Wayne Memorial 1st Amendment Clinic

Great question and the main issues with this sort of thing would be the copyright infringement and privacy rights of the two people.  We will talk about privacy this week so great job on getting a jump on the topic. 

So let’s address the copyright issue first.  The couple has a copyright in the video they made and recorded (without my knowing what the video is and assuming it’s not an infringement of something else).  If it’s an original work (the content of the video) that has been fixed in a tangible medium (the recording).  If Target took a screenshot of the video, then that would be considered an infringement of that copyright.  But as we discussed, they may have an argument for fair use (although it may be a tough job for Target to convince a court of this).  Remember that we listed a number of things that are considered fair use: comment, criticism, education, research, newsreporting, non-commercial purposes, etc.  It’s highly unlikely that Target would be able to say their use of the copyrighted work falls under any of those.  However, if they did convinced a judge that the use was to make a comment on the original they’d have to apply the four-prong balancing test. 

1. The purpose of the use- Did Target transform the original work?  Can Target argue that this is a comment back on the original (maybe for a parody purpose)?

2. The nature of the original- if the video is original, it would be considered highly creative and thus deserving of high protection.

3.  The amount taken- Quantitatively (the actual amount taken) they probably took very little of the original work.  One screen shot from a video would be very little.  However, if Qualitatively (the heart of the work) the work was taken, this is likely to favor the couple and not target. 

4.  The Effect on the market- Did this use of the original usurp the market for the original. Could the couple have licensed out the image to Target to do the same thing?  Could they have made their own t-shirts with the image?  Did Target’s use make people stop watching the video?  Some of these answers may be yes, but some of them may be no. 

We’d have to know some more details about the original work and Target’s use.  But try it yourself, apply the balancing test and let us know what you think a court would do. 

Question of the Week:

What is the difference between a satire and a parody?  

Compare to: https://www.youtube.com/watch?v=7spBU4Yv8fE

Compare with: https://www.youtube.com/watch?v=QUQsqBqxoR4

Hi Anonymous, 

Great question!  And if you send us an Ask with your name, we can give you credit for posting (we don’t have to post your name on the page, we can keep it private).  

The teacher would be the government, so the group to criticize the teacher would be absolutely permissible free speech.  We mentioned a case in class, Evans v. Bayer (2011), in which a student greater a Facebook group to discuss how much she disliked her teacher.  The student wrote: Ms. Phelps is the worst teacher I’ve ever met. To those students who have had the displeasure of having Ms. Sarah Phelps, or simply knowing her and her insane antics; Here is the place to express your feelings of hatred.”

The court found in favor of the student in this case.  They said that creation of group/speech was off-campus speech; Creation of group was protected speech; and student’s protected speech right was clearly established.

Plus, the fact that “redskin” is often seen as offensive makes matters worse. According to this study, many Native Americans themselves find the term racist and offensive, while other races don’t see it that way as much.

Sherlock Holmes has deduced that one of the Michigan Representatives is having an affair with his English teacher.  He submits a FOIA request for the English teacher’s emails for the last 6 months and a FOIA request for the last 6 months of emails for all 15 Michigan Representatives. 

Should his FOIA requests be granted? 

Steve Rogers is writing a news article for the America High School Newspaper.  He cannot stand the idea of anybody cheating and he knows that one of his classmates has been cheating.  Redding Skull, a football player, who normally fails his classes has suddenly gotten an “A” in Government.  Steve Rogers wants to FOIA the test and write an exposé on how Redding Skull was given an “A” in the class despite not getting the grade on the test. 

Is the FOIA request granted? 

 Oliver Queen has submitted a FOIA request to find out how much money his principal makes.  The FOIA coordinator wants to charge Oliver Queen $50 for the information. 

Oliver Queen is writing an article for the Arrow High School newspaper.  He wants to find out how much money his principal makes. 

Meredith Grey is a student at Grey-Sloan High School.  A lot of students have been getting sick lately. The school board is having a meeting about the students that have been sick and how to prevent other students from getting sick.  Meredith decides to attend the meeting, but is told that it is a closed meeting. 

What are possible reasons the meeting would be closed? 

http://www.huffingtonpost.com/2014/09/24/jefferson-county-students-protest_n_5876716.html

QUESTION OF THE WEEK! How Would You Classify This Speech?

(HINT: Think about what the students are saying and how they're saying it. How much protection it would get? Are there any other First Amendment rights involved?)