commission of New Yorks rules led to a landmark Supreme Court decision concerning governments
abilities to regulate commercial speech in Central Hudson Gas & Electric Co. v. Public Service Commission
of New York (1980). U.S. Government Archives photo.

The Public Service Commission of New


York, which oversees such utilities as water,
electricity and phone, formally continued the
promotional ban in 1977, even though the oil
embargo and resulting energy shortage had
ended. Central Hudson challenged the
commissions action on First Amendment
grounds, claiming that the ban violated the
corporations speech rights.
The U.S. Supreme Court concluded that the
ban was far wider than necessary because it even
prohibited advertising for energy-saving
appliances, which would have been consistent
with the Public Service Commissions goals.

The Court concluded that the Public Service


Commissions goal of reducing energy
consumption was legitimate, but the Court
nevertheless struck down the ban for being
overbroad since the complete ban on advertising
did not directly advance the Public Service
Commissions goals.
To determine whether advertising could be
restricted by government, the Supreme Court
developed a four-prong test. The court stated:
At the outset, we must determine whether the
expression is protected by the First Amendment. For
commercial speech to come within that provision, it
at least must concern lawful activity and not be

Visual Communication Law


misleading. Next, we ask whether the asserted
governmental interest is substantial. If both inquiries
yield positive answers, we must determine whether
the regulation directly advances the governmental
interest asserted, and whether it is not more extensive
than is necessary to serve that interest.

Thus the court stated that a series of four


questions were to be asked to determine whether
a ban on advertising is constitutional. The
questions asked are:
(1) Does the advertising concern a lawful activity and
is not misleading?
(2) Is the government interest substantial?
(3) Does the regulation directly advance the
government interest?
(4) Is the regulation more extensive than necessary to
advance that interest?

Although subsequent Supreme Court decisions


have slightly modified these questions, they
nevertheless remain the test for determining
whether advertising has First Amendment
protection. Thus, if the advertising promotes an
unlawful activity, it is not constitutionally
protected. Ads for illegal drugs and hand
grenades can therefore be banned. If advertising
is misleading, it can also be prohibited.
The next question asks whether the
government interest is substantial.
Subsequent Supreme Court decisions suggest
that almost any legitimate government interest is
sufficient to meet the substantial requirement.
In a case originating in Puerto Rico, the
Supreme Court upheld a local ban on gambling
casino advertising based on Puerto Ricos
contention that if Puerto Rican residents
frequented casinos, which were build to lure
tourists to the island, this could lead to an
increase in crime. The court held that keeping
crime downregardless of how tenuous the
relationship between crime and casino
advertising waswas a substantial government
interest, and therefore Puerto Ricos ban on local
casino advertising was constitutional.
If the advertising is for a legal product and is
not misleading, and a ban is based on a sub-

stantial government interest, then authorities are


to ask themselves whether the proposed ban
directly advances the government interest. If the
ban does not directly advance the government
interest, then the ban is probably unconstitutional. In the case of Central Hudson Gas &
Electric Co. v. Public Service Commission of
New York (1980), the complete ban on electrical
advertising did not directly advance the
government interest because the ban also
included a ban on advertising for electricitysaving devices. If the government had allowed
advertising for more electrically-efficient
devices, and banned advertising for electricallyinefficient devices, then the ban would probably
have been legal.
The last question asks whether the ban is as
narrowly drawn as possible to advance the
government interest. If the ban is overbroad,
then the ban is probably unconstitutional. For
example, the Supreme Court ruled in a
Massachusetts case that a ban on billboard
advertising and point-of-purchase displays for
tobacco products within 1,000 feet of a school or
playground was overbroad. The court concluded
that the ban effectively stopped tobacco
advertising in 90 percent of the land in
Massachusettss major cities and therefore
effectively stopped almost all advertising for a
legal, although controlled, product. Because the
statute prohibited almost all tobacco advertising,
the court considered the Massachusetts statute to
be unconstitutional.
Administrative Law. Another type of law is
administrative law. Administrative law includes
administrative rules and regulations. Administrative rules and regulations are adopted by
government agencies, such as the Federal
Communications Commission (FCC), Federal
Trade Commission (FTC), and Food, and Drug
Administration (FDA). The procedures that
these and other agencies must follow when
adopting rules are specified in the Administrative Procedures Act, a federal statute passed

by Congress to ensure that administrative


agencies operate with transparency. Among
other things, administrative agencies must
publish a notice in the Federal Register
describing any proposed rule making. Publication in the Federal Register theoretically
informs all interested parties about the proposed
rule making and allows them to submit
comments to the agency about the proposed
rules. The intent was to allow broad public input
into the agency rulemaking process.

All three agenciesthe FCC, FTC and


FDAadopt rules that are published in the Code
of Federal Regulations and can affect visual
communications. These administrative agencies
have the power to enforce their regulations by
imposing monetary forfeitures on violators or by
issuing cease-and-desist orders, among other
sanctions.
These agencies adopt rules to clarify
Congresss intentions when it passes statutes.
For example, the Federal Communications Act
was passed by Congress in 1934. That statute
created the Federal Communications
Commission (FCC), which was directed by
Congress to adopt regulations so that
broadcasters operated in the public interest,
convenience and necessity. The FCC has
interpreted the public interest, convenience and
necessity to mean that indecent materials, such
as nude depictions, should be prohibited in

television programming during times when


minors are likely to be in the audience. That
period is between 6 a.m. and 10 p.m. local time.
Indecent materials that air between 10 p.m. and
6 a.m. primarily reach adults, rather than minors,
and for this reason are acceptable, because
indecent materials directed to adults are
protected by the First Amendment to the U.S.
Constitution.
An example of a violation of the FCCs
indecency rule is Janet Jacksons wardrobe
malfunction during the 2004 CBS Super Bowl
halftime show, where Justin Timberlake tore off
part of Jacksons costume, exposing her breast.
The FCC fined Viacom, CBSs parent
corporation, for the incident, but a Federal Court
reversed the fine, ruling that the incident
represented fleeting indecency. According to
the court, the FCC had in the past tolerated
fleeting indecency, which consists of acts that
appear so briefly of the screen that they are
sometimes even difficult to make out. This was
the case with the wardrobe malfunction.
Another administrative agency, the Federal
Trade Commission (FTC), was given power to
regulate unfair and deceptive advertising by
Congress. Consequently, the FTC has adopted
rules that prohibit deceptive advertising,
including visually deceptive advertising. The
FTC defines deceptive advertising as that which
might mislead the typical consumer. As an
example, the FTC found that a Hasbro
commercial appearing on Saturday morning
television showing a toy helicopter flying and
hovering in the air violated its rules against
deceptive advertising because the toy could not
actually fly. In the commercial, the helicopter
was suspended by monofilament wires attached
to poles and manipulated by unseen people,
thereby giving child viewers the typical
viewers of the commercial a false impression
of the toys capabilities (FTC, 1993).
Among other things, the Food and Drug
Administration approves and regulates

Visual Communication Law


prescription drugs. Part of its regulations state
that advertising for a drug can only state the
medical use for which it was approved and must
contain a "fair balance" between the benefits and
risks of using the drug. Claiming medical uses
for a drug other than for what it has been
approved is called off label use. This is often
done, but by pharmaceutical sales representatives and at medical seminars, rather than in
commercials.
Common Law. The fourth type of law is
common law or judge-made law. Much
common law involves torts, which are private or
civil wrongdoings, other than breaches of
contract, for which courts provide legal remedies
to the injured party. Torts include such injuries
as libel, false light and invasion of privacy.
Most torts produce mental distress and social
ridicule for the injured party, rather than
physical injury. As an example, actress Cameron
Diaz filed a $10 million libel suit against the
National Enquirer, claiming that that the tabloid
had libeled her in a story and photographs
alleging that she was having an affair with
Shane Nickerson, the married producer of her
MTV reality show, Trippin. The photo
showed Diaz and Nickerson hugging. Diaz
claimed that the falsehoods damaged her
relationship with then-boyfriend Justin
Timberlake, as well as her public reputation.
The lawsuit, which was filed in Great Britain,
was settled with the National Enquirer, which
eventually apologized for the story and paid
Diaz an undisclosed sum (Associated Press,
2005).
Libel consists of false statements and visual
images that publicly damage a reputation. The
damaging information is referred to as
defamation and consists of allegations that a
party has engaged in criminal conduct, moral
turpitude, has a loathsome disease, or is
professionally incompetent or unethical. Thus,
publishing a picture of a meeting and alleging
that it was a summit of mob leaders could

constitute libel, if it were not a meeting of


organized crime bosses. In a very old case, a
well-known jockey claimed to have been libeled
when a Camel cigarette advertisement, in which
he agreed to appear, showed him holding a
saddle with his pant zipper apparently open.

The photo was taken at such an angle that an


appendage appeared to be protruding from the
zipper, even though it was part of the saddle.
The headline in the ad read, Get a Lift with a
Camel. The jockey, Crawford Burton, sued the
publisher of the advertisement, claiming that the
picture, when combined with the headline, made
him appear guilty of indecent exposure and as
being a person physically deformed and mentally perverted. An appellate court allowed
Burtons libel suit to proceed (Burton v. Crowell
Pub. Co., 1936), but he ultimately lost the suit.
In a more recent case, the late stripper,
model and reality TV star Anna Nicole Smith

sued New York magazine for libel when the


magazine showed her on the cover under the
headline, White Trash Nation. Although Smith
had agreed to a photo shoot with New York,
believing it to be about the all-American
woman look, she claimed that the cover photo
had defamed her. Smith said the photo was not
part of the shoot and was instead an outtake.
The photo showed Smith squatting in a short
skirt wearing white cowboy boots, with a bag of

Cheez Doodles between her legs.


In Pueblo, New Mexico, a man was accused
of libel for digitally placing the face of a woman
he knew into sexually explicit photographs and
then electronically distributing the photos.
Because the photos resulted in the womans
being publicly ridiculed, the police arrested the
man for criminal libel, which is prohibited in 16
states. Unlike common law libel, which is a tort,

defendants convicted of criminal libel can be


sentenced to jail terms and fined, in addition to
paying any damages that result from a civil libel
suit (Malone, 2008). In the Pueblo case, the
digitally-altered photos undermined the
womans moral reputation.
Criminal libel exists in a dwindling number
of states. In Colorado, the criminal libel statute
was repealed in 2012, after a highly-publicized
case showed how influential individuals can use
the statute to have others prosecuted for
engaging in irritating, but nevertheless
constitutionally-protected, expression.
The highly-publicized case involved
a University of Northern Colorado
(UNC) student, Thomas Mink, who
operated a satirical website named, The
Howling Pig. Mink placed two
digitally-altered photos of a UNC
business professor on his website. One
made the professor look like Gene
Simmons of the seventies-era rock band,
KISS; another showed the professor
sporting a Hitler-style moustache and
sunglasses. The website dubbed the
mustached character, Junius Puke,
which resembled the name of the UNC
professor. Irritated by the satire, the
professor complained to the police, who
obtained a search warrant and seized
Minks computer. After examining the
computer, Mink was charged with
criminal libel.
The criminal case against Mink was
eventually dropped, but Colorado media
and the American Civil Liberties Union used the
case to lobby against states criminal libel
statute. A 2011 Denver Post editorial argued that
a strong case [can] to be made that the law is
unconstitutional. And we definitely believe it is
out of step with modern sensibilities. As a
consequence, the editorial concluded that
Colorado's criminal libel law should be shot
down, be it by the courts or the legislature

Visual Communication Law


(Denver Post, 2011). A year later, Colorados
criminal libel statute was repealed by the state
legislature.
In 2011, Fox Chicago News aired a news
segment about a Chicago-area plastic surgeon,
whose work allegedly left women disfigured.
After the segment aired, the doctor filed a civil
libel suit against the station, claiming that the
news segment depicted him as professionally
incompetent. Among other things, the plastic
surgeon claimed that Fox used digitally altered
photos to back up their claims. One photo
showed a woman who had breast implants, but
one breast was visibly larger than another, and
where one implant was positioned higher on the
chest than the other. A different photo, which
the surgeon claimed was also digitally altered,
showed a woman whose breasts appeared
shredded and mutilated after having had
plastic surgery. The doctor also claimed that
video segments were intentionally edited to
make him look professionally incompetent
(Courthouse News Service, 2011).
Libel suits can only be brought by
identifiable, living persons. Group libels are not
recognized in common law. For example,
Michigan United Conservation Clubs
(M.U.C.C.) filed a libel suit against CBS News,
alleging that two documentary shows, "The
Guns of Autumn" and its sequel "Echoes of the
Guns of Autumn," defamed M.U.C.C. and all
Michigan hunters. M.U.C.C. is an organization
that promotes natural resource conservation, but
whose members consist primarily of game
hunters. A segment of the documentaries
showed bear hunters hiding near a garbage
dump, where they shot rummaging bears. The
M.U.C.C. contended that the CBS documentaries suggested that Michigan bear and other
game hunters slaughtered wild game and was
therefore libelous.
The M.U.C.C. claimed that it and thousands
of Michigan hunters had been defamed by the
documentaries, even though the group and the

hunters were not identified by name. The suit


was dismissed because M.U.C.C. had not been
mentioned by name, and because there is no
such thing in common law as group libel. In
dismissing the M.U.C.C.s suit, the courts
simply restated an accepted principle of
common law: Calling any group, such as police,
gang members, or Michigan hunters brainless,
bloodthirsty psychopaths is not libelous.
Common law libel also states that ones
reputation ends with death, and therefore heirs
cannot sue in the name of a deceased person.
For this reason, many scathing accounts of
celebrities' lives appear after they die. Books and
articles have been written about Frank Sinatra
and his ties to organized crime; Anna Nicole
Smiths sexual escapades and drug addiction;
John Lennons dysfunctional addiction; and
Elvis Presleys drug-addled perversions. These
books and articles are written without fear of
libel suits, as dead people cannot be libeled. As
an example, New York magazine wrote of the
late Anna Nicole Smith: She had sex with men.
She had sex with women (several who would
come to know her well would consider her a
lesbian). She woke up one Christmas morning
on the floor of an apartment naked with another
dancer, the tree knocked over, vomit
everywhere (Lee, 2011). If Smith were alive,
such a report could spawn a libel suit. Because
Smith is dead, there is no possibility of libel
litigation.
Writer and former professor Albert Goldman
made a career writing unflattering books and
articles about such deceased celebrities as Bruce
Lee and John Lennon. In The Lives of John
Lennon, Goldman asserted that Lennon had a
homosexual relationship with Beatles manager
Brian Epstein and was involved in the death of
the Beatles first bass player, Stuart Sutcliffe. In
Elvis (1982), Goldman wrote that Elvis never
had normal sexual relations with girls. The
reason? He was a pervert, a voyeur. Goldman
added that Elvis was latently or actively

homosexual (p. 412). Because Elvis was dead


when these words were written, Goldman never
had to fear a libel suit.

White House photo of President Nixon and Elvis


Presley, reproduced in Albert Goldmans book,
Elvis. The cutline accompanying the photo in
Elvis reads: On the eve of his speech
proclaiming drugs Americas Number One
problem, President Nixon appoints the drugsaturated Elvis Presley (just look at his eyes!) a
special agent for the Bureau of Narcotics and
Dangerous Drugs. Because Elvis was dead when
the cutline was written, Elviss heirs could not
sue for libel.

Unlike libel, the false light tort does not exist


in every state, and it does not involve expressions that a person has engaged in criminal
conduct, moral turpitude, has a loathsome
disease, or is professionally incompetent or
unethical. False light is the publication of an
intentionally false statement that places a person
in a light that another reasonable person would
find offensive, and produces emotional distress
in the individual who is the subject of the
falsehood. Some state courts, such as
Minnesotas and Texass, consider false light
expressions to be nothing more embarrassing
expressions, and as such are not considered torts.
An example of a false light tort would be
digitally altering a persons photograph to make
him look grossly obese. Since obesity is not
criminal, morally reprehensible, loathsome or
unethical, the digital alteration would not
constitute libel. However, it could constitute

false light if the depiction is offensive and


produces emotional distress.
Invasion of privacy occurs in part when
someone gives publicity to a matter concerning
the private life of another if the matter
publicized is of a kind that (a) would be highly
offensive to a reasonable person, and (b) is not
of legitimate concern to the public (Minnesota
Supreme Court, 1998). Essentially, publicly
exposing highly personal, offensive facts
represents an invasion of privacy, if the private
facts are not a public concern. The court case in
Minnesota that established invasion of privacy
as a tort is illustrative of this tort.
The Minnesota case arose when 19 year-old
Elli Lake and 20 year-old Melissa Weber
vacationed with Webers sister in Mexico. In
Mexico, Weber's sister took a photograph of
Lake and Weber naked in the shower together.
After returning to the United States, Lake and
Weber brought several rolls of film to a
Minnesota Wal-Mart store, which operated a
photo lab. When they received their developed
photographs and negatives, an enclosed written
notice stated that one or more of the photographs
had not been printed because of their nature.
A short time later, a friend of Lake and
Weber mentioned the photograph and asked the
women about their sexual orientation. Several
weeks later, another friend told the two women
that a Wal-Mart employee had shown her a copy
of the photograph. Finally, Lake heard that at
least one copy of the photograph was being
circulated in their community. Lake and Weber
filed a lawsuit against Wal-Mart and the
unidentified Wal-Mart employees who
developed and stole the picture, alleging that the
photographs circulation constituted the
disclosure of highly personal, private
information, which constituted invasion of
privacy.
The Minnesota Supreme Court agreed. Lake
and Weber, although winning in the Supreme
Court, lost in the lower court against Wal-Mart

Visual Communication Law


because the jury decided that Wal-Mart had not
participated in the theft or circulation of the
photo and was therefore not liable for the
invasion of privacy.
In another invasion of privacy case, Neff v.
Time, Inc. (1976), a Pittsburgh Steelers football
fan sued Sports Illustrated for publishing a
photograph of him screaming and drinking beer
at Three Rivers Football Stadium. The photo of
John Neff appearing with the Sports Illustrated
story, A Strange Kind of Love, showed him
with his pants zipper completely down. Neff
asserted that the photo and title of the article
suggested that he was a sexual deviate,
invaded his privacy, and held him up to public
ridicule and contempt. The court concluded that
Neffs activities were in public and, even though
the magazine editors selected a photo that
caused him embarrassment, this did not
constitute invasion of privacy. The court merely
reaffirmed a long standing principle concerning
privacy: Activities that take place in public, and
can be seen by the public, are not private acts.
Therefore, photographing a person who is in a
public place does not constitute an invasion of
privacy.

Intellectual Property
Visual works, including logos, photographs
and graphic designs, like written works such as
books, scripts and plays, are considered
intellectual property. There are three classes of
intellectual property: trademarks, patents and
copyrights. Trademarks are identifiable brand
names, logos, slogans and packages that are used
in commerce. Trademarks protect consumers,
who are assured by trademark law that the
brands that they are buying are produced by the
correct manufacturers. Trademark laws also
protect manufacturers, which can stop imitators
or counterfeiters from using their brand name,
logo or package design.
Congress passed the Lanham Act in 1946,
establishing the statutory basis for trademarks.

Congresss power to enact the Lanham Act is


derived from its constitutional powers to
regulate interstate commerce. By contrast,
Article I, Section 8 of the U.S. Constitution
gives Congress the power to adopt and change
the Copyright Act, as well as laws concerning
patents. This section of the constitution states:
The Congress shall have the power to
promote the progress of science and useful arts,
by securing for limited time the exclusive right
to their respective writings and discoveries.

The Nike name and logo are trademarks that


protect consumers and the manufacturer. Upon
seeing the brand name and logo, consumers are
assured that they are purchasing a product from
Nike rather than an imitator.

The U.S. Constitution specifies that


copyrights, which protect literary and artistic
works, and patents, which protect technological
innovations, exist for limited time.
Trademarks, on the other hand, exist forever,
providing that the trademark continues to be
used in commerce and is protected by the
trademark holder.
Trademarks include brand names, such as
Folgers Coffee; symbols or logos, such as the
Nike swoosh; slogans, such as Budweisers
The King of Beers; or even designs, such

Burberrys swatch of plaid. Trademarks can be


established by using a brand name, symbol,
slogan, or other design identifying a product in
commerce. To assert that the name, symbol,
slogan or design is to be considered a trademark

by consumers and competitors, the manufacturer


can place a TM adjacent to the brand name,
symbol, slogan or design. If the name, symbol,
slogan or design is registered with, and accepted
by, the U.S. Patent and Trademark Office, the
symbol is to accompany the trademark.
Trademark protection includes requiring
users of the name to add trademark registration
symbols (TM, ) whenever the product name is
mentioned. Kleenex, Crayola and Xerox are
three brands that vigorously protect their
trademarks in this manner because the names are
often used in place of the correct generic terms:
facial tissues, crayons, and photocopying
machines. Requiring users of the name to add
the trademark symbols, as was done above, is a
form of trademark protection. Failure to use or
protect the trademark can result in abandonment,
which means the distinctive name or logo can be
used by any manufacturer. Some trademarks
such as thermos, yo-yo, aspirin and linoleum
have become generic terms in the United States
because the trademark holders failed to protect
them.
Trademarks can be registered with the U.S.
Patent and Trademark Office, but need not be.
The registration lasts for 10 years, but is
perpetually renewable. There are several
benefits of registered trademarks, which is why
most national brand names and logos are
registered. First, there is a presumption that a
registered trademark is valid. If the trademark is
registered, the burden of proof in a trademark
infringement lawsuit shifts to the defendant.
Second, federal registration means that an
infringement suit can be filed in federal court,
which will cover all infringements rather than
just intrastate infringement. Third, registration is
a nationwide warning of the users claim to
ownership. Another user of the name, in another
state or geographic area, cannot claim regional
rights to the name.
Every state also provides a legal mechanism
for trademark registration. The benefit of state

registration is primarily for local businesses,


such as retailers, craft breweries, and restaurants.
It protects the brand name and logo within the
state, making it easy to file a trademark
infringement suit in a state court.
Unlike copyrighted works, which must be
original creative works, trademarks can be
slogans or symbols that exhibit limited or no
creativity. As an example, a slogan such as
Coke Is It can be a trademark, but cannot be
copyrighted, because it lacks the minimum
creativity and originality necessary for a
copyrighted work. Another example is Fair &
Balanced, the trademark of Fox News, which is
not original, creative or even accurate.
Despite its lack of originality, Fox News,
filed a lawsuit charging trademark infringement
against comedian-turned-senator Al Franken and

his publisher, the Penguin Group, because


Franken used the subtitle, A Fair and Balanced
Look at the Right, for his 2003 book, Lies and
the Lying Liars Who Tell Them. The book cover
showed Fox news commentator Bill OReilly

Visual Communication Law


directly below the word, Lies. In its court
filing, Fox News contended that the book was
doing irreparable harm to its trademark and was
written by an increasingly unfunny C-level
political commentator, who appeared
intoxicated or deranged at a 2003 public
gathering. Franken humorously asserted that he
had a trademark on the word funny, and
planned to sue Fox for trademark infringement
for its use of the word unfunny. Fox sought a
temporary restraining order barring Penguin
from distributing the book.
The judge in the case heard arguments from
both sides and then asked Foxs attorney, Dori
Hanswirth, whether she thought Frankens use
of "fair and balanced" was likely to mislead
consumers into thinking that the book was
published or endorsed by Fox News. He
specifically asked Hanswirth, "Do you think that
the reasonable consumer would believe, seeing
the word lie above Mr. O'Reilly's face, that Mr.
O'Reilly or Fox were endorsing this book?"
Because trademark infringement is based on
protecting consumers from buying a misbranded
product, or a manufacturer from appropriating
another firms brand name for its benefit, the
trademark infringement suit essentially rested on
this question. When Fox was unable to show
that confusion in the marketplace was likely to
occur, it lost the suit. The judge concluded that
Foxs suit was wholly without merit, both
factually and legally.
A trademark can be protected only if it is
distinctive. To be distinctive, a trademarked
name can be descriptive, fanciful, arbitrary or
suggestive. Generally speaking, descriptive
names cannot be trademarked unless they have
been used for a long period by a company, and
the public has learned to identify the term with a
particular company. This is called secondary
meaning in trademark law. For example, a
court ruled in 1985 that SEATS, the name of a
ticket reservation business, had acquired a
secondary meaning and was a protected

trademark. When consumers viewed the name,


SEATS, they identify it with the company
rather than as a generic term. American Airlines,
although a descriptive name originally, has
acquired a secondary meaning, because
consumers identify the name with a particular
company rather than all airlines operating in the
United States. In contrast, names such as
Delicious Burgers, Fast Cars, or Creamy
Carmel are descriptive and cannot become
trademarks. These terms are commonly used to
describe a variety of brands and actions. For
example, all automotive raceways feature fast
cars, which is why the term is not distinctive.
Fanciful names and logos are those with no
meaning except for identifying the brand.
Terms such as Gleem, Lexus, and Exxon cannot
be found in dictionaries and were created with
the sole purpose of giving identity to the brand.
The brands might evoke other terms, such as
gleam and luxury, but are distinct from
them. Similarly, logos are created to identify a
brand. Common shapes, such as squares and
circles, cannot be trademarked, but linking four
circles together in a unique combination, as
Audi does, produces a distinctive trademark that
identifies the brand. Similarly, the Mercedes
Benz logo is a fanciful and unique trademark,

The logo on the left is the trademark of


Mercedes Benz, which identifies the brand. The
visual image on the right, while looking a bit like
the logo, is a peace sign and, as a generic
symbol, cannot be trademarked.

whereas a similar appearing peace sign is not


and cannot betrademarked.
Arbitrary trademarks are those that have a
dictionary meaning, but no association with the

product category to which the name is applied.


Examples of arbitrary trademark names are
Apple Computers, Amazon.com, Camel
cigarettes, and Penguin Books. Although the
names are arbitrary that does not mean that the
trademarks are devoid of meaning. The apple
in Apple Computers alludes to the legend of Sir
Isaac Newton, who supposedly discovered
gravity when he saw an apple fall from a tree.
In some variations of the legend, the apple
struck Newtons head as he was dozing beneath
the tree. Apples are also associated with
teaching and have become a symbol associated
with teachers. Apple pushed to have its
computers adopted in schools as instructional
tools during the eighties and nineties, tying the
brand firmly to the idea of teaching. Each of
these brands, in addition to the names, have
distinctive logos. The Amazon.com trademark
uses a logo that incorporates a smile.

Suggestive names are different from generic


names, but do conjure up in consumers minds
attributes of the product. Suggestive names
include Coppertone tanning lotions and sun
screens, Orange Crush soft drink, Tide laundry
detergent, and Ocean Spray juice, which have
descriptive elements in them, but are not purely
descriptive. Each trademark also has a
distinctive visual appearance in addition to the
name, so that the trademarked product is
visually reinforced by the name.
The Copyright Act of 1976
Intellectual or creative works developed in
the United States are protected by the Copyright
Act of 1976, which has been amended several
times. The 1976 Act was designed to provide

similar protections to works produced in the


U.S.A. to what existed in Europe and much of
the rest of the world.
Congress adopted the first Copyright Act in
1790, which protected books, charts and maps.
It added musical compositions in 1834,
photographs in 1865, motion pictures in 1912,
and computer programs in 1980.
The Copyright Act of 1976 is very specific as
to what it covers:
1) literary works, including illustrations in them;
(2) musical works, including any accompanying
words;
(3) dramatic works, which includes screenplays and
television program scripts;
(4) pantomimes and choreographic works that have
been fixed in tangible medium;
(5) pictorial, graphic, and sculptural works, such as
paintings and photographs, as well as diagrams,
charts and three-dimensional representations;
(6) motion pictures and other audiovisual works,
including those fixed on film, tape, and digital media;
(7) sound recordings; and
(8) architectural works, including blueprints, models
and the buildings themselves.

Snapshots such as this one of the U.S. Capitol in


Washington, D.C. are copyrighted from the
moment they are taken, but the copyright does
not preclude anyone else from taking a similar
photograph. The copyright also does not mean
that the work has any monetary or artistic value;
it simply means that no one can reproduce the
work without the photographers permission.

The Copyright Act only protects original


literary and artistic works fixed in a tangible
medium. A tangible medium is a technology that
allows the work to be saved and reproduced,

Visual Communication Law


whether it is in print or electronic form. If a
televised newscast is live and not recorded, it
has not been fixed in a tangible medium and is
therefore not copyrightable. Similarly, a standup
comedians routine and jokes cannot be
copyrighted unless the routine is scripted or
recorded. For someone else to use the
comedians script would be a violation of
copyright; to replicate an unscripted or
unrecorded performance would not be.
Excluded from copyright protection are
works produced for the federal government,
based on the assumption that the government
belongs to all citizens. Thus, photographs shot
by U.S. government employees are not
copyrightable. This includes official White
House photographs and even the iconic images
taken by such well-known photographers such
as Dorthea Lange, Arthur Rothstein and Walker
Evans when they were employed by the U.S.
Farm Security Administration during the Great
Depression. Many states statutes also relinquish
copyright to photographs and other materials
created by state and local government
employees, including mug shots and other law
enforcement photographs.
Originality is defined very loosely by the
Copyright Act. It essentially means that the
work is not a reproduction of an existing work
and required some level of creativity to produce.
Thus, two photographs of Mount Rushmore
taken independently from the same lookout on
the Presidential Trail at Mount Rushmore
National Memorialwhich look extremely
similarare equally protected by the Copyright
Act. Although both are protected, the copyright
does not preclude others from taking similar
pictures.
There is a principle underlying the Copyright
Act called scnes faire, which translates to a
scene that must be done. Scnes faire states
that scenes in particular genres are mandated by
the genre and therefore are not copyrightable.
For example, a bust of President Barak Obama

will show the president from the shoulders up


and the head will have a close resemblance to
the presidents. Thus, the sculptor of the first
bust of President Obama cannot claim that
subsequent sculptors infringed on his or her
copyright, if the two busts appear similar. In
terms of advertising, a laundry detergent
commercial will invariable show someone
oftentimes a childgetting clothes dirty,
followed by a close shot of the soiled clothes.
An actor, usually playing the mother or father,
will place the dirty clothes in a washing
machine, after which the clothes come out clean.
This sequence is not copyrightable. It follows
from this principle that ideas cannot be copyrighted; copyright protects the expression in an
artistic or literary work, not the ideas in them.

One of the most famous photographs taken


in the United States during the Twentieth
Century is Dorthea Langes Migrant Mother
(1936). Because this photo was taken by
Lange when working for the U.S. Farm
Security Administration, it is not protected
by copyright.
The scnes faire doctrine has been upheld
for works of photography. Photographer Joshua
Ets-Hokin sued SKYY Vodka for copyright
violation because a photo of a vodka bottle in
one of their ads looked very similar to a
photograph he had taken earlier for SKYY. The
court concluded in Ets-Hokin v. Skyy Spirits,

Inc. (2000) that there were a very limited


number of ways that a photographer could shoot
a picture of a vodka bottle and its label, and
therefore similarities were bound to occur. For a
copyright violation to occur, the second photo
would have to be an exact reproduction of EtsHokins original photo.
In a major decision for publishers, the court
decided in Bridgeman Art Library v. Corel
Corp. (1999) that photographic reproductions of
public domain art works, such as paintings by
European Masters, are not copyrightable. In that
case, the Corel Corp. was selling a CD-ROM

In Bridgeman Art Library v. Corel Corp.


(1999), the presiding judge ruled that
photographs that faithfully reproduce
famous paintings, such as Frans Halss The
Laughing Cavalier, cannot be copyrighted
because they lack originality. Bridgeman
claimed a copyright for the photographic
image of Halss 17th century painting.
containing images of famous European artworks, such as Frans Halss The Laughing
Cavalier. Corel claimed that it had obtained the
images from an out-of-business company called
Off the Wall Images. Bridgeman Art Library

had an extensive digital library of images


painted by European Masters such as Hals,
Rembrandt and Michelangelo, which it claimed
were copyrighted. Bridgeman licensed its
photographs for a fee and claimed that no other
digital photographs of the art works had been
authorized by the museums owning the
paintings. Bridgeman therefore claimed that
Corel violated its copyrights.
The presiding judge ruled that faithful
reproductions of public domain art works are not
copyrightable. The court noted that, although it
takes some skill to photograph an artwork,
photographs of paintings lack originality, which
is required by the Copyright Act. Virtually all
photographic reproductions of paintings must be
photographed from eye level, rather than from
an angle, and must include the whole painting.
Once cropped, virtually every photographic
reproduction will be the same. Because they are
all the same, the photographs cannot be
copyrighted.
Copyright Duration. An original work is
copyrighted from the moment that it is fixed in a
tangible medium, according to the Copyright
Act of 1976. Thus, a photograph is protected
from the time the shutter of the camera closes.
This was not true prior to passage of the 1976
Act. Before that law went into effect, all works
needed to bear an official copyright notice ();
if the work was published without the notice, it
entered the public domain immediately. As a
result, all works published before 1977 without a
copyright notice are in the public domain
because they failed to comply with then-existing
law.
Until passage of the Copyright Act of 1976,
which went into effect on January 1, 1978, a
copyright lasted 28 years and was renewable for
one additional term of 28 years. After 56 years,
the work entered the public domain, meaning
that it no longer had copyright protection.
Works in the public domain can be reproduced
by anyone. If the copyright on the work was not

Visual Communication Law


renewed, it entered the public domain after 28
years. As a result, every work published before
January 1, 1923 is in the public domain. This
includes motion pictures, including all of Charlie
Chaplins short films. Moreover, any work
published prior to 1963, which did not have its
copyright renewed, is now in the public domain.
Very few written works published in the
United States prior to 1963 had their copyrights
renewed. Similarly, the copyrights on many
silent films were not renewed because the advent
of sound film made them obsolete. Copyrights
on such classic films such as The Hunchback of
Notre Dame (1923) and The Phantom of the
Opera (1925) were not renewed, so they entered
the public domain in 1951 and 1953
respectively.
Singer-turned-Congressman Sonny Bono and
his wife, Mary, who replaced him in Congress
after the singer was killed in a skiing accident at

the beginning of 1998, responded to lobbying of


U.S. movie studios, and introduced the
Copyright Term Extension Act (CTEA) in 1998.
CTEA extended copyright lengths to life of the
author plus 70 years, and for corporate works,
95 years following publication. The Sony Bono
Act or the Mickey Mouse Protection Act, as
CTEA is also known, passed Congress and
became law on October 27, 1998, effectively
protecting the copyrights on Steamboat Willie,
The Cocoanuts, The Jazz Singer and other visual
works for an additional two decades. To the
movie studios, these are valuable properties that
were about to enter the public domain.
Like trademarks, copyrights can be registered or unregistered. Copyrights can be
registered with the U.S. Copyright Office for as
little as $35. The advantages of copyright
registration are that it provides proof of
copyright ownership and the date when the

Universal studios never renewed the copyrights on silent films such as The Phantom of the Opera
(1925) and the Hunchback of Notre Dame (1923), which placed them in the public domain 28
years after their release.

copyright work was published. More


importantly, registration allows the copyright
owner to collect statutory damages, rather than
actual damages, if an infringement occurs. Only
registered copyright owners can collect statutory
damages. The Copyright Act of 1976 establishes
statutory damages as a sum of not less than
$750 or more than $30,000 as the court
considers just. In the case of egregious
infringement, such as piracy, the court can
award up to $150,000 in damages.
The difference between actual damages and
statutory damages is immense. For example, a
downloaded musical work such as a popular
song has a value of about $1, which is the
average price of a downloaded song on iTunes,
eMusic and other music vending websites.
Someone who illegally downloads a song

deprives the copyright owner of some portion of


the $1, which is the actual damage. However,
the statutory damages when someone downloads
a song are between $750 and $30,000 per song,
which is why the Recording Industry
Association of America, a group that sues illegal
downloaders on behalf of music copyright
owners, seeks statutory damages rather than
actual damages for each infringement. As an
example, five record companies accused Joel
Tenenbaum of illegally downloading and
sharing 30 music files on Kazaa, including
multiple songs by Eminem, Green Day and the
Red Hot Chili Peppers. The jury awarded the
recording companies $675,000 for the 30
infringements, an amount that was upheld upon
appeal (Sony BMG et al. v. Tenenbaum, 2011).

References
Associated Press (2005, June 4). Cameron Diaz
sues National Enquirer, claiming libel. Augusta
Chronicle.
Bridgeman Art Library v. Corel Corp. 36 F.
Supp. 2nd 191 (S.D. NY, 1999).
Burton v. Crowell Pub. Co. 82 F. 2nd 154 (1936).
Courthouse News Service. (2011, Sept.13).
Doctor claims Fox News defamed him. (at
www.courthousenews.com/2011/09/13/39724.ht
m)
Burstyn, Inc. v. Wilson 343 U.S. 495 (1952).
Denver Post (2011, December 18). Editorial:
Colorados criminal libel law should be shot
Down, p. 11.
Federal Trade Commission (1993), Hasbro, Inc.,
116 F.T.C. 657 (consent order).

Gitlow v. New York 268 U.S 652 (1925).


Lee, Dan P. (2011, June 5). Paw Paw and Lady
Love. New York, p. 16.
Lemon v. Kurtzman 403 U.S. 602 (1971).
Malone, Patrick (2008, November 3). Criminal
libel charged in Pueblo. The Pueblo Chieftan, p.
5.
Michigan United Conservation Clubs, et al. v.
CBS News 665 F. 2nd 110 (1981).
Mutual Film Corporation v. Industrial
Commission of Ohio 236 U.S. 230 (1915).
Sony BMG Music Entertainment, et al. v.
Tenenbaum 660 F. 3d. 487 (1st Cir. 2011).
Valentine v. Chrestensen 316 U.S. 52 (1942).