Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

  • Content Marketing World

    Sep 12, 2014

    I had the true pleasure this week of speaking at the Content Marketing World Conference in Cleveland.  I was on a panel of lawyers talking about the legal issues surrounding the use of content marketing.  My fellow panel members were Cleveland lawyer Mark Avesc:

    and Portland Maine attorney Fred Frawley:

    Our moderator was recovering attorney Jeff Rohrs:

    Kevin Spacey was the Keynote speaker. Which means I can honestly say that “Kevin Spacey and I spoke at the Content Marketing World Conference.” Sounds good, right?

    But anyway, I was reminded of a checklist that my colleague Amanda Penick put together some time back. Worth a read if you’re doing any content marketing!

    Q:    You know what they call a company that adopts a content marketing plan?

    A:     A publisher.    

    And that is a more profound riddle than you might think. Because once you’re a publisher, you have a few things to consider. Here’s a quick checklist:

    1. TRADEMARK – Are you using someone else’s brand or logo? Do you mention another company or its product by name? 

    While trademark law prevents you from using someone else’s trademarks to sell your competing products, it doesn’t stop you from using the mark to talk about the other company or its products.  But beware: you want to be sure that you’re not using their trademarks in a way that might suggest they endorse you, your product, or your CBM piece.

    How are you using your own trademarks? Does your company have a policy about the size, font, or color of its trademarks on promotional materials?

    Some companies have very specific standards for how their trademarks should be used.  Be sure that the way you use the trademark in your CBM piece meets those standards so you don’t risk harming the brand.

    1. COPYRIGHT –Are you borrowing any content, including quotes, text, video, or art?  Cutting and pasting good stuff from the Internet? 

    Short quotes – and sometimes other words and images – may be fair use, not copyright infringement, so long as you’re using it to comment, criticize, or somehow add to the debate on an item that someone else has posted. 

    Beyond that, you may expose yourself to copyright infringement claims. Attribution is not always enough. As a publisher, you need to get explicit permission to use someone else’s images or words and other content. Your First Amendment protections can get a little thinner where your speech has any commercial element.

    1. RIGHT OF PUBLICITY – Are you using a celebrity’s or famous person’s name, photograph, or likeness? 

    The right of publicity is a claim that you have used someone's name or likeness to your commercial advantage without their permission in a way that harmed them, even if it’s only financially from missed endorsement fees.  Get permission.  Also beware that you can be liable if your use implies a false endorsement.

    1. PRIVACY – Are you sharing information about specific customers or their experiences using your products or services?  When you engage your audience, are you collecting any data from them?  Do they know?

                            If you plan to use customer testimonials, get their permission upfront and in writing. 

    Make sure you have a privacy policy in place for your website that covers what information you collect and how you use it.  But also be judicious in what information you collect.  If you don’t need it, don’t collect it.

    1. DEFAMATION – Do you talk about another company or product?  Do you write about the other company or its products in a negative way?

    Defamation is the communication of a false statement that is harmful to someone's reputation. Trade libel is defamation against the goods or services of a company or business. For example, saying that products sold by your competitor do not meet government quality control standards (if it isn't true). Make sure your statements are vetted and true.

    1. FALSE ADVERTISING – Did you pay someone to create the content? Endorse your company or its product? Give them freebies to entice them to write a review? Do you make any claims about how a product works?

    The FTC requires you to disclose connections between a company and someone who endorses or write a review of the product if the connection might materially affect the credibility of the endorsement.  This could include if the endorser was paid or given free products.

    Also, even though your CBM piece might look and feel like an editorial piece, beware of the claims you make about how your company’s product works.  Make sure that any claims can be supported with facts – and that they’re not misleading.

    Go comment!
  • Walmart Cover Up

    Sep 10, 2014

    A young African American man named John Crawford was shot and killed recently in a Beaver Creek Ohio Walmart. The shooter was a Beaver Creek police officer. The events leading up to the shooting and the shooting itself was captured on Walmart surveillance video. That video runs continuously throughout the day and night.  

    Walmart turned the video over to authorities, and it’s now in the hands of the Ohio Bureau of Criminal Investigation, an arm of the Ohio Attorney General, Mike DeWine.  In Ohio, a record maintained by a public office is a public record. The Walmart surveillance video fits that description. And it’s supposed to be produced on request of any member of the public.  

    But despite multiple requests by Mr. Crawford’s family and others, the BCI won’t release it.

    Why? The BCI claims that since the video is now part of a criminal investigation, they don’t have to produce it. They say it’s exempt from production, along with every other scrap of paper in the BCI file because it’s exempt under the Confidential Law Enforcement Investigatory Record (“CLEIR”) exception. But with all due respect, they are wrong. 

    The CLEIR exception permits law enforcement to withhold a limited number of records under limited circumstances. Which means that just saying “it’s part of an investigation” doesn’t cut it. The record has to be part of an investigation, but it also has to disclose the identity of a confidential source, reveal a confidential investigatory techniques, uncover  an uncharged suspect or pose a risk of harm to someone by virtue of the release. And even if one of those factors apply, the record still needs to be released with the confidential information redacted. Here’s a brief we field recently in a similar case with BCI that discusses the law in more detail.

    And one more thing.  Routine incident reports and 911 calls aren’t part of the investigation and aren’t subject to the CLEIR exception. The reason? Those reports kick off the investigation, but they’re not part of the investigation. SO a routine surveillance camera that runs 24/7 and happens to catch a shooting in my mind is an incident report. So the CLEIR exception doesn’t apply. And the BCI’s heavy handed approach in these matters is completely off base. 

    Go comment!
  • The Good Sheppard

    Sep 02, 2014

    I was really honored to be part of a panel discussion last week at the annual meeting of the Ohio Judicial Conference. My panel, headed up by Cuyahoga County Common Pleas Judge Michael Russo, discussed the issue of media access to court proceedings and the effect of pretrial publicity on high profile trials. Judge Russo presided over the Ariel Castro trial, so he has a little experience. 

    In the course of the discussion, we talked about the U.S. Supreme Court case of Sheppard v. Maxwell, still the leading case on pretrial publicity and its potential effect on a defendant’s fair trial rights. Sheppard was a doctor in Bay Village, Ohio, accused in 1954 of killing his wife. He claimed an intruder broke into the house and did the deed. Sound familiar? It was the inspiration for the TV program “The Fugitive.” The series led to the 1993 movie starring Harrison Ford and Tommie Lee Jones. And that led to one of my favorite bits of dialogue ever:

    Sheppard’s trial caused a media frenzy. This video  and this one  give a feel. One aspect we discussed was the sheer physical intrusion in the courtroom occasioned by the size of the typical 1954 era camera. Suffice to say, they were bigger back in the day. Just given the advance of technology, not to mention the reduction in the number of media outlets, it’s hard to imagine a repeat of a courtroom so jammed with reporters that the media is permitted to sit literally next to the counsel tables.  

    I suppose sensationalist coverage will be with us, at least so long as Nancy Grace is on the air.  But before we conclude today’s media is irresponsible, it may be worth looking at the case that inspired the one armed man!  

    Go comment!
  • Will The Real Slim Shady Please Rise

    Aug 28, 2014

    Today I start my 14th year of teaching a media law class at the University of Cincinnati Law School. Where does the time go? One of the cases we will be discussing is Elonis v. Facebook. It’s a case that is going to be argued in the U.S. Supreme Court this fall.

    posted about it in June. The question is whether a Facebook user can be prosecuted for posting threatening language on his page. In his recently filed brief, Elonis compares his post to Eminem’s lyrics in “I’m Back” from the Marshall Mathers LP. Here’s an interesting discussion about the brief. 

    Elonis may have a little problem with the context of his post. Whatever Eminem had to say in his songs, it doesn’t appear he was engaged in a contentious custody battle or that he’s had the FBI come knocking on his door. 

    It will be interesting to see how the Supreme Court comes out. But I can’t get the image of Justice Scalia listening to “The Real Slim Shady” out of my head.  

    Go comment!
  • Purdue Follow Up

    Aug 22, 2014

    I posted last week about Purdue University’s refusal to release video of its cops roughing up a photographer from the student newspaper. After an attempt by Purdue president Mitch Daniels to shoot the messenger failed, Purdue finally agreed to do the right thing and release the video. The Tippecanoe County prosecutor agreed to the release.   

    And here’s the video:

    Now maybe someone can explain why the kid got knocked to the ground!

    Go comment!
  • Let My Cartoon Characters Go!

    Aug 20, 2014

    I know I shouldn’t chuckle as I read this article about the new organization of cartoon characters in Times Square. There is income at stake here, and maybe even a First Amendment issue lurking there. But this thing is chock full of unintentional comedy.

    But first, some background.  If you’ve been to New York City in the last year or so, you may have seen people wearing super hero and other cartoon costumes in Times Square.

    Tourists with money burning a hole in their pocket pose for pictures with these action heroes and occasionally give them some money. And of course, that’s where the trouble begins. It’s not illegal to dress like a super hero and accept cash from tourists.  But it is illegal to “aggressively” panhandle. Apparently somewhere between those two extremes, however, the lines get a little blurry. 

    Recently, two tourists offered Spiderman one dollar. He told them the tip was too small. A police officer intervened, telling the tourists they could tip what they wished. Spidey told the officer to mind his own business. The officer asked for the superhero’s identification (was he expecting a Peter Parker driver’s license?), but he had none on him. When the officer then moved to arrest the character, Spiderman threw a punch (surprised no web was involved here). The character was ultimately charged with assault and resisting arrest.

    That led the cops to start handing out fliers in Times Square letting tourists know they do not have to tip in exchange for a photo. And that has caused an outcry among the characters, who feel they are being singled out. Of course, one could make the argument that the performers have kind of asked for it. Here’s an excerpt from the New York Times article that is funny and pathetic at the same time:

    Other characters have had run-ins with the law in recent years: An Elmo was taken into police custody for shouting obscenities in 2012; another Spider-Man fought with a woman over a photo in 2013; a Cookie Monster was accused of shoving a toddler last year; and a Super Mario was said to have groped a pedestrian in 2012.

    I get that Cookie Monster may have been a little grumpy. And Super Mario being a little forward doesn’t shock me. But ELMO shouting obscenities? That is more than I can take. Maybe he’s been spending too much time with Oscar the Grouch. 

    I hope this thing works out. I’m not sure I’m ready for Big Bird carrying a “No Justice No Peace” sign. But if you go to New York, you might want to consider the thousands of photo opportunities that don’t involve faux cartoon characters. Just sayin’.

    Go comment!
  • Go Purdue Exponent!

    Aug 15, 2014

    You may think I have my mascots mixed up here. Perhaps you’re thinking I’ve forgotten that the Purdue mascot is the boilermaker. But if you think so, you would be wrong. The headline isn’t about a mascot, or even football. I am speaking of the Purdue student newspaper and its fight to obtain security camera footage. And Purdue University is putting up a defense in the case that is worse than the one its 2013 football team fielded (ranked 102 in the nation).

    According to the complaint, in January a student named Cody Cousins shot and killed a fellow student in the basement of the Electrical Engineering building. Police arrested Cousins, who did not resist. Later, a photographer for the Exponent entered the Electrical Engineering via a second floor skywalk. He quickly encountered police, at which point he raised his hands, (he had cameras in each hand) and identified himself as a an Exponent photographer. At that point, the police displaying an aggressive streak apparently lacking in the Purdue defense, pushed the photographer to the ground, pulled him back to his feet and shoved him into a wall. In doing so, they damaged his camera equipment. They then detained him for several hours.

    All of these gestapo tactics were captured by a security camera that ran continuously. The Exponent made a public records request for the footage, which the University denied. In doing so, the administration cited the “law enforcement investigatory records” exception to the Indiana Public Records Act. This left the student paper with no option but to file suit. The ACLU is handling the case.

    The investigatory records exception is a feature in most public records statutes. And it is routinely over applied. It is designed to protect uncharged suspects, sources and crime victims. It also protects confidential investigatory techniques. None of those elements are present in the Purdue situation. And at a minimum, the exception should only apply to records created in the course of a criminal investigation. Again, the footage in this situation wasn’t created in the course of any investigation. It’s a camera that happens to be located in one area of an academic building which runs continuously. It probably picks up more footage of students flirting (or maybe not, these are electrical engineers after all) than anything else. But to argue that the camera has anything to do with the shooting two floors below is preposterous.

    I hope the Exponent prevails here, and I hope other Indiana news organizations offer their support. There are valid policy reasons for the investigatory exception. Protecting cops who bully journalists isn’t one of them.
    Go comment!
  • One Word - Drones

    Aug 14, 2014
    One of the truly great scenes in movie history: 

    But “The Graduate” is 47 years old, and just a few fun facts – Dustin Hoffman was 30 years old when he made the movie – a little old for a guy just graduating from college.  And Ann Bancroft who played Mrs. Robinson – the older woman who seduced Hoffman – was only 6 years older than Hoffman. Doris Day was the original choice to play Mrs. Robinson, and Ronald Reagan was in the running to play Hoffman’s father.  So, anyway, getting back to my point, if The Graduate were re-made today, maybe the guy would substitute “drones” for “plastics.” 

    According to this opinion piece from Wired, it’s expected to be an $11.6 billion industry by 2023. So, yea, any recent college grads out there may want to get on board so to speak.

    But the Wired piece makes a compelling argument in favor of upgrading and streamlining regulations that affect the development and production of the drones. The key concerns seem to be with maintaining some sort of line between drones made for military use and drones made for commercial use. Not surprisingly, there are tight export controls on military drones, but because the military/commercial distinction is a little blurry, the industry is erring perhaps too much on the side of caution when it comes to exports.

    And the Federal Aviation Administration has been slow to address the need for clarity when it comes to air space issues.  This would explain why we don’t see the skies thick with these things flying about,

    but it also explains why Amazon can’t ship my latest book order in like an hour.

    I won’t drone on any longer here, but the applications, in areas like newsgathering are exciting to think about.  More to come I am quite sure.

    Go comment!
  • How Much For A Case Of Whine?

    Aug 05, 2014

    Lauren Martin Vogelpohl helps me put this blog together and she is invaluable. I will be interested in her take on
    this post. Lauren recently got married. I don’t know any details of what she paid for the event, but I suspect she did not have to deal with a charge being imposed by a New York Hotel.

    The Union Street Guest House, located near the Catskills is charging couples $500 if any of their guests post a negative online review of the reception. Here’s what it says: 

    “Please know that despite the fact that wedding couples love Hudson and our inn, your friends and families may not,” reads an online policy. “If you have booked the inn for a wedding or other type of event . . . and given us a deposit of any kind . . . there will be a $500 fine that will be deducted from your deposit for every negative review . . . placed on any internet site by anyone in your party. The fine will be doubled if you point out what buttheads we are.” 

    Okay, I made up the last sentence. But something about this offends my sensibilities as a First Amendment lawyer and as a recent father of the bride.

    The thing is, I don’t think the First Amendment would matter here. If the couple agree to the provision, it’s just a contract case. And it is very common to insert non-disparagement provisions in agreements. I do wonder, however, if a court would strike this provision down on public policy grounds.

    But if any of my readers are thinking about booking a wedding at this place, I have two pieces of advice. Number 1 – don’t do it. Number 2 – if you ignore #1 read the fine print in your agreement.   
    Go comment!
  • An APPtitude Test

    Aug 04, 2014

    Here’s an interesting piece from the Poynter site that caught my attention for several reasons.0 First, it quotes my friend Ashley Messenger, who has a job I would love – in house counsel for NPR. But more importantly it provides some great tips for reporters thinking about using any app that records conversations. 

    As the post notes, these apps are popular, because they make it really easy to record conversations. If you have your phone (and when don’t you) you have a recording device. One less accessory to pack up. Nice. 

    But some risks to consider:

    1.  You might be putting the confidentiality of the conversations you record at risk.  

    2.  Because the conversations are stored in the cloud, it’s not clear what state’s privilege law applies if the recording gets subpoenaed.

    3.  It’s also not clear to what extent the third party entity that stores the conversation will actually resist the subpoena. 

    Ashley recommends doing the unthinkable – reading the terms and conditions of the app. As crazy as that sounds, it’s good advice. 

    Go comment!
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