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Are YOU a Public Figure? Defamation claims and how today’s world of instant celebrity can convert average citizens into public figures.

Fernando M. Pinguelo — Tue, 07 Apr 2009 01:00:00 GMT

Considered the worst act of bioterrorism in U.S. history, the 2001 anthrax mailings that followed the 9/11 attacks killed at least five individuals. Since then, litigation and investigations surrounding the anthrax mailings has spawned and taken unexpected twists and turns over the past few months. Bruce E. Ivans, the primary suspect in the anthrax investigation, committed suicide just before the Justice Department was about to file sweeping, but circumstantial, charges against him for his suspected role in the 2001 anthrax attack. Before that, the Justice Department settled a Privacy Act suit brought by former army scientist Steven J. Hatfill, who worked with Ivans at Fort Detrick, for $4.6 million where Hatfill claimed the Justice Department ruined his career when it leaked information about him to the media during the anthrax investigation.

And several months ago, a federal appeals court dismissed Hatfill’s lawsuit against the New York Times and its reporter, Nicholas Kristof, for defamation allegedly caused by a series of articles Kristof wrote about Hatfill’s status as a “person of interest” in the 2001 anthrax investigation. Hatfill’s lawsuit against the New York Times was among many litigated against the Justice Department and various media outlets before the investigation was declared “solved” by the FBI in August 2008.

The appeals court’s decision to dismiss Hatfill’s lawsuit against the New York Times ultimately turned upon its determination that Hatfill was a “public figure”; and therefore he had to meet a heightened legal standard by proving “actual malice,” which the court found he could not do. Hatfill’s designation as a “public figure” stands as a beacon to journalists and a warning to private citizens as to how fickle defamation suits can be; and how, in today's fast-paced media world, ordinary citizens who thrust themselves into the public realm of the news do so at the risk of diluting their legal rights.

What follows is a general overview of Hatfill v. New York Times and the legal elements of a defamation suit, with a particular emphasis on the heightened standard required when one is deemed to be a “public figure.”

Hatfill v. New York Times

Hatfill’s designation as a “public figure” was supported, in part, by evidence of his career expertise and media presence even before the 2001 anthrax attacks took place. In 1996, Hatfill obtained a research fellowship from the National Institute of Health (NIH) where he developed a reputation within the scientific community as an expert in the field of bioterrorism and gave multiple public lectures on preparing the country in the event of a bioterrorist attack. Upon completing his fellowship, Hatfill continued his research at the U.S. Army Medical Research Institute for Infectious Diseases at Fort Detrick. Hatfill authored multiple articles discussing his career in bio-defense and occasionally offered his expertise to the public through televised interviews.

On September 18, 2001 and October 9, 2001, an unidentified person mailed letters laced with anthrax to members of Congress and several news organizations. Within the first few weeks of its investigation into these attacks, the FBI considered Hatfill a “person of interest.” A televised search of Hatfill’s apartment and press coverage of the FBI’s investigation drew wide attention to Hatfill. During this time, Hatfill voluntarily met with reporters including Judith Miller of the New York Times, Tom Connelly and Ted Koppel of ABC News, and Jim Stewart and Mark Datov of CBS News to discuss the attacks.

Seven months after the attacks, and with the FBI investigation on a “slow track,” Kristof authored a series of articles published in the New York Times criticizing the investigation. As one example of its shortcomings, Kristof noted the FBI’s failure to properly investigate a scientist (who Kristof referred to as “Mr. Z” in early reports) who the scientific community thought warranted investigation. On August 13, 2002, after Hatfill publicly denied any involvement in the anthrax attack, Kristof acknowledged in his column that Hatfill was the “Mr. Z” to whom he previously referred.

Almost a year later, in federal court Hatfill filed suit on July 13, 2004 against Kristof and the New York Times for defamation. Hatfill argued that Kristof’s columns implied that he was the anthrax mailer and that Kristof wrote the columns to impute guilt to Hatfill in the minds of reasonable readers. On July 28, 2005, the trial court dismissed Hatfill’s action, concluding as matters of law that the columns did not suggest that Hatfill was guilty of the attacks and that the columns accurately reported questions raised in the investigation. An appeals court reversed the trial court’s dismissal and allowed Hatfill’s claims to proceed.

After Hatfill was allowed access to information from Kristof and the New York Times in order to help support his claims, Kristof and the New York Times filed another motion seeking to dismiss the lawsuit, arguing that since Hatfill was a “public figure,” he had to meet a heightened standard and prove the “actual malice” element of a defamation claim (i.e., that Kristof knowingly published false statements), and that the evidence did not support such malice. The trial court agreed that the facts warranted that Hatfill be considered a “public figure,” and dismissed the case, declaring that there was no evidence that Kristof knew his statements were false, and therefore Hatfill could not prove “actual malice.” On appeal, Hatfill argued that he was not a “public figure”; but the appellate court disagreed and affirmed the trial court’s dismissal of Hatfill’s claims.

The outcome of Hatfill’s lawsuit reminds journalists and private citizens alike of a fundamental issue in defamation claims brought by seemingly “average citizens”: Under what circumstances will an average citizen be deemed a “public figure”? In Hatfill’s case, his expertise and media presence before and after the anthrax investigation vaulted him into the “public figure” category and limited his legal recourse.

The Foundation of a Defamation Claim

Defamation is the communication of (1) a false statement (2) of fact (3) about an individual, (4) to another, (5) which tends to harm the individual’s reputation. Some examples of defamatory statements include: statements accusing a person of committing a crime, of having a contagious disease, or of being unfit for his or her employment. Generally, individuals need only show that the published statements were both false and defamatory (i.e., tending to harm the individual’s reputation).

In 1964, the Supreme Court in New York Times v. Sullivan explored defamation claims in the context of a public official and held that public officials were required also to prove actual malice (i.e., that the defendant had a “subjective awareness of the probable falsity” of the publication) in defamation suits. Three years later, in Curtis Publishing Co. v. Butts, the Supreme Court extended the actual malice standard to include “public figures” (i.e., a designation that is broader than “public officials” (politicians, celebrities, etc.) and includes either people involved in “high profile” conduct of public concern or people who engage in conduct which generates publicity within a narrow area of interest).

Public figures and public officials are held to a higher standard because, it is reasoned, they have exposed themselves to the risk of injury from defamation claims by assuming public roles and have a greater opportunity to publicly defend themselves. Therefore, they are less likely to be harmed by false statements than private individuals who generally lack that opportunity. Thus, the law affords greater protection to private individuals by not requiring proof of “actual malice.”

By adding an “actual malice” element to certain individual’s defamation proofs, these two Supreme Court cases made it significantly more difficult for one deemed to be a “public official” or “public figure” to prove a defamation claim. Proving that a publication was not only false and harmful, but also that one was aware that the publication was false and published it anyway, is extremely difficult. So, under what circumstances will one be considered a “public official” or a “public figure”?

Public Official & Public Figure Status

The law defines a “public official” as one whose government role is of such importance that the public has an independent interest in his or her fitness for office beyond a general interest in the fitness of all government employees. A person who is running for or holds a public office is generally categorized as a “public official.”

Whether one qualifies as a “public figure” requires a fact-specific inquiry. Hatfill v. New York Times reminds us that in today’s world of instant news and celebrity, average citizens can be converted into public figures in an instant. A “public figure” can be categorized as either an “all-purpose public figure” or a “limited-purpose public figure.”

An “all purpose public figure” is one who has a continuous and powerful influence on public matters and is always subject to the “actual malice” standard. A “limited purpose public figure” is one who voluntarily thrusts himself or herself into a particular public controversy and is thereby deemed to be a public figure only for purposes of that controversy (e.g., an anti-war activist would be considered a public figure only if the particular controversy is war).

To determine whether one is to be deemed a “limited purpose public figure,” courts look at whether the (1) person had access to channels of effective communication; (2) person voluntarily assumed a role of special prominence in a public controversy; (3) person sought to influence the resolution or outcome of a controversy; (4) controversy existed prior to the publication of the defamatory statement; and (5) person retained public-figure status at the time of the alleged defamation.

Weighing Factors: When an Ordinary Citizen Becomes a “Limited Purpose Public Figure”

When contemplating a defamation lawsuit, an individual should consider whether he or she could be categorized as a “limited purpose public figure.” A few things he or she should generally think about include: (1) the nature of the individual’s media presence, (2) the nature of the particular controversy, and (3) when the controversy arose in relation to the alleged defamation.

The nature of the individual’s media presence depends upon a variety of factors, including the ease at which one can command attention from the media and whether the individual had an opportunity to publicly refute the defamatory statement. In Hatfill v. New York Times, the court supported its conclusion that Hatfill was a “public figure” with evidence that he was an expert in the field of bioterrorism and frequently appeared in the media to discuss his research in the field. Further, the court determined that Hatfill attempted to “influence the outcome of the controversy” by criticizing the government’s lack of preparation for a bioterrorist attack.

The nature of the particular controversy depends on how narrowly or broadly the court reads the “particular controversy.” Hatfill argued that the particular public controversy in his case was: “Who committed the antrax attacks in 2001,” and that he never publicly participated in the resolution of that issue. The trial court disagreed, however, and adopted a broader context of the particular controversy—that of the threat of bio-terrorism in general.

Another important issue is to recognize when the particular controversy arose in relation to the republication of the alleged defamation. In order to be held to the higher standard, the controversy must exist prior to the publication, and the individual must qualify as a public figure at the time of the defamation. If the individual participates in the public controversy only after the alleged defamation was published, he or she will not be held to the higher standard. Further, if the controversy develops after the publication, then the private individual standard will apply. In Hatfill, the court determined that the controversy over bioterrorism clearly existed prior to Kristof’s columns and that Hatfill commented on the controversy before the columns were printed. Thus, the public controversy existed at the time of the defamation and Hatfill retained “public figure” status at the time of the defamation.

Lessons Learned

Ordinary citizens who thrust themselves into the public realm of the news do so at the risk of being labeled a “public figure” and thereby limit their legal rights. Knowing your status before bringing a defamation claim can significantly help you determine whether filing a claim is in your best interest.

This article is written to provide readers with a very general overview of “public figure” status and defamation claims. The information contained herein should not be construed as providing legal advice and should not be relied on for that purpose. If you have specific legal questions, the authors suggest seeking the advice of a qualified attorney.

[1] Fernando M. Pinguelo, a partner and Chair of Norris McLaughlin & Marcus’ Entertainment Law Group, has extensive experience in all facets of litigation in both the federal and state courts, and devotes his practice to electronic discovery, entertainment law, complex litigation, and employment matters. In the broadcasting sector, he represents Emmy Award-winning clients. Fernando also serves as a regular article contributor for the National Association of Television Arts and Sciences (New York Chapter), TVSpy, Next Generation TV, and Shop Talk. He has published several articles and lectures on a variety of topics including copyright, contracts, entertainment, employment law, and information technology. Fernando has appeared on television several times as a legal commentator on various high-profile trials, and has been quoted in many newspapers and magazines, and on radio and television broadcasts regarding high-impact cases he has handled. He is an Adjunct Professor of Law at Seton Hall University School of Law and creator of eLessons Learned, an eDiscovery best practices blog. Visit www.eLLblog.com and learn more.

[1] Melissa Szymansky is a student at Seton Hall University School of Law. She is the Vice President of Entertainment for SHU Law’s Entertainment and Sports Law Society, and is also a member of SHU Law’s Journal of Sports and Entertainment Law. Prior to attending law school, Melissa received her BS in film and television from Boston University College of Communication and interned for the E! Entertainment Network and Boston’s CW56. Melissa interned for Sony BMG Music Entertainment this past summer.

Fernando and Melissa welcome questions and/or feedback on any related issues and can be reached either by phone, (908) 722-0700, or via email, fmp@nmmlaw.com. They invite you to visit the following website to learn more about similar topics: http://www.nmmlaw.com/index.php?option=com_content&task=view&id=140&Itemid=29

6-Apr-09 8:00 PM

Death Of The Noncompete For NY Broadcasters?

Fernando Pinguelo — Wed, 11 Feb 2009 21:00:00 GMT

Death Of The Noncompete For NY Broadcasters?

February 2009

By Fernando M. Pinguelo, David T. Harmon, and Andrew D. Linden

For years, broadcast industry employees such as news anchors and radio disc jockeys saw their opportunities in the job market severely limited because their employment agreements contained noncompete clauses.

Upon the expiration or termination of the individual’s employment contract, a noncompete clause within that contract prevented employees from working for their former employer’s competitors or within their former employee’s market for a specified period of time.

Courts regularly enforced these noncompete clauses if their restrictions were reasonable in scope, duration and geographic range.

In August 2008, however, New York enacted the Broadcast Employees Freedom to Work Act (BEFWA), which prohibits broadcast industry employers from including certain noncompete clauses in employment contracts.

The statute’s enactment was due in part to successful lobbying by prominent entertainment labor unions including the American Federation of Television & Radio Artists (AFTRA). AFTRA’s members testified at legislative committee hearings and sent hundreds of letters and emails in support of the statute to state legislators and New York Governor David A. Paterson.

The enactment of the BEFWA is a major victory for New York broadcast employees because it vastly expands the job market for many of them. As a result, the number of broadcast industry employees leaving New York in order to find work that did not violate their previous employment agreements will be reduced significantly.

This is a win-win for broadcast industry employees who now have expanded job opportunities as well as New York because it will keep jobs within its borders.

It may appear that the only losers are the broadcast industry employers whose ability to restrict former employees’ post-employment actions has been curtailed significantly. Employers, however, may also benefit because this should provide an increased pool of talent available for hire.

Here are three things employers and employees should know about the BEFWA:

What Does It Say?

The BEFWA states that a broadcast industry employer may not require as a condition of employment that a broadcast employee (or prospective employee) refrain from obtaining employment: in any specified geographic area, for a specific period of time, or with any particular employer or in any particular industry, following the conclusion of his or her employment with the broadcast industry employer.

If a broadcast industry employer were to violate the BEFWA, it would be civilly liable for not only the broadcast employee’s damages, but also attorney’s fees and costs.

Moreover, the BEFWA expressly provides that its protections cannot be waived, and that any attempt to do so shall be null and void and unenforceable in court.

The BEFWA carves out the following exception to its general provisions: “[The BEFWA] shall not apply to preventing the enforcement of such a covenant during the term of an employment contract.”

This should be an obvious conclusion as any employer should have the right to enforce the breach of a restrictive covenant violated while the employee is working for that employer.

Therefore, noncompete agreements concerning an employee’s actions during the term of employment may still be enforceable (based upon the particular circumstances, such as when the employer is in breach of the employment contract).

Other covenants limiting the post-employment rights of the broadcast employee are similarly unaffected.

Does BEFWA Concern Me or My Company?

The BEFWA broadly defines “broadcast employee” as both “on-air” and “off-air” employees. Yet that term is not all-encompassing in that management employees do not constitute broadcast employees for the purposes of the statute.

Accordingly, noncompete agreements concerning management employees remain enforceable and are subject to the traditional “reasonableness” test. Similarly, independent contractors do not reap the benefits of the BEFWA.

The statute’s definition of “broadcast industry employer” is expansive and includes TV stations or networks, radio stations or networks, cable stations or networks, Internet or satellite-based services similar to a broadcast station or network, any broadcast entity affiliated with the aforementioned employers, or any other entity providing broadcasting services such as news, weather, traffic, sports or entertainment reports or programming.

What Lies Ahead?

As with any new law, the courts will be left with the challenge of interpreting the parameters of the BEFWA and how it applies.

It will be no surprise to see the statute’s more ambiguous terms, such as “management employee” and “other entity providing broadcasting services,” as the basis for litigation when parties seek clarification of the meanings of those terms in order to determine whether the statute governs their conduct.

Additionally, broadcast industry employers may seek to hire independent contractors, rather than “broadcast industry employees,” in order to bypass the prohibitions of the BEFWA.

Finally, employers may “beef up” other lawful post-employment restrictions, such as rights of first refusal, non-solicitation, nondisclosure and confidentiality agreements, in an attempt to compensate for the loss of the ability to enforce post-employment noncompete provisions.

These considerations demonstrate the significant impact the BEFWA is expected to have on New York’s employment landscape within the broadcast industry.

11-Feb-09 3:00 PM

A REPORTER'S CONFIDENTIAL SOURCE . . . REVEALED?

Mon, 23 Jul 2007 22:00:00 GMT

By Fernando M. Pinguelo, Esq.

The June 2007 sentencing of Lewis “Scooter” Libby who was convicted on federal charges of lying and obstructing an investigation into the Bush administration's actions leading into the Iraq war reminds us of how far reporters will go to protect their sources of information and the consequences of such confidentiality.

New York Times reporter Judith Miller's life changed dramatically on July 6, 2005 when a federal judge ordered her jailed for her continued refusal to give evidence in a grand jury investigation into the disclosure of the identity of a covert CIA operative.

Miller’s imprisonment culminated from a series of events that began with President George W. Bush’s January 28, 2003, State of the Union address wherein it was revealed that British intelligence had learned that Saddam Hussein sought significant quantities of uranium from Africa. The President’s statement, given at a time when an Iraqi invasion was looming, stirred public controversy. The most damaging report calling into question the accuracy of the President’s statement occurred on July 6, 2003, when former Ambassador Joseph Wilson’s op-ed piece in the New York Times disclosed that his investigation found no credible evidence that Iraq had been seeking to purchase uranium from Niger. A few days later, columnist Robert Novak’s Chicago Sun-Times column revealed that two senior administration officials disclosed the circumstances surrounding Wilson’s 2002 investigation and the role Wilson’s wife, Valerie Plame, played in the assignment. Novak referred to Plame as a CIA “operative on weapons of mass destruction.” Thereafter, other media reports followed and reiterated Plame’s status in the CIA.

By December 2003, an investigation ensued and a special prosecutor was appointed to determine whether government officials unlawfully disclosed the identity of a covert agent. Grand jury subpoenas were served upon several reporters, including Miller. Although Miller did not write about Plame, she was reportedly in possession of evidence relevant to the investigation. Initially, the reporters refused to reveal their sources primarily on the grounds of First Amendment and federal common law privileges protecting communications from confidential sources. However, after a district court judge rejected the reporters’ arguments, all but one lone reporter –Miller – ended their fight and succumbed to the rule of law. Miller – who spent 85 days in jail – was eventually released after speaking with Lewis Libby who reaffirmed an earlier release of confidentiality that he had given her.

Miller paid the ultimate price for her silence – imprisonment. Her case presents two fundamental questions: (1) Under what circumstances can a reporter legally withhold the identity of a source? (2) Are reporters under an ethical obligation to explain to their sources that they may not be able to protect the information or their identity in certain circumstances?

Reporters can generally safeguard their sources' anonymity without fear of compelled disclosure. However, once litigation is instituted, especially in the criminal context, the rules change. Here's some information reporters need to know to protect not only their confidential news sources, but also their personal reputations.

Competing Interests

For Confidentiality:
From a reporter's perspective, confidential sources often provide access to crucial information necessary for the exposure of illegalities and other corruption in society. One need only glance back to the Watergate scandal, a story that has been in the forefront of media coverage again because of the revelation of the identity of “Deep Throat,” to appreciate these benefits. Protection against disclosure helps assure that knowledgeable yet reluctant sources of sensitive information will come forward and provide information to reporters without fear of retaliation or embarrassment.

For Disclosure:
From a legal public policy perspective, a source's identity can be of critical importance to a criminal investigation, especially at the grand jury stage, where prosecutors investigate whether a serious crime has been committed (as is the case in Miller’s situation). Or, from a criminal defense perspective, defendants have a right to confront their accusers. Revelation of a source's identity also plays an important role in civil cases, in particular defamation lawsuits alleging the publication of false information. For public figures, a source’s identity may be even more critical to their defamation cases because of their heightened burden to not only prove falsity, but also malice.

The Foundation of Reporter's “Privilege”

The U.S. Supreme Court addressed the issue of a reporter's "privilege" in 1972. In Branzburg v. Hayes, the Court held that the First Amendment did not give journalists the right to refuse to testify in a grand jury proceeding. With facts similar to the ones implicated in Miller’s case, the Supreme Court made it clear that it would not accept the premise that “the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and thus deterring the commission of such crimes in the future.” However, the Supreme Court did acknowledge that newsgathering is not without protection and left it to the states and the federal courts to decide when newsgathering interests could reasonably support the reporter's claim of privilege.

Despite repeated attempts, Congress has not enacted a law recognizing the reporter's privilege to date. However, the Senate Judiciary Committee has conducted hearings on the issue of proposed legislation that would afford some protection to journalists. While enactment of such a law is far from guaranteed, public outcry has again brought the issue to the forefront of debate.

Notwithstanding limited federal protection, most state courts have recognized the existence of a qualified privilege in both the civil and criminal contexts. In fact, more than thirty states have gone so far as to enact "Shield Laws," recognizing the important protection required by reporters. Each state’s protections vary, with some states protecting only the "source," while others afford protection to both the source and the unpublished information.

The Balancing "Test"

In states where the reporter’s privilege is recognized, the privilege is usually not absolute, and various competing interests will be balanced when a court considers a reporter’s refusal to reveal the identity of his or her source. To tip the scale in favor of disclosure, this balance often includes a showing that: (1) the information is unavailable and cannot be obtained elsewhere; (2) the information is not cumulative and is "of central importance" to the case; and (3) the need for the information weighs in favor of disclosure.

Be Sure to Assert It and Don't Waive It!

When faced with a subpoena compelling disclosure, a reporter cannot simply turn a blind eye or refuse to cooperate. A few procedures must be followed to validly assert the privilege. They include (1) responding to the request and immediately invoking the privilege; (2) asserting that the information was revealed in confidence; and (3) asserting that the confidentiality is essential to the satisfactory maintenance of the relationship between the parties.

In addition, it is crucial that a reporter not inadvertently waive the privilege. Waiver occurs when the reporter voluntarily discloses the information or acts in a way contrary to the purposes of the privilege. Waivers most frequently occur when reporters commence lawsuits alleging damage to their ability to use sources, or when reporters unwittingly use third parties as vehicles of communication with their sources.

Don't Make Promises You Can't (or Won't) Keep

According to the Journalism Statement of Principles: "Pledges of confidentiality to news sources must be honored at all costs, and therefore should not be given lightly." This principle reflects the ethical or moral obligation reporters often feel to protect certain information or a source's identity irrespective of the law. However, as we saw with Miller, pledges of confidentiality cannot always legally be honored.

Given the highly sensitive nature of the information, the reporter has an ethical obligation to explain the nature and consequences of the privilege to a source at the outset. In doing so, reporters are encouraged and well-advised to make any promises of confidentiality sparingly because a reporter's interest in protecting the identity of the source may, in fact, yield to the public interest in disclosure.

Remember, it's your reputation that's on the line. Knowing the parameters and pitfalls of the privilege can help you make the right call in any given situation.

This article is written to provide readers with a very general overview of the reporter's privilege. The information contained herein should not be construed as providing legal advice and should not be relied on for that purpose. If you have specific legal questions, the author suggests seeking the advice of a qualified attorney.

About the Author

Fernando M. Pinguelo is a trial lawyer licensed to practice law in New York, New Jersey and Washington, D.C. He focuses his practice in the broadcasting sector, building off his ties to Emmy Award-winning clients. He also serves as a regular article contributor for the National Association of Television Arts and Sciences (New York Chapter), TVSpy, Next Generation TV, and Shop Talk. Fernando has published several articles and lectures on a variety of topics including copyright, contracts, entertainment, employment law, and information technology. He has appeared on television several times as a legal commentator on various high-profile trials, and has been quoted in many newspapers and magazines, and on radio and television broadcasts regarding high-impact cases he has handled.

Fernando welcomes questions and/or feedback on any related issues and can be reached either by phone, (908) 722-0700, or via email, fmp@nmmlaw.com. He invites you to visit his website to learn more about similar topics: http://www.nmmlaw.com/attorneys/fmp.html

23-Jul-07 5:00 PM

Gootopia - Living in a Targeted Society

Shelly Palmer — Thu, 31 May 2007 21:00:00 GMT

Alethea Hokum sat quietly, barely breathing. Her glazed eyes showed a faint reflection of the video monitor that had lulled her into semi-consciousness. Startled and just a bit confused, she reached down to silence her vibrating PDA. But something caught her eye. It was a text message offering her an additional 15 percent off if she would like her carpets cleaned this week. Of course the text message was just a few seconds out of sync with the sponsorship message she had just seen, but Alethea knew the offer was especially for her. It was an offer she couldn’t refuse.

She hit the pause button on her television, answered the text message with a simple "y" and pressed send. Two clicks on her remote to get back to the part of the show she missed and less than a minute later, Alethea Hokum returned to her blissful world of personalized, highly relevant media.

Across town, Verity Bunker, a stay-at-home mother of two, was taking a much-needed retail therapy break. As she approached a digital sign at the mall, the message changed to show a woman, with a physique quite similar to her own, in a remarkably familiar setting. Verity could not put her finger on it, but she knew that she had to visit this particular store on this particular trip — what was it about that sign?

Welcome to Gootopia — a place where everything you do, everything you interact with, every behavior you exhibit is analyzed, synthesized and optimized to reflect a world that is most relevant to you. In this targeted society, advertisers and marketers know absolutely everything they could ever want to know about everyone. What they like, whom they like, where they like to go and even more importantly, what everyone doesn’t like. Gootopia may sound like a marketer’s paradise, but it is perdition for almost everyone else.

Would you like to see one of the landmarks you must pass on the road to Gootopia? Visit http://www.google.com/history where you can view and manage your web activity, get the search results most relevant to you and follow interesting trends in your web activity.

What?? Yes, you read it right. Just let Google completely analyze your time online and they will reward you with some personal management tools. What else will they do with the information?

I’m not Dr. Phil, but this sounds like a "how to" manual for destroying even the best of relationships. "Hi honey, here’s a complete log of every website I’ve visited in the last 30 days and how much time I’ve spent on them… let me see yours." Do you know a couple anywhere on this planet whose relationship could survive that information exchange?

Forgetting the privacy issues (formidable as they are), let’s ask a few business questions about the value of hyper-targeted media. Is it really valuable? Certainly not on an individual basis.

Statisticians will tell you that, with the appropriate sample size and mathematical tools, it is relatively easy to predict what a population will do. However, it is absolutely impossible to predict what any individual will do. As you well know, when it comes to your personal decisions, past performance is rarely an indicator of future performance. So, we can predict that tonight in Manhattan, 5,437 dinners will be served at restaurants that feature Mexican food, but we can’t predict who will eat them.

Even if you could predict, with a reasonable margin of accuracy, who would frequent these culinary establishments this evening, would it help you market to them? What would you do differently? Would your advanced knowledge of this particular behavior enable you to extract a greater share of wallet from this hyper-targeted audience? Probably not.

It is pretty reasonable to assume that people who walk into Mexican restaurants are looking forward to eating Mexican food. Knowing who is on their way won’t change much about the experience they have inside.

Now, is there some information we could aggregate and analyze that would allow us to put an idea into someone’s head that today would be a great day to have a Mexican dinner? Couldn’t hyper-targeted marketing help us do that?

Absolutely! Right up until the target’s social network helps them decide otherwise. It happens all the time.

Later that day, Alethea and Verity meet-up with two of their friends at the Tennis Club. Verity says, "… you know, I’ve been thinking about Mexican food all day. Anyone want to join me?" Three of the four women agree but Alethea says, "That sounds fine, but you know what? The best Chinese restaurant in town is just a block away from here. Why don’t we go there?"

So much for all of the day’s hyper-targeted Mexican food marketing dollars, or — was it the fact that the Chinese food trade federation outspent them and got Alethea, the thought leader, to influence the group. Wow! Gootopia is going to be a strange place to live.

31-May-07 4:00 PM

No more gates…no more barbarians!

Thu, 31 Aug 2006 21:00:00 GMT

By Shelly Palmer
Chairman, New Media Committee

Less than a decade ago, if you wanted to get into the television business there were of course certain barriers. The obvious ones were talent, skill and willpower…but there were “technical” ones as well. The gateway to success was zealously guarded by a few “gatekeepers” with large capital investments, armies of engineers, and platoons of their very own technically oriented artisans.

For people with something to contribute, it exacted a heavy toll. By the mid-nineties, the cost of studio time reached an all time high and the complexity of the technology made it a conspiracy against the laity.

That was then.

Now, many of the biggest post-production houses in New York have closed, National, Post Perfect and East Side to name a few. And although there were many reasons for the end of this era, the biggest was simply -- there were no more gates to guard.

What does this mean? Technology, once the bastion of the “rich and famous” is now available to everyone who wants it. Programs like Final Cut, Nuendo, Pro-Tools, Logic and After Effects can easily be combined to create broadcast quality television and music - all in the comfort of your living room running on a desktop computer. What was once a million dollar installation can now be duplicated for under $20,000. For all practical purposes, there is no longer a barrier to entry into our industry.

Of itself, this is not news. The endless pursuit of cheaper production and manufacture built our entire country. From the days of Andrew Carnegie to every corner of our present global economy, businessmen seek lower production costs to increase profits.

But in our case, the ramifications are thought provoking in a different way. One of the qualities of the “barrier to entry” into our business was that only big successful choosers of content flourished -- the Networks, the big publishing houses, the big movie studios and record companies, all had internal mechanisms to guard the gates, so only the most “saleable” properties made it to market and only those with “hit” potential received the allocation of resources required to make them successful. Now, there is another disturbing trend, number-crunchers have all but replaced creatives in gatekeeping roles.

The rub is…without gatekeepers our new found technical freedom will yield a great deal of sub-optimal work product. As Fred Siebert once opined on a panel I moderated, “most people are not very talented.” And now, since literally anyone who wants to make a TV show can now do so, with production costs heading down, there will undoubtedly be an overabundance of low quality, low cost programming. The surviving gatekeepers will have some job figuring out what to do with it!

The good news is -- the impact new technology will have on the quantity of inferior programming will be short term. Ultimately, the market will self-regulate, and the over zealous wannabe Spielbergs will return to their day jobs. The exciting part is that new technology is also available to talented people. For them, the revolution is the dawn of a new era in creativity. If you can conceive it, you can realize it.

And, you can show potential clients EXACTLY how it will look to the audience!

Next issue, we’ll discuss the “death of the demo” – a happy demise.

31-Aug-06 4:00 PM

The Death of the Demo

Thu, 31 Aug 2006 21:00:00 GMT

By Shelly Palmer

Chairman - New Media Committee

The term “demo” is having an identity crisis. In the old days (from the dawn of time until about 3 years ago) “demos” were what you did when you didn’t have money to do “finals.” The term applied to every kind of creative project: music, video, film, flat art, graphics, etc. The package designers call them “comps” but it’s basically still a demo.

Whole industries emerged to meet the needs of demo makers: Animatic houses, video storyboard producers, music demo or “project” studios – aah … those were the days.

Today, desktop production technology has, for all practical purposes, killed the old meaning of the term. It is reborn to mean, “not yet approved by the client.”

This is causing a huge problem for creatives and producers who have not yet acquired desktop production skills. And, it is causing even bigger problems for creatives and producers who liked “the good old days.”

Although this is the perfect segue into a philosophical or, at least, a semantic discussion about how creatives and producers are supposed to spend their time, let’s get practical!

Your first step into the New World of production is to get in the game. This is simple and relatively cheap. You can do this with a Mac or a PC … it doesn’t really matter. Here’s a short list of desktop production programs and the disciplines they cover. These are not the only programs available and every professional will have their own favorites. That being said, I like these programs in their current versions.

Your job is to select one, buy it, and learn to use it. You can take classes at the New School, SVA or even CompUSA. And, Borders, Barnes & Noble and Amazon are full of text books and manuals of every kind. This is a first step – one I highly recommend you take.

31-Aug-06 4:00 PM

Seeing The Future Through The Past

Thu, 31 Aug 2006 21:00:00 GMT

By Shelly Palmer
Chairman, Advanced Media Committee

After the Wright brothers did their “proof of concept” flight circa 1903, the fledging airline industry hit the road in search of development capital. They brought their proposal to America’s richest, most successful businessmen: the railroad barons. According to legend, they were summarily dismissed. It seems the railroad tycoons didn’t think much of the technology and felt it would never attain critical mass.

The most popular criticism of the railroad executives opines that they were too stupid to recognize that they were the transportation business, not the railroad business. And, more importantly, they should have recognized the airplane as the new new thing.

Anyone who lives in the present might look at this story see it as glaringly irrelevant. We don’t really know what the railroad guys were thinking, the story is oversimplified hearsay. And, it took 40 plus years for the airline industry reign supreme – an evolutionary time-scale by today’s standards. And, while we’re at it, what is the analog to the airline’s role in our industry. Surely not the Internet – that bubble has burst! Broadband? Ridiculous! WiFi? Keep dreaming. PVRs? Unlikely. So why tell the story at all?

Like all good history lessons, if we apply context, it can help us see the future through the past. The moral of this folktale is: know what business you’re in. In context, 1903 was a comparatively naïve time. Things moved slower and post hoc, ergo propter hoc (A Latin phrase traditionally interpreted as "After this, therefore because of this.") was reasonably assumed by almost everyone about almost everything. That was then.

Today, we move in Internet time and no one with half a brain would ever be self-important enough to posit that anything, but the most simple events, are causal. We live in an extraordinarily random universe with some version of chaos theory impacting every business decision – no matter how small. We also live in a world where technologies evolve decades before societal, cultural or business rules can catch up to them. And, unlike 1903, 2003 offers dozens (even hundreds) of new technologies competing for the title of rightful heir to television’s legacy. Who will win? What will the future look like? Where should you spend your time and resources?

While there are an infinite number of paths that the future will not take, there are far fewer probable paths. I don’t have “the” answer, but I can offer a platform for your personal crystal ball to rest upon.

We are coming to the age of mass personalization. Current technology enables and empowers distributors of media to touch their consumers in many different places in many different ways.

What business are you in? Certainly not television, not broadcasting, not cable and not satellite … you are a distributor of media and your future lies in millions of personal relationships that technology will enable you to forge over the very near term.

While your sales department is busy taking orders for traditional television advertising, trained salespeople from other distributors of media are actually selling non-traditional properties to your clients. Your clients don’t talk about it that much because no one property is that important. Right now, advanced media must be aggregated to be meaningful. There are few, if any, business rules for buying and selling, but they will evolve as needed. Advanced media is a dispassionate, self-regulating system.

Can you see the future through the past? It’s like a hundred little fledgling airline industries competing for critical mass. With the scatter market in the basement and an Olympic and election year coming, who has time to think about this? You must! Because like all good viral entities, by the time this one hits your radar, it will be too late.

-- Shelly Palmer is president of Palmer Advanced Media, a deep-knowledge consulting practice specializing in transition advisement for brand management and media companies.

31-Aug-06 4:00 PM

Scared of TiVo and Cable …Kick their butts with Virtual VOD!

Thu, 31 Aug 2006 21:00:00 GMT

By Shelly Palmer
Chairman, Advanced Media Committee

The government granted you a bunch of digital bandwidth. Pundits are saying that HD is the future, and you should think seriously about using most of your big pipe for HD. It’s sort of a Field of Dreams argument. “If you build it, they will come.” Perhaps. Some, less popular engineers, have been advocating the multiplexing of a few dozen digital SD channels instead … maybe they’re on to something?

Let’s do a thought experiment about brand and audience building. First, we’ll multiplex your new digital signal into a bunch of SD channels. (That will take some hardware, but not much.) Then we’ll need programming assets that are brand relevant. And last, but not least, we’ll need a value proposition for the viewers. Wrap it up in some clever marketing and you have powerful a new product: Virtual VOD.

Sadly, there are a few “real world” obstacles to this plan. Not the least of which are retransmission rules, guild payments, music royalties … the list is practically endless. Or is it?

What if you already owned programming assets that viewers wanted and needed in a time sensitive way. What if those assets were already responsible for a huge portion of your revenue stream? What if you could program those assets, let’s say, every half hour overlapping on different virtual SD channels until you were ready to broadcast the next live show, and then started the cycle over again?

Obvious, isn’t it!

Local News is the asset you can use right now to take advantage of this new technology and, in the process, drive viewership, build brand equity and actually serve your local community better. Re-running local news programming every half hour on a different virtual channel will enable viewers to see a complete newscast whenever they get home without TiVo or a cable box.

Want a great promotion? Get some local advertisers to subsidize a simple batwing (indoor digital) antenna – they don’t cost that much to begin with. Imagine the value of your station logo or one of your clients’ logos on a hi-tech indoor digital antenna. The value proposition for the consumer is extraordinary. They’ll get access to hundreds of digital broadcast channels in the marketplace “for free.” But, the process will be branded by you!

Let’s continue our thought experiment. At some point, the industry will solve its “real world” problems. You will be able to re-run programming on virtual channels in an economic way. No matter how far off in the future that may be, you will still have created a strong bond with your viewers and helped them get in the habit of using free over-the-air digital instead of (or as a competitive, valuable adjunct to) TiVo, PVR’s or Cable VOD.

When most people think of Advanced Media, they make the mistake of thinking about the distant future. Technology is not in the distant future – technology is here now. Business rules and market forces are the only true obstacles to technological progress. So, if you have something of value that people want, like local news. Why not use your technology to help you build your special niche in television’s digital future.

-- Shelly Palmer is president of Palmer Advanced Media, a deep-knowledge consulting practice specializing in transition advisement for brand management and media companies.

31-Aug-06 4:00 PM

American/English Production Vocabulary Comparisons

Thu, 31 Aug 2006 20:00:00 GMT

"We have really everything in common with America nowadays except, of course, language" - Oscar Wilde, The Canterville Ghost, 1887

The idea for this dictionary began during a survey/scout of a theater/theatre in Brussels prior to an Anglo-American television production. The director selected camera locations. Two were to be located towards the rear of the lowest level of audience.

I wandered off to discuss technical issues with the stage crew. My French is poor and my Flemish essentially non-existent, but I had little difficulty communicating with the Belgians. I returned to find the American female producer and the British male producer screaming at each other. They were saying exactly the same thing and didn't realize it.

He: So we're having two cameras in the stalls.

She: No, we agreed not to put cameras in the boxes; they're going in the orchestra.

He: We agreed not to put cameras with the musicians!

She: Of course we're not having cameras in the pit!

He: Yes, we are!

It helps to know that the lowest level of theatrical audience in English is called the stalls, which seems suspiciously like boxes to an American. The same level is called the orchestra by an American, which means the musicians in English. To the American, those musicians play in the pit. But the pit is an old English theatrical term for the lowest level of audience.

Professions often have their own jargons, never mind American/English language variations. How many people not employed in theatrical work know that tormentors hide the view of off-stage areas from the audience or that vomitories are entrances piercing the seating? Abbreviate those terms as torms and voms, and people can't even look them up in dictionaries. Front porch, back porch, breezeway, flag, and pedestal might have certain meanings in architecture; they're also used differently to describe components of a U.S.-standard video signal.

Then there are those American/English variations. Americans in England giggle when they hear someone say he's knocked up the vicar's wife; the English in America find Don't Honk street signs equally amusing. It helps to know that to knock up, a perfectly respectable English term for to pay a visit means to impregnate in American slang. Similarly, to honk, perfectly normal American for to toot an automobile horn, is British slang for to vomit.

Times are changing. A billion used to be a thousand million in American but a million million in English, where a thousand million was a milliard. Since the 1970s, however, the thousand-million connotation has been used in Britain, though milliard is still used in non-UK English. Similarly, CSO is now usually called chroma key on both sides of the Atlantic. So take what follows with a grain of salt.

Enjoy!

Mark Schubin

Hollywood Post Alliance Technology Retreat

February 2004

31-Aug-06 3:00 PM

Non-Compete Clauses: Are they Fair?

Fri, 18 Aug 2006 15:00:00 GMT

By Fernando M. Pinguelo, Esq.

Whether you believe non-compete clauses in broadcast employment contracts are fair depends on your point of view. From management's perspective, of course, these clauses are fair. The station hires talent for a period of time and devotes significant resources in training and promotion to warrant an exclusive commitment. From talent's perspective, these clauses are unfair. These clauses are often unreasonably restrictive and are not negotiated when a position is discussed and ultimately accepted.

So who's right? Even more interesting, does the dynamic of the broadcasting industry make these non-compete clauses more acceptable or less acceptable? As with most complex issues with competing interests, the answer is: IT DEPENDS . . . .

Recent Trends

Increasingly, broadcasting employers incorporate non-compete clauses in employment contracts. In fact, this trend crosses over into behind-the-scenes talent such as producers, associate producers and editors where, traditionally, these clauses were seen as unnecessary.

What makes these clauses particularly troubling is when the clauses are not brought to light until after talent accepts the offer, informs his/her current employer of their decision to leave, and in many cases, relocates to a new market. Even worse is the scenario where talent is terminated by the employer and is prevented from working based on a non-compete clause.

This alarming trend requires a basic understanding of employee rights when faced with a non-compete clause in an employment agreement.

Legal Enforceability

Employment non-compete clauses restrict an employee from working for competitors. Traditionally, courts disfavored non-compete clauses because they were viewed as preventing an individual from earning a living by using his craft. More recently, courts enforce these clauses where the restraints are reasonable and allow an individual to practice his craft in some respect.

While states differ on how they determine whether to enforce non-compete clauses; generally, non-compete clauses must be (1) a part of a valid contract; (2) necessary to protect an employer's legitimate business interest; and (3) reasonable in scope. A court charged with evaluating the enforceability of a non-compete clause will carefully balance these competing interests before ruling on a clause's validity.

The first requirement - ancillary to a valid contract - means that the clause must be supported by sufficient consideration (usually in the form of an employment opportunity, salary, etc.). Usually, employers easily meet this requirement when the clause is part of the employment arrangement from the beginning; or later made part of the employment arrangement after a promotion or substantial pay raise is awarded. However, when an employer attempts to impose these clauses sometime after an employee has been employed (often accompanied by a threat of loss of employment if there is noncompliance), compliance with this requirement is not so clear and some states require additional consideration.

The second requirement - necessary to protect an employer's legitimate business interest - means that the employer must have a valid proprietary interest to protect. It does not mean that the restriction can be used solely to prevent competition. While the definition of "valid proprietary interest" varies from state to state; generally, it includes customer relationships, trade secrets, and costs of specialized employee training, development, and promotion. However, an employer cannot simply list these interests and expect a court to conclude they are "valid" or "legitimate." Rather, an employer must demonstrate the validity of each interest and show how it is tailored to the restriction being sought.

The third requirement - reasonable in scope - means that the restriction must be reasonable in terms of the type of activity restricted, the duration of the restriction, and the geographic area from which an employee is precluded from working. Reasonableness requires that the restriction be tailored to protect the legitimate business interests of the employer. Employers cannot simply impose a broader restriction than is necessary to protect their interest.

Whenever a court balances competing interests and makes a determination as to the validity of a contract clause, the process is often fraught with uncertainty and unpredictability. Balancing these interests is highly fact-sensitive and requires careful consideration.

Uniqueness of the Broadcast Industry

Contrary to popular belief, most on-air and behind-the-scenes talent do not make a lot of money. That fact, coupled with fierce competition and the often volatile, unpredictable, and insecure nature of the business, makes most contract negotiations between talent and management virtually non-existent. As a result, talent often sign the contract without either truly appreciating the consequences or ignoring them.

Only when faced with a better offer of employment do most talent realize their non-compete predicament. Without the blessing of an employer, talent are faced with either staying where they are until their contract period expires, moving to another area outside the restrictions, or fighting the validity of the non-compete clause. Neither option is appealing and each is fraught with negative consequences.

The fact that talent have little control over their careers makes this scenario particularly troubling; and, unlike other professionals, talent cannot simply move and practice their trade elsewhere or in a different manner. However, if the non-compete restrictions are truly unfair, and the prospect of better employment is strong, fighting the validity of the clause may be a reasonable option.

Fortunately for talent, states are beginning to appreciate the uniqueness of the broadcast industry when determining the validity of non-compete clauses. Some states invalidate non-compete agreements altogether in the broadcasting context. Others have bills pending that offer similar protections. Moreover, courts around the country are recognizing the uniqueness of the broadcast industry and are balancing the competing factors with an eye towards the nature of the industry.

Conclusions

The uniqueness of the broadcast industry coupled with the disparate bargaining power between talent and employer may lead to an unfair and unenforceable non-compete restriction. Knowing your rights is the first step in making an informed decision.

About the Author

Fernando M. Pinguelo is an entertainment attorney and trial lawyer who is licensed to practice law in New York, New Jersey, and Washington, D.C. His focus has been predominately in the broadcasting and music sectors, building off his ties to Emmy® Award-winning talent and up-and-coming musicians. Fernando welcomes questions and/or feedback on any related issues and can be reached by phone: (908) 722-0700. Or, visit him on the web at: http://www.nmmlaw.com/attorneys/fmp.html

18-Aug-06 10:00 AM

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Non-Compete Clauses: Are they Fair?

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Chairman, Advanced Media Committee

By Shelly Palmer
Chairman, Advanced Media Committee