1201 exemption hearing: filmmaking and ebooks

PROPOSED CLASS 1: Audiovisual Works—Criticism and Comment—E-Books and Filmmaking

Michael C. Donaldson, FilmIndependent, International Documentary Association, Kartemquin Educational Films, Inc., Independent Filmmaker Project, University of Film and Video Association, The Alliance for Media Arts+Culture (“Joint Filmmakers”): Discusses use of film as fair use in other films, even nondocumentaries (like Jersey Boys).  Question: is that criticism & commentary? [My answer would have been yes, and that the Jersey Boys court didn’t need to reach that specifically because fair use is more capacious, but historical verification and contextualization certainly counts as commentary for purposes of fair use.]  Answer: Yes, the exception is more limited than fair use but we will work with our clients to come within its confines.  [CO questioner seems focused on commentary; says Register said previously that developing a character/situation isn’t inherently commentary and criticism.  Q: what is your best example of fiction/multimedia ebook that’s used for comment and criticism?]

Heidi Tandy, Organization for Transformative Works: Something we’d like to make. It’s possible to take content from DVD, Blu-Ray, etc. and make a fanvid. The minute you want to make a linear, choose your own adventure style in the format of a game, or ebook that includes different kinds of content, such as video and stills.  Q: would this be commercial or noncommercial?  A: there isn’t a stable and perfect definition of what’s commercial.  If you have a Patreon, is that commercial?  Hasbro’s guidelines don’t consider that commercial, but others may disagree.  Trying to leave commerciality out of the conversation.  Q: would be hard for CO to say that commerciality isn’t part of fair use.  A: But what’s your definition?  If Google puts ads on the side of your work and you aren’t getting revenue, is that commercial?  CO Q: Doesn’t want to get away from fiction/nonfiction in this discussion.

Q: what is your best example?

A: things people want to create for mise-en-scene or to show what happened in the past. Tech doesn’t make it easy but it is getting there.  VR is also coming.

Q: we need to see concrete examples because we can’t evaluate fair use in a vacuum.  People who want to create for comment & criticism.

A: see prepared remarks/submission statement. Using the TV show Supernatural, 14^th season—the fictional world has a series of novels.  My proposal was for a group of fans w/in the world creating a YT series—using the show to illustrate things that fans are creating. The only way right now is a video, not the ability to scroll through to get the experience of being in the fandom—an ebook or PDF would give a better ability to access, different visual and personalizable experience.

Q: why is circumvention necessary?

A: to create the content necessary, I need some of the show itself and some of the images in the DVDs of behind the scenes activity.

Q: why wouldn’t screencapture work?

A: the screencapture would be a static element.  Looks bad versus having the proper flow, especially in VR.  Like in a wedding slideshow, where an element is out of sync with the rest of the video—same with newscasts. 

Q: why wouldn’t licensing work?

A: for larger scale shows, the owners don’t necessarily have time or energy for someone to communicate with millions of fans. Sometimes Hasbro gives a blanket license for certain things, but that’s not always the case.  [In fact, it’s basically never the case that they license use of the footage rather than creative elements as such; I can’t think of an example other than the limited BSG space-fight footage that BSG allowed specific uses of in a contest.]  Some companies can’t do quick turnaround—e.g., the Simpsons episode last week about the problem of Apu.  Even if I only had to wait a business day, I wouldn’t be able to react within the news cycle.

J. Matthew Williams, Joint Creators II: Doesn’t believe he’s heard about criticism and commentary. In his view, some of tthe examples seem infringing (without knowing the context) and some not.  Clients are willing to do some licensing or some no-action (which doesn’t mean that it’s not circumvention).  It’s difficult to do same-day licensing.  Doesn’t think that fan fiction as a class is noninfringing.  Cases mentioned in opposition—things like unauthorized prequels or sequels held to be infringing.  No cases in record on fanworks being noninfringing.  Not saying that they are always infringing, there probably are some that aren’t. 

Q: you’re not necessarily disagreeing about license availability.

A: no record showing unwillingness to license to individuals. Fox testified it would issue licenses to individuals, but the cost is a different question. Doesn’t know price and it would differ for different uses. Might issue no cost licenses, as they do with education.  No record that someone came to his clients and was denied.

Brianna Schofield, Authors Alliance: Jonathan Grey, Show Sold Separately—critiques interaction of audience w/works based on prerelease exposures to the work.  Available online and uses video clips embedded in ebook.  This goes beyond film analysis, which is one aspect of the exemption.  Video Dubliners: a guide to Joyce’s Dublin, uses film clips for context for understanding the book.

Q: were the clips licensed?

A: no first hand knowledge.

Blake Reid, Angel Antkers, and Susan Miller, Samuelson-Glushko Technology Law and Policy Clinic

Jack Lerner (with students Brian Tamsut, Cristen Fletcher, Jovan C. Ardy, Lauren Wertheimer, and Shaia Araghi), UCI Intellectual Property, Arts, and Technology Clinic: The CO has already made presumptive determinations to renew the existing exemption. Some of this discussion feels like an attempt to relitigate the accepted record, in particular the notion of seeking out licenses as a viable noncircumventing alternative. In both the video and ebooks exemptions, the only requirement is that the person engaging in the circumvention reasonably believes there’s not a noncircumventing alternative. The idea that we need a lengthy record of folks seeking a license for every clip goes beyond the existing rules and the record that led to them.

Tandy’s proposed project would clearly be w/in noncommercial video. Where it would make more creative sense to distribute as an ebook, that should be possible.  That’s why we want a unitary exemption for this type of use.

Q: if the Register recommends an expansion for noncommercial use, including fiction, would that be reasonable.

Reid: CO has already recommended multimedia ebook w/o such limits.

Q: but if we added noncommercial fictional ebooks?

Reid: that’s better than nothing, but the Q the Office should grapple with is how that impacts the fair use analysis. There are legit fair uses out there—Jack Lerner can address that in more depth.

Lerner: criticism and commentary can’t be done as a living, or as an incentive, under a noncommercial model. That’s not a good idea and the vast majority of [litigated] fair use is commercial, not just in being on YT but in being sold on the market.  What you’d be doing is taking the incentive away from a large group of creators.

Williams: mischaracterizing our position.  Don’t require everyone to seek a license. But don’t use the idea that my clients are unwilling to license without evidence. [The evidence is among other things in the nondisparagement clauses that are in every license we’ve seen, where such a license can even be acquired, and those are in the record; the sites that the Opponents suggest people use are also nightmares to navigate to even tell whether a licenses are available—take a look at how often their poster site, Universal’s, throws up “unknown” results.  If one wanted to make an argument about George Clooney, for example, Universal will determine whether a film in which Clooney appeared is “available for licensing,” Jt. Creators Opp’n at 13, on a blanket basis; if the film is not available for licensing, the critic is apparently out of luck.  (Actually, given the operation of Universal’s internal search engine, searching for George Clooney will also return results for Rosemary Clooney, Curious George, and George Burns, so the would-be licensor needs some time on her hands.  One will also encounter numerous works in the database marked “unknown,” e.g., https://www.universalclips.com/catalog-items/13872.)]  We also don’t think that fair use is impossible in a fictional motion picture.  The MPAA often asserts fair use.  We just haven’t seen the standard met for large amounts of fair use being suppressed.  Having a low budget doesn’t make your use fair; if there’s a potential market and the © owner is likely to exploit it, then there’s harm regardless of whether an individual user says they can’t afford it.

Susan Miller: The SPN example: it’s a critique of the characters often involving society as a whole—commenting on specific characters & elements—that counts too.  Fan fiction often critiques and comments on society as a whole—that should count too.

Q: that’s the issue—does it need to critique & comment on the work itself? That affects the first and maybe the fourth factor.  [BTW, Bruce Keller & I wrote a whole article on this back in the day—there’s really never been evidence that © owners are more ready to license satirical uses than parodic ones; even the tuggable “blanket” licenses with nondisparagement clauses let them reject uses where they don’t like the context. Thus there’s no effect on the fourth factor.] We’re looking for examples of criticism of the © work.  [But why? That formulation raises the problem of why the CO has decided to exclude an entire kind of fair use.]

Tandy: goes into history of fanworks. How people started writing (e.g., Frances Hodgson Burnett of Secret Garden/Little Princess fame started with Sherlock Holmes). Inherently a commentary: if something wasn’t missing from the original, you wouldn’t have written your version.

Q: that seems to encompass a lot of derivative works too.

Tandy: can see situations where, e.g., cosplay, might not be making a commentary. Say you want to do a steampunk Justice League—the costumes, content and structure would be different. But that’s not what we’re talking about here. Focusing on an ebook/choose your own adventure, it’s inherently a commentary where people are being given choices about how to read the story.

Patricia Aufderheide, American University: You can distinguish documentary and fiction, but that’s one of many ways to slice a unitary form; virtually everything is shared between the forms—structure, reenactments, audio/video and other aesthetics. Many kinds of fiction don’t make criticism and then some do; then there are hybrids in which documentary characters are real-life people who dream of being gangsters in a gangster movie and stage a gangster movie.  It is very hard to say “here’s an example” when people know they can’t add this stuff without enormous complications. As someone who’s worked w/documentarians for 40 years, the complaints never stop about never hearing back from requests to studios/potentially licensors. Beyonce’s Lemonade is an example of a work that refers critically to many real incidents/situations. It’s not hard to see parody/satire in SNL skits—incorporating and referring to and creating commentary on real copyrighted things.  There’s no reason we shouldn’t be encouraging this.  Good Night and Good Luck and other dramas—we should be able to show what they were describing when they quote the description of TV as a “vast wasteland.”

Q: Not trying to make aesthetic judgments, but whether it’s likely to be noninfringing use.  The last rulemaking: there was enough of a record to say that it was likely to be noninfringing for documentaries, and we’re now being asked to extend that to all films.  Biopic as a line? Everyone thought that was unsatisfactory before.  How would that work for you?  Is there a way to exclude types of films that are less likely to be fair use, instead?

A: I don’t understand your task. You’re being pretty clear: commentary and criticism of the thing itself. Wouldn’t it be up to the person to be sure they’re coloring within the lines, and if not they pay the penalty?  Letting people have the option of using that across the form, where you’ve already said that an exception for one part of the form (whose boundaries are themselves fuzzy) is acceptable.  There are situations where a documentary could infringe, which is why we do review and licensing where appropriate.  There’s a whole explanation of which clips they licensed for Refrigerator Mother and which they didn’t and why.

Q: To opponents: wouldn’t a limitation to comment and criticism then be sufficient?

Williams: Harder to see fair use in fiction. Showing what it was like to be present in a moment in history is not commenting on that footage.  [Why not?  The effect that it had on the people experiencing it as reality is an important part of criticism and commentary.]    Fan fiction choose your own adventure ebook example—that doesn’t involve criticism or commentary, even if involves additional expression; Axanar and Salinger cases haven’t found such uses to be fair.  Nor would noncommercial be ok. Just the fact that something isn’t for sale doesn’t make it noncommercial, because paying the customary price is part of the analysis so all kinds of noncommercial uses would still cause harm.  The examples I did see were very small.  Showing Kennedy assassination reaction may be important to the story, but that’s not criticism and commentary; they have been able to license some clips, and if you have 60 clips of Cesar Chavez and pick the most engaging, the fact that you don’t want to pay to license it doesn’t make it fair use.

David Taylor: no real concrete examples, particularly in the ebook situation. Sounds more like interactive games.  That’s not an ebook, he thinks. Archival clips aren’t distributed on protected DVDs.  [I think that’s factually wrong in many cases, given the usual archival sources.  I don’t think he has a record on that, though I may have missed something in the opponents’ submissions.]

Michael Donaldson: A few examples: In Search of Fellini, about a woman obsessed with Fellini; clips shown to comment on the power of Fellini’s films—w/o seeing the film you can’t see how impactful they are, and recreating them doesn’t work.  Scripted film about Christine, a Florida news anchor who shot herself on the news. The commentary is: this is what the TV audience saw, not a redo.  [You can’t meaningfully comment on what they saw by telling the story that surrounded it without access to what they saw; your audience has no reason to believe your commentary unless they can compare the recorded footage to what you’re saying about that footage.]

Low budgets: that isn’t why they don’t license.  Insurance companies put real skin in the game even for these low budget films; they insure when they believe it’s fair use. We’ve had pushback from insurers more on risk than on actual fair use, especially for clips surrounding Trump where he’s perceived as litigious.

Lerner: criticism and commentary: you aren’t required to say “here is my criticism and commentary.”  Showing a reaction of a person to a contemporary event is commentary.  Also, there hasn’t been a previous limitation to “criticism and commentary about the work” and we shouldn’t put it in. Fair use cases include the Wind Done Gone.  Also, the noncommercial remix exemption includes fictional use; it is clearly a set of fair use works.

Also, 8 years after documentary exemption exists, lifting the “documentary” limit clearly creates no real risk of infringement/piracy.

Q: would the licensing market be affected?

A: no, we’re talking about the market for fair use.  The © owner has no right to a license to a fair use. What we have now is filmmakers who aren’t doing fair use that they want to do, or they get licenses because they can’t access the material. There’s no dispute that there is a large amount of fair use in the nondocumentary context, but it may be licensed when it doesn’t need to be.

Q: any examples where 1201 caused licensing despite 107?

A: Nearly 70 different films where people wanted to make fair use but didn’t.  Can supplement the record further.  Also remember that Register already said that needn’t opine on the fairness of any given use, but rather that there is a class of works likely to be fair use.  There’s no real dispute that broad, robust, burgeoning fair use exists in the nondocumentary context—the question is whether it will be chilled/allowed to go forward.

Reid: this RM takes place every three years. 1201 makes the creation of these films, where licensing and screencapture aren’t reasonable alternatives, illegal, with the prospect of statutory damages and criminal charges.  It’s understandable that people aren’t coming out of the woodwork with scripts.

Q: we need to look at whether the market has changed; need to tie it to what people would actually do. Difficult to say w/o looking at tangible examples.  It’s been feasible for prior class 1 categories.  [Welllll, our examples had all been created under legal threat, until we got our first exemption.  That seems undesirable.]

Reid: Then we do have specific examples, and then we’re being asked to divide them by genre, prove they’re noninfringing, prove what subgenre (e.g. biopic) they fall into. Sketching out real plans for 3 years in advance is not what the statute requires.

Q: Why in ebook sense didn’t you go for the broader category of mixed video or fan fiction/cosplay?  Is it because the clips they’re using they’re lengthier and not very edited?  The Digital Dubliner seemed like a sophisticated blog.  Why do you really need high quality?

Tandy: high quality is important across all media.  One reason we haven’t talked about fan fiction/fanart is that doesn’t involve circumventing AV locks. This is the other kind of fanworks. Fan films go back to the 1960s.  Now we have quality that no one could achieve before, and if you want to participate in the conversation you need to match the visual sophistication of the other participants.

Q: expanding what we thought an ebook was?

Tandy: yes, though it doesn’t necessarily include text in the way we think about copying and pasting it—can be jpgs and video clips mixed together, with the words embedded in the jpg to create a specific visual expression.

Q: if someone steps over the line, why can’t the Joint Creators just sue? Why do we need more limitations?

Williams: Lerner says no infringement has resulted from exemptions and thus no expansion will infringe.  Our position is that there’s a lot of infringement; a lot of these videos are infringing; we’ve identified examples we think are infringing. We’ve chosen not to continue to oppose those exemptions b/c we’re not going to fight City Hall, but that’s not a concession of no harm.  [No harm from the exemption?  They’ve never shown any evidence of that, which I think was the point of the question.  As we’ve repeatedly noted—and I’m very happy to hear the CO focus on this—1201 itself has virtually no effect on initial creative behavior; most of this is about what will happen when you have to interact with an institution like a school or a traditional publisher who has less incentive to facilitate any given individual creative work, or when you have to talk to a lawyer, whether it’s responding to a takedown or trying to get insured.]  1201 created a new right over and above 106. Saying that litigation should sort it out isn’t very comforting because litigation is expensive.

Q: but if there’s a quantum of likely noninfringing films with short portions etc., why isn’t that reasonable to go to 106?

Williams: it wouldn’t be one or two.  Seen very few noninfringing fictional examples, and even in the nonfictional space. Digital Dubliners could have some good fair use arguments, but he doesn’t know how the clips were selected. Would be seen as CO endorsing a broad swath of content and endorsing misuse. The Office has already said that it thinks a lot in the record is infringing, and yet proponents keep saying the Office has already decided it’s infringing. 

Q: if we still had the comment & criticism, short portion, etc. and added noncommercial, that’s not sufficient?

A: Noncommercial in & of itself is only a factor.  It has layers.  [I initially mistyped this as “it has lawyers.”]  Do you pay the customary licensing fee? If not, that’s commercial use.  Does the CO intend to rely on case law meaning or lay meaning?  Either way, it’s just one factor, as is short portion, and comment & criticism; but none of those add to slam dunk. Even Campbell remanded for analysis of fourth factor in that specific instance.

Q: talk about licensing.

A: links in our comments to websites that provide easy access to contact points for licensing. CNN: you can go on & say I’m looking for a clip from X period of Y person.  You can say “I want to use this in fiction” or education or documentary and they give you different pricing and it pops up almost immediately.

Q: proponents’ reponse to licensing arguments?

Donaldson: It is easier to find out whether they claim to own it, but not whether they will actually license it. Now it’s almost impossible to get to a human, for example to negotiate the posted price for a small film/niche film. 

Wertheimer: a lot of licensing agreements have nondisparagement clauses—can’t make critical use of the clip. Even with a license, that’s not fair use.

Q: Opponents, what have you to say about that?

Williams: you didn’t accept that before.  Not all © owners include nondisparagement clauses—Warner Bros. didn’t have such clauses.  [How nice of them.] A lot of them do. But there’s no examples of actual criticism of the studio or any of the actors or really in this record of the films themselves. Those wouldn’t prevent licensing of the works.  [You can’t speak for the licensors and what they think of a use, can you, though?] These are more about disparagement of the talent and he hasn’t heard anything about that.  [I’d love to see that contractual argument tried by the licensee if the licensor declined to approve a use on grounds that the licensor thought it was disparaging of something other than the actors.  Not that they’d explain their reasoning!  But of course we never get there anyway because the license deters people from trying.]

Q: the Steve Jobs example, where the family didn’t like the use—they rejected that.

A: Universal relied on fair use.

Q: that’s an example of license refusal, though.

A: sure, not going to claim that some © owners don’t like criticism. 

Q: how is licensing a feasible alternative then?

A: it isn’t always.  The examples of that in this record and all prior records are very few and far between.  [And the justification for denying the exemption is….] Has heard that it’s unacceptable to condition exemption on those who’ve asked and been denied.  Proponents don’t want to go ask.

Q: You’ve said there’s no market for multimedia ebooks. If that’s true, how could there be an adverse effect on the clip licensing market?

David J.Taylor, DVD CCA: if you believe there is a market or that one will develop, our argument is that it’s ours and should be licensed just like documentaries are licensed.

Q: is it the studios’ view that this is a traditional, reasonable, or likely to be developed market?

Williams: it’s potential/likely to be developed.  Simon Swart from Fox last cycle testified they’d be willing to license multimedia ebooks, and Ben Sheffner from MPAA will testify in LA on issues related to licensing as well as the importance of access controls.

Josh Welsh, FilmIndependent: Documentary/nondocumentary—there is a growing trend to blurring the lines. These aren’t just one off but a growing hybrid genre.  A new award: the Heterodox award at a major event to deal w/unclassifiable films.  The Looming Towers—a mix of traditional documentary and scripted fiction, where the elements play off each other.  Errol Morris’s Wormwood: scripted actors intercut with documentary.

Q: are they comment & criticism?

Welsh: I’m showing why granting or denying an exemption based on a genre is a bad idea given how porous the genre boundaries are. This is an exciting growth area for film. Doesn’t make sense to limit by genre.

Aufderheide: has developed a category of thinking: imagination foregone (see report based on fair use-free Australia). What do you not do if you think something’s prohibited?  Instance after instance of people excluding entire categories of behavior, which is why she is concerned about looking for current practices—a lot of people are not imagining thinks.  Topical dramas like Roseanne, Black-ish etc. can easily incorporated criticism and commentary.

Taylor: they just haven’t shown the need for a larger exemption. The problem with going back to 106 is that the RM is tasked with creating an exemption based on the evidence produced. [This seems like a carefully misleading claim about the definition of “evidence.”  Evidence can include (as it does here) expert testimony about the practices of the relevant creative communities, and about the affordances of technology when it is or isn’t encumbered by 1201 without an exemption.]

Bruce Turnbull, AACSLA: In the past, the focus was on the much more elaborate nature of the ebook. None of what was promised 3 years ago has actually appeared.  Also, the platforms are limited. 

Q: trends about fictional works—proponents say the trend is increasing. Is that enough for evidence?

A: you need the evidence for that. For the ebook, we have a number of things 3 years ago that didn’t happen.  Discussion of platforms’ restraints—those have inhibitions [I think this means they can’t use the tech?].  If the idea was noncommercial video/people don’t view what they did as a “video,” it may be that is the place to look at whether something could be included to facilitate some of the fan fiction kinds of things.

Williams: Donaldson identified a trend of people wanting fair use in fictional films in his own practice. But his starting premise was that people weren’t using clips in fictional films before that, and that’s not true, e.g., Oliver Stone films.  Major studios were probably licensing clips.

[video demo in which screencap was inserted into a widget which was able to create an ebook without circumventing a TPM (if that’s in fact what the screencap does—we don’t know)]

Tandy: defers to tech expert on the tech, but the widget doesn’t let you get the effects.

Q: it doesn’t stutter, drop frames. What would you have seen that you didn’t?

Tandy: I don’t know what was lost or how these clips were created.

Q: does the eye lose anything?

Tandy: linking the content together [seamlessly?] you need more capacity—you have to be able to obtain additional software, which people may not be able to do.  Couldn’t do it in Windows Movie Maker though maybe it’s possible in pro software. 

[The real ridiculousness of this is opponents’ contradictory insistence that (1) the quality of (noncircumvention) screen capture is amazing but (2) 1201 is super, super necessary to prevent piracy so exemptions should be guarded like state secrets.  Both of these things can’t be true, and they aren’t.  The key reason people need to be able to use whatever makes sense to them to make their fair use clips is that almost no one knows that this is currently legally important. The main reason 1201 is a barrier is because when you encounter a gatekeeper it can turn out what you’ve done is illegal even when it would have been perfectly legal had you used a different program. Also, since we usually don’t know whether any given program is circumvention, the uncertainty created serves no valid purpose in limiting the exemption to the class of noninfringing uses.

Turnbull: Screencap quality is accepted by Apple for publication.

Q: would this be enough for a film festival/distribution?

Jim Morrissette, Kartemquin Educational Films,Inc.: Nope. More gatekeepers than ever before. The current exemption works really well for documentarians. Blu-Ray has made the difference for even using fair use any more. Abacus, about a small bank in NY; wanted a clip from It’s a Wonderful Life.  Blu-Ray enabled that.

Turnbull: Screencap limit is good because it prevents widespread removal of TPMs.  [I’d love to see the record evidence on that.]

Q: do you violate 1201 by using screencap?

Nobody is willing to answer that, because we don’t know.

Williams: there appear to be screencap that captures after lawful description.  But I won’t answer your question. The current exemption addresses the concern that people might not know, so accidental circumvention isn’t illegal.  Basically gives proponents comfort and encourages people to use only the tech that they need for the quality they need.  [And here is the complete gap in the evidence.  What’s the encouragement effect?  If you-the-creator even know about the exemption, you still have to deal with the uncertainty created by the question of whether a court (or a copyright owner, even, in its threats and allegations) would disagree with your assessment of needing to make the jump from one kind of software to another for quality reasons.  There’s a good reason that courts prefer to shy away from making aesthetic judgments and defer to creators on that question, including the aesthetic judgment of just how sharp an image “needs” to be. Adding that into the exemption creates a non-fair use related standard whose main function would be to trip people up, if & when they encountered it.]

Q: but is there any specific tech that people are worried about?  Apple allows screencap. Does the current exemption with two stages serve a real purpose?

Peter Midgley, Brigham Young University: Provides zero comfort, only confusion. Suggests screen cap is by default unlawful.

Q: would expanding the exemption increase infringing distribution of works? Should we require them to put DRM on fictional uses?

Lerner: problematic—how do you define that?  More fundamentally, you’d be really requiring people to change their straightforward fair use to additional restrictions on access. When I make fair use, that’s my speech.

Reid: We’d object to a distribution scheme b/c it transforms an exemption that’s supposed to look at the moment of circumvention (unless post circumvention behavior is probative of intent) into a regulatory regime for downstream distribution. Far beyond what Congress intended to delegate to CO. Raises 1A concerns too—conditioning distribution of speech on further tech restrictions.

A: Congress has said for 110 that tech protections are required. Evidenced a willingness to go that far.

Reid: no evidence in the record. If you’re thinking about that, we need more opportunity.

Midgley: we need to think about this but really shouldn’t put a mini 110 in this exemption.  [Yeah, no kidding.  110 is for uses that might be otherwise outside the scope of 107 or need extra certainty because of the institutional features of face to face teaching. This exemption isn’t sought to implement 110, in which case compliance with 110 would be reasonable as a requirement.  Instead the exemption is sought to implement 107, and you actually have a right to distribute a fair use (indeed, it’s hard to think of a fair use case that didn’t involve both reproduction and distribution).]

Donaldson: See the negative effects of the current regime heartbreakingly w/editors and directors who move from doc to not and want to do what they did last month and all of a sudden it’s a criminal act.  It’s one thing to have a marketing definition of a documentary. But acts legal in May are now illegal in June when the person switches to a different project and that’s bad.

Antkers: will respond to the demo in LA.  [My reaction, not being able to comment on quality given the fact that I was watching a YT stream of a camera recording of a screen, is that the demo missed the most important step, which was the creation of the clip in the first place; I’d sure like to know how exactly that clip was created before it was incorporated into an ebook.]

Lerner: Bobbette Buster, client of UCI. Can confirm she’s still working on her book. Others have personal delays, but evidence doesn’t need to include examples for every possible issue. Evidence can also include evidence from experts about creative practices. That’s more than sufficient to meet our burden especially given the utter absence of concern about piracy or increased unauthorized sharing as a result of changing the exemption.

Brief notes on 1201 space-shifting exemption hearings

PROPOSED CLASS 3: Space-shifting

Keith Chatfield SolaByte: Electronic new media solution developers: method for space-shifting based on licensed transactions, not moving the files.  Support OmniQ’s proposal on behalf of consumer—can convert content to more robust security, devices. Future-proof content against platform obsolescence. Can watermark optical media like DVD and Blu-Ray—can be used to disable disc in the field. These create the capability to enable a controlled licensing transaction where you can trade in a disc.  Allows consumer to move to new media. Patent stage, now licensing it in the market.  It doesn’t involve TPM circumvention.  DVDs are sunsetting; 13 billion are in circulation. We’d like to allow consumers to archive their content into a more permanent library after we authenticate the disc.  OmniQ’s aim is similar with another type of tech. 

John Mitchell OmniQ

Restore benefits of first sale, including the opportunity for unlicensed resale. OmniQ’s process destroys the DVD while it transfers to a hard drive w/one encryption key that the consumer has and we don’t.  There’s never more than one copy, as opposed to previous technologies. 

They fought about the meaning of “copy” under the statute, Cablevision, etc.  Also about whether licensing was possible given the size of the demands of guaranteed revenues up front/the variety of content sources.

Consumer class action fails for failure to survey on the exact statements challenged

Townsend v. Monster Beverage Corp., --- F.Supp.3d ----, 2018 WL 1662131, No. 12–2188–VAP (KKx) (C.D. Cal. Mar. 20, 2018)

The Ninth Circuit remanded this case on UCL, FAL, and CLRA claims insofar as they challenge four specific on-label representations of certain Monster Rehab drinks, holding that even if they weren’t strictly false, it was plausible that the statements were misleading.  The four statements were: “Hydrates Like a Sports Drink”; “Re-hydrate”; Consume Responsibly—Max 1 can every 4 hours, with limit 3 cans per day. Not recommended for children, people sensitive to caffeine, pregnant women or women who are nursing.”; and “It’s an ideal combo of the right ingredients in the right proportion to deliver the big bad buzz that only Monster can.”

Plaintiffs argued that,“[t]o the extent that energy drinks, including Monster Drinks, have any hydrating qualities, they do not hydrate like a sports drink. Sports drinks contain water, salt and sugar, and are designed to replenish the electrolytes and energy one’s body loses during exercise.” In addition, the Hydrates and Re-hydrate statements were allegedly misleading because “consumption of [Monster Rehab drinks] as prescribed on the label could cause severe dehydration because the combination of caffeine and guarana in energy drinks acts as a diuretic.” The consume responsibly/ideal combo statements were allegedly misleading because of “potential health risks associated with frequent consumption of Monster Drinks.”

Plaintiffs’ claims suffered numerous setbacks.  First, there was Stefan Boedeker, plaintiffs’ economic damages expert who conducted a consumer survey and choice-based conjoint analysis to determine how much, if at all, the representations at issue contributed to the price of the product.  However, with one exception, the phrases he tested weren’t identical to the challenged statements and thus they were unreliable/irrelevant.  He tested: (1) “Long Lasting Energy;” (2) “RE–HYDRATE to Bring You Back;” (3) “Hydrates like a Sports Drink;” (4) “Ideal Combo of the Right Ingredients in the Right Proportion;” and (5) “Safe level of consumption incorrectly specified on label” or “Safe level of consumption correctly specified on label.”

“In order for Plaintiffs to meet the Rule 23(b)(3) requirement of predominance, they must show that the same representations were specifically made to each class member. The exact wording of each statement is thus critical to Plaintiffs’ claims and class certification.”  By substituting his own interpretations for the exact wording, the expert rendered his tests unreliable.  For example, shortening “It’s the ideal combo of the right ingredients in the right proportion to deliver the big bad buzz that only Monster can” to “Ideal combo of the right ingredients in the right proportion” wasn’t just eliminating the puffery part.  Whether that part was puffery was a legal conclusion he wasn’t qualified to make, and the court didn’t accept his conclusory assertion that he’d captured the essence of the claim, since his expertise wasn’t in interpreting words and his survey didn’t measure respondents’ understanding or interpretation of the statements. Moreover, the second half of the statement was essential to understanding its meaning because it informed the consumer what purpose the phrase “right ingredients in the right proportion” serves. “Without the latter half of this statement, the consumer is left guessing whether the ingredients are the ‘ideal combo’ for energy, hydration, flavor, or any other possible attributes an energy drink might tout.”

Similarly, by adding a reason to re-hydrate—“to bring you back”—the survey became unreliable; the phrase became focused on energy rather than hydration. “[A]dding language that confuses the re-hydrates and hydration attributes with energy may be particularly critical to the analysis since Mr. Boedeker’s survey shows that the energy attribute of a drink is a much stronger market driver than the hydration attribute.”

The survey didn’t test “consume responsibly,” but rather described in broad terms the type of statement that might be on such a label by providing the options: “safe level of consumption incorrectly specified;” “safe level of consumption correctly specified;” “no information on label regarding safe level of consumption;” or nothing at all.  This analysis was untethered to plaintiffs’ theory of liability. “Comparing the price impact of a correct, rather than an incorrect, safety statement is irrelevant; only a label perceived as being correct is at issue here. Further, assigning a safety label the descriptor of ‘correct’ or ‘incorrect’ presumes that a consumer is making this determination at all, as well as potentially influencing such a statement’s weight.” And “safe consumption” was materially different from “consume responsibly.” The survey thus didn’t assess the premium paid for “consume responsibly.”

The court additionally excluded a survey that plaintiffs’ survey expert submitted in response to earlier criticisms; by providing new data including a different survey population, not just re-analysis of existing results, the survey became new evidence that needed to have been disclosed earlier.

However, his earlier survey was not inadmissible just because he didn’t ask survey participants about why they purchased Monster energy drinks; he asked only their understanding of each statement. How reasonable consumers perceive and interpret the statements was relevant to whether they’d find their truth or falsity material.  One set of conclusions was unreliable, however, because he accidentally omitted the word “bad” from the “big bad buzz” portion of the ideal combo statement, and there was no way to tell whether this made a difference to consumer responses.  The specific representations are key in false advertising cases, and, since the burden on plaintiffs was to show admissibility, they failed.

The court was equally rigorous as to defendant’s survey expert, who was qualified to opine on the reliability/design of a consumer survey about materiality, but not to opine on the quantitative analysis (which he argued produced an unrealistically large damages number) because he lacked the relevant statistical background.

The motion for class certification failed mostly because plaintiffs failed to show that a presumption of reliance was justified. The admissible parts of plaintiffs’ survey showed how respondents understood the Hydrates, Re-hydrate, and Consume Responsibly statements, but didn’t provide insight into their purchasing decisions; the survey didn’t even target people who bought Monster branded energy drinks.  [No role for common sense, apparently.]  “While a challenged statement need not be the sole or even dominant factor in consumers’ purchasing decisions, a survey needs ‘to assess whether the challenged statements were in fact material to [consumers’] purchases, as opposed to, or in addition to, price, promotions, retail positioning, taste, texture or brand recognition.’”

The conjoint analysis could potentially show materiality by determining the statements’ value to consumers. But it was only admissible as to the Hydrates claim.  And plaintiffs didn’t show that the Hydrates statement had a common meaning.  The survey asked “What does the statement that Monster Rehab is a ‘... triple threat that quenches thirst, hydrates like a sports drink, and brings you back after a hard day’s night’ mean?” and “Does the statement that Monster Rehab Energy Drink ‘Rehydrates’ or that it ‘... hydrates like a sports drink’ say or suggest that Monster Rehab has the same level of electrolytes as a sports drink?” But no question showed how consumers understand the Hydrates statement alone.

Consumers’ responses also didn’t support the deceptiveness theory.  For the first question, 24.2% of respondents stated they understood the statement to mean “energizes;” 24.2% said “rehydrates/aids rehydration;” 15.9% stated “thirst quenching;” 5.1% replied “electrolytes mention/additives;” and 47.8% provided miscellaneous responses. Plaintiffs’ misleadingness theory, that the Monster product does not contain electrolytes like a sports drink, was only mentioned by 5% of respondents.  Also, their answers didn’t support any single common understanding of the Hydrates statement across the class; “this indicates that claims related to this statement require an individual inquiry.”

In response to a specific question asking consumers to compare the electrolyte content of a sports drink versus a Monster Rehab Energy drink, 80.6% of respondents stated that Monster Rehab definitely or probably has the same amount of electrolytes as a sports drink. Still, the court considered the unprompted responses more important, and also it was unclear whether the Re-hydrate statement or the Hydrates statement led consumers to this conclusion. Answers to the open-ended questions indicated that electrolytes were more often associated with the Re-hydrate statement than the Hydrates statement.  

Nor did plaintiffs show that the Hydrates statement was material to all class members. When their survey expert asked in an open-ended format why respondents chose defendants’ energy drinks as opposed to another brand, so few respondents listed hydration as a purchase driver that he didn’t it as a quantifiable reason. Even when respondents were prompted, only 25.2% of respondents selected hydration as a purchase motivator.  In Boedeker’s survey, only 7.3% of respondents selected the Hydrates statement as a factor in their purchasing decision, out of a list of 16 attributes.  Thus, plaintiffs didn’t show the existence of a common answer to the question of whether a reasonable consumer would consider any of the challenged statements a material misrepresentation.

Plaintiffs also didn’t present a damages model consistent with their theory of liability. They tried to rely on Boedeker’s model, but his survey suffered from focalism bias, “rendering it useless for the purpose of determining price premiums attributable to the challenged statements.”  In the list of 16 attributes driving purchase, respondents chose flavor most often (42.8% of respondents); then price (25.9%); then energy (25.3%); then brand (23.8%); Re-hydrates came in at 8.7% and Hydrates like a Sports Drink at 7.3%.  But in determining price premium, Boedeker examined only flavor, the challenged statements, the ingredients label, and the price.  The court agreed that presenting the claims out of context and failing to include other important attributes artificially inflated the importance of the challenged claims. The court didn’t believe the conclusion that “the attributes that ranked 8th, 9th, 10th, and 11th out of 16 attributes, with less than 10% of all survey respondents even mentioning each attribute as important to their purchasing decision, constitute approximately 81% of the value of the overall product …. At the maximum price point …, the challenged statements would constitute 52% of the value of the beverage. These incongruous results support Defendants’ complaint that Mr. Boedeker’s survey fatally suffers from focalism bias.”  Plaintiffs failed to justify the selection of attributes; the court suggested that the expert could have reproduced the conjoint analysis with different variable attributes to see if the estimated price premium is reliable, controlled for other highly-valued attributes, or tried to price these other attributes.

Finally, the failure to show that Hydrates statement had a common, deceptive meaning compounded the problem.  “In order to tie a damages model for a misleading statement to a theory of liability, a plaintiff must show that the price premium paid was for the attribute consumers believed the product contained. In other words, Plaintiffs here would have to show that consumers paid a price premium for a drink they believe contained electrolytes in order for it to align with their theory of liability.”

we said the meal was a "value," we just didn't say to whom

Killeen v. McDonald’s Corp., 2018 WL 1695366, No. 17 CV 874 (N.D. Ill. Apr. 6, 2018)

Courts will only rarely protect consumers against their inability in the moment to do math; this is not one of those times. Killeen alleged that some of McDonald’s “Extra Value” meals were actually more expensive than ordering the same items separately, and that this was deceptive. For example, Killeen bought a Sausage Burrito Extra Value Meal at a Chicago McDonald’s for $5.08 when she would have paid only $4.97 had she ordered the individual items a la carte. “[C]ommon experience favors her assertion that consumers expect to pay less for items bundled together and billed as a ‘value’ package than they would pay if they purchased the items separately.” But there can be no deception where other information is readily available to dispel the tendency to believe in savings:

[A]nyone familiar with fast-food restaurants such as McDonald’s surely knows that prices are typically displayed on menus located near the registers. Understandably, plaintiff may not have wished to take the time to compare prices, but there is no question that doing so would have dispelled the deception on which her claims are based. Accordingly, this is not a case in which consumers would have to consult an ingredients list or other fine print to determine whether prominent images or labels a defendant uses in connection with its product accurately reflect the product’s true nature or quality.

Recent acquisitions: really bad court decisions edition

Tarkay and Patricia Govezensky posters, from Romm Art Creations v. Simcha Int'l, Inc., 786 F.Supp. 1126 (E.D.N.Y. 1992), an absolutely terrible decision finding that the "Women and Cafes" style was inherently distinctive and thus had secondary meaning and high strength because they were artistic and imaginative (sigh); they were also therefore presumptively nonfunctional.  Defendant was enjoined.  If you ever wonder why Wal-Mart rejected so much of Taco Cabana, this case is a good reminder.

P.S. I ended up with a few extra Patricia posters, if anyone wants one for their own display purposes.

The truth is out there, but it might violate the right of publicity

Scott v. Citizen Watch Co., No. 17-cv-00436-NC, 2018 WL 1626773 (N.D. Cal. Apr. 4, 2018)

This case would be the poster child for the need for a true reckoning between modern right of publicity law and the modern First Amendment, but the poster would probably violate plaintiff David Randolph Scott’s rights under the reasoning of this case.  The court found factual disputes about the applicability of various exceptions to California’s right of publicity and the Lanham Act, including a reading of nominative fair use that makes it a dead letter/a defense only when confusion is unlikely (cf. KP Permanent). The only things that got kicked out were Scott’s emotional distress claims.

Scott is a retired astronaut and the mission commander for NASA’s 1971 Apollo 15 voyage, on which Scott spent three days on the moon, including over 18 hours outside the main spacecraft. Before the mission, Bulova representatives gave Scott two Bulova timepieces to use in space. He wore a chronograph to the moon and auctioned it off for $1,625,000 a few years ago.

In 2014, Bulova began the Lunar Pilot Chronograph (the “Moon Watch”) based on the original chronograph that Scott wore to the moon. Many of Bulova and Kay’s ads and promotional materials referred the original chronograph that Scott wore on the moon, and include Scott’s identity in various forms, including: (1) online promotions, including descriptions of the watch, photos of Scott, and a video that contains an audio clip of Scott’s voice (2 seconds where Scott can be heard saying, “We have a roll program” from a 79-second video depicting the Apollo 15 mission); (2) a promotional booklet packaged along with the Moon Watch; and (3) other public and internal communications by Bulova and Kay.  Apparently one of the astronauts in the spacesuits shown in the advertising is Scott, though his helmet is apparently not see-through in the photos.  (I can’t judge all this for myself and neither can you because, appallingly, big chunks of the exhibits are sealed even though they are the allegedly infringing materials.  The court doesn’t explain why (1) internal materials could ever violate Scott’s right of publicity or (2) it is permissible to seal (and redact descriptions of, in the attached affidavit) allegedly infringing materials that were in fact public.  I started out with a joke about the breadth of Scott’s claims, but this isn’t a joke.)

 

Bulova website

Kay website (from Archive.org) with reference to Scott in text

The court found disputed facts existed over whether the use of Scott’s identity was incidental. “The rationale underlying this doctrine is that an incidental use has no commercial value, and allowing recovery to anyone briefly depicted or referred to would unduly burden expressive activity.” Relevant factors include: “(1) whether the use has a unique quality or value that would result in commercial profit to the defendant, (2) whether the use contributes something of significance, (3) the relationship between the reference to the plaintiff and the purpose and subject of the work, and (4) the duration, prominence or repetition of the likeness relative to the rest of the publication…. Even if the mention of a plaintiff’s name or likeness is brief, if the use stands out prominently within the commercial speech or enhances the marketability of the defendant’s product or service, the doctrine of incidental use is inapplicable.”

Scott offered evidence that his identity was used “repeatedly and in a manner intended to take advantage of Scott’s reputation.” His name and Apollo 15 “mission commander” title appeared or appear in many of the marketing materials, including the descriptions on Bulova’s and Kay’s websites, the promotional booklet, marketing copy for online and third-party retailers, a press release, an interview between a Baselworld reporter and Bulova’s CEO, website advertisements, employee training materials, and internal communication documents about marketing strategy. [How internal documents can violate the right of publicity is a bit beyond me.]  For example, an introductory power point to a third party retailer stated, “The Moon Pilot Chronograph is based on the design of the Bulova watch worn on the moon by Astronaut David R. Scott during 1971’s Apollo 15 space mission.” Another statement repeated frequently in Bulova and Kay’s advertising: “After Apollo 15’s mission commander made lunar history—while wearing his personal Bulova chronograph—we’re making history again.”  

images from the  pamphlet with the watch

In the prior Yeager case, the court reasoned that the plaintiff’s name and identity were “unique and non-fungible” because he was known for breaking the sound barrier for the first time, and “[t]he use of his name and identity link[ed] defendant’s new technology to plaintiff’s name and accomplishments” to create positive associations in customers’ minds about the AT&T brand. “The same logic applies here,” even though Bulova happens to be reciting facts, not making an analogy (which should have been ok too, but at least didn’t suppress a truthful account of the past).  A jury could find that the ads “deliberately invoked Scott’s name and historical significance as one of the first humans to walk on the moon in order to increase the Moon Watch’s marketability and appeal.”

There were also disputed factual issues on the public interest exception to the common law right/the statutory “public affairs” exception, both of which protect “publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it.’ ”  These ads were commercial speech, thus “subject to reduced free speech protection relative to non-commercial speech.”  [Yes, but that reduced protection isn’t just applied as a discount to any advertisement’s free speech value.  Specifically, the court should apply Central Hudson: substantial government interest, actual advancement of that government interest, and suppression of no more speech than necessary (though not narrow tailoring).  It does not.]

In balancing publicity against newsworthiness, courts must consider “the nature of the precise information conveyed and the context of the communication.” “Apollo 15 and space exploration certainly implicate some degree of public interest,” but the context was too commercial.  “The determinative inquiry for whether the public interest exception applies to commercial speech is whether a defendant’s use of a plaintiff’s identity is the commercial product itself, or is instead used to promote some other tenuously related product.”  The former is protected and the latter is not, and this case was more like the latter, because defendants’ product wasn’t speech, but a watch, and the [truthful] references to history and space exploration simply helped to sell it. 

True, Scott actually wore a Bulova watch to the moon. But a “fine line … must be drawn between the historical event that was Apollo 15 and the person that is David Randolph Scott.”  [It must?  Why, under Central Hudson?]  So Bulova has “greater” license to boast about its connection to the Apollo 15 mission, but that doesn’t “automatically” make Scott fair game.  The court pointed to the differences between the second and third versions of Bulova’s online description for the Moon Watch. The second online description “strongly” evoked Scott’s success by stating: “After Apollo 15’s mission commander made lunar history—while wearing his personal Bulova chronograph—we’re making history again.” The third online description said instead: “Bulova made space history on August 2, 1971—during the Apollo 15 mission, a moon pilot chronograph, customized for lunar conditions by Bulova engineers, was worn on the moon.” This moved away from Scott and toward Bulova’s own involvement in the historical event.  “Somewhere in that continuum there is a line. While Bulova may legally showcase its legitimate connection to Apollo 15, the Court cannot say as a matter of law that Defendants’ advertisements do not cross the event horizon into the black hole of misappropriation.”

 

initial Bulova description

first revision

second revision

[I believe this test crosses the event horizon into inappropriate vagueness.  Also, since California common law protects identity, why doesn’t “was worn on the moon,” along with being awkward and terrible phrasing, still evoke the astronauts’ identities?  Is it just that it doesn’t hint at who did the wearing?  Given the other information available—and wait for the Wikipedia bit—why wouldn’t that equally identify Scott, especially given the various reviews of the watch (below)?]

But no: “Scott the astronaut, as distinguished from the Apollo 15 mission or space exploration more generally, bears too tenuous a connection to the non-speech commercial Moon Watch for the public interest exception to shield Defendants from liability on summary judgment.”

Defendants argued that the marketing booklets included with the watch’s packaging, the online watch descriptions, and the 79-second advertising video contained significant transformative elements, making them exempt from liability. They also argued Scott wasn’t “readily identifiable” in the photograph of him on the moon.  The court found that these weren’t sufficient grounds for summary judgment because Scott identified other allegedly infringing materials.  And the court didn’t assess whether summary judgment ought to be granted as to those uses, which would seem to be the next logical question; the court said that the result would be the same no matter what, but the result on what goes to the jury would be very, very different, so this seems to me to be very different.

As for the other uses, Scott provided evidence that defendants used his name and identity in interviews, press releases, internal communications such as training materials, public Wikipedia page edits [are these commercial speech now?], and a certificate of authenticity issued along with the watch.

Likewise, the Lanham Act false endorsement claims involved disputed material facts.  Scott’s most compelling evidence was that “at least some consumers knew of Scott and his role in Apollo 15, were excited to buy the watch because of its connection to Scott, and may actually have believed Scott endorsed the product.”  That last bit, by the way, is pure extrapolation.

consumer reviews mentioning Scott

One consumer review on Bulova’s website reads, “[I] found out [t]hat other than the NASA Swiss watch, one other watch had been worn on the [m]oon by [t]he Commander of Apollo 15 ‘Dave Scott’ on EVA 2. The watch in question was the Bulova 96B251 Moon Watch.” Similarly, a Facebook user referred to the Moon Watch as the “Dave Scott Re-Edition.” “[I]t is entirely reasonable to infer that Defendants’ reference to the Moon Watch, Apollo 15, and Scott in the same breath could confuse consumers about Scott’s role in the Moon Watch’s marketing,” especially since they used his exact name, title, and likeness. Also, Bulova may have actively sought Scott out to serve as a “brand ambassador,” suggesting intent.

Nominantive fair use was factually disputed for one really bad reason and one unfortunate, but case-law-consistent, reason.  Bad reason: New Kids said that the test applies only “where the defendant uses a trademark to describe the plaintiff’s product, rather than its own,” but defendants used Scott’s identity to describe their own product, not Scott’s. That’s not an accurate description of the New Kids rule, in which the defendant’s product was a poll about the New Kids: talking about their own product meant talking about the plaintiffs.  So too here.  The use is purely referential: this is the watch that Dave Scott wore.  The use of Scott is thus in reference to Scott himself, rather than trying to create a different Scott mark (compare the analysis in the Grand Theft Auto/Play Pen case, where the court found no reference to the plaintiff Play Pen).

Unfortunate reason, deepening the incoherence in case law: Factor three of New Kids was disputed because of evidence supporting a likelihood of confusion finding. “Scott offers evidence that consumers may have believed Scott endorsed or sponsored the Moon Watch, referring to it as the ‘Dave Scott Re-Edition’ and retelling in favorable online reviews the story of Scott taking his personal Bulova chronograph to the moon. Whether Defendants’ advertisements suggests sponsorship or endorsement by Scott is a highly factual matter and not suitable for summary judgment.”  But that’s not what factor three started out as, even though other courts have done the same jiu-jitsu.  Factor three started out as whether the defendant did anything else to suggest sponsorship, as in saying “official” or “authorized.”  If likely confusion means that factor three isn’t satisified, then New Kids is neither a replacement for the ordinary confusion test (the formal 9^th Circuit characterization) nor a defense (because, as with KP Permanent, a defense that only works when there’s no confusion isn’t actually a defense).

Also, Scott’s false advertising claim involved disputed material facts.  Scott argued that the characterization of the Moon Watch as a “replica” was false because the internal components of the Moon Watch differ from the original chronograph and thus the watch wasn’t a “100%” replica according to Bulova’s own witness. Scott testified that he had been injured by being associated with a watch that he would not endorse, and submitted an expert declaration that Scott has lost potential income from future endorsement deals.  [The problem here isn’t injury, but injury causation: the lost income from future endorsement deals, if any, isn’t plausibly connected to the falsity of any “replica” related claims.]

However, Scott’s evidence of emotional distress was merely his declaration stating, “I have suffered emotionally because people may now believe I have abandoned my private life in favor of commercially promoting products which is not how I wish to be perceived by the public,” and, “I feel humiliated, embarrassed, and mentally distressed because of the new public persona Bulova and Kay’s have forced upon me; an Apollo astronaut that endorses products, let alone a cheap and deceptive product.” This wasn’t enough because “it describes at worst discomfort with a social image Scott fears he may have,” not distress that no reasonable person can be expected to endure. There was also no evidence of intentional or reckless disregard by the defendants.

make your own sexual reference: 9th Circuit partially reinstates male enhancement lawsuit

Sandoval v. PharmaCare US, Inc., No. 16-56301, No. 16-56710, --- Fed.Appx. ----, 2018 WL 1633011 (9th Cir. Apr. 5, 2018)

Sandoval brought a putative class action claim based on PharmaCare’s statements about its “male enhancement” product IntenseX. The court of appeals affirmed summary judgment on the false advertising and express warranty claims based on the website, because reliance is required for those claims and one named plaintiff testified that the website had no effect on his purchase decision, while the other failed to submit sufficient evidence that he viewed and relied on the website before his first purchase.

However, false advertising, express warranty, and implied warranty of merchantability claims based on the IntenseX label were reinstated. The label stated that the product would “intensify” a user’s “endurance, stamina, and sexual performance,” and included a seal stating that IntenseX was “Laboratory Quality Tested.” These were specific and concrete enough to be treated as representations of fact.  “While the word ‘intensify’ may have multiple meanings, when read in context, the label’s statements could convey to a reasonable consumer that IntenseX will increase the consumer’s endurance and stamina during sex and that its effectiveness has been laboratory tested.”   Plaintiffs submitted evidence that lab tests haven’t shown effectiveness.

The court of appeals also reversed summary judgment on the UCL claim based on unlawfulness: PharmaCare’s alleged failure to comply with federal law. A federal regulation requires any over-the-counter (“OTC”) aphrodisiac drug to be approved by the FDA before marketing, and a product marketed as a dietary supplement will be regulated as a drug “[i]f the label or labeling of [the dietary supplement] bears a disease claim.” “Labeling” is construed broadly and includes any article that “supplements or explains” the product even if the article is not physically attached to it. The IntenseX label refers consumers specifically to www.intensex.com, which contains information about the ingredients’ ability to treat diseases. That was enough.

However, the court of appeals affirmed the denial of class certification. The named plaintiffs’ claims weren’t typical of the proposed class, “which included prospective members who, unlike [the named plaintiffs], suffered sexual health problems and purchased IntenseX based on the website’s representations that it can treat sexual-health conditions.” Along with economic injury, these class members might have suffered additional harm (avoiding medical treatment); their available claims and remedies, as well as their incentives, might differ.

Reading list: influencing juries in litigation hot spots

Megan M. La Belle, Influencing Juries in Litigation “Hot Spots”: The article argues that litigants and attorneys sometimes use advertising to improperly sway the jury pool, sometimes by making factual claims but sometimes by using image advertising to create favorable background impressions, such as Samsung’s sponsorship of an ice rink in Marshall, in the Eastern District of Texas. La Belle argues that this conduct can violate the right to an impartial jury and thus can be regulated despite the fact that the advertiser’s speech is non-false.  The examples are fascinating.