Warner Bros. v. Magic X: Where the Rubber Meets the Road

Image via Wikipedia
The Cantonal Court in Schwyz (Switzerland) is expected to decide in the coming weeks whether to ban a product registered in 2006 with Swissreg, the Swiss Federal Institute of Intellectual Property.


The product is the target of a copyright infringement claim by Warner Bros., overseer of the blockbuster Harry Potter film franchise, against manufacturer Magic X. The product? Harry Popper condoms.

As reported by the Website THR, Esq. (http://thresq.hollywoodreporter.com) and the online edition of The Daily Telegraph (www.Telegraph.co.uk), the Popper prophylactic's package boasts a cartoon condom adorned in Harry Potter-type glasses holding a magic wand.

Warners is breaking out the big guns to try to cancel the condom company's trademark registration, but counsel for Magic X insists their product is wholly unrelated to author J.K. Rowling's money-making boy wizard.  The battle has been waged throughout Europe, with Warners having successfully prosecuted its claims in Austria and Germany to date.

Despite its opposition to copyright infringement, the health-conscious staff of "TUOL" advocates protected sex, even if it means wearing Harry Popper condoms, to avoid getting "hog warts."

Iceland Goal: 'Fantasy Island' for Journalists?

Image via Wikipedia
Agence France Presse reports that Iceland's parliament in June unanimously approved the Icelandic Modern Media Initiative ("IMMI")[http://www.immi.is], a freedom of information bill that the European island nation envisions will create the world's strongest shield to protect journalists and whistleblowers.


WikiLeaks founder Julian Assange is one of IMMI's biggest boosters. Iceland parliament member Birgitta Jonsdottir hopes the IMMI protection afforded investigative reporters and their confidential sources will turn Iceland into a "transparency haven" that will attract journalists to Iceland, much as countries that are tax havens draw wealthy citizens.  Jonsdottir, a self-proclaimed "anarchist" (though "TUOL" bets a krona she observes state holidays), said IMMI is a response in part to previous censorship in August 2009, when public broadcaster RUV was enjoined from airing a report on one of Iceland's largest banks that went bust a year later, helping to push the country to the brink of bankruptcy.

IMMI is expected to take effect in about a year and a half, as its enactment requires changing about 13 laws currently in force.  "TUOL" doubts that journalists will be lured to the North Atlantic Ocean kingdom, particularly if it will require them to learn how to spell Reykjavik, Raykjovic, Rakervic, never mind.

OCR Reporters 'Face' Their Readers

Image by DannySan via Flickr
The Santa Ana, Calif.-based Orange County Register, a Freedom Communications, Inc. publication, has decided that each staff-bylined story will be accompanied by a head shot of the Register reporter who wrote it.


 The rationale behind the move, according to the daily's editor, is to "promote our talented writing staff." Unfortunately, as with most moves taken by newspapers nowadays, the decision is not journalistic, but based on marketing, specifically, a suggestion from the MORI research firm.

The plan is to have a mug shot of the reporter, free of props, appear next to the byline accompanying the article.  OCR staffers face an uphill battle trying to convince editors that a flask is not a prop, but rather, a necessity.

Register readers will learn soon enough why the ink-stained wretches generating their news opted for print journalism, rather than television reporting (just kidding; "TUOL" knows that everyone in California is good-looking). Wonder if there will be an exception made for cloak-and-dagger investigative reporters, who probably consider their smiling puss a detriment to going undercover.

Why Cloak-and-Dagger Journalists Need to Read Their Own Publication

Image by Mark Grealish via Flickr
Across the Pond, from whence Monty Python sprang, comes an amusing story in The Guardian concerning its ink-stained, red-faced brethren at The Croydon Advertiser.


Seems an intrepid Advertiser reporter went undercover--no pun intended--posing as a "john" to expose--still no pun intended--a brothel operating as a massage parlor. The results of the reporter's probe--slight pun intended--appeared in a story under the headline: Sinister brothel uncovered next to charity office, proving that charity begins at home (if your home is a house of ill-repute).

Ah, but here's the rub. Had the fearless scribe turned to page 52 of The Croydon Advertiser, he would have found an ad for the same "fantasy massage" parlor he went to great lengths to uncover. The Croydon Community Against Trafficking ("CCAT") alleges the brothel has regularly promoted itself in the Advertiser for years, and that the CCAT previously has flagged the enterprise to the newspaper.


In a spin worthy of a politician's shill, the editorial director of  Advertiser parent Northcliff  Media's south-east weeklies issued a statement that although the Sexual Offences Act of 1956 proscribes operating a house of prostitution, it is not against the law to accept advertisements for brothels.

Still, the Advertiser may want to address its advertising policy at its next board-ello meeting.

'We Donate, You Decide'

Image via CrunchBaseThe Rupert Murdoch-owned News Corp., parent of Fox News, The Wall St. Journal, The New York Post and other media entities, and its political action committee, News America Holdings, have contributed $1 million to the Republican Governors Assn.("RPA"), The New York Times reported in a story first-broken by Bloomberg News.

Campaign finance trackers deemed the $1 million contribution one of the largest political donations ever given by a media organization.  A News Corp. spokesperson said the RPA's stance on low taxes and economic growth, rather than its political affiliation, was the basis for the contribution.  News Corp. has donated to Republican and Democratic causes and candidates in the past, but never in such a large sum.

The News Corp. spokesperson said the media conglomerate's wall separating editorial and business decisions would ensure that the political contribution does not influence political news coverage. Viewers of Fox News might wonder whether sentries at the "wall"  have a standing order to  "detain all Democrats."

Appeals Court: Pa. School Board Wrongly Avoids the Sunshine

Image by Cornell University Library via FlickrA three-judge appellate panel in Pennsylvania has sided with the Trib Total Media, Inc.-owned Valley News Dispatch in finding that the Highlands School District violated the Commonwealth's Sunshine Law when it met in executive session to discuss a tax assessment appeal with shopping center representatives.

Commonwealth Court Judge Patricia A. McCullough wrote that the shopping center reps should not have had a "private audience" with elected officials to lobby the board to support their position concerning the tax issue. The appellate court said the nonpublic meeting did not fall within the open meetings Sunshine Law exemption that preserves private litigation strategy sessions with one's attorney because the shopping center reps were adversaries. The appeals court also rejected the school district claim that a public meeting would discourage the use of alternative dispute resolution.

The case began last June when a Valley News Dispatch reporter was barred from the executive session discussion of the tax assessment litigation, even though counsel for both parties and the shopping center reps were allowed to attend. The trial court rejected the newspaper's claim that the non-public meeting violated the Sunshine Law (Pa. Code Sec. 701 et seq.).

Supervisor Moves Forward Against Anonymous Bloggers

Image via WikipediaKudos to www.SuffolkMediaLaw.com newsletter for flagging a Pittsburgh Post-Gazette story last week involving Forward Township Supervisor Thomas DeRosa's successful pursuit of the identities of six anonymous bloggers whom he alleges defamed him on the online bulletin board, www.elizabethboro.com.

Court of Common Pleas Judge R. Stanton Wettick, Jr. ordered  information about the posters be turned over to the township supervisor, who claimed in a lawsuit filed last November that the anonymous comments accusing him of corruption impugned his reputation. The American Civil Liberties Union, which interceded on the online bulletin board's behalf, released the six bloggers' IP (Internet Protocol) addresses to DeRosa's counsel, which will enable the supervisor to petition the posters' respective Internet Service Providers to release the names.

The ACLU does not plan to appeal Judge Wettick's ruling.

Worcester Daily Meter Is Running

Image via WikipediaThe New York Times reports that the online edition of its sister publication, The Worcester Telegram & Gazette next week will launch a metered paywall system.

Although subscribers to the print edition will continue to have free access to online content, others will be allotted 10 free local articles a month before a subscription fee kicks in.  Online readers can opt for a $1 day pass or a $14.95 monthly subscription for complete access to online local news content.
The New York Times plans to unveil its own metered paywall system for its online edition early next year.

'Choirgate' Libel Case Ends on High Note for Student Journalist

Image by jimmywayne via FlickrThe Las Vegas Review-Journal reports today that Nevada District Court Judge William G. Rogers has thrown out a defamation suit brought by music teacher and choir director Kathy Archey based on an article written by Lauren MacLean that appeared in the Churchill County High School newspaper.

Archey sued the superintendent of schools and the principal who approved publication of the article, along with student newspaper advisor Myke Nelsen and the Lahontan Valley News that publishes the student paper and also covered the underlying issue.  Dubbed "choirgate" by parents, Archey was the target of complaints by parents that she selectively withheld student audition tapes from a statewide musical competition based on her evaluation of the students' talent.

Archey sued in March 2010, seeking $10,000 in damages for what she alleged was damage to her reputation. In tossing the suit, Judge Rogers wrote that nothing contained in MacLean's article was false or known to be false to the student journalist.

Viacom Appeals YouTube Copyright Ruling

Image via WikipediaViacom International Inc., a Delaware corporation and the fourth-largest media conglomerate on the planet, has filed an appeal in the U.S. Circuit Court of Appeals for the Second Circuit of U.S. District Court for the Southern District of New York Judge Louis Stanton's adverse ruling in the copyright infringement case against Mountain View, Calif.-based Google Inc.'s YouTube, Inc. video-sharing Website, according to Bloomberg News.

In Viacom Intl. Inc. v. YouTube Inc. (Case No. 07-02103), Judge Stanton ruled the defendant was shielded by the safe harbor provision of the Digital Millenium Copyright Act ("DMCA") [H.R. 2281] against the plaintiff's copyright infringement claim. Viacom sought $1 billion in damages for YouTube's purported unauthorized use of clips from Viacom's stable of programs, including South Park and The Daily Show With Jon Stewart. The DMCA safe harbor provision protects a service provider if it removes infringing material when alerted by the copyright owner.

Viacom owns MTV Networks and Paramount Pictures.

Tiger Gets Column, But Not His Game, Back

Image by allaboutgeorge via Flickr

Would you read a golf tips column from a duffer who finished 78 in a field of 80 golfers in a recent pro tournament, finishing 18 over par?  Golf Digest hopes so.

Erstwhile columnist Tiger Woods resumes his gig in the September issue of Golf Digest. His column disappeared from the magazine in January 2010, after his sex scandal broke.  Woods will be responsible for writing a monthly column under his byline, but it will be up to subscribers to read Tiger's references to foursomes, playing through, putters and wood without tittering.

ABA Wedded to Gay Marriage

Image via Wikipedia

At its just-concluded annual meeting in San Francisco, the American Bar Association overwhelmingly passed a resolution urging governmental entities to "eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry."

According to a report on the Jurist Legal News and Research Website ( http://Jurist.law.pitt.edu), the ABA vote comes one week after Judge Vaughn Walker, the Chief Judge of the U.S. District Court for the Northern District of California, ruled Proposition 8 violated the Due Process Clause and Equal Protection Clause of the 14th Amendment to the U.S. Constitution.  Jurisdictions that permit same sex marriage include Massachusetts, Iowa, Vermont, New Hampshire, Connecticut and the District of Columbia.

There was a time (too long ago) when the ABA was in the vanguard of legal issues such as gay marriage, rather than playing catch up with the courts, but kudos to the legal association for speaking out at all on the civil rights issue.  Admittedly, this post neither relates to media law nor journalism, but "TUOL" toiled for years for the American Bar Association Press and wanted to give a shout out to the ABA for doing the right thing.

UPDATE: Calif. App. Ct. Finds Judge's Photo Ban May Lack 'Merritt'

Image via Wikipedia

The California Court of Appeal has pressed Superior Court Judge Hilleri Merritt either to lift her prior restraint on Los Angeles Times photographer Al Seib and allow publication of  his photographs of murder defendant Alberd Tersargyan taken in open court or show cause why her order should remain in effect. [See "TUOL" post 8/6/10.]

 Oral arguments were heard today by the appellate panel and any decision will be deferred for a couple of weeks to allow both sides to submit supporting documents.  In ordering Judge Merritt to rescind her ban, the appellate court cited established First Amendment cases that prohibit prior restraint on publications.

UPDATE: President Obama Inks SPEECH Act

Image via Wikipedia

American authors and jorunalists breathed a sigh of relief after President Barack Obama yesterday signed the so-called "libel tourism" bill co-sponsored by Sen. Patrick Lahey (D-Vt.) and Sen. Jeffrey Sessions (R-Ala.).

The Securing the Protection of our Enduring and Established Constitutional Heritage ("SPEECH") Act [H.R. 2765] prevents the enforcement of foreign libel judgments in the U.S. that run counter to protections afforded by the First Amendment. (See "TUOL" post 7/28/10.) The SPEECH Act allows for U.S. defendants in foreign defamation suits to seek a declaratory judgment in an American court to clear their name.

Newsweek Loses Another Marquee Name

Image via Wikipedia

Coming on the heels of Editor Jon Meachem's announced departure following Sidney Harman's purchase of the magazine[see "TUOL" post 8/2/10] Editor-at-Large Evan Thomas is leaving Newsweek after 25 years.

Thomas, who claims his exit was planned before the 92-year-old audio equipment magnate Harman bought Newsweek, will teach journalism at Princeton (no doubt at a higher level of compensation than "TUOL"'s yours truly) and write books, beginning with a biography of President Dwight D. Eisenhower (the pages will be full, even if the subject is blank). Thomas came to Newsweek in 1986 after a decade of working at its principal rival, Time, and has served as Washington bureau chief and assistant managing editor. He also is regularly featured on radio and tv political chatfests.

The financially wobbly Newsweek has now lost Thomas & Meachem after earlier in the year watching star Michael Isikoff depart.  Harman may staff the magazine with his gin rummy buddies.

Plunging Periodical Newstand Sales

Image via Wikipedia

First-half 2010 newsstand sales figures for magazines improved over 2009 results, but that's not saying much.

According to www.MediaWeek.com, citing Magazine Information Network(MagNet) data, first-half newstand sales declined 7.7 percent to more than 451 million units, compared to a 12.4 percent decline in 2009. MagNet, which consolidates magazine wholesaler information, said news, auto and entertainment titles were hardest-hit, while sales of food and sports periodicals actually increased.

Newstand sales account for roughly 13 percent of all magazine circulation. Observers are not optimistic about third-quarter sales results. Changing consumer behavior, the recession, and a spike in the price of magazines, which has climbed since 2008 from an average $4.11 to $4.60, are blamed for the disappointing first-half results.

Meanwhile, the Audit Bureau of Circulations said the average circulation of 440 magazine titles declined 2.3 percent in the first half of 2010 compared to the comparable period in 2009. Playboy and Reader's Digest were the biggest circulation losers, according to accounts in www.Bloomberg.com and www.PaidContent.org.

South Africa: A Step Back on Press Freedom?

Image via Wikipedia

Journalists and press freedom advocates are concerned regarding efforts by the South African government and ruling ANC Party that may impede investigative reporters' shining a spotlight on government misdeeds, according to a report on the Voice of America Website (www.voanews.com).

The proposed creation of a Media Appeals Tribunal ("MAT"), an idea that has been germinating since 2007, would allow anyone to register a complaint about alleged unfair treatment by the news media, which opponents fear could promote censorship.  Critics argue that  South Africa has no need for a MAT, because the country already has a press ombudsman and organizations, such as the Public Protector and the Human Rights Commission, in place to handle complaints against the news media.

VOAnews.com also cited legislation being pursued by the ruling government, the Protection for Public Information Act ("PPIA"), as further evidence of the ANC Party's predisposition toward stifling criticism of public officials. The South African National Editors Forum has been among the most outspoken critics of the MAT and PPIA.

Judge Bars Pix of Murder Defendant; Rescinds Permission Given to Photog

Image via Wikipedia

You can't unclick a camera, your Honor.

The Associated Press reports this week that Superior Court Judge Hilleri G. Merritt ordered Los Angeles Times Photographer Al Seib to cease snapping pictures of murder defendant Alberd Tersargyan and not to publish any photos already taken of the 60-year-old defendant at his arraignment on charges of  murdering a prostitute, and the husband and 8-year-old daughter of a woman he also is accused of killing to which he previously entered a not guilty plea.

Judge Merritt earlier had approved Seib's written request to photograph the defendant, but backtracked when defense counsel objected to pictures being taken.  The prosecutor voiced no opposition to Seib. Judge Merritt took counsel to task for not addressing the issue of  picture-taking before the hearing.

Judge Merritt voiced concern about prejudicing the defendant if pictures of him in an orange prison jumpsuit were to appear in the newspaper. Attorneys for the Times are likely to appeal the order as an unconstitutional prior restraint on the daily's First Amendment rights.

Judge Grounds Aviation Lawyer's Libel Claim Against Blogger

Image by The Library of Virginia via Flickr

In Arthur Alan Wolk, Esquire  v. Walter K. Olson et al (Case No. 09-4001), U.S. District Court Judge for the Eastern District of Pennsylvania Mary A. McLaughlin  this week held the discovery rule is inapplicable to mass media defamation cases and cannot toll the Commonwealth's statute of limitation [42 Pa. Cons. Stat. Ann. sec. 5523(a)] in mass media defamation claims.

Judge McLaughlin granted the defendants' motion to dismiss the suit filed May 12, 2009, by Wolk, a nationally known aviation attorney, against the blog Overlawyered.com, which alleged defamation, false light invasion of privacy and intentional interference with prospective contractual relations, based on a post that ran on the Website in April 2007. In her 9-page decision, Judge McLaughlin said Wolk's suit cannot survive Pennsylvania's 1-year statute of limitations ("SOL").  Wolk has filed a notice of appeal of her decision.

The discovery rule stops the statute of limitations clock where a plaintiff, despite exercising due diligence, is unable to know that he has been legally injured and by what cause. Plaintiff's attorneys argued that the discovery rule should have tolled the 1-year SOL until the plaintiff discovered the existence of the allegedly defamatory blog posting, which happened in this case two years after the item initially appeared on the Website.

Judge McLaughlin, however, espoused the position taken by many courts around the nation that "as a matter of  law, the discovery rule does not apply to toll the statute of limitations for mass-media defamation." Overlawyered.com attracts more than 9,000 unique visitors daily, and is a popular destination among lawyers.

Had the plaintiff's suit survived the motion to dismiss,Wolk still faced an uphill battle on his defamation claim on First Amendment grounds, because the purportedly defamatory posting was arguably defensible as opinion.

AOL Tries to Make Patch Work

Image via Wikipedia

Jumping into the hyperlocal news market with both feer, AOL, Inc. is now operating 99 Patch sites in nine states, according to a story in today's Boston Globe.

According to The Nielsen Co., as of June 2010, when AOL had 85 Patch sites up and running, AOL averaged 210,000 unique visitors to the sites nationwide.  The Globe is taking a keen interest in Patch because it has touched down in Massachusetts where the Globe's online site, www.Boston.com, already operates its own hyperlocal Your Town news sites, and GateHouse Media, Inc. also competes with its Wicked Local sites in Bay State communities.

The Globe article claims that its Your Town sites averaged 200,000 visitors to its 25 outlets in June, compared to Wicked Local's 529,000 visitors spread out among its 160 sites. AOL, which purportedly is doling out $50 million to expand its Patch network this year, expects to build on its 13 Mass. sites before the end of the year.

Study: Journo Jobs Median Salary Stagnant

Image via Wikipedia

It's a bad news, bad news scenario: an annual study of new journalism and communications grads found the median salary for jobs stuck at the same level for a fourth consecutive year, but at least there are fewer of these low-paying jobs available.

The Univ. of Georgia's James M. Cox, Jr. Center for International Mass Communication Training and Research, which has conducted the salary survey of freshly minted graduates since 1987, found the median salary remained at $30,000, according to a story in Editor & Publisher magazine.  The median starting salary at daily newspapers was $27,000, compared to $25,000 at weeklies.

The E &P article noted the study's findings concerning the shrinking differential between salaries offered at union and non-union publications. Though non-union shops paid a median salary of $30,000 in both the 2008 and 2009 surveys, union publications' median salary, which started at $34,400 in 2008, declined to $30,700 in 2009.

Not to pile on, but the latest Center study reported that only 46.2 percent of bachelor degree recipients in the field had secured a job on Oct. 31, 2009,  10% fewer graduates than reported a year earlier. A quarter of the grads were employed part-time and another quarter were unemployed, according to the study.

A ray of sunshine: grads pursuing journalism and communications positions in Spring 2010 are enjoying somewhat more success landing a full-time job than grads reporting at the end of 2009.

High Court Aids Irish Red Cross in Unnamed Blogger Pursuit

Image via Wikipedia

Ireland High Court Justice Brian McGovern has allowed the Irish Red Cross to add monolithic search engine Google, Inc. as a defendant in a legal action seeking to track down an anonymous blogger.

According to an account on the BreakingNews.ie Website, the High Court ordered UPC Communications, an Internet services provider, to disclose the identity of the unnamed blogger whom the Irish Red Cross claims has "willfully distorted and misconstrued" internal information about the organization that has hindered its fund-raising efforts.

The Irish Red Cross has since dropped its litigation against UPC and directed its attention toward Google, which the High Court  agreed has facilitated the critical blog. Google is a major donor to the International Red Cross, which should make matters interesting.

Wash Post Unloads Newsweek to Stereo Magnate for $1

Image via Wikipedia

After 50 years at the helm, the Washington Post Co. has jettisoned Newsweek, unloading the money-losing newsweekly magazine to 92-year-old audio equipment magnate Sidney Harman, according to reports in Ad Age, Bloomberg News, and The New York Times.

The Post, which has been courting and rejecting suitors for the magazine that may lose up to $70 million this year [see "TUOL" post 6/3/10], reportedly sold Newsweek to Harman for $1. The purchase price may not seem like a lot of money--though the year Harman was born, $1 could buy a gallon of sweet pickles or a dozen bars of glycerine soap--but Harman also is assuming the magazine's liability and purportedly has agreed to retain 250 of Newsweek's approximately 325 employees. 

The magazine lost roughly $30 million last year and has seen its ad pages decline by nearly 10 percent over the first half of 2010. Harman, whose fortune was made from an FM radio sales business he launched during the 1950s, is married to Calif. Congresswoman Jane Harman.

Jon Meachem, who was unsuccessful in forming a consortium to purchase the magazine, is expected to step down as Newsweek's editor as Harman assumes ownership. It remains to be seen what, if any,
long-range plans Harman has for Newsweek, especially because, at age 92,  he's probably even reluctant to purchase green bananas.

NC Judge Rules Daily's Commenter's Identity May Be Protected

Image via Wikipedia

Gaston County (N.C.) Superior Court Judge Calvin Murphy has ruled that the Freedom Communications, Inc.-owned Gaston Gazette (www.gastongazette.com) does not have to reveal the identity of an anonymous commenter on an online article concerning a murder suspect to the suspect's attorney, according to The Associated Press.

Citing the qualified privilege afforded the Gazette by the First Amendment and North Carolina's shield law [N.C. Gen. Stat. sec. 8-53.11], Judge Murphy held that counsel for murder defendant Michael Mead failed to show that the information he sought was unavailable elsewhere or was vital to Mead's defense.  Mead is accused of fatally shooting his fiancee in 2008 and allegedly burning her home to conceal the crime.

According to the Gazette's attorney, the anonymous posting at issue allegedly concerns a lie detector test administered to the defendant.

WHPC to Fox: Your Seat's in the Front Row

Image via Wikipedia

The presidential press conference game of Musical Chairs set in motion by 89-year-old Helen Thomas' resignation and vacating of her front-row, center seat [see "TUOL" post 6/17/10] has ended with the White House Correspondents Association ("WHCA") Board's unanimous selection of Fox News to occupy a hallowed position in the front row.

The WHCA cited Fox's commitment to the White House press tv pool and its length of service as the basis for rewarding the news organization with the prime real estate, but "TUOL" suspects  White House Press Secretary Robert Gibbs wanted Fox News to sit in the first row to discourage its correspondents from  making faces or throwing spitballs at Obama Administration officials.

Fox News may have made it to the front row, but Thomas' center seat will go to The Associated Press, which traditionally poses the initial question at presidential press conferences. Good luck to AP trying to remove the "old person" smell from Thomas' long-time perch.

So that you can tell the players without a scorecard:  Bloomberg News gets to stay in the second row, NPR moves from the third row into Fox News' old second row slot, and The Financial Times gets its very own chair.  On the downside, financially-fading U.S. News & World Report lost its seat and The Washington Times got kicked from the third row to the fourth row.

Unless and until President Obama holds another press conference, the Fourth Estate's White House branch will just stand around and report on Lindsay Lohan and Mel Gibson, like the rest of their news media colleagues.