Gossip can be fun, but also unlawful?

Gossip can be fun, but also unlawful?

Recently, New York Times reporter Mr. Jacob Bernstein was overheard at a party calling Mrs. Melania Trump a “hooker.” Although he subsequently apologized, the legal question is what legal liability, if any, does either he or The New York Timeshave for his statement? In these times of fast and loose media stories, the question is timely for media professionals and consumers of news.

The First Amendment does not protect all speech. One category of unprotected speech is defamation, an actionable tort. In order to prove defamation, a plaintiff must generally show that an untrue statement was communicated about him or her, that the statement was false, and that such statement injured their reputation in the community. Proof of damage can include, but is not limited to, lost sales for a business. In the case of defamation per se, however, a plaintiff need not show damage because the statement in question is considered harmful on it’s face. Examples of defamation per se generally include calling someone a “bank robber,” a “prostitute,” or both.

Of course, context matters. Where the statements are made under the guise of parody or the words, when read in context, do no mean what they would otherwise mean in isolation, then there may be a potential defense against liability. Barring such context, however, legal liability generally exists. This is true even if you republish the defamatory statement or if the statement was made by one of your employees during the course and scope of their duties to you.

That being said, it is harder to prove defamation if you are a pubic figure. In such a case, you must show that the allegedly false statement was made with actual malice, which means that the person knew the statement to be untrue, or that the person made the statement with reckless disregard of whether the statement was true or false.

Under these guidelines, Mr. Bernstein’s recent statement would be considered defamatory per se. Needless to say, truth is an absolute defense to a defamation claim, so if he could proffer admissible evidence showing his statement to be true, then there would be no liability. Whether his apology absolves him of liability is another question. Defamation law varies by state. In all likelihood, the apology wouldn’t absolve him of liability, but it would be an issue for the jury to consider in determining the amount of compensatory or punitive damages.

Whether The New York Times could be held liable for Mr. Bernstein’s statement is unclear. To be liable, Mrs. Trump would need to show that Mr. Bernstein made the statement within the course and scope of his employment. Courts use various factors to determine this question. One factual issue would be whether Mr. Bernstein was attending the party on behalf of The New York Times, or in his personal capacity. If the former, liability will be more likely. If the latter, less likely, for The New York Times.

Media professionals are under immense pressure to get views of their content, and the quick way to do that is to run salacious eye-grabbing headlines. At the same time, the First Amendment’s protections are not infinite for media professionals. Finding the right balance between offering tantalizing news and also respecting the lines of defamation is a prudent course, but one that may be at risk of attack in today’s fast food news environment.

Jake couldn’t trademark his black suit, nor should Louboutin have a monopoly over his red sole.

Jake couldn’t trademark his black suit, nor should Louboutin have a monopoly over his red sole.

Recently, the WSJ reported in Color Wars: Luxury Makers Battle Over Red-Soled Shoe that the Southern District of New York denied a preliminary injunction that fashion house Christian Louboutin (“CL”) sought against Yves Saint Laurent (“YSL”) for making high heeled shoes with a red sole. CL has a trademark over a “lacquered red sole” on “women’s high fashion designer footwear.” The Court ruled that the color in this context served a functional purpose and was therefore not protectable subject matter.  At first blush, the Court’s decision may seem far reaching.  It is not.

Color is generally not something you can trademark. There is an exception to this rule. I could trademark the pantone process blue used by my firm so long as I show that consumers associate the particular shade of blue with my firm, and as long as the color is not “functional.” Camouflage, for example, serves such a functional purpose by concealing the person from view. Black, as another example, by conveys a feeling of melancholy and formality, among other things, when used for a suit.

Surprisingly, the Court ruled in CL v. YSL that CL’s red bottomed trademark could not be protected even if CL were able to show secondary meaning: that consumers associated the red with CL’s brand, and not just as some fad in the fashion industry. In so proclaiming, the Court seemingly fan afoul of well established trademark principles.

However, the Court was right to rule the way it did given: (1) CL’s trademark application didn’t claim a particular shade of red, bur red in general; (2) the application also sought to protect the red sole not only for high heels, but for “high fashion footwear,” which covers a broad spectrum of shoes, including flats; and (3) color, especially red, plays a big role in the fashion industry, unlike in other industries. There is no arguable functional purpose to the color pink in the fiberglass industry, and so courts have allowed a fiberglass company to trademark the color for fiberglass. There is, however, such a purpose in the case of black for Jake and Elwood’s bluesy suits. The same is true of red soled sexy heels.