Posted on 05/18/2004 1:51:34 PM PDT by jmstein7
An Alternate Theory of Liability Against the New York Times - The Lanham Act
In a previous posting, I put forth one plausible cause of legal action against the New York Times. After reading your comments, and alternate, and probably more simple theory of liability came to mind -- §43(a)(1) of the Lanham Act.
Under §43(a)(1)(B) of the Lanham Act, any person damaged by a false representation has a right of action against the fraud or deception of the defendant company. This right extends to consumers, e.g. the purchaser of a newspaper. This makes for great class action suits. How is this relevant? Simple!
The Boston Globe was caught faking "prisoner abuse photos" and reporting them as "hard news." That is fraud. Further, the Boston Globe is a subsidiary of the New York Times, and it represents itself as "A New York Times Company." Thus, the Boston Globe uses the NYT trademark -- a symbol that carries with it goodwill and a representation of a certain quality of news. A reasonable consumer expects a certain quality of product from "a New York Times Company." Thus, this sort of fraud injures the consuming public. By both committing fraud and representing itself as "A New York Times Company," the Boston Globe is guilty of misrepresentation and false advertising. The Lanham Act may provide consumers a Federal cause of action here.
With me so far? Good.
Next, this creates a problem for the New York Times itself -- it has issued a "naked license." The Boston Globe has a license to use the NYT trademark. However, the licensor has the duty to monitor and control the quality of the licensed product -- i.e. the product using its trademark. Here, because the Boston Globe has committed a fraud by faking photos and reporting them as hard news, the NYT is responsible for failing to exert adequate quality control over the product of its licensee. The result? A naked license. This is Trademark Suicide -- the consequence is that all priority in the New York Times Trademark has been destroyed until the "naked license" expires.
For these reasons, I believe that the New York Times is very, very vulnerable to suit at this moment.
The Lanham Act provides a Federal cause of action for unfair competition. It is inapplicable to this case and, at any rate, the first amendment is a defense to this provision. I think the NY Times Standard would save the NY Times yet again. Moreover, although the Lanham Act states "anyone" most courts have held that not just anyone has a cause of action, i.e. only competitors who are injured have a cause of action under Section 43(a)
While the first amendment may be a defense, I think the staus is that there shall be no prior rrestraint and that the press is still liable for any wrongdoing after they publish or broadcast...libel and slander are clear examples...maybe the actors could sue the Globe...LOL...then again maybe the actors would be covered under NYTimes v Sullivan as public figures...I do believe the Globe was negligent in not properly sourcing the photos and that the pics were already suspect prior to publication...
BTTT!!!!!!
You're first cause of action -- a shareholders derivative suit -- probably wouldn't survive a motion to dismiss because in most jurisdictions, the plaintiff must be a shareholder at the time the board of directors committed the wrong. Buying the shares now, after the NY Slimes has already lied its way into the toilet wouldn't work. Even if you survived a motion to dismiss you probably wouldn't survive a motion for summary judgment because of the "business judgment rule," which ordinarily will insulate directors from liability for decisions that seemed reasonably prudent at the time even if that decision seems imprudent in retrospect or others would have reached a different decision at the time of the initial decision. You would also have to show that the drop in advertizing revenues was the result of really bad judgment as opposed to other economic factors, the Internet, etc. In other words, if not for the bad judgment of the B of D, the bottom line would have increased or at least stayed the same.
Your second cause of action under the Latham Act would probably not survive a motion to dismiss because you need to show harm, that is, that the plaintiffs would not have purchased the newspaper if they had known the photos were fake. I bet that most people purchased the Boston Globe, not because of the photos, but because they have a subscription or buy the paper out of habit and therefore, they would have paid the $.75 regardless of the photos. You would also have to show that the plaintiffs were, in fact, deceived by the photos, which pretty much eliminates all Freepers from the named plaintiffs or plaintiff class because we don't read the NY Slimes or the Boston Globe for truth or accuracy in the first place. Third, the NY Slimes/Boston Globe would have an absolute defense if it was simply reporting what others had reported as being authentic photos, as opposed to being the source of the fake photos.
I finished finals last week.
John / Billybob
Then you need a job. Where in NY are you?
By that reasoning, almost every lawsuit filed by the ACLU is "frivolous."
You really are hitting the law books, eh? Unfortunately, the Globe printed a retraction for the prisoner photos. Its wording may not satisfy us, but it would satisfy the courts. You'll never pin liability on a newspaper when it prints any kind of retraction, that's just how the world works. Nice tries on your part, though.
good luck
You are giving out law jobs? J and I are all ears!
Everything comes back to TMs!
How bout libel?
btt
Maybe Congress should start regulating the "interstate commerce" of lies.
Most of the federal gun control laws are based on "interstate commerce."
We already hired for the summer. Sorry.
I have recently been having thoughts that the freedom of the press to dissemenate provably false statements needs to be regulated. The existing libel/slander law is clearly inadequate for the current environment.
As a recovering libertarian, I find these thoughts exceptionally disturbing, but they persist.
In a world where "Congress shall make no law" doesn't mean what it plainly says, how can normal men (and, women, too) of good will come to any agreement on what, oh, for instance, "is" is?
More beer, then sleep, I guess . . .
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