UNIVERSITY OF MISSOURI -- KANSAS CITY SCHOOL OF LAW
Communications Law #860
Fall Semester, 1996
The exam consists of two essay questions, one worth 40 points and another worth 60 points. Please answer the two questions in separate bluebooks. Label one bluebook "Problem 1" and the other "Problem 2." Limit your answers to one bluebook.
You may use the course materials, your class notes, and any outline that you helped prepare.
You have three hours to complete the exam. Good Luck!
Problem One (40 points)
On the morning of November 27, 1996, a Los Angeles radio station, KATO-FM, interrupted its regularly scheduled rock music programming for what was said to be "a special report." According to a KATO-FM announcer, O.J. Simpson "apparently distraught over his performance on the witness stand" in the ongoing civil trial, was once again driving around on the freeways of L.A. "threatening to blow his head off." KATO-FM then cut to Jan Stark, its regular traffic reporter, who claimed to be in a helicopter over the Santa Monica freeway tracking Simpson's white Bronco. Stark continued to report the progress of the vehicle as it drove by identified landmarks. Another KATO-FM news reporter broke in to announce that Simpson had placed a call from the cell phone of the Bronco to Mark Fuhrman, apologizing for "the hell I've put you through."
In fact, the Simpson story was a hoax. Dozens of KATO-FM listeners believed that KATO-FM's reports concerning Simpson's road trip were true and sped along the Santa Monica freeway hoping to catch up with the white Bronco. One listener, driving his car at speeds in excess of 90 mph, collided with an innocent motorist, resulting in the death of the KATO listener and paralysis to the other motorist.
KATO-FM now finds itself in hot water as a result of the Simpson hoax. The paralyzed motorist has sued the radio station for damages, alleging negligence. The Federal Communication Commission has also taken an interest in the incident. The F.C.C. has found that KATO-FM's false Simpson report violates its anti-hoax rule and has fined the station $25,000 (6 F.C.C. Rcd. 2289). The F.C.C.'s hoax rule prohibits broadcasters from "presenting as true an event known not to have occurred or be occurring" under circumstances when it is "reasonably likely that some persons will believe the report to describe an actual event" and "will suffer physical or psychological injuries as a result of such mistaken belief."
(A) Discuss the legal issues raised by the injured motorist's tort suit. How likely is it that station will be able to avoid paying damages?
(B) Does the F.C.C.'s imposition of a $25,000 fine violate the Constitution? Discuss.
Problem Two (60 points)
Otto Gesmundo was a dancer in the Stardust Hotel's "Lido" floor show in Las Vegas. Gesmundo was alarmed by what he thought was the mistreatment of orangutans by another floor show performer, animal trainer Snidely Whiplash. Gesmundo often heard "thumping noises" and animals crying out in distress from behind curtains in a backstage area.
Gesmundo approached Shelly V. Kramer, the "Action News" reporter of KLAS, a television station in Las Vegas. Gesmundo told Kramer he suspected Whiplash of beating orangutans and suggested that KLAS do a story on the subject. Kramer told Gesmundo "there's no story without video" and urged him to try to get evidence of the mistreatment on video.
Kramer furnished Gesmundo with an 8mm video recorder which Gesmundo brought to work with him at the Stardust. Gesmundo found a small opening in the curtains hiding Whiplash's orangutan training area and proceeded to video tape the trainer striking orangutans with what appeared to be about a two-foot long metal baton. Whiplash was also shown grabbing and shaking the animals.
When Kramer reviewed Gesmundo's videotape, he knew that KLAS had a story. He asked Gesmundo if he would be willing to appear on camera to describe what he had done and seen. Gesmundo refused, saying that he feared reprisals either by Whiplash or the management of the Stardust Hotel. Kramer then asked whether Gesmundo would be willing to appear if he was shown only in silhouette with his voice disguised. Under those conditions, Gesmundo said, he would consent to an interview.
On December 5, 1996, KLAS aired its report on Whiplash's alleged mistreatment of orangutans. The story opened with a one-minute video shot by a KLAS cameraman at the "Lido" floorshow. The video showed a portion of Whiplash's ten-minute orangutan act. The clip depicted the most dramatic trick of Whiplash's performance, when all four orangutans, riding unicycles, meet at the center of the ring to exchange "high 5's." The report then showed Gesmundo's videotape. As the video ran, Kramer read the following script:
Following the KLAS broadcast, several things happened:
(A) Gesmundo received a phone call from an anonymous caller telling him "you'll never dance again because of that hatchet job you did on TV." The Stardust Hotel terminated Gesmundo's employment on the grounds that he had violated its policy against using video cameras in backstage areas. Gesmundo sued KLAS for breach of contract. Discuss the legal issues raised by Gesmundo's lawsuit.
(B) Snidely Whiplash has sued KLAS for defamation, invasion of privacy (intrusion), and depriving him of his right of publicity. Whiplash alleges that the force shown on Gesmundo's videotape was "a necessary part of the animals' training" and "was no more violent than necessary to accomplish my training goals." He contends the allegation that he is an "animal torturer" and "abuser" is defamatory. He also alleges that KLAS and Gesmundo violated his privacy by filming his backstage orangutan training without the consent either of himself or the Stardust Hotel. Finally, he argues that the KLAS video of his public performance, again taken without the permission of himself or the Stardust, deprived him of the publicity value of his performance. Discuss the legal issues raised by Whiplash's lawsuit against KLAS.
END OF EXAMINATION
EXAM: Communications Law, #860
Low Down is a monthly publication that has been described as "a combination of People and Hustler." It is one of a dozen publications owned by billionaire Rupert Muckrake.
Low Down is in possession of a photograph that it is considering for publication in its January, 1998 issue. The photo, taken in the lockerroom of a plosh Florida golf clubhouse, shows a nude President Clinton. The photo was taken surreptitiously by professional golfer Greg Nomad's caddy with a minature camera. The caddy sold the photo to Low Down for $10,000. When he was captured on film, the President had just completed a round of golf with Nomad, and was preparing to enter a steambath with two of his secret service agents and Nomad.
Low Down intends to publish the photo with an accompanying story entitled, "Confirmation for Paula Jones's Story." The story will suggest that the photo provides support for the story of Jones concerning her sexual harrassment charge because it shows that the Presidential penis has "distinguishing characteristics," as Jones has alleged. The caddy's photo will run twice with the story: once in full and once in cropped form. The full photo shows the entire naked bodies of Clinton and secret service agent Clint Westwood, who happened to be next to Clinton when the photo was shot. The cropped photo is a magnified close-up of the President's genital area.
(A) If Low Down publishes the photo, could it be sued successfully by President Clinton for invasion of privacy?
(B) Could it be sued successfully by Clint Westwood?
Assume that Low Down publishes the embarrassing Clinton photograph. The White House now informs Rupert Muckrake that reporters working for any of his publications (including a leading national magazine about politics, Washington Review) will no longer be allowed into the White House briefing room to attend press conferences of the President, his cabinet secretaries, or other Adminstration officials. The Secret Service has been asked to enforce the President's exclusion order.
(C) Does the order excluding Muckrake's reporters from the White House violate the Constitution?
PROBLEM TWO (fifty points)
Sue Fulsome is the creator of an internet website with a web address of www.go-chiefs!.com. The main page of the website has the heading "Go Chiefs! Home Page." Under the heading is the 1997 schedule of the Kansas City Chiefs professional football team, with scores listed next to each game played to date. At the bottom of the page are buttons providing links to other pages maintained by Fulsome as well as the official website of the Kansas City Chiefs. The button linked to the Chief's page is in the shape and design of the team's red and white football helmet, and bears the label "Link to Official Website of Chiefs." Other buttons provide links to "Team Statistics" and "Reports on the Team," the latter being Fulsome's summary of newspaper reports about the Chiefs that she has found interesting. On both sides of the team schedule are pictures of four star players for the Chiefs that were gotten by scanning football trading cards that Fulsome had purchased at a Raytown grocery store. By clicking on the players' pictures, website visitors access pages that contain drawings of T-shirts that Fulsome has designed and is offering for sale. For example, clicking on the photo of quarterback Rich Gannon provides access to a page showing a T-shirt with the words "Gannon's Cannon" and a drawing of a red-uniformed arm designed to look like a cannon. Underneath the drawing is Gannon's team uniform number in large letters. Other T-shirts are similar (e.g., wide receiver Andre Rison's T-shirt has the words "Rison's Right On!"). None of the T-shirts bear the official logo of the Chiefs.
Fulsome has created her website and T-shirts without either the approval or knowledge of the Kansas City Chiefs.
What, if any, intellectual property rights has Fulsome infringed? Discuss.