An interesting lesson in how #copyright can be leveraged to skew news coverage. Credible news outlets should never run photos of celebrities that are licensed on positive-coverage-only terms.https://www.nbcnews.com/politics/donald-trump/news-media-paid-melania-trump-thousands-use-photos-positive-stories-n883111 …
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The only state action I see would be the court’s intervention to enforce the bargain. And if that would violate the 1A, couldn’t the same be said for the enforcement of any contract in which one of the parties agrees to say or not say a particular thing?
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Enforcing a bargain by awarding privately bargained-for contract remedies is potentially different than having the court apply Congressionally provided copyright remedies against only negative coverage of a public figure.
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Copyright misuse is a clever argument that may get at the same idea. There are also analogies to the excessive-entanglement-with-religion prong of Lemon, and with some of the distinctions around racially restrictive covenants.
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Seems similar to the Video Pipeline case, where Disney's licensing K barred derogatory use of its film clips. 3d Cir. said no copyright misuse b/c the restriction didn't subvert copyright policy goals: could still criticize the films w/o clips, or with them using fair use.
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Huh. I'll check the case. But it seems to me that a licensing term barring derogatory use could easily be construed as a contractual bargaining-away of fair use for any derogatory purpose (e.g., criticism, parody). So the holding, as summarized, seems to beg the question.
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