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Principles of Business (BUS101) Donald R. Simon, Esq. Adjunct Professor - Digital Photography Spring, 2009 Principles of Business - Class 12 Lecture: “Right of Privacy.” Lecture: “Defamation.” Lecture: “Miscellaneous Legal Issues.” Lecture: “Obscenity.” Assignment: no assignment.

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Principles of Business(BUS101)

Donald R. Simon, Esq.

Adjunct Professor - Digital Photography

Spring, 2009


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Principles of Business - Class 12

  • Lecture: “Right of Privacy.”

  • Lecture: “Defamation.”

  • Lecture: “Miscellaneous Legal Issues.”

  • Lecture: “Obscenity.”

  • Assignment: no assignment.


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Principles of Business - Class 12

  • Right of Privacy

    • For the most part, society favors the benefits that photography offers.

    • This is reflected in legal attitudes that are mostly permissive to act of taking photos.

    • In cases where photography likely infringes on important societal interests such as national security or protecting children from sexual exploitation, it may be strictly controlled.


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Principles of Business - Class 12

  • Right of Privacy

    • In most cases, regulation is premised on balancing the right of photogs to document the world against the rights of others to enjoy their privacy and property.

    • Most photographic experiences do not involve legal risk.

    • Situations do arise where failing to know one’s legal rights can mean losing an image or incurring liability.


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Principles of Business - Class 12

  • Right of Privacy

    • Despite the importance that society places on personal privacy, the law imposes relatively few restrictions on photographing people.

    • Even the most sensitive aspects of people’s lives, including extreme tragedy and embarrassing moments, may be photographed freely.

    • The above is true unless the subjects have secluded themselves in a place or manner where they can reasonably expect privacy.


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Principles of Business - Class 12

  • Right of Privacy

    • Much confusion over the right to photograph people comes from failing to distinguish between the legal aspects of taking photos and those of publishing photos.

    • The laws that protect against unauthorized publication are much broader than those that apply to taking photos.


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Principles of Business - Class 12

  • Right of Privacy

    • E.g., you would not violate a person’s legal right of privacy by photographing that person walking public view.

    • But would violate that person’s rights if you used that photo to illustrate an advertisement without that person’s permission.


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Principles of Business - Class 12

  • Right of Privacy

    • Recognized in the U.S. for only a little over 100 years.

    • Origin credited to the article “The Right of Privacy,” written by Samuel Warren and Louis Brandeis and published in Harvard Law Review in 1890.

    • A slight majority of state, including Illinois, recognize all four privacy torts, either by statute or common law.


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Principles of Business - Class 12

  • Right of Privacy

    • 4 separate torts:

      • Tort: a wrongful act, other than a breach of contract, for which the law gives the injured party some legal remedy, usually money, against the wrongdoer in civil, not criminal court.

      • There may be some criminal liability, such as trespass.


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Principles of Business - Class 12

  • Right of Privacy

    • 4 separate torts:

      • Commercial appropriation of name or likeness (or simply “Appropriation”)

      • Public disclosure of embarrassing private facts (or simply “Disclosure”)

      • Placing an individual in a false light (or simply “False Light”)

      • Intrusion upon physical seclusion (or simply “Intrusion”)


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • The use of an individual’s name, likeness, or identity for trade or advertising purposes without consent.

      • Oldest and best-established form of invasion of privacy.

      • Individuals should have the sole right to control the exploitation of their persona.

      • Not necessarily related to celebrities—anyone can control their image. Similar to a property right.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Commercial use:

        • Exploitation directly for trade or self-enrichment purposes.

        • Some direct self-serving link between the individual’s identity and the promotion of a product, service, or organization.

        • Exception is for legitimate news coverage, unless the celebrity depicted is used just to promote that media outlet without any content on that celebrity.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Name or likeness:

        • Person must be readily identifiable in the commercial use.

        • Not only includes someone’s image or name, but also nickname, voice, or any other mark of personal identity.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Name or likeness:

        • It is not considered appropriation to feature in advertising someone who looks or sounds like a particular celebrity, without the celebrity’s consent.

        • But when the look-alike or sound-alike is used in a manner likely to confuse the public, some courts (mostly in NY and CA) have allowed the celebrity to collect damages.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Consent:

        • There is a tendency to think that people won’t sue for appropriation unless their images are used in some offensive fashion, or that if they do sue it won’t be a case worth much $$$.

        • These can be dangerous assumptions, especially when using names and images of celebrities.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Consent:

        • E.g.,: Los Angeles Magazine carried a feature titled “Grand Illusions” in which it used software to alter still photos of film stars and make it look as though the stars were wearing the latest spring fashions.

        • Without consent, the magazine published a photo of Dustin Hoffman as he appeared in the Tootsie (1982) dressed in a gown and high heels, but with the fashion alteration.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Consent:

        • The text read: “Dustin Hoffman isn’t a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels.”

        • Hoffman sued for appropriation and won a $1.5M. Judgment was eventually reversed, but the case illustrates the potential severity of damages.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Consent:

        • The best way to protect oneself from being sued for appropriation is to get a model release or execute a photo consent form.

        • Even if the initial intent is not to use the material in a commercial context, that opportunity may present itself later on.

        • This is especially true for freelance photos and the publications that use their work.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Consent:

        • A photo may have first have been taken and published simply because it seemed newsworthy; later an advertiser may offer to buy the photo for use in a campaign.

        • Having prior consent serves 2 purposes:

          • Protects against appropriation suits; and

          • Makes the photo more marketable.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Consent:

        • On the one hand, it is in the best interest of the media to have releases worded in broad terms to cover future, unforeseen uses.

        • On the other hand, the individuals being used—especially if they are highly marketable celebrities—will sometimes consent only to clearly specified, restrictive uses.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Consent:

        • A few points to remember about releases:

          • State that the model has agreed to be photographed and given permission for the photos to be published.

          • Photogs should be careful not to impair the ability of the model to comprehend the release form by making it too complex.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Consent:

        • A few points to remember about releases:

          • Give consideration for the model’s release. Recall from last week that when consent is given gratuitously, it may be freely withdrawn at any time.

          • When dealing with people under 18 or persons suffering significant mental disabilities, get written permission from a parent or legal guardian.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Special Problem: Deceased Celebrities

        • Ongoing debate about whether publicity rights survive death.

        • Some states recognize someone’s persona as more like a property right, which can be bequeathed to or inherited from after the celebrity’s death.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Special Problem: Deceased Celebrities

        • State in which celebrity was domiciled at the time of their death controls.

        • CA: 70 years after death.

        • NY: law does not grant rights after death.

        • IL: 50 years after death.

        • IN: 100 years after death.

        • WS: law does not grant rights after death.


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Principles of Business - Class 12

  • Right of Privacy

    • Appropriation:

      • Pre-use review:

        • Is the context commercial, such as a product advertisement, endorsement, or promotion?

        • Is someone identified by name, photo, voice, or otherwise?

        • Is the person being exploited for commercial gain rather than appearing incidentally?

        • Was proper consent obtained by release?


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Principles of Business - Class 12

  • Right of Privacy

    • Disclosure:

      • Disclosure of non-newsworthy, embarrassing private facts that would be highly offensive to a reasonable person.

      • Tort is rather narrow and successful lawsuits against the media have been infrequent.

      • Hinges greatly upon prevailing mores of society, which are, subject to change and interpretation.

      • With few exceptions, events in public places are fair game.


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Principles of Business - Class 12

  • Right of Privacy

    • Disclosure:

      • Sports Illustrated case:

        • Photog took photos of some Steelers fans who were hamming it up before a game.

        • SI used a close-up photo of one fan with his fly unzipped.

        • Fan sued for disclosure of private facts.

        • Court: photo was embarrassing, but did not disclose anything that was private.


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Principles of Business - Class 12

  • Right of Privacy

    • Disclosure:

      • Pre-use review:

        • Has publicity already been given?

        • Would the publicity be highly offensive or embarrassing to a reasonable person?

        • Is the disclosed information of a legitimate public interest?


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Principles of Business - Class 12

  • Right of Privacy

    • False Light:

      • Representation of an individual in a false and highly offensive manner before the public.

      • Similar to defamation--both torts involve the dissemination of false information.

      • False light compensates for embarrassment or anguish; defamation compensates for damage to reputation.

      • Of the four privacy torts, false light is the one least adopted by the states.


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Principles of Business - Class 12

  • Right of Privacy

    • False Light:

      • In photography, false light can occur when photos are used out of context.

      • E.g., a news photog take a picture of a young man shopping at a convenience store.

      • The picture is not used at the time and is filed.


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Principles of Business - Class 12

  • Right of Privacy

    • False Light:

      • Six months later, the newspaper is running a piece about shoplifting, so editors dig into the file and publish that photo along with the article, simply for purposes of graphic illustration.

      • By doing this, the newspaper is begging for legal trouble.


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Principles of Business - Class 12

  • Right of Privacy

    • False Light:

      • Pre-use review:

        • Has the person been placed before the public in a false light?

        • Would the false portrayal be highly offensive to a reasonable person?

        • Did the communicator act with negligence or, if the subject is a public person, with reckless disregard for the truth?


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Principles of Business - Class 12

  • Right of Privacy

    • Intrusion:

      • Intentional invasion of a person’s physical seclusion or private affairs in a manner that would be highly offensive to a reasonable person.

      • Can occur during the photo-taking process, not by publication.

      • Often goes hand in hand with a trespass claim.


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Principles of Business - Class 12

  • Right of Privacy

    • Intrusion:

      • Threshold question: is there a reasonable expectation of privacy?

      • Rule: can usually take a photo of someone in a public place irrespective of whether it concerns something the subject would prefer not to have photographed.

      • A reasonable expectation of privacy does not exist on public sidewalks, parks, beaches, department stores, or in open dining rooms of restaurants.


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Principles of Business - Class 12

  • Right of Privacy

    • Intrusion:

      • A reasonable expectation of privacy is likely to exist in a private residence.

      • Also has been recognized in other closely controlled places, including hospital rooms, ambulances, hotel rooms, private offices, dressing rooms, and public toilet stalls.


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Principles of Business - Class 12

  • Right of Privacy

    • Intrusion:

      • Review:

        • Is the seclusion intentionally intruded upon, either physically or otherwise?

        • Would the intrusive conduct be highly offensive to a reasonable person (e.g., by deception)?

        • Does this person have a reasonable expectation of solitude or seclusion, such as would be found in a private residence?


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Principles of Business - Class 12

  • Right of Privacy

    • Companion Torts:

      • Typically, privacy lawsuits involve 2 or more privacy torts as well as other torts such as trespass, fraud, or intentional infliction of emotional distress.

      • The most prevalent is i.i.e.d.

      • Outrageous conduct that is calculated to cause, and does actually cause severe mental or emotional distress.

      • Plaintiff must prove severe emotional distress.


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Principles of Business - Class 12

  • Right of Privacy

    • Companion Torts:

      • Hustler v. Falwell case:

        • Inside front cover of an issue of Hustler magazine featured a parody of an advertisement for Campari liqueur.

        • Parody was a mock interview with the Rev. Jerry Falwell discussing loosing his virginity to his mother, in an outhouse, while drunk on Campari.


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Principles of Business - Class 12

  • Right of Privacy

    • Companion Torts:

      • Hustler v. Falwell case:

        • Falwell sued for libel, invasion of privacy, and i.i.e.d.

        • He lost on the first two claims, but was award $200K on the i.i.e.d. claim.

        • Supreme Court reversed creating an exception for parody and political satire.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Defamation:


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Defamation:

      • For many centuries, in cultures around the globe, humanity has recognized the importance of an individual’s reputation.

      • A good reputation may be the fruit of prolonged dedication and hard work.

      • Yet, a reputation can be shattered literally overnight by the media.

      • This is why most countries have long had laws against defamation—an attack upon the reputation of another person.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Defamation:

      • A false allegation of fact that is disseminated about a person and that tends to injure that person’s reputation.

      • Libel: written defamation.

      • Slander: spoken defamation.

      • Manipulation of photos has the potential to harm another’s reputation or place them in a false light (privacy).


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Defamation:

      • A defamation plaintiff usually must prove all six of the following elements in order to win a case against a mass medium or individual communicator:

        • Defamatory content: statements that call into question an individual’s honesty, integrity, professional competence, sanity, solvency, morality, or social refinement;

        • Falsity: statement must be substantially false. Truth is a defense;


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Defamation:

      • Publication: statement must be disseminated to a third party who understands the message;

      • Identification: statement “of and concerning” the plaintiff;

      • Fault: Is plaintiff a public person or official? Then actual malice (higher) fault standard. If plaintiff is a private person, then negligence (lower) fault standard; and


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Defamation:

      • Harm: plaintiff must provide evidence that he or she actually suffered an injured reputation. Plaintiff seeks a monetary award.

    • The media prevail in about 75% of all the defamation lawsuits filed against them.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Access and Seizures:


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Access and Seizures:

      • No general legal right of access to private property for the purpose of taking photos, which means that photogs must obey the same laws that apply to the public.

      • Trespass is not limited to bodily entries—extending a camera over a fence will constitute trespass even if the photog is standing outside the fence line.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Access and Seizures:

      • Photogs who enter property with permission should also be aware that owners are free to place limits on photography.

      • Photogs are sometimes tempted to misrepresent why they want to enter a property in order to get permission.

      • Ethical issues aside, falsely representing one’s purpose may invalidate the consent and expose you to liability for trespass.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Access and Seizures:

      • When seeking permission with someone other than the owner, you should establish whether the person with whom you are dealing has authority to allow people access to the property.

      • Not all employees have the authority to allow you on to the premises.

      • E.g., cafeteria workers at a nuclear power plant would not be authorized to let visitors enter the control room.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Access and Seizures:

      • There are very few instances where your film, images, or equipment may lawfully be taken from you.

      • Even if you are caught trespassing, intruding on someone’s privacy, or photographing against someone’s rules, the most the wronged person may lawfully do is expel you from their property and/or sue for any damages they may have suffered.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Access and Seizures:

      • Private parties have no inherent right to seize your film or equipment, but that does not mean they never try.

      • People sometimes assert they have the right to seize film or your camera after they or their property have been photographed without permission.

      • In general, they have no legal right to prevent you from taking photos and certainly have no right to confiscate your property.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Access and Seizures:

      • Where private parties do have the right to prohibit photography is when they bar cameras as a condition of entry onto their premises or participation in their events, such as concerts or sporting events.

      • In such cases, these condition should be honored, even if you disagree.

      • However, the right to bar photographic equipment does not give parties the right to take your property, even if you violate their conditions!


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Access and Seizures:

      • Sometimes private parties, particularly security guards and bouncers, will justify an attempt to seize film or equipment on the grounds of making a citizen’s arrest.

      • Since the taking of photos is rarely a crime, private parties cannot arrest you merely because you’ve taken photos when they would have preferred otherwise.

      • Further, while citizens have some rights to arrest people, they have no right to seize property.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Access and Seizures:

      • In fact, a photog who has had his/her equipment seized has the right to arrest the person who took their property provided that the seizure constitutes a felony!

      • Also, a photog has a qualified (or limited) right to use force to resist someone who is unlawfully attempting to seize film or equipment, but in many cases should refrain.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Access and Seizures:

      • When defending property, you may resort to force only if you reasonable believe it is necessary to prevent theft or destruction of the film or equipment.

      • The use of deadly force in never authorized to defend property, and weapons such as guns or knives cannot be lawfully used to prevent seizure.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Obscenity:


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Obscenity:

      • The U.S. has had a difficult time coming to terms with sexual expression.

      • Sexually explicit materials can evoke intense and wide-ranging responses, from all-consuming curiosity to excitement, embarrassment, lust, or moral indignation.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Obscenity:

      • Nudity: unclothed body.

      • Pornography: material (such as writings, photographs, or movies) depicting sexual activity or erotic behavior in a way that is designed to arouse sexual excitement.

        • Pornography is protected speech under the 1st Amendment unless it is determined to be legally obscene.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Obscenity:

      • Obscenity: a narrow legal meaning of material that is extremely offensive under contemporary community standards of morality and decency.

      • How is obscenity determined? Answer: the Miller Test.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Obscenity:

      • An image will be considered obscene if:

        • The average person, applying contemporary community standards, would find the work taken as a whole appeals to prurient interest;

        • Work depicts specifically defined sexual conduct in a patently offensive way; and

        • Taken as a whole, the work lacks serious artistic, political, or scientific value.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Obscenity:

      • If the answer to all three elements is yes, then the material loses all 1st Amendment protection.

      • It may then be regulated and its distribution prohibited.

      • With the exception of child pornography, it is generally legal to possess obscene material.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Obscenity:

      • Other considerations:

        • A whole host of federal laws and biz practices govern the making and distribution of sexually explicit material.

        • Recordkeeping requirements: producers must establish the performers’ date of birth, make a copy of identification, and maintain these records for as long as the producer stays in biz and for 5 years thereafter.


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Principles of Business - Class 12

  • Miscellaneous Legal Issues

    • Obscenity:

      • Other considerations:

        • Photo releases for adult performers are more complex than typical photo releases as they must protect photog from liability if the performer contracts a sexually transmitted disease, becomes pregnant, or is otherwise harmed in the making sexually explicit material.

        • Various postal laws and RICO statutes prohibit distribution of obscene material.


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Principles of Business - Class 13

  • Lecture: “Exploring Buying A Small Business”

  • Lecture: “Evaluating and Negotiating to Buy a Business.”

  • Assignment: no assignment.


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