Wednesday, November 4, 2015

Trumpin' the Equal Time rule

Seems like everywhere you turn these days, Donald Trump happens to show up. No not in person, but in the form of memes, ads, or even comedy shows. On November 7, 2015, Trump will return to doing business with NBCUniversal by hosting Saturday Night Live (“SNL”). So what about Trump’s rivals from the Republican party? Live from New York…It’s Jeb Bush?!

The Federal Communications Commission (“FCC”) has something that is known as the “Equal Time” rule. This provision of the 1934 Communications Act § 315 “requires radio and television stations and cable systems which originate their own programming to treat legally qualified political candidates equally when it comes to selling or giving away air time.” However, this doesn’t necessarily mean the same opportunity. So no, you won’t be seeing Jeb Bush or Chris Christie hosting SNL anytime soon. But it could mean that NBC stations have the obligation to let other candidates appear for free for an equal amount of time.

The other Republicans candidates will have seven days after Trump’s appearance to make equal opportunity demands upon NBC stations. If this happens, the FCC faces some difficult decisions, such as whether Trump is a “legally qualified” candidate under FCC rules. If not, then the other candidates do not need equal time.

NBC could argue that that SNL should be treated under the news exception to the equal time rule, given that the program is scripted. But this argument is a bit of a stretch. In good SNL fashion, they will most likely just make fun of the equal time rule, like they did in 2002 when presidential candidate John McCain was on the show (jump to 3:58).

Only time will tell if any of the other candidates take advantage of the equal time rule. In the meantime, I look forward to hopefully seeing the real Trump dressed up like a pizza!

Sarah Wobken
Managing Editor 

Sunday, October 25, 2015

"Blade Runner" Oscar Pistorius on House Arrest

Earlier this week the former Olympian Oscar Pistorius was released from prison after serving just one year of his five year sentence. Oscar Pistorius made history when he competed in the London 2012 Olympics as an amputee sprinter running on carbon fiber prosthetic legs, earning him the nickname “Blade Runner”.

In October 2014, a South African Judge found Pistorius guilty of culpable homicide, which is basically the same thing as manslaughter in the United States, and sentenced him to five years in prison.  While he was acquitted of murder, Pistorius was found to have killed his girlfriend, Reeva Steenkamp, on Valentine’s Day in 2013. His defense successfully argued that Pistorius thought that it was an intruder in the bathroom, not Ms. Steenhamp. Pursuant to South African law, Pistorius applied for house arrest after serving 10 months in prison. His request was granted, and this past Monday Pistorius was “released from prison to serve the rest of his five year sentence under house arrest.”

Back in June, the South African Supreme Court of Appeal announced that they will hear “the prosecutions’ appeal against Pistorius’s acquittal” on the murder charge early this November. At the appeal, Pistorius faces a minimum of 15 years in prison if the Court convicts him of murder. In the mean time, Pistorius will continue serving his sentence at his uncle’s home in Waterkloof. “The house is a three-storey converted Dutch Reformed church on a luxury estate, and has a swimming pool.”

South African law prevents the prosecutors’ from arguing that the  judge’s factual findings were incorrect. Instead, they will argue that “that Judge Thokozile Masipa was mistaken in her application of the law when she convicted Pistorius last year and that a different court could reach a different decision – namely that Pistorius should have been convicted of murder, not culpable homicide.” The appellate judges will have to examine the definitions of murder and culpable homicide in order to make a decision.  Many believe that the prosecutors bringing the appeal have a strong case that Pistorius committee murder, not culpable homicide. For instance, the fact that Pistorious fired four shots into the closed bathroom door is a persuasive argument for murder to some.

Until a verdict is reached in the appeal, Pistorious will continue living at his uncle’s mansion.

Sara Montgomery, Staff Editor

Tuesday, September 22, 2015

The Burn Trials - Burning Man Threatens Law Suit Over Quizno's Parody Ad

On Monday, September 8th, Quizno’s released its latest parody ad, The Burn Trials; this time parodying the Burning Man Festival.  While it was well-received by just about everyone, including members of the Burning Man community, the organization that owns and operates Burning Man has threatened to sue Quizno’s for misappropriation of its intellectual property.

Burning Man is an art and music festival held each year in the Black Rock Desert of Northern Nevada. The festival is surrounded by a strong international community of “burners” who have either attended the main festival or one of its many off-shoot regional festivals. Burning Man also promotes a core set of 10 principles in all of its projects and asks attendees to carry those principles with them out into the rest of the world.  One of those principles is Decommodification; a rejection of commercial, for-profit transactions and advertising.  Quizno’s using the Burning Man name and image to sell sandwiches directly conflicts with the principle of Decommodification.

The parody ad was put out by which is a marketing project owned by Denver-based Quizno’s that creates high-quality parody videos, usually mixing two well-known properties together. In The Burn Trials Quizno’s combined the plot and characters from The Maze Runner movie franchise with the setting of the Burning Man festival. The video itself is a sharp critique of many cultural controversies surrounding Burning Man in recent years, including the growing prevalence of ultra-rich “plug and play” camps where individuals can pay thousands of dollars to have everything provided for them at the festival, including a plane ride in and servants, thus violating several of the ten principles

When the Burning Man organization threatened to sue Quizno’s, many “burners” and non-burners alike took it as Burning Man trying to shut down what may be an unflattering view of its festival.  However, most of these people have little understanding of the law and why it is important of Burning Man to protect its intellectual property.

Does Burning Man even have a case? Many naysayers have pointed out that parody is commonly protected under the “fair use” exception to copyright or trademark infringement. However, there are four factors courts use to determine if a parody falls under the “fair use” exception; (1) the nature and character of the use; (2) the nature of the original work; (3) the amount and substantiality of the portion used in relation to the original work as a whole; and (4) the effect of the use on the value or potential market of the original work.

Where Burning Man likely has a case is under the first factor. The nature and character of use considers whether the parody’s purpose is of a commercial nature. Parodies used primarily for commercial purposes are automatically suspect.  Here, the  parody’s primary purpose is to sell Quizno’s sandwiches.  This, combined with the other three factors also likely weighing at least slightly in Burning Man’s favor, gives Burning Man strong legal standing to challenge Quizno’s in court for infringing its intellectual property.

Even if Burning Man does not win this battle, enforcing is intellectual property rights is crucially important. If Burning Man let this one slide, it could jeopardize its intellectual property rights altogether, thus opening the door for companies from all over to use its name and image to sell products.  Even though The Burn Trials is hilarious and well-done, if Burning Man failed to fight Quizno’s on its misappropriation, we could eventually see something far worse (think car insurance ad in Black Rock City).

Thursday, September 10, 2015

A Good Bet for New Jersey?

On August 25, 2015, a three-judge panel for the U.S. Court of Appeals denied New Jersey’s proposed repeal of its sports betting prohibition even though, as New Jersey proposed, a lift of the ban would be limited to casinos and racetracks. The Court asserted that New Jersey’s proposal was a clear violation of the Professional and Amateur Sports Protection Act of 1992 (PASPA), legislation passed to prevent corruption of athletes and coaches. PASPA prohibits states from authorizing sports gambling, precisely what the New Jersey law permits. New Jersey’s primary interest in lifting the prohibition is, of course, money. Sports betting, New Jersey hoped, would revitalize struggling Atlantic City casinos.

A win for New Jersey not only would have brought in tremendous money, but also would have opened the floodgates for other states to follow suit. But since the Court ruled against the state, it is reasonable to expect that no other state has a chance to make its own case. However, strangely, the Court essentially outlined exactly how other states should proceed in challenging PASPA in its decision. “‘We agree that, had [New Jersey’s] 2014 Law repealed all prohibition on sports gambling,”—i.e. repealed not just the bans on casinos and racetracks—“‘we would be hard-pressed…to find an ‘authorizing by law’ in violation of PASPA.’” Thus, any state that wishes to repeal its own ban on sports betting can do so in the manner the Court has recommended. It is unclear why the Court would include a blatant loophole, especially when such a comment was unnecessary to explain their rejection of New Jersey’s proposition. 

The sports world is, in large part (if not virtually completely), controlled by money. Sports betting is inextricably linked with tremendous money. As such, we may see the day when the guarantee of the money that comes with sports betting outweighs the possibility of corrupt athletes and coaches. Particularly if other major sports leagues commissioners join NBA’s Adam Silver in his support for nationwide legal sports betting, a complete overhaul of sports betting, and the nature of sports in general, may be closer than imagined despite this recent ruling.  

- Samantha Albanese