Brief 7: Exploiting A News Story

TLC . . . a channel which once aired programs relevant to its title (The Learning Channel). Any more, a viewer is more likely to learn how to conduct a seance as opposed to what the medical term fetus in fetu refers to. TLC is no stranger to exploitation. The network has ran specials on everything from the world's largest mother to the life of conjoined twins. Its most recent attempt at exploitation, however, is probably the most shameful.  

Switch gears to 2008 when an Arkansas family landed themselves a series which went through a few title changes in its seven year run. TLC's 17 Kids and Counting stared Jim Bob and Michelle Duggar, and lest we forget, their 17 children. America experienced first hand what it was like to be a devout Christian family who was as close to godliness as any family could possibly be. 18 Kids and Counting soon followed as did the final series when the 19th child was born (no need to insert the title.)  

America was in love. TLC had a hit that could go on for what was looking like eternity. With the way sequels are milked these days, who knows how many more title changes the series may have been granted. Sadly, the facade of perfection was broken when the world was let on to a Duggar family secret in 2015. Jim Bob and Michelle defended their eldest son Josh when the public scorned him for having molested five of his younger sisters as a teen. TLC cancelled their million dollar baby.  

Enter 2016, your watching a show about 600lb individuals and you see an advertisement featuring a few familiar faces. The Duggar sisters are speaking of hurt and forgiveness, and most importantly, moving on. Then, the announcement: New series coming to TLC, Jill and Jessa: Counting On. . .What?! 

If you're a viewer, you probably got a good chuckle at the ridiculousness of said preview. If you're an advertiser, apparently your pulling your ads during the show's time slot. If you're TLC, you may be in the process of cancelling the obvious attempt at exploiting a tragic event turned tabloid news story.  

Although Jill and Jessa are still drawing in millions of viewers, the number of advertisers is dropping rapidly. According to Forbes, 

"Brand are fleeing the radioactive reality show in droves. Representatives from Credit Karma, X Out, Cici’s Pizza, and the UPS store expressed that the Jill & Jessa ads were part of a large advertising purchase and were not intentionally chosen. All stated they will no longer run ads on any shows about the Duggar family. Other major companies that have abandoned Jill & Jessa include Verizon and the RCN corporation."

Advertisers aren't willing to take the risk of offending their customers. Forbes also noted that the cancellation of 19 Kids and Counting cost the network $19 million. What a price to pay! Often times, exploitation of a news story leads to the big bucks, which is why it is done. In this case, the future, outright exploitation of the Duggar children's case may or may not continue to make TLC rich. 

Forbes Article

Photo Credit: tlc.com

Brief 6: Copyright and Fair Use

The first thing that comes to mind when discussing violation of copyright/fair use laws may typically be a situation where one individual profits from another individuals copyrighted work. This is especially a concern in the music industry, but have you ever heard of one band member suing another for this very reason? The following lawsuit was complicated by several other issues, but the root of the matter was indeed a copyright issue.

Left to Right: Klepaski, Burnley, Fincke and Szelga

In January 2009, Benjamin Burnley, Aaron Fincke, and Mark Klepaski enter into a Band Agreement for the band Breaking Benjamin. Martin F. Frascogna took an in depth look at the case and noted a few of the rules in said agreement are:

-Burnley started the group
-Burnley is the creative force behind the group
-Burnley dictates the groups decisions
-Burnley can dismiss a fellow band member for just cause

Section 5: Fincke and Klepaski hereby irrevocably assign to Burnley and and all rights, title and interest that Fincke and Klepaski may have in the band name Breaking Benjamin as well as any and all logo(s) and/or trademarks in any manner collected thereto. 

"Therefore . . . Fincke and Klepaski have assigned their rights to the Breaking Benjamin trademark to Burnley. Further meaning Burnley can be the only surviving member of Breaking Benjamin [and] Fincke and Klepaski can NOT use the name Breaking Benjamin. If future albums are to be released, Benjamin Burnley must be on the album and must authorize the use of the trademark."

The following year in March, Breaking Benjamin allegedly entered into a Recording Agreement with Hollywood Records. Burnley, however, had also allegedly told the band's attorney, Fincke, and Klepaski "that he didn't want to proceed with the Recording Agreement." Fincke and Klepaski had signed the band into the agreement, thus making it void from the start since Burnley had not agreed to do so. But where was Burnley? 

Burnley fell ill in 2009 with an unknown illness believed to be brought on by years of severe alcoholism. The mystery illness still pangs him to this day, and it ultimately how the problem arose. Burnley claims to have not been present when Hollywood Records approached Fincke and Klepaski about remixing a song the band had recorded for Halo 2, a track which was released in 2008 but was not featured on any of the band's previous albums. 

Shallow Bay: The Best of 
Breaking Benjamin

Album depicts scan of 
Burnley's brain after illness

Fincke and Klepsaki signed the agreement. An alternate version of "Blow Me Away"was released in Burnley's absence on the album Shallow Bay: The Best of Breaking Benjamin. Burnley sought arbitration in June of 2011 after firing the two members in question, desiring $250,000 in compensation to be paid by said members. Florian Schneider of Billboard says, "Burnley claims that Fincke and Klepaski were offered $100, 000 by the band's label to approve the revised version of the song, and that the pair did not inform him or the band's management of the remix. The accused denied the allegations, but lost the case. 

In 2013 the following announcement was posted on the band's website:

"The dispute between Benjamin Burnley, who is the sole founder, primary musician, singer and songwriter for the band Breaking Benjamin, and two of the band's ex-members has been resolved. Benjamin Burnley retains his right to use his band name and Breaking Benjamin will continue." 

Burnley's comment:

"I am pleased to finally put this matter behind me and focus on the future for Breaking Benjamin. I wish to express my never ending love and gratitude to the best fans in the world for their undying love and support. Words cannot express my love to you all! Thank you!" 

Burnley reassembled Breaking Benjamin with four new members added to the band. In June of 2015, the band released Dark Before Dawn, the band's fifth studio album. Burnley takes pride in his work, and it was obvious in his later comments he did not approve of the remixed version of "Blow Me Away," a song he created specifically for Halo 2.  He is an avid gamer, and wrote the song because of his love for the Halo series. Burnley claims to write and mix most of his work to a very high standard, so it was no wonder he sued. 

It is clear why Burnley won this dispute, despite the mindset of his bandmates: "Hey, let's not consult the guy who's name is in the band title!" It was all a matter of contract wording. Fincke and Klepaski entered the band into Recording Agreement with Hollywood Records and received compensation for the release of work they didn't have full legal rights to according to the Band Agreement. It seems they stole their own work, but they are the ones who gave Burnley the right to sue them for doing so. I guess taking advantage of Burnley's illness didn't pay off in the end. 

It's clear which version Breaking Benjamin fans approved of.

Remix (103, 373 views)

Original (20, 443, 206 views)

Sources:
Techdirt
Loudwire
Billboard

Brief 5: Reporter's Privilege

"A shield law provides statutory protection for the "reporters' privilege" -- legal rules which protect journalists against the government requiring them to reveal confidential sources or other information." -SPJ.org

Does creating/commenting on internet content give one the right to call upon a state's shield law for protection? In an ever-changing, multimedia based world this is certainly a legitimate question. Is there a divide between the blogger and the traditional journalist? 

In 2011, three separate judges had to answer theses questions, and found journalists and journalism are not what they used to be. In the case of Too Much Media v. Hale, the New Jersey Supreme Court ruled the state's shield  laws did not protect individuals who post comments on online message boards. Meanwhile in Hawaii, the weekly newspaper MauiTime looked to the state's shield law to fight a subpoena which required the publication to turn over subscriber information of every commenter on a story on the paper's website. "Both cases highlight the challenges of applying statutes written to protect traditional news media when evolving technology has enabled more people to work as journalists" -Aaron Mackey

In the case of New Jersey, it was a matter of what constitutes a journalist. Mackey noted, "The decision recognized that online commenters who post on message boards are similar to individuals who write letters to the editor, a group of people who historically have not received protection fro the sheild law."  The lawsuit concerned defamation. Shelbee Hale was accused of defaming Too Much Media with comments on an internet message board concerning the company's leaders. Hale tried to invoke the state's shield law, but the court did not recognize her as part of a publication, and thus, she did not qualify for protection. 

"The law requires those seeking its protection to have some connection to a publication -- online or otherwise -- that is similar to traditional media," says Mackey.  

In Hawaii, the issue wasn't much different. When police subpoenaed the MauiTime for subscriber information regarding those who'd commented on a post by the publication, Editor Tommy Russo sought to invoke the state's shield law. A commenter had threatened the life of a police officer depicted in a video posted by the editor, but the subpoena was withdrawn. 

According to Mackey, the incident worried Jeffery Portnoy, a media lawyer in Hawaii. "The state had recently passed a two-year extension of the law, which includes protections for online journalists reporting on matters of public interest. The govenor signed the bill after some hesitation, Portnoy said." Ultimately, Portnoy's concern was with the extension of said law to internet commenters. 

There is much room for concern. Who decides what constitutes as journalism or a journalist for that matter? Everyone is not qualified to act as a journalist, are they? What if every post we made on the internet could be considered "journalism?" And, when is it appropriate for a journalist to give up information about clients? A death threat seems more than admissible to the situation in Hawaii. 

In the past, these questions were all left to the state, but that may change, for "not all shields are created equal." according to Josh Stearns and Chris Palmer of FreePress.net, "Some states limit coverage to "professional reporters," while others protect freelancers, book authors, electronic publishers and educators."

A federal shield law has been in the words since 2005 as The Act of Free Flowing Information. Here are the details of that act from FreePress.net:

The issue, however, is not resolved here. This act "limits the scope of who qualifies as a covered person." Should the federal government answer the prior questions? "Policymakers want to limit protections to those who make a significant amount of their income and livelihood from journalism, but the federal shield law should cover anyone who provides journalistic services, even if a person is not professionally or regularly employed as a journalist." says Stearns and Palmer.

According to Kurt Wimmer in an article on the Huffington Post, "Like any bill, the Act must define its terms. The attorney-client privilege only applies to "attorneys," a defined term. The doctor-patient privilege only applies to "doctors," a defined term. The journalists' privilege applies to "covered journalists" when they have received a demand for testimony -- an extremely expansive term defined in the Act as anyone working for a journalism outlet (explicitly including bloggers), freelancers with an intent to publish, and anyone a judge finds should be covered in the interests of justice."

As of 2016, the fight for federal shield law is still on. In 2014, an amendment was approved which forbade the Justice Department from "spending money to force a journalist to testify about a source," says Cora Currier of the Columbia Journalism Review.

“I think we’re really close, and the Risen situation really highlights the need for the law,” - David Cuillier, President of the Society of Professional Journalists

Sources:
Columbia Journalism Review
Reporters Committee 
Free Press
Huffington Post
Society of Professional Journalists