Loyola of Los Angeles

ENTERTAINMENT LAW REVIEW

2011

Volume 31

Number 2

http://elr.lls.edu/

Copyright © 2011

Loyola of Los Angeles Entertainment Law Review

919 Albany Street, P.O. Box 15019

Los Angeles, CA 90015

http://elr.lls.edu

ISSN 0273-4249

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All Rights Reserved

TABLE OF CONTENTS

Editorial Board & Staff

Law School Faculty

ARTICLES

Is Driving with the Intent to Gather News a Crime? The Chilling Effects of California’s Anti-Paparazzi Legislation

by Christina M. Locke & Kara Carnley Murrhee

NOTES & COMMENTS

Viacom v. YouTube:  An Erroneous Ruling Based on the Outmoded DMCA

by Lior Katz

Scheduled Skyping with Mom or Dad: Communicative Technology’s Impact on California Family Law

by Jenna Charlotte Spatz

These Tats Are Made for Talking: Why Tattoos and Tattooing Are Protected Speech Under the First Amendment

by Carly Strocker

Loyola of Los Angeles

Entertainment Law Review

Volume Thirty-One

2011

Number 2

EDITORIAL BOARD

Brandon Wyman

Editor-in-Chief

Matthew Mejia

Executive Editor

Jaime Massar

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Brooke-Sidney Jackson

Margaret Jennings

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Ryan Moore

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Emily Ruby

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Ruben Vidaurreta

Armineh Yousefian

Marti Reynolds

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ARTICLES

IS DRIVING WITH THE INTENT TO GATHER NEWS A CRIME? THE CHILLING EFFECTS OF CALIFORNIA’S ANTI-PAPARAZZI LEGISLATION

Christina M. Locke[*] & Kara Carnley Murrhee∞

While celebrities may have a love-hate relationship with the photographers who give them red carpet publicity but also pursue shots of their most intimate moments, the California Legislature has little use for the paparazzi.  The 2010 anti-paparazzi bill is the most recent in a string of legislative attempts to curb aggressive paparazzi.  Assembly Bill 2479 makes two major changes.  The first change penalizes those who capture images or audio recordings by false imprisonment, targeting paparazzi who swarm celebrities and prevent them from moving or driving freely.  The second change enhances penalties for reckless driving if one has an intent to photograph or record.  This Article examines the constitutionality of California’s most recent anti-paparazzi law, concluding Assembly Bill 2479, like California’s prior anti-paparazzi laws, needlessly modifies existing law at the expense of the First Amendment guarantee of a free press.

I. INTRODUCTION

They sit at the end of celebrities’ driveways day and night. They follow relentlessly in cars,[1] waiting to catch that perfect moment on film so they can sell it for hundreds, thousands, or even millions of dollars.[2] They are the paparazzi.[3] While celebrities may have a love-hate relationship with the photographers who give them publicity while chasing them all over Hollywood, the California Legislature has little use for the paparazzi. In 2010, California law once again placed these camera-brandishing, celebrity-stalking photographers in the limelight instead of the Hollywood superstars that are usually the focus of their snapshots.[4] The 2010 anti-paparazzi bill, Assembly Bill (A.B.) 2479, is the most recent in a string of legislative attempts to curb aggressive paparazzi.[5] The legislative attention to paparazzi tactics began in 1998, when invasion of privacy was codified in response to Princess Diana’s death.[6] In 2005, legislators amended the law to penalize photographers who sold photos taken during altercations with celebrities.[7] Finally, in 2009, legislators targeted publishers of photos taken in the course of an invasion of privacy.[8] That law also permits public prosecutors to pursue violations of the statute on behalf of celebrities.[9]

However, tougher penalties and increased opportunities for prosecution, which went into effect January 1, 2010, did not shutter the paparazzi’s snapshots,[10] as news stories detailing the latest celebrity-photographer run-in continued to make headlines. In February 2010, state officials filed criminal charges against Sean Penn, who now faces 1.5 years in jail, for an alleged attack on a photographer.[11] In June 2010, Mad Men star January Jones alleged that she lost control of her car and collided with several parked cars because the paparazzi were following her.[12] That same month, a seventeen-year-old photographer accused Jodie Foster of assaulting him after he apparently tailed her and her children too closely as they left a theater.[13] Although supporters of the 2009 bill believed it would help curb the abuses of paparazzi who stalk celebrities to catch candid photos, opponents questioned whether the law would be effective, create a flurry of lawsuits,[14] or even be upheld if challenged in court.[15]

In September 2010, Governor Arnold Schwarzenegger[16] signed the newest law, A.B. 2479, which makes two major changes.[17] The first change penalizes those who capture images or audio recordings by false imprisonment.[18] The law’s ostensible goal is to target paparazzi who swarm celebrities and prevent them from moving or driving freely.[19] The second change the law institutes is to add enhanced penalties for reckless driving if one has an intent to photograph or record.[20] The potential for these measures to violate the First Amendment by having a chilling effect on newsgathering is the focus of this Article.

This Article examines the constitutionality of California’s most recent anti-paparazzi law, A.B. 2479. Part I discusses the history of California’s anti-paparazzi laws and previous First Amendment challenges, including the latest legislative attempt to curb paparazzi by increasing penalties for false imprisonment and creating a new category of reckless driving with the intent to photograph. Part II analyzes A.B. 2479 from a First Amendment standpoint, using a variety of applicable First Amendment doctrines. Finally, Part III concludes that A.B. 2479, like the prior anti-paparazzi laws, needlessly modifies existing law at the expense of the First Amendment guarantee of a free press.

II. CALIFORNIA AND ANTI-PAPARAZZI LAWS

On August 31, 1997, news that Princess Diana had died in a car crash in a Paris tunnel, while photographers chased her car, spread quickly.[21] When a French judge declared seven paparazzi suspects in the investigation,[22] celebrities and lawmakers in Europe[23] and the United States, namely California,[24] demanded new legislation to quell the dangerous paparazzi tactics.[25] Though Congress considered but did not enact any such legislation,[26] California moved very quickly to enact the first state anti-paparazzi law.[27] However, a judge eventually concluded that Diana’s impaired driver, not the paparazzi, was responsible for the crash.[28]

A. California’s Previous Legislative Attempts at Curbing Paparazzi

California’s 1998 law provided statutory causes of action for both physical and “constructive” invasion of privacy.[29] The “constructive” provision was aimed at preventing the use of “visual or auditory enhancing device[s]” to capture photos of celebrities engaging in “personal or familial activity.”[30] The constitutional implications of the 1998 law raised concerns among the media law bar and the press.[31] Opponents argued the law could violate constitutional protections for newsgathering and was vague and overbroad.[32] The breadth of the statute and its target on the media prompted some media attorneys to lament that the “statute opens a Pandora’s box of issues that may take years to sort out.”[33]

Far from sorting out the “Pandora’s box” of the initial statute, the California Legislature continued to pass more of the same constitutionally suspect laws. The first amendment to the 1998 invasion of privacy statute came in 2005 and was aimed at photos taken during altercations between celebrities and photographers.[34] The 2005 amendment called for photographers who had assaulted celebrities to forfeit profits from the publication of the resulting photos.[35] It also allowed for triple damages against the paparazzi in civil suits stemming from the altercations.[36] Assemblyperson Cindy Montanez (D-San Fernando) pointed to a recent incident involving actress Lindsay Lohan as evidence of the need for the law, which took effect in 2006.[37]

Celebrity run-ins with paparazzi continued in the years following the passage of the 2005 amendment.[38] Thus, in 2009, California lawmakers once again sought new ways to protect celebrities. This time, they set their sights higher up the editorial food chain. The new law, A.B. 524, established penalties of up to $50,000 for first publishers of photos obtained in contravention of California’s privacy statute.[39] The bill’s sponsor, Assemblyperson Karen Bass (D-Los Angeles), “hoped to remove the financial incentive for paparazzi to continue pursuing and photographing celebrities.”[40] Considering that prime photos can fetch more than a million dollars, this seems unlikely. Nonetheless, first publishers with “actual knowledge”[41] that the photo was taken in a way “that is offensive to a reasonable person” would be subject to the penalties.[42] This portion of the statute seems squarely in conflict with a line of U.S. Supreme Court holdings that have turned down attempts to punish the press for publishing lawfully obtained information.[43]

The 2009 legislation also authorized government attorneys to move forward with civil actions based on the harms suffered by celebrities.[44] Prosecutors may pursue civil actions against publishers and photographers for violations of the privacy statute.[45] Proceeds would be distributed among the prosecuting agency itself, as well as an Arts and Entertainment Fund.[46] These prosecutions could open taxpayers to the possibility of footing expensive legal bills on behalf of celebrities and subject the press to the high costs of defending such lawsuits.

B. A.B. 2479: Driving with the Intent to Commit Journalism?

Just months after the privacy amendment targeting first publishers of photos went into effect on January 1, 2010, yet another anti-paparazzi bill was introduced to the California Assembly.[47] An early legislative analysis of the bill noted:

Despite the enactment of [previous] statutory remedies, there continues to be a flurry of news reports on the increasing tension between celebrities and photographers, which at times has escalated to the point of physical confrontations. Defenders of the paparazzi allege that the problem is not the paparazzi, but rather the public’s appetite to learn about even the most mundane details of the celebrities’ lives. Some also assert that celebrities themselves want the best of both worlds, seeking out the cameras when they want to bask in the limelight, and smashing those same cameras on the ground when they find them annoying.[48]

As first introduced, the bill incorporated “the tort of stalking” into the privacy statute, looking to “impose liability when the defendant engaged in a pattern of conduct intended to place the victim under surveillance . . . .”[49] Surveillance was defined as “that pattern of conduct [that] caused the plaintiff to reasonably suffer substantial emotional distress.”[50] Assemblyperson Karen Bass, who also introduced the 2009 anti-paparazzi bill,[51] sought to amend both the civil anti-stalking and privacy statutes in “an effort to curb the often aggressive tactics used by paparazzi to capture images and recording of celebrities and their families in order to satiate a public that clamors for the intimate details of the lives of Hollywood stars.”[52] The “surveillance” version was later amended “in order to craft language that will address the issue of unlawful and dangerous surveillance without limiting constitutionally protected activities.”[53] The surveillance and anti-stalking aspects of the bill were replaced with new provisions addressing false imprisonment and reckless driving.[54]

A.B. 2479, as enacted in fall 2010, ostensibly targets two problematic situations that occur when photographers seek photos of celebrities: 1) paparazzi follow celebrities in their cars in an effort to track the celebrities’ whereabouts, which sometimes leads to high-speed chases and collisions; and 2) paparazzi crowd a celebrity in such a manner that makes it difficult or impossible for him or her to move freely.[55] To combat the first problem, A.B. 2479 amended the California Vehicle Code, establishing additional criminal and financial penalties for reckless driving if one does so “with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose.”[56] Existing law punishes reckless driving with an infraction and jail time of 5 to 90 days or a fine between $145 and $1,000.[57] However, the new anti-paparazzi law punishes those driving recklessly with the intent to record with a misdemeanor, jail time up to six months, and a fine up to $2,500.[58] The penalties are harsher if a child is “placed in a situation in which the child’s person or health is endangered” due to reckless driving with the intent to record someone for a commercial purpose.[59] In those instances, the penalties include up to a year in jail and a fine up to $5,000.[60]

The second major change brought by A.B. 2479 sought to curb instances where paparazzi “surround stars and their families so that they have no possible means of escape.”[61] To accomplish this, the bill incorporated false imprisonment into the existing privacy statute, allowing for extra damages for false imprisonment committed with intent to capture a visual or audio impression of another person.[62] Though the new law did not provide a definition of false imprisonment, the legislative analysis noted that “presumably it would have the same meaning that it has at common law: that is, the intentional infliction of ‘confinement,’ with confinement defined as restricting a person to a confined physical space without any path of escape.”[63]

The City of Los Angeles, Screen Actors Guild, and Paparazzi Reform Initiative all offered support for the bill.[64] Supporters offered several examples of why the new legislation was needed:

Celebrities are routinely boxed-in when paparazzi (1) horde around an entranceway to a public facility to snap photographs; (2) park their cars in such a manner as to block-in a celebrity’s vehicle; (3) ram their cars into a celebrity’s car; (4) surround a celebrity in an airport or other public transportation facility; or (5) generally engage in aggressive conduct to significantly limit a celebrity’s freedom of movement.[65]

Opposing the bill was the California Newspaper Publishers Association (CNPA), arguing against the “extreme criminal penalties” that could face the “mainstream press.”[66] The CNPA feared a chilling effect on traditional newsgatherers due to the broad language of the bill.[67] Further, the CNPA argued that A.B. 2479 unfairly targeted journalists for heightened penalties related to reckless driving.[68]

Although A.B. 2479 transformed from a stalking and surveillance bill to a false imprisonment and reckless driving bill,[69] the constitutional concerns that prompted that transformation were not assuaged. The next section of this article discusses one potential First Amendment analysis of A.B. 2479.

III. FIRST AMENDMENT ANALYSIS OF A.B. 2479

As with the previous legislative efforts to combat aggressive paparazzi, A.B. 2479 once again falls short of the constitutional protections established by the First Amendment to the U.S. Constitution. This section considers the First Amendment implications of A.B. 2479 using a variety of potentially applicable doctrines: constitutional protections for newsgathering; overbreadth; vagueness; and strict scrutiny for content-based regulations.

A. Constitutional Protection for Newsgathering

The First Amendment provides explicit protections for a free press.[70] Does this mean the media gets special treatment? It depends. As a general rule, the U.S. Supreme Court has held that the press’ right of access is no greater than that of the general public.[71] However, newsgathering does warrant some degree of First Amendment protection, with the Supreme Court noting in Branzburg v. Hayes that “news gathering is not without its First Amendment protections . . . .”[72] In his dissenting opinion in Branzburg, Justice Stewart noted that “[n]ews must not be unnecessarily cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist.”[73] Justice Stewart’s view of the press clause of the First Amendment emphasized the media’s watchdog role, which he described as “precisely the function it was intended to perform by those who wrote the First Amendment of our Constitution.”[74]

Generally applicable laws, such as laws against reckless driving, are usually considered within the bounds of the First Amendment, even if their enforcement against the press might incidentally impact newsgathering.[75] The seminal case in this area is Cohen v. Cowles Media Co.[76] In Cohen, the Minneapolis Star-Tribune sought to prevent enforcement of a promissory estoppel judgment for breaching a promise of confidentiality to a source.[77] The U.S. Supreme Court held in favor of Cohen, drawing on the “well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”[78] In holding that the newspaper could not avoid liability on First Amendment grounds, the Court noted that promissory estoppel was a generally applicable law that did not “target or single out the press.”[79]

California’s law, however, takes a law of general applicability—reckless driving—and uses it to specifically single out the press for enhanced penalties.[80] While paparazzi are arguably not members of the “mainstream press,”[81] they are still engaged in the gathering and dissemination of information—visual images—and in many cases these photos are distributed by the mainstream media. Thus, if newsgathering is not protected from laws of general applicability but does indeed deserve some measure of First Amendment protections, it seems that the California law impermissibly targets the press’ newsgathering activities. California’s amended Civil Code specifically targets information gatherers (whether visual, audio, or other media).[82] This is inconsistent with the paltry First Amendment protection there is for newsgathering. Moreover, California’s law is patently unfair, especially considering the multitude of absurd scenarios that could result. For example, a photographer rushing to the scene of a disaster could conceivably receive harsher punishment than someone driving recklessly with the intent to murder someone, rob a bank, or worse. The potential for such results raises serious concerns about the chilling effects on the press and its ability to gather news.

The false imprisonment provision of A.B. 2479, which provides enhanced damages if someone commits the tort of false imprisonment in the course of an invasion of privacy,[83] also has the potential to chill newsgathering efforts. What if, for example, a crowd of television reporters surrounds a politician on the courthouse steps to question him about a “personal or familial matter”? If the politician is accused of sexually harassing a nanny, would this be a “personal or familial matter” wherein he should expect privacy protections? Although California’s invasion of privacy statute carries an exception that would apply to some investigative reporting—allowing public or private employees with “an articulable suspicion” of “illegal activity or other misconduct” or other activities “adversely affecting the public welfare, health or safety”—it is not clear whether this would apply to the scenario just described, leaving open the potential to chill newsgathering.[84]

B. Overbreadth

The broad sweep of the new provisions of A.B. 2479 and their potential chilling effects on the press, mainstream or otherwise, may be so broad that they could be declared facially invalid under the First Amendment doctrine of overbreadth, “whereby a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”[85] An overbreadth analysis consists of construing the statute to determine how far it might reach.[86] In the case of the reckless driving provision, photojournalists on their way to a disaster or emergency scene could be impacted by this law. Although the new law specifies that the intent to capture an image or recording must be done for “a commercial purpose,” this exception will not apply to newsgatherers, as most media outlets are for-profit.[87] The false imprisonment provision also poses risks for newsgathering not envisioned by lawmakers, such as the courthouse-steps scenario from the prior section.[88]

The paparazzi are a small segment of the population, creating the possibility for “a substantial number” of the law’s applications to be unconstitutional.[89] A Senate Judiciary Committee Analysis of the bill noted that “AB 2479, while laudable in its goals, could potentially have the effect of deterring the reporting of matters of genuine public importance or concern simply by potentially exposing reporters to increased liability and penalties during the newsgathering process.”[90] Thus, the potential for a significant number of the applications of A.B. 2479 to be unconstitutional makes the law particularly susceptible to invalidation under the overbreadth doctrine.

C. Vagueness

Closely related to the overbreadth doctrine is the vagueness doctrine, which analyzes the First Amendment validity of a regulation based on clarity and how well it puts the public on notice that a particular action will be subject to the penalties prescribed by the regulation.[91] The U.S. Supreme Court has noted that “‘[t]he threat of sanctions may deter . . . almost as potently as the actual application of sanctions.’ . . . The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against . . . .”[92] If a statute is so vague that parties potentially subject to its provisions are unsure of its applicability, it may be struck as facially invalid under the First Amendment.[93]

California’s invasion of privacy laws, particularly A.B. 2479, are subject to invalidation due to vagueness. It is unclear whether the press, in serving its traditional function as information-gatherer for the rest of the public, would fall under the purview of the new statutory provisions. The Vehicle Code amendments of A.B. 2479 do not have the “safeguards” of the privacy statute in that they do not even include the limiting provisions of “personal or familial activity” contained in the privacy section of the Civil Code.[94] While the “commercial purpose” language could potentially have been intended to distinguish between the paparazzi and the “mainstream press,”[95] the plain language interpretation would not appear to lend itself to such distinction.[96] Further, the U.S. Supreme Court recently cautioned against “the danger in putting faith in government representations of prosecutorial restraint.”[97]

Again, the throng of television news cameras and reporters on the courthouse steps, arguably an iconic image of the American press, is helpful in illustrating the potential chilling effects of the false imprisonment provision of A.B. 2479. The statute on its face does a poor job of putting people on notice of its application and, therefore, is susceptible to invalidation under the void for vagueness doctrine.

D. Content-Based Strict Scrutiny

Another potential basis for invalidating the provisions of A.B. 2479 on First Amendment grounds is the doctrine of using strict scrutiny to analyze content-based regulations on speech. “[A] law is content-based if either the main purpose in enacting it was to suppress or exalt speech of a certain content, or it differentiates based on the content of speech on its face.”[98] In passing A.B. 2479, as well as the previous legislative attempts at targeting paparazzi, California lawmakers have, in effect, unilaterally decided that photos and recordings of celebrities not engaged in their work is low-value speech. It is with disdain that lawmakers view “the public’s appetite to learn about even the most mundane details of the celebrities’ lives.”[99] The impetus behind A.B. 2479 was clearly to target specific types of newsgatherers, and implicit in the legislation is the understanding that celebrity news is not news.[100] Thus, the Legislature has decided what is newsworthy and valuable, not the press. Yet, as the U.S. Supreme Court noted in a 2010 decision:

Most of what we say to one another lacks “religious, political, scientific, educational, journalistic, historical, or artistic value” (let alone serious value), but it is still sheltered from government regulation. Even “wholly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons.”[101]

So while it might be tempting to dismiss all paparazzi activities as unimportant, they, too, deserve First Amendment protections.

Assuming the government has indeed targeted speech of specific content (in this case, “even the most mundane details of the celebrities’ lives”[102]), the next step in the First Amendment analysis is to determine whether the law is “narrowly tailored to promote a compelling Government interest.”[103] This analysis is undertaken bearing in mind that laws that are content-based “are presumptively invalid.”[104]

California’s statutory scheme relating to privacy, and, now, reckless driving, was enacted “to attempt to rein in overzealous and aggressive photographers and reporters . . . .”[105] The false imprisonment provision is aimed at limiting conduct that “significantly impairs a celebrity’s personal liberty and freedom of movement.”[106] The reckless driving provisions are presumably efforts to curb paparazzi-celebrity chases, speeding, and other aggressive driving behaviors on public highways.[107] Thus, it appears that the state has three interests: inhibiting the behavior of celebrity photographers, discouraging the false imprisonment of celebrities, and protecting both celebrities and the general public from reckless driving.[108] The U.S. Supreme Court has not recognized a compelling interest in either limiting the behaviors of photographers or protecting celebrities, and is highly unlikely to do so. The Court has, however, recognized a compelling government interest in public safety, which is an interest promoted by the government in passing A.B. 2479.[109]

Assuming the government can establish a compelling interest in enacting A.B. 2479, in protecting public safety, it would need to prove that the reckless driving and false imprisonment measures were the least restrictive means of accomplishing its goal.[110] Stated another way, there must be “no less restrictive alternatives that would further” the interests protected by the provisions of A.B. 2479.[111] The least restrictive alternatives by which the state could accomplish its objectives are easily found in existing law, which already punishes reckless driving[112] and allows for civil[113] and criminal[114] actions based on the tort of false imprisonment. In addition, other laws of general application, both statewide and local ordinances in the Hollywood area, already exist to curb the aggressive behaviors of some paparazzi, such as laws against sidewalk blocking, loitering, and traffic laws.[115] Perhaps Chief William J. Bratton of the Los Angeles Police Department put it best: “We already have appropriate laws within the constitutional guidelines and we intend to do that whether it is erratic driving, trespassing on private property or any action that goes beyond the constitutional rights to cover a story.”[116] Thus, even if a compelling interest could be found by a court considering the law, the provisions of A.B. 2479 are likely to fail strict scrutiny due to the existence of less restrictive alternatives.

IV. CONCLUSION

The concerns of a small but powerful group of constituents prompted California lawmakers to enact several pieces of legislation aimed at protecting the privacy of celebrities. Some of these measures are also aimed at preventing the general public from harm if caught in a paparazzi car chase. But, are the privacy rights of a select few properly elevated above the First Amendment guarantee of a free press? This question goes to the heart of the concerns surrounding California’s “anti-paparazzi” statutory scheme, which includes enhanced damages for photos and recordings obtained in a manner offensive to a reasonable person, stiff fines for first publishers of such photos, authorization for government attorneys to pursue civil privacy actions for wrongs to celebrities, and harsher fines and increased jail time for reckless driving with the intent to photograph.[117]

A.B. 2479, passed in 2010, is the third measure in five years aimed at paparazzi, despite little to no success of the previous enactments, which date back to 1998. The latest anti-paparazzi laws provide enhanced damages in false imprisonment suits related to privacy violations and tougher penalties (including increased fines and jail time) for reckless driving if the driver has “the intent to capture . . . any type of visual image, sound recordings, or other physical impression of another person for a commercial purpose . . . .”[118] These amendments, much like their predecessors, are inefficient and likely unconstitutional efforts to curb paparazzi. They do nothing more than existing, generally applicable laws to deter aggressive photographers except violate the First Amendment.

Applying a variety of First Amendment jurisprudential doctrines—constitutionally protected newsgathering, overbreadth, vagueness, and strict scrutiny—California’s latest anti-paparazzi measure falls short. It singles out celebrity photographers whose tactics, most would agree, are unwarranted and should be stopped. Existing laws, if properly enforced, can achieve this goal. Reckless driving, loitering, sidewalk blocking, and stalking are all laws of general applicability that can curb paparazzi. In taking steps further than these general laws, lawmakers seek to save the people from their “appetite to learn about even the most mundane details of the celebrities’ lives”[119] and, in the process, trample on the First Amendment.

Rather than haphazardly pass stopgap measures in order to draw praise from a powerful sect of constituents (and in the process open the government to costly First Amendment challenges), lawmakers might consider other measures, such as increased funding for law enforcement to properly enforce existing laws. This could help achieve the commendable interest of protecting public safety (whether for celebrities on the sidewalk or motorists on the highways) while preserving the First Amendment.

* Joseph L. and Marion B. Brechner Research Fellow, University of Florida. Member, State Bar of Georgia.

∞ Graduate research associate for the Marion B. Brechner First Amendment Project and student at the Fredric G. Levin College of Law at the University of Florida, Gainesville, Fla. B.A., 2006, Mass Communication, University of Central Florida; M.A., 2010, Mass Communication, University of Florida.

1. See Kelly Jane Torrence, Shutterbugged: Paparazzi’s Aggressiveness in Pursuit of Candid Celebrity Photos Risks Lives, Wash. Times, Jan. 11, 2008, at D1 (describing some of the paparazzi’s aggressive driving tactics that put lives at risk); see also Schwarzenegger Terminates Paparazzi, Sydney Morning Herald, (Oct. 23, 2009), http://www.smh.com.au/lifestyle/people/Schwarzenegger-terminates-paparazzi-20091023-hc1s.html (“Numerous Hollywood stars, including Paris Hilton, Nicole Richie and Halle Berry, have been involved in traffic collisions in recent years that allegedly involved paparazzi or their chases.”).

2. Schwarzenegger Signs Tougher Anti-Paparazzi Law, CBSNews.com, (Oct. 12, 2009), http://www.cbsnews.com/stories/2009/10/12/ap/extras/main5380372.shtml (“Tabloid magazines, TV shows and Internet sites sometimes pay millions of dollars for celebrity fodder.”); see also Schwarzenegger Terminates Paparazzi, supra note 1 (“Paparazzi are driven by prospects of big bucks—up to six-figure payoffs—for jaw-dropping images of tabloid stars from Angelina Jolie to Tom Cruise, Kristen Stewart and Taylor Lautner.”).

3. Paparazzo Definition, Merriam-Webster’s Collegiate Dictionary 840 (10th ed. 1993) (defining “paparazzo” as “a free-lance photographer who aggressively pursues celebrities for the purpose of taking candid photographs”).

4. See Anti-Paparazzi Bill Ready for Governor’s Blessing, Malibu Times, (Sept. 1, 2010), http://www.malibutimes.com/articles/2010/09/02/news/news3.prt.

5. See Assemb. B. 2479, 2009–2010 Leg., Reg. Sess. (Cal. Sept. 30, 2010) (enacted).

6. See Diana Death Brings Flash of Paparazzi Legislation, AllBusiness.com, (Sept. 3, 1997), http://www.allbusiness.com/services/motion-pictures/4893034-1.html [hereinafter Diana Death Brings Flash] (“Paris car crash sparked outcries Tuesday from lawmakers seeking new legislation to better protect celebrities from the dogged pursuit of paparazzi.”); see also John-Thor Dahlburg, Charges Dropped Against Paparazzi Implicated in Princess Diana Crash, L.A. Times, Sept. 4, 1999, at A6 (“Widespread fury rose quickly at the idea that the paparazzi might have hounded the popular and beautiful princess to her death, coolly snapping photos as life ebbed from her.”).

7. See Out of the Picture Now: Aggressive Paparazzi, Newsday, Jan. 1, 2006, at A13.

8. Assemb. B. 524, 2009–2010 Leg., Reg. Sess. (Cal. 2009) (enacted).

9. Id.

10. S. Judiciary Comm., B. Analysis, A.B. 2479, 2009-2010 Leg., Reg. Sess., at 1–2 (Cal. June, 22, 2010) (“Despite the enactment of these statutory remedies, there continues to be a flurry of news reports on the increasing tension between celebrities and photographers, which at times has escalated to the point of physical confrontations.”); see also Nicole LaPorte, The Do-Nothing Paparazzi Law, TheDailyBeast.com (Feb. 25, 2010), http://www.thedailybeast.com/blogs-and-stories/2010-02-25/the-do-nothing-paparazzi-law.

11. Penn was criminally charged with battery and vandalism for allegedly attacking a photographer in Los Angeles. Richard Winton, Penn Is Charged in Battery Case: Officials Say the Actor Kicked a Photographer and Broke His Camera, L.A. Times, Feb. 20, 2010, at A4.

12. Mad Men Star January Jones Won’t BAe Investigated in Crash, Carbonated.tv (June 11, 2010, 6:50:56 PM), http://www.carbonated.tv/entertainment/mad-men-star-january.

13. Alan Duke, Jodie Foster Is Suspect in Battery Against Teen, CNN.com (June 11, 2010), http://articles.cnn.com/2010-06-11/entertainment/jodie.foster.assault.probe_1_paparazzi-suspect-teen?-s=pm:showbiz.

14. See Will California’s New Anti-Paparazzi Law Unleash a Torrent of Law Suits?, Wall St. J. L. Blog (Oct. 14, 2009, 8:35 AM), http://www.blogs.wsj.com/law/2009/10/14will-california-new-anti-paparazzi-law-unleash-a-torrent-of-law-suits/.

15. Indeed, in a letter from the Radio Television Digital News Association to California Assemblyperson Karen Bass (D-Los Angeles) (sponsor of both A.B. 524 and A.B. 2479), the organization insisted the first publication law “would, among other things, unduly chill important speech and contravene the established right of news organizations to publish or broadcast images that are newsworthy or otherwise of public concern.” Letter from the Radio Television Digital News Ass’n to Cal. Assemb. Karen Bass (Aug. 19, 2009), http://www.rtnda.org/pages/media_items/rtnda-opposes-california-legislation-restricting-news-gathering1835.php; see also Courtney Reimer, California’s New Anti-Paparazzi Bill Allows Celebrities to Sue Publications, First Amendment Coalition (Oct. 13, 2009), http://www.firstamendmentcoalition.org/2009/10/californias-new-anti-paparazzi-bill-allows-celebrities-to-sue-publications. According to the Coalition:

While few would advocate the invasion of anyone’s privacy—celebrities or otherwise—this new law could be seen as an erosion of the First Amendment. Freedom of the press and libel laws thus far have been less restrictive of material concerning public figures, who are by nature of their business less subject to privacy laws.

See also Christina M. Locke, Does Anti-Paparazzi Mean Anti-Press?: First Amendment Implications of Privacy Legislation for the Newsroom, 20 Seton Hall. J. Sports & Ent. L. 227, 247 (2010) (“Privacy laws like California’s 2009 amendment to section 1708.8 of its civil code threaten the First Amendment, waste taxpayer resources, and pander to wealthy and politically influential celebrities.”).

16. Schwarzenegger, an actor prior to being elected governor of California, has had his own share of run-ins with the paparazzi. In 1998, two photographers were convicted of misdemeanor false imprisonment charges after an incident with Schwarzenegger and his family outside his son’s preschool. Robert W. Welkos, Paparazzi Guilty in Schwarzenegger Case, L.A. Times, Feb. 3, 1998, at B1.

17. Assemb. B. 2479, 2009–2010 Leg., Reg. Sess. (Cal. Sept. 30, 2010) (enacted).

18. Id. (codified as amended at Cal. Civ. Code § 1708.8 (West 2010)).

19. Assemb. Judiciary Comm., B. Analysis, A.B. 2479, 2009–2010 Leg., Reg. Sess., at 5 (Cal. Aug. 30, 2010). According to bill sponsor Assemblyperson Karen Bass:

[T]his bill is intended to curb the reckless and dangerous lengths that paparazzi will sometimes go in order to capture the image of celebrities. Of particular concern is the practice of surrounding a celebrity or the celebrity’s vehicle in a manner that does not permit an avenue of escape. In addition, paparazzi have allegedly engaged in dangerous and high-speed chases on the public highways in their efforts to capture photographs. The author contends that this kind of behavior is especially a problem in Los Angeles, with its high concentration of stars and celebrities.

20. Assemb. B. 2479, 2009–2010 Leg., Reg. Sess. (Cal. Sept. 30, 2010) (enacted) (codified as amended at Cal. Veh. Code § 23103 (West 2010)).

21. See, e.g., Craig R. Whitney, Diana Killed in Car Crash in Paris, N.Y. Times, Aug. 31, 1997 (Late Ed.) at A1; Ann O’Neill, Paparazzi Pursuit Was a Constant for Diana, L.A. Times, Aug. 31, 1997, at A9.

22. Diana Death Brings Flash, supra note 6.

23. After the death of Princess Diana, the Council of Europe modified the European Convention on Human Rights to broadly define privacy rights. Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 with Protocol Nos. 1, 4, 6, 7, 12 and 13, Nov. 1, 1998, 213 U.N.T.S. 222, available at http://www.echr.coe.int/nr/ rdonlyres/d5cc24a7-dc13-4318-b457-5c9014916d7a/0/englishanglais.pdf. In one notable case, Von Hannover v. Germany, the European Court of Human Rights found that Princess Caroline of Monaco’s privacy rights were violated when she was photographed during recreational pursuits. See Von Hannover v. Germany, 2004-VI Eur. Ct. H.R. 41, 44. A concurring judge in Von Hannover wrote that “courts have to some extent and under American influence made a fetish of the freedom of the press.” Id. at 78 (Zupancic, J., concurring); see also Patrick J. Alach, Comment, Paparazzi and Privacy, 28 Loy. L.A. Ent. L. Rev. 205, 220 (2008) (arguing that American law prioritizes the First Amendment over privacy rights while European law puts the two on equal footing).

24. Todd S. Purdum, Two Senators Propose Anti-Paparazzi Legislation, N.Y. Times, Feb. 18, 1998, at A16 (quoting one of the bill’s sponsors, Sen. Dianne Feinstein, as having said that the death of Princess Diana stimulated efforts to enact a law addressing the “increasingly aggressive cadre of fortune seekers with cameras”).

25. Diana Death Brings Flash, supra note 6.

26. See Protection From Personal Intrusion Act, H.R. 2448, 105th Cong. (1997); Privacy Protection Act of 1998, H.R. 3224, 105th Cong. (1998); Personal Privacy Protection Act, H.R. 4425, 105th Cong. (1998); Personal Privacy Protection Act, S. 2103, 105th Cong. (1998); see also Larysa Pyk, Putting the Brakes on Paparazzi: State and Federal Legislators Propose Privacy Protection Bills, 9 DePaul-LCA J. Art & Ent. L. & Pol’y 187, 193–97 (1998); Randall Boese, Redefining Privacy? Anti-Paparazzi Legislation and Freedom of the Press, 17 Comm. Law. 1, 23 (Summer 1999).

27. California Passes Law to Rein in Paparazzi, CNN.com, (Oct. 1, 1998), http://www.cnn.com/SHOWBIZ/Movies/9810/01/paparazzi.bill/index.html.

28. Dahlburg, supra note 6.

29. Cal. Civ. Code § 1708.8(a)–(b) (West 2009).

30. Id. § 1708.8(b). The statute was essentially a codification and expansion of Prosser’s common law tort of intrusion. The concept of an individual right of privacy originated in an 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis. See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). Prosser, in a 1960 law review, articulated four types of invasion of privacy: intrusion; public disclosure of private facts; false light in the public eye; and appropriation. These were subsequently included in the Restatement (Second) of Torts. William L. Prosser, Privacy, 48 Calif. L. Rev. 383, 389 (1960); Restatement (Second) of Torts § 652A–E (1977).

31. See, e.g., Kelli Sager & Randall Boese, Redefining Privacy in California? The “Anti-Paparazzi Legislation,” Mondaq.com (July 13, 2001), http://www.mondaq.com/unitedstates/article.asp?articleid=12654.

32. Id.

33. Id.

34. Assemb. B. 381, 2005–2006 Leg., Reg. Sess. (Cal. 2005) (enacted).

35. Id.; see Civ. § 1708.8(d).

36. Assemb. B. 381, 2005–2006 Leg., Reg. Sess. (Cal. 2005) (enacted); see Civ. § 1708.8(d).

37. See Steve Lawrence, Governor Signs Paparazzi Bill, Long Beach Press-Telegram, Oct. 1, 2005, at A18; Sandy Cohen, Anti-Paparazzi Law Raises Constitutional Concerns, San Jose Mercury News, Dec. 31, 2005, at B5.

38. See, e.g., Harriet Ryan, Paparazzo, Actor Keanu Reeves Testify in Court, L.A. Times, Oct. 29, 2008, at B5; Andrew Blankstein, At LAX, Celebs Deal with Excess Baggage: Paparazzi; Kanye West Lands in Jail After a Scuffle With Two Photographers, L.A. Times, Sept. 12, 2008, at A1; Ari B. Bloomekatz, Paparazzo Says Surfers Accosted Him in Malibu: Photographer Trying to Get Shots of Matthew McConaughey at the Beach Says a Camera was Tossed into the Ocean, L.A. Times, June 23, 2008, at B3; Richard Winton, Paparazzo Fails to Come to Court: Warrants are Issued for Todd K. Wallace, Who is Wanted in a Child Endangerment and Battery Case Involving Reese Witherspoon, L.A. Times, Jan. 5, 2006, at B3.

39. Assemb. B. 524, 2009–2010 Leg., Reg. Sess. (Cal. 2009) (enacted).

40. S. Rules Comm., B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 5 (Cal. Aug. 27, 2010).

41. Civ. § 1708.8(f)(1).

42. Id. § 1708.8(a).

43. See Bartnicki v. Vopper, 532 U.S. 514, 517–18 (2001); Florida Star v. B.J.F., 491 U.S. 524, 541 (1989); Landmark Comm. v. Virginia, 435 U.S. 829, 843 (1978); N.Y. Times v. United States, 403 U.S. 713, 714 (1971).

44. Assemb. B. 524, 2009-2010 Leg., Reg. Sess. (Cal. 2009) (enacted).

45. Id.

46. Id.

47. Assemb. B. 2479, 2009–2010 Leg., Reg. Sess. (Cal. Feb. 19, 2010) (enacted).

48. S. Rules Comm., B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 5 (Cal. Aug. 27, 2010).

49. Assemb. B. 2479, 2009–2010 Leg., Reg. Sess. (Cal. 2010) (as amended Apr. 28, 2010).

50. Id.

51. Legislation, The Paparazzi Reform Initiative, http://www.paparazzi-reform.org/legislation/ (last visited Jan. 9, 2011).

52. Assemb. Floor, B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 3 (Cal. May 13, 2010) (noting that according to Bass, the bill would “prevent paparazzi from loitering outside of a celebrity’s home or place of work”).

53. S. Rules Comm., B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 6–7 (Cal. Aug. 26, 2010).

54. Id. at 4–5.

55. Assemb. B. 2479, 2009–2010 Leg., Reg. Sess. (Cal. Sept. 30, 2010) (enacted) (codified as amended at Cal. Veh. Code § 40008 (West 2010)).

56. Id.

57. Cal. Veh. Code § 23103(c) (West 2010).

58. Assemb. B. 2479, 2009–2010 Leg., Reg. Sess. (Cal. Sept. 30, 2010) (enacted) (codified as amended at Veh. § 40008(a)).

59. Id. (codified as amended at Veh. § 40008(b)).

60. Id.

61. Assemb. Comm. on Judiciary, B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 1 (Cal. Aug. 30, 2009).

62. Id. at 2.

63. Id. at 4.

64. S. Rules Comm., B. Analysis, supra note 53, at 5–6.

65. Id. at 6.

66. Assemb. Comm. on Judiciary, B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 5 (Cal. Aug. 30, 2010).

67. Id.

68. Id. at 5–6. In a letter of opposition to Assemblyperson Bass, the CNPA stated that “[t]he chilling impact of this proposed language is palpable” and warned that it “would create the potential for extreme criminal penalties for members of the mainstream press in transit to any number of emergency scenes or any scene in which news is happening.” Late Amendment Would Criminalize Normal Newsgathering, CNPA (Aug. 23, 2010) http://www.cnpa.com/full_story.cfm?id=2225.

69. See S. Rules Comm., B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 5 (Cal. Aug. 27, 2010).

70. U.S. Const. amend. I.

71. See, e.g., Margaret Blanchard, The Institutional Press and Its First Amendment Privileges, 1978 Sup. Ct. Rev. 225, 290 (1978) (analyzing the rejection of Justice Powell’s theory that the press’ right to information should be greater than the public’s right to access).

72. Branzburg v. Hayes, 408 U.S. 665, 707 (1972).

73. Id. at 728 (Stewart, J., dissenting); see also Nicholson v. McClatchy Newspapers, 223 Cal. Rptr. 58, 63 (App. Ct. 1986).

74. Potter Stewart, Or of the Press, 26 Hastings L.J. 631 (1975).

75. See, e.g., Cohen v. Cowles Media Co., 501 U.S. 663 (1991).

76. Id.

77. Id. at 665.

78. Id. at 669; see also Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971) (supporting the proposition that the First Amendment does not “accord newsmen immunity from torts or crimes committed during the course of newsgathering”); Galella v. Onassis, 487 F.2d 986, 995–96 (2d Cir. 1973) (stating that the First Amendment does not create a “wall of immunity protecting newsmen from any liability for their conduct while gathering news”).

79. Cohen, 501 U.S. at 664.

80. See Assemb. B. 2479, 2009-2010 Leg., Reg. Sess. (Cal. Sept. 30, 2010) (enacted) (codified as amended at Cal. Veh. Code § 40008(a)–(b) (West 2010)).

81. Assemb. Comm. on Judiciary, B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 5 (Cal. Aug. 30, 2010).

82. Id. (codified as amended at Cal. Civ. Code § 1708.8(a)–(c) (West 2009).

83. Id. (codified as amended at Civ. § 1708.8(c)–(d)).

84. Civ. § 1708.8(g).

This section shall not be construed to impair or limit any otherwise lawful activities of law enforcement personnel or employees of governmental agencies or other entities, either public or private who, in the course and scope of their employment, and supported by an articulable suspicion, attempt to capture any type of visual image, sound recording, or other physical impression of a person during an investigation, surveillance, or monitoring of any conduct to obtain evidence of suspected illegal activity, the suspected violation of any administrative rule or regulation, a suspected fraudulent insurance claim, or any other suspected fraudulent conduct or activity involving a violation of law or pattern of business practices adversely affecting the public health or safety.

85. United States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008)).

86. See id. (quoting United States v. Williams, 553 U.S. 285, 293 (2008)).

87. See Assemb. B. 2479, 2009–2010 Leg., Reg. Sess. (Cal. Sept. 30, 2010) (enacted) (codified as amended at Veh. § 40008(a)–(b)).

88. See supra Part III.A.

89. Stevens, 130 S. Ct. at 1587.

90. S. Judiciary Comm., B. Analysis, Assemb. B. 2479, 2009-2010 Leg., Reg. Sess., at 7–8 (Cal. June 22, 2010).

91. See, e.g., Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 603–04 (1967) (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963) and Speiser v. Randall, 357 U.S. 513, 526 (1958)).

92. Id. at 604 (quoting N.A.A.C.P., 371 U.S. at 433).

93. See, e.g., id.

94. Assemb. B. 2479, 2009–2010 Leg., Reg. Sess. (Cal. Sept. 30, 2010) (enacted) (codified as amended at Veh. § 40008(a)–(b)); c.f. Civ. § 1708.8(a)–(b), (l).

95. Assemb. Comm. on Judiciary, B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 5 (Cal. Aug. 30, 2010).

96. Assemb. B. 2479, 2009-2010 Leg., Reg. Sess. (Cal. Sept. 30, 2010) (enacted) (codified as amended at Veh. § 40008(a)–(b)).

97. Stevens, 130 S. Ct. at 1591 (invalidating a federal statute banning depictions of animal cruelty and noting that it “would not uphold an unconstitutional statute merely because the Government promised to use it responsibly”).

98. Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 958 (9th Cir. 2009) (quoting Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dep’t, 533 F.3d 780, 787 (9th Cir. 2008)).

99. S. Rules Comm. B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 5 (Cal. Aug. 26, 2010).

100. See, e.g., Assemb. Judiciary Comm., B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 5 (Cal. Aug. 30, 2010).

101. Stevens, 130 S. Ct. at 1591 (citing Cohen v. California, 403 U.S. 15, 25 (1971)).

102. S. Rules Comm. B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 5 (Cal. Aug. 26, 2010).

103. United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

104. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

105. S. Rules Comm. B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 4 (Cal. Aug. 26, 2010).

106. S. Judiciary Comm., B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 5 (Cal. June 22, 2010).

107. Id.

108. See id.

109. United States v. Salerno, 481 U.S. 739, 755 (1987) (“[T]hat primary concern of every government—a concern for the safety and indeed the lives of its citizens . . . .”); see, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

110. See, e.g., Playboy Entm’t Grp., Inc., 529 U.S. at 813.

111. Video Software Dealers Ass’n, 556 F.3d at 958 (citing Playboy Entm’t Grp., Inc., 529 U.S. at 813).

112. Cal. Veh. Code § 23103 (West 2010).

113. See, e.g., City of Newport Beach v. Sasse, 88 Cal. Rptr. 476, 482 (Ct. App. 1970); Scofield v. Critical Air Med., Inc., 52 Cal. Rptr. 2d 915 (Ct. App. 1996).

114. Cal. Penal Code §§ 236-237 (West 2010).

115. See Richard Winton & Andrew Blankstein, Deputies Arrest Four in Crackdown on Paparazzi, L.A. Times, Feb. 21, 2008, at B3.

116. Andrew Blankstein & Richard Winton, Zine Seeks to Shield Stars: Reacting to the Need for a Police Escort for Britney Spears, the Councilman Wants a “Personal Safety Zone,” L.A. Times, Feb. 2, 2008, at B5.

117. See Cal. Civ. Code § 1708.8(a) (West 2009); Assemb. B. 2479, 2009–2010 Leg., Reg. Sess. (Cal. Sept. 30, 2010) (enacted) (codified as amended at Cal. Veh. Code § 40008(a)–(b) (West 2010)).

118. Assemb. B. 2479, 2009–2010 Leg., Reg. Sess. (Cal. 2010) (enacted) (codified as amended at Cal. Veh. Code § 40008(a)–(b)).

119. S. Rules Comm., B. Analysis, Assemb. B. 2479, 2009–2010 Leg., Reg. Sess., at 5 (Cal. Aug. 26, 2010).

NOTES & COMMENTS

VIACOM V. YOUTUBE: AN ERRONEOUS RULING BASED ON THE OUTMODED DMCA

YouTube is currently the largest video website on the Internet. Although YouTube is often aware of the existence of infringing videos on its website, it only takes down such videos when copyright owners notify YouTube that a specific video is unauthorized. This policy prompted Viacom International to file a one billion dollar copyright infringement lawsuit against YouTube in the United States District Court for the Southern District of New York. On June 23, 2007, the court dismissed all charges against YouTube, holding that the Digital Millennium Copyright Act (DMCA) shielded the company from liability. This article argues that the court’s holding was erroneous because it misapplied several ambiguous provisions in the DMCA at critical junctures of its analysis. This article therefore proposes legislative amendments to the DMCA, and argues that the decision must be reversed on appeal in order to adequately protect the rights of copyright owners.

I. INTRODUCTION

You log on to your Facebook[1] account. Your News Feed pops up and you notice that your best friend just posted a new music video of your favorite band.[2] You click the link provided and are redirected to the YouTube website.[3] A video starts playing. You watch the entire video, and several others that are recommended to you by YouTube, but never pause to think whether these videos were uploaded by their rightful owner. As a matter of fact, you do not even care who uploaded the videos. You are simply enjoying the moment. You share this enjoyment with millions of others who are able to watch music videos, television series, concerts, and more, free of charge and at the click of a button. On the other hand, YouTube also enjoys having you and millions of others visit its site because it derives substantial revenue from advertisers.[4] Nonetheless, while this enjoyment seems to be shared by all, one party is often excluded from it. It is the key party who actually created the enjoyment—the owner of the copyrighted video.

In 2005, Chad Hurley, Steve Chen, and Jawed Karim founded YouTube, Inc.[5] Working out of a small office above a pizzeria and a Japanese restaurant,[6] one could hardly imagine that they were designing what has now become the largest video website on the Internet.[7] However, when Google, Inc. (“Google”) purchased the company for $1.65 billion worth of Google stock only a year after it was founded,[8] the three surely knew they created something special. While the sum paid may have seemed high for a newly-emerging company,[9] Google executives likely foresaw YouTube’s enormous success. As of June 2010, it is estimated that approximately twenty-four hours of video is uploaded onto YouTube every minute, and the average person spends at least fifteen minutes a day on the YouTube website.[10] Moreover, while it was estimated in October 2009 that YouTube attracted one billion views per day, by May of 2010, this number had doubled.[11] Apparently, one factor that greatly contributed to YouTube’s success was the increasing popularity of online file-sharing during the last two decades.[12]

File-sharing is defined as “the practice of distributing or providing access to digitally stored information, such as computer programs, multi-media (audio, video), documents, or electronic books.”[13] Two common platforms that enable individuals to share their files across the Internet are “file-hosting websites” and “peer-to-peer” (“P2P”) networks.[14] File-hosting websites[15] enable users to upload files onto online servers.[16] Once uploaded, these files are stored and assigned a link with a specific Internet address (“URL”).[17] The person who originally uploaded the file (“uploader”) can then share this link with people whom the uploader chooses, allowing them to view and/or save the uploaded file onto their personal computers.[18] If the files are not set as “private” by the uploader, they become searchable and can also be viewed and/or saved by the public.[19]

Additionally, Internet users can share files via P2P networks.[20] Using this method, individuals use specific software[21] to connect to a central network and search for files located on the computers of other users (“peers”) also connected to the network.[22] Files can then be transferred between the computers of peers.[23] Although P2P networks and file-hosting websites are competitors, file-hosting websites have become more popular in recent years.[24] The reason for this popularity is that these websites are simpler to use than P2P networks, they do not require the use of separate software to connect and download files, and they are almost always free of charge.[25]

Although file-hosting websites allow users to upload many types of files,[26] YouTube only permits its users to upload video files.[27] However, YouTube provides one major benefit to its users which many other file-hosting websites do not: users can view uploaded videos without the need to first download them.[28] This permits users to view videos instantaneously and from almost any computer that has Internet access.[29] Furthermore, although YouTube requires users to register to its site before allowing them to upload videos, registration is free and not required to view videos.[30] As a result, YouTube attracts an astonishing number of visitors on a daily basis, which is estimated to be “nearly double the prime-time audience of all three major U.S. television networks combined.”[31] However, the freedom to use YouTube for the purposes of sharing videos has also led to legal issues concerning copyright infringement.[32]

YouTube, like other file-hosting websites, is frequently the target of legal challenges because of illegally uploaded and shared material stored on its servers.[33] Although many file-hosting websites mention in their Terms of Service that users are only allowed to upload files for which they retain all ownership rights,[34] users often violate these terms by uploading content that does not belong to them.[35] Since YouTube only allows its users to upload video files, copyright infringement occurs when copyrighted music videos, television shows, commercials, and movies are uploaded onto YouTube without permission from the copyright owners.[36] YouTube contains a very large amount of such unauthorized content.[37] For instance, a simple search of a popular television show on YouTube often leads to dozens of copyrighted videos that were uploaded without the copyright owner’s permission.[38] However, despite the large number of unauthorized videos on its website, YouTube does not independently take down these videos until it is informed of an infringement by the copyright owners.[39] As a result of this practice, YouTube has been a prime target in the global fight against copyright infringement and has been sued by multiple entities for copyright infringement based on claims that YouTube knowingly misappropriated their intellectual property.[40]

The most notable lawsuit against YouTube for copyright infringement was filed by Viacom International Inc. in 2007.[41] Seeking one billion dollars in damages, Viacom alleged that YouTube knowingly and intentionally allows the exploitation of Viacom’s intellectual property for YouTube’s own benefit, and that YouTube derives substantial profits via its vast library of unauthorized copyrighted content.[42] In essence, the lawsuit raised the issue of whether YouTube is to be held responsible for independently monitoring and policing copyright content stored on its site, or whether this burden should fall on copyright owners.[43] On June 23, 2010, Justice Louis L. Stanton granted YouTube’s motion for summary judgment and held that the company was protected under the Digital Millennium Copyright Act (“DMCA” or “the Act”).[44]

Through the lens of the lawsuit and its decision, Part II of this article provides a background on several copyright infringement theories that served as the basis for Viacom’s claims against YouTube. Part III explores the arguments made by each party, sets forth the court’s opinion, and points to multiple errors in its reasoning. Finally, Part IV advocates that Congress should revise the DMCA to help copyright owners with the burden of protecting their intellectual property.

II. BACKGROUND: THEORIES OF COPYRIGHT LAW

Legal issues concerning copyright law began with the release of the printing press, since the new invention allowed for a rapid and widespread circulation of ideas resulting from the ability to create multiple exact copies of written work.[45] Although copyright law initially applied exclusively to print material (primarily books), it now applies to a much wider range of works including maps, paintings, photographs, music, motion pictures, and computer software.[46] Since file-hosting websites often store such copyrighted content, it seems unavoidable that they would find themselves in the center of litigation.

Such litigation most often begins with § 106 of the Copyright Act.[47] While defendants who violate one of the exclusive rights codified in this section are said to be in “direct infringement,” defendants who do not violate one of these rights may also be found to be in violation of the Act if they engage in “secondary infringement.”[48] However, alleged copyright infringers could be shielded from liability by § 107 of the Copyright Act[49] and/or by the “safe harbor” provisions of the Digital Millennium Copyright Act (“DMCA” or “the Act”).[50]

A. Direct Infringement

An entity commits direct infringement if it is found to have violated any of the exclusive rights granted to a copyright owner pursuant to § 106 of the Copyright Act.[51] Under this section, the copyright owner is given the exclusive right “to reproduce the copyrighted work,” “to prepare derivative works based upon the copyrighted work,” to distribute copies of the copyrighted work, and to perform and/or display the copyrighted work publicly.[52] There are two basic elements that must be satisfied to prove direct infringement: ownership and copying of a protectable expression.[53]

Normally, the requirement to prove ownership of a copyrighted work is easily satisfied, since all that the copyright owner must do is “introduc[e] the copyright registration [into] evidence.”[54] However, in litigation involving online services, the second requirement is much harder to satisfy because it demands that there “be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying” leading one to conclude that the online service itself violated the copyright owner’s exclusive rights.[55] More simply put, a plaintiff who brings a direct infringement suit against an online service like YouTube will have to show that when users upload and/or view infringing files, the online service’s involvement is so direct that it is as if the online service itself is engaging in the infringement.[56] Since online services do not upload content but simply provide the mechanism that enables users to do so, direct infringement by an online service may be difficult to prove.[57]

In addition, § 107 of the Copyright Act provides a defense against direct infringement claims, providing that “the fair use of a copyrighted work . . . is not an infringement of copyright.”[58] The codified section is based on Justice Story’s opinion in Folsom v. Marsh.[59] In Folsom, the defendant produced a two-volume biography of George Washington by copying 353 pages from the plaintiff’s twelve-volume version of the biography.[60] The plaintiff brought suit for copyright infringement, and the court rejected the defendant’s fair use defense after considering the following factors: “the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”[61] The codified version of this test now provides that in order to prove “fair use,” the following factors must be considered: “(1) the purpose and character of the use; . . . (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or the value of the copyrighted work.”[62] The fair use defense is “intended to allow the use of copyright-protected works for commentary, parody, news reporting, research and education.”[63] The defense is supported by the idea that “copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.”[64]

The first factor, “the purpose and character of the use,”[65] has two primary facets: whether the use serves a commercial purpose and whether the use is transformative.[66] In essence, the underlying question of the inquiry into commercial purpose is whether the alleged infringer “stands to profit from exploitation of the copyrighted material without paying the customary price.”[67] The transformative facet of the inquiry then asks whether the work for which the copyrighted content was used added “something new, with a further purpose or different character, altering the [copyrighted work] with new expression, meaning, or message.”[68] In other words, to “promote science and the useful arts,”[69] the fair use doctrine provides an exception for the use of a copyrighted work if the goal of using the work is to contribute something new to society or to convey a new message to the world.[70]

The second factor of the analysis, inquiring into “the nature of the copyrighted work,”[71] recognizes that a work that is creative in nature deserves greater protection against infringement than work that is derivative or based on facts.[72] Thus, the use of a creative copyrighted work weighs against fair use, while the use of copyrighted work that was created by factual compilation weighs in favor of fair use.[73]

The third factor in the analysis, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,”[74] is also examined by courts to determine if a defendant is protected by the fair use doctrine.[75] Although “there are no absolute rules as to how much of a copyrighted work may be copied and still considered a fair use,”[76] the court in New Era Publications v. Carol Publishing Group[77] gave some clues by holding that a use is unfair when the material taken is at the “heart” of a copyrighted work.[78] Thus, in order to analyze this third factor, courts will refer to the portion of the work used by the alleged infringer in order to determine whether it was at the “heart” of the copyrighted work.[79]

The last factor, “the effect of the use upon the potential market for or value of the copyrighted work”,[80] is often regarded as the most important factor in the analysis.[81] To analyze this fourth factor, courts “consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market” of the copyrighted work.[82] Therefore, courts will analyze the harm that was caused by the specific infringing actions of the defendant, as well as the negative market impact that may result if the sort of conduct that the defendant engaged in were left unrestricted.

B. Secondary Infringement

Adopted from common law principles, secondary infringement theories arose as a result of courts’ acknowledgment that liability for copyright infringement should also be imposed for the “infringing acts of another without direct involvement or knowledge of the actual copying.”[83] The concept of secondary infringement liability was first enunciated in Gross v. Van Dyk Gravure Co.,[84] where the court held “the maker, printer, and seller of an infringing photograph jointly liable for the complainant’s damages.”[85] The court supported its decision by stating: “Why all who unite in an infringement are not, under the statute, liable for the damages sustained by plaintiff, we are unable to see.”[86]

Currently, there are three common theories of secondary infringement: “contributory infringement,” “vicarious infringement,” and the most recent theory, known as the “inducement rule.”[87] To prove secondary infringement under any of these theories, a plaintiff must first prove that someone (other than the defendant) “has committed direct infringement and that the defendant facilitated the infringement.”[88] Online services like YouTube are more likely to be secondary infringers than direct infringers, because they solely provide a platform that facilitates the distribution of copyrighted content and do not engage in uploading infringing content themselves.[89]

1. Contributory Infringement

Contributory infringement occurs when an entity “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.”[90] The Supreme Court has defined a contributory infringer as one who “was in a position to control the use of copyrighted works by others and had authorized the use without permission from the copyright owner.”[91] For example, in A&M Records, Inc. v. Napster, Inc., the district court found that Napster, a creator of P2P file-sharing software, was liable for contributory infringement.[92] The court held that Napster had actual knowledge that specific infringing material was available using its system, that it was able to block access to the system by the suppliers of the infringing content, and that it failed to remove the unauthorized content even though it had the power to do so.[93] In a more recent case, Perfect 10, Inc. v. Amazon.com, Inc., the Ninth Circuit held that a defendant can be liable under contributory infringement if it has knowledge that infringing materials are available on its system and “can take simple measures to prevent further damage to copyrighted works, yet continues to provide access to infringing works.”[94] Thus, to prove a claim of contributory infringement, the plaintiff would have to show that the defendant had knowledge of the infringing activity and actively participated in the infringement by inducing, allowing, or contributing to it.

2. Vicarious Infringement

Vicarious infringement, which derives from the tort theory of respondeat superior,[95] is based on the idea that one may be vicariously liable for the acts of another “if he has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities.”[96] The basis for the theory is that “when the right and ability to supervise coalesce with an obvious and direct financial interest in the exploitation of copyrighted material—even in the absence of actual knowledge that the copyright monopoly is being impaired”—the purposes of copyright law are best effectuated by imposing liability on the person that benefits from the exploitation.[97] Therefore, to be liable under the theory of vicarious liability, a defendant must have a financial interest in the infringement and the right and ability to supervise the infringing activity.

A defendant will have a financial interest when the availability of infringing material acts as a “draw” for its customers, even if the defendant does not derive a financial gain by, for example, charging a fee for its services.[98] Courts will then look at different factors to determine whether the defendant had the right and ability to supervise the infringing activity.[99] One such factor is the ability of the defendant to block infringers’ access at its discretion.[100] Another factor is the capacity of the defendant to get hold of technology that will assist in defending against infringers and in monitoring infringing content.[101] In Perfect 10, the court held that the defendant did not have the power to monitor infringing content, since it did not have the required technology to compare all the images in the world and “determine whether a certain image on the web infringe[d] someone’s copyright.”[102] On the other hand, the court in Napster held that the defendant did have the ability to supervise an infringing activity simply because it was capable of locating infringing materials listed on its search indices.[103] Judging by the two decisions, it seems that courts are likely to find that a defendant had the ability to supervise an infringing activity if a simple search within its system could reveal the infringing content. However, if minimal effort does not reveal ongoing infringement, the defendant will likely not be held liable.

3. The Inducement Rule

The inducement rule was articulated by the Supreme Court in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.[104] The rule provides that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”[105] In Grokster, the defendants developed and distributed free P2P software that allowed users to exchange electronic files by communicating directly with each other rather than through central servers.[106] In return, the defendants generated revenues by selling advertising space.[107] A group of copyright holders brought suit against the defendants, alleging that they knowingly and intentionally distributed their software to enable users to reproduce and distribute copyrighted works.[108] The Supreme Court adopted the inducement rule, previously used in patent law claims,[109] and ruled in favor of the plaintiffs.[110] The Court decided to adopt the new rule in order to hold defendants accountable for copyright infringement even if they do not remain directly involved with it, but simply provide a platform that enables the unlawful exchange of copyrighted content.[111] To find a defendant liable under the inducement rule, the plaintiff would have to show that the defendant has “provable specific intent to infringe.”[112] The Supreme Court specifically held that “mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. . . . [T]he inducement rule, instead, premises liability on purposeful, culpable expression and conduct.”[113]

C. The Digital Millennium Copyright Act

The Digital Millennium Copyright Act[114] (“DMCA” or “the Act”) was enacted in 1998 with the purpose of “bringing U.S. copyright law squarely into the digital age” and facilitating the “robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age.”[115] Since the Act seeks to encourage investment in the expansion of the speed and capacity of the Internet, its safe harbor provisions limit the liability of Internet service providers for certain acts that could otherwise expose them to copyright infringement liability.[116] If an Internet service provider qualifies for any of the safe harbors enumerated in the DMCA, it becomes immunized from claims of direct and secondary infringement.[117] Section 512(c) of the Act is the most relevant to online services such as YouTube, providing them with immunity against copyright infringement claims so long as several requirements are met.[118]

First, the defendant must establish that it is a “service provider.”[119] The Act defines a service provider as an “entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.”[120]

Second, if the defendant is found to be a service provider, the defendant must show that it lacked actual knowledge of the infringing material on its system[121] and awareness “of facts or circumstances from which infringing activity is apparent.”[122] In cases involving online services, service providers often obtain knowledge and awareness of ongoing infringement by notifications from the copyright owners.[123] Nonetheless, even if service providers are found to have knowledge or awareness, they could still be shielded by the Act if they act rapidly to eliminate or disable access to the infringing material.[124] As the legislature explained, the DMCA will not protect service providers that “turn[] a blind eye to ‘red-flags’ of obvious infringement.”[125]

Third, the service provider must not receive “financial benefit directly attributable to the infringing activity” if it has the “right and ability to control” that activity.[126] Legislative history suggests that service providers who conduct legitimate business are not considered to have received a financial benefit attributable to the infringing activity.[127] However, in Fonovisa, Inc. v. Cherry Auction, Inc.,[128] the Ninth Circuit held that direct financial benefit exists when “infringing performances enhance the attractiveness of the venue to potential customers.”[129] Conversely, the district court in Costar Group, Inc. v. Loopnet, Inc.,[130] refused to apply such a broad standard, holding that the financial benefit must be derived particularly because of the infringing content.[131] Nonetheless, a finding of financial benefit does not bar DMCA protection if the service provider does not have the “right and ability to control” the infringing activity.[132]

Courts have also been in disagreement when analyzing this requirement. In Hendrickson v. eBay, Inc., the court held that the mere ability of a service provider to remove or block access to materials posted on its website or stored in its system is not sufficient to prove the right and ability to control.[133] Additionally, the court in UMG Recordings, Inc. v. Veoh Networks, Inc. (“Veoh”)[134] held that the power of a service provider to remove content after it has been uploaded is insufficient to establish the right and ability to control the infringing activity.[135] However, the court in A&M Records, Inc. v. Napster, Inc.[136] found that Napster satisfied the “control” element simply because it reserved to itself the right “to refuse service and terminate accounts . . . for any reason in Napster’s sole discretion, with or without cause.”[137]

Finally, in order to be shielded from liability by the DMCA, the service provider must respond “expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity” upon notification of an infringement.[138] The DMCA makes the service provider responsible for designating an agent in charge of receiving notifications of infringement and make available the agent’s contact information in the Copyright Office and the service provider’s website.[139] As for the notification itself, the DMCA requires that a notification of claimed infringement be a written communication.[140] This communication must include: (1) “a physical or electronic signature of a person authorized to act on behalf of the [copyright] owner;”[141] (2) a list of the copyrighted works including the location of the work on the website claimed to have been infringed;[142] and (3) a statement on behalf of the copyright owner that it has a good faith belief that the “use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”[143]

III. ANALYSIS OF THE VIACOM V. YOUTUBE LITIGATION

A. The Parties’ Arguments

On March 13, 2007, entertainment giant Viacom filed a one billion dollar copyright infringement lawsuit against YouTube, and its parent company Google, in the United States District Court for the Southern District of New York.[144] Viacom, the owner of numerous television channels and motion picture labels,[145] claimed three counts of direct copyright infringement (public display, performance, and reproduction) and three counts of secondary copyright infringement (inducement, contributory infringement, and vicarious infringement).[146]

In its complaint, Viacom argued that YouTube knowingly and intentionally allowed users to upload and view infringing videos on its website.[147] Viacom alleged that YouTube chose “not to take reasonable precautions to deter the rampant infringement on its site” because it directly profited from the availability of those videos.[148] Viacom sought redress because it believed that YouTube’s “rampant infringement,” if left unchecked, would threaten Viacom and “other companies that generate creative works” as well as the “livelihoods of those who work in and depend upon these companies.”[149]

YouTube filed a motion for summary judgment claiming that it was shielded from all direct and secondary infringement claims under the Digital Millennium Copyright Act (“DMCA” or “the Act”),[150] because it “readily satisfie[d] the [Act’s] threshold conditions for protection under Section 512(c).”[151] First, YouTube explained that it is a “service provider” as defined by the DMCA.[152] It argued that previous courts have held that § 512(c) applies not only to the mere storage of materials, but also to online file-hosting services.[153] YouTube then explained that it had registered a designated DMCA agent with the Copyright Office to receive notices of claimed infringement,[154] and adopted as well as informed its users about a termination policy for repeat-infringers.[155]

Viacom argued that § 512(c) should not immunize YouTube from liability because YouTube did not disable access to Viacom’s copyrighted videos for which it did not receive DMCA notification.[156] However, YouTube argued that it was required to act only when it had knowledge of specific infringement.[157] YouTube maintained that Viacom’s own use of YouTube to upload videos, and its decision to deliberately “leave-up” some copyrighted videos, negated any argument that the appearance of Viacom’s content on the website alone indicated obvious infringing activity.[158] Moreover, due to complex licensing schemes and co-ownership arrangements of videos, YouTube argued that without receiving DMCA takedown notices, it would be nearly impossible to determine whether the presence of a specific clip on the site is authorized.[159] YouTube also argued that it acted “expeditiously” to remove or block access to videos whenever it received DMCA notifications of infringement.[160]

Finally, YouTube maintained that it lacked the ability to control the alleged infringing activity and that it did not receive a financial benefit directly attributable to infringement on its website.[161] YouTube alleged that it had no control over infringing activity despite having the ability to terminate user accounts and remove or block access to uploaded content.[162] YouTube added that even if it is found to have the right and ability to control the specific infringing activity, it is still entitled to DMCA protection because it does not derive direct financial benefit from infringement.[163] YouTube supported this argument by explaining that it employs a legitimate business model that generates advertising-based revenue which “in no way favors infringing material or seeks to benefit from it.”[164] It characterized its business model as one that was not dependent on the availability of infringing videos.[165]

B. The Decision

On June 23, 2010, Judge Stanton granted YouTube’s motion for summary judgment, holding that the DMCA protected the company from all of Viacom’s direct and secondary copyright infringement claims.[166] Considering the large amount of damages at stake, and the case’s importance in setting precedent for determining future liability of file-hosting websites for alleged copyright infringement,[167] the court’s opinion, at only fourteen pages, is surprisingly short.[168] Instead of considering in detail each of Viacom’s claims for copyright infringement, the court simply stated that the “critical question” in the case was whether the statutory phrase “actual knowledge that the material or an activity using the material on the system or network is infringing”[169] meant a general awareness of ongoing infringement, or instead meant “actual or constructive knowledge of specific and identifiable infringement of individual items.”[170] The court’s misinterpretation of the requirements of the DMCA’s safe harbor protection, and its erroneous conclusion that YouTube could use the DMCA to counter Viacom’s legitimate infringement claims could substantially harm the rights of copyright owners and must be reversed on appeal.[171]

1. The Court Erroneously Concluded that General Knowledge of Infringing Activity Is Not Sufficient to Impose Liability.

Although the issue of knowledge seemed settled after Grokster, when the Supreme Court stated that it was an “error” to hold that “the specific knowledge of infringement” was required for liability,[172] the Viacom court decided to follow more recent decisions,[173] and held the opposite. The Viacom court stated that “general knowledge that infringement is ‘ubiquitous’ does not impose a duty on the service provider to monitor or search its service for infringements.”[174] The Viacom court felt that a service provider must remove infringing materials only when it knows of specific instances of infringement (e.g. by receiving DMCA notifications).[175] In essence, the court ignored § 512(c)(1)(A)(ii), which specifically considers general knowledge of infringement derived from “facts or circumstances from which infringing activity is apparent,”[176] or “red flag” knowledge,[177] as sufficient to trigger the need to expeditiously remove “or disable access to, the [infringing] material.”[178] The Viacom decision seems to construe § 512(c)(1)(A)(ii) as meaningless and duplicative of § 512(c)(1)(A)(i), which requires action when the service provider has “actual knowledge.”[179] As a matter of proper statutory construction, the court should have given meaning to each of the DMCA provisions, instead of ignoring one of them.

Following this narrow lens, the court held that “awareness of pervasive copyright-infringing, however flagrant and blatant, does not impose liability on the service provider.”[180] It added that such awareness “furnishes at most a statistical estimate of the chance any particular posting is infringing—and that is not a ‘red flag’ marking any particular work.”[181] In essence, the decision provided that the DMCA also protects service providers that turn a blind eye to ongoing mass infringement, requiring that they only take action when they have direct knowledge of a specific infringement taking place.[182] Consequently, the court completely ignored the general rule that willful blindness to wrongdoing proves actual knowledge.[183] Further, by giving YouTube and other online enablers of copyright infringement a safe harbor from liability for crimes committed using their services, the Viacom court erroneously implied that federal law permits “flagrant” and “blatant” criminal wrongdoing.[184]

2. The Court Should Not Have Imposed a Knowledge Requirement when Analyzing Whether YouTube Had the Right and Ability to Control Ongoing Infringement and when Determining Whether YouTube’s Revenue Was Directly Attributable to the Alleged Infringing Activity.

The Viacom court also misinterpreted the DMCA’s requirement that service providers must “not receive a financial benefit directly attributable to the infringing activity” when they have “the right and ability to control such activity.”[185] In what some believe to be one of the more interesting holdings in the opinion,[186] the court held that “the right and ability to control” an infringing activity “requires knowledge of it, which must be item-specific.”[187] However, § 512(c)(1)(B) makes no mention of a requirement that the service provider have knowledge of infringement.[188] Furthermore, it is important to note that the language used in § 512(c)(1)(B) resembles the elements of a vicarious infringement, whereby “knowledge of the infringing activity is not required.”[189] Since legislative history has been “far from dispositive,”[190] and courts seem to be in disagreement as to what is needed for a service provider to have the “right and ability to control,”[191] it is not surprising that the Viacom court added a knowledge requirement to the provision. Nonetheless, this particular requirement had been explicitly rejected by other courts for decades.[192] Finally, regardless of whether the service provider has knowledge of item-specific infringement, it is clear that it has the ability to control infringing activity when it “hosts the infringing material, can remove it, block access to the system and filter incoming works through manual or technological means.”[193]

The court then had to decide whether YouTube’s revenue, derived from advertisements displayed on its website, was “directly attributable” to infringements.[194] The court dismissed the issue by referring back to the control prong and held that a service provider “must know of the particular case before he can control it . . . . [T]he provider need not monitor or seek out facts indicating such activity.”[195] Consequently, following the court’s opinion, a service provider could generate revenue by being willfully blind to ongoing infringement, and still be exempt from liability regardless of how much infringing material it hosts, how many viewers are attracted by the infringements, and what percentage of its revenue is directly attributable to the infringements. Moreover, this analysis naturally leads to the disturbing proposition that service providers are allowed to derive profit from the unauthorized use of copyrighted content whenever such content has not yet been identified with “sufficient particularity”[196] by someone other than the service provider. This was surely not the legislature’s intent when it enacted the DMCA.[197]

3. The Court Should Have Given More Weight to Similar Litigation Concerning Peer-to-Peer Networks.

The Viacom court held that case law involving P2P networks had “little application” to the litigation because P2P networks “are not covered by the safe harbor provisions of . . . § 512(c).”[198] This, however, is somewhat misleading, since P2P networks are almost certainly covered by § 512(d),[199] which incorporates an almost identical set of requirements that must be met in order to obtain DMCA safe harbor protection.[200] Hence, it is likely that when P2P networks are not entitled to DMCA protection under § 512(d), file-hosting websites like YouTube would also not be entitled to protection under § 512(c) of the Act. For example, in Columbia Pictures Industries, Inc. v. Fung,[201] the court held that the defendants were not entitled to protection under § 512(d) because they had knowledge of ongoing infringements, turned a blind eye to these infringements, and did not act expeditiously to remove infringing material.[202] The court supported this holding by stating that a simple viewing of the defendants’ website would have revealed that “infringing material was likely to be available,” and that “overwhelming statistical evidence of the prevalence of copyrighted material available through Defendants’ websites” could certainly lead to the contention that defendants had knowledge of the infringement.[203]

Although the Viacom court maintained that Fung had “little application” to the case at bar,[204] it could be argued otherwise. Like the defendants in Fung, YouTube could have easily been exposed to the ongoing infringements by a simple search of its website. Following the court’s analysis in Fung,[205] unless YouTube somehow refused to look at its own webpage, it invariably would have known that (1) infringing material was likely to be available and (2) most of its users were searching for and viewing infringing material. Furthermore, the fact that YouTube’s own executives knew that an overwhelming percentage of YouTube’s “views” came from copyrighted materials on their servers[206] certainly proves knowledge using the analysis in Fung. Since § 512(c) and § 512(d) employ the same basic requirements, and since the facts of Viacom and Fung are similar, the Viacom court should have found that YouTube was not entitled to DMCA protection. Moreover, regardless of whether the Viacom court believed that YouTube was or was not protected under the DMCA, it is clear that Fung had much more than “little application”[207] to the facts of this litigation.

The Viacom court also distinguished the case at bar from other cases concerning P2P networks by stating that unlike P2P networks, YouTube was shielded from liability for all claims of infringement because it removed infringing material whenever it was given notice to do so.[208] The court essentially held that by merely responding to takedown requests, YouTube could deliberately allow for piracy of copyrighted works while being shielded from the legal consequences of its actions.[209] Accordingly, the Viacom court’s logic supports the argument that the defendants in Grokster and Fung, along with other architects of intentional mass piracy, could have enjoyed DMCA safe harbor protection by simply responding to takedown notices—even if they continued enabling and encouraging mass piracy using their systems.[210] Adopting such a proposition would surely lead to a giant loophole in copyright law.[211] Service providers would be encouraged to condone copyright infringement with the purpose of financial gain, while enjoying shelter from liability by simply removing only the copyrighted works for which takedown notices are given.[212] Such an outcome would lead to the destabilization of current copyright law.[213]

4. YouTube Should Not Have Qualified for DMCA Protection Under § 512(c) Because It Does Not Solely Store Content.

Like the plaintiff in UMG Recordings, Inc. v. Veoh Networks, Inc. (“UMG”),[214] Viacom alleged that YouTube fell outside the protection of § 512(c), because its infringing conduct did not occur solely “by reason of the storage at the direction of the user.”[215] It argued that the overall structure of § 512(c) demonstrates that the protection is available only when a service provider acts as “passive storage provider.”[216] Since YouTube “actively operate[s] the website as an entertainment destination with copyrighted material to draw on audience,” Viacom argued that YouTube was not a storage provider.[217] Additionally, Viacom argued that the infringing content found on YouTube was not carried out “at the direction of the user,” because YouTube distributed infringing videos “over third-party platforms like cell phones and televisions pursuant to commercial syndication agreements negotiated by Defendants, not their users.”[218] Nonetheless, following the logic in UMG, the court rejected Viacom’s claim by holding that it confined “the word ‘storage’ too narrowly to meet the statute’s purpose.”[219] The court explained that the “provision of such services, access, and operation of facilities are within the safe harbor when they flow from the material’s placement on the provider’s system or network . . .”[220] and that YouTube falls within the definition of a “service provider” as “an entity offering the transmission, routing, or providing of connections for digital online communications.”[221] Other recent decisions have similarly held that an entity that provides means of facilitating user access to material on its site is still entitled to safe harbor protection.[222]

Nonetheless, the issue is whether previous courts[223] and the court here correctly held that § 512(c) was enacted with the intent of protecting mass media websites that build a business around the transmission of copyrighted content. Legislative history shows that the DMCA was enacted with the purpose of protecting service providers that legitimately provide the tools to “facilitate making available quickly and conveniently via the Internet the movies, music, software, and literary works that are the fruit of American creative genius.”[224] However, the courts seem to have given the word “storage” an overly broad connotation. The courts’ holdings suggest that § 512(c) not only applies to storage providers who make content “available” on their own systems but also to providers who base their entire business on commercializing stored content on others’ systems.[225] Defining content storage to also include displaying, copying, and transmitting works for the purpose of making profit is too broad an interpretation of legislative intent.

5. YouTube Does Not Satisfy the § 512(c) Requirement of Having an Adequate Repeat-infringer Policy.

In its opinion, the court addressed Viacom’s claims concerning the manner in which YouTube treated infringers and the way in which it dealt with DMCA takedown notices sent by copyright owners.[226] YouTube adopted a “three strikes” policy whereby it terminated users after three warnings arising from DMCA takedown notices.[227]  However, Viacom claimed that this policy was not “reasonably implemented” as required by § 512(i)(1)(A)[228] because of the way YouTube counted strikes.[229] YouTube counted as only one strike both a single DMCA takedown notice identifying multiple infringing videos, and multiple takedown notices of infringing videos by a single user submitted within a two-hour period.[230] Moreover, YouTube used the Audible Magic fingerprinting tool, which automatically identified a copyrighted video if it matched some portion of it to a “reference” video submitted by the copyright owner.[231] However, it did not assign a strike to a user when Audible Magic identified a video as infringing.[232]

Nonetheless, the Viacom court approved all aspects of YouTube’s repeat-infringer policy.[233] The court relied primarily on UMG Recordings, Inc. v. Veoh Networks, Inc. (“Veoh”),[234] where a district court upheld a “two strike” policy, even when a takedown notice listing multiple infringements resulted in only one strike.[235] The Viacom court followed the Veoh court’s logic that Congress did not adopt specific provisions when defining a user policy, because it wanted to leave the policy requirements of service providers “loosely defined.”[236] Additionally, the Viacom court followed the Veoh court’s holding that the Audible Magic tool “does not meet the standard of reliability and verifiability required by the Ninth Circuit in order to justify terminating a user’s account,”[237] since there is no way of determining the tool’s accuracy.[238]

However, the Viacom court seems to have misinterpreted the DMCA provisions once again, deciding in a manner that unreasonably hurts the rights of copyright owners. First, the court approved YouTube’s policy of assigning only one strike to an individual that uploaded a large number of infringing videos,[239] although § 512 provides no basis for such a holding.[240] Thus, the decision leads to an undesirable situation where a user could upload thousands of infringing videos over a long period of time, and be assigned only one strike if YouTube learns of the infringement through a single notice, or multiple notices received within a two-hour period. In essence, such an individual will be treated in the same manner as an innocent individual who mistakenly uploads one infringing video. A policy leading to such an outcome could hardly be described as “reasonably implemented.”[241] Although Congress chose not to define the term “repeat infringer,”[242] it seems that an individual who uploads a large amount of infringing videos over a long period of time would surely fit under the principle that an individual “who repeatedly or flagrantly abuse[s his or her] access to the Internet through disrespect for the intellectual property rights of others should know that there is a realistic threat of losing that access.”[243] Such an individual should surely have his account terminated, regardless of how the infringement was reported to the service provider.

Furthermore, although the Viacom court relied heavily on the Veoh court’s decision, the facts of the cases are distinguishable. The defendant in Veoh had a more aggressive and stringent repeat-infringer policy than YouTube.[244] Although Veoh also assigned a single strike for a takedown notice listing multiple infringements, it terminated a user’s account and disabled all of the user’s content if the user uploaded infringing content a second time.[245] By allowing YouTube’s more lenient policy to fall under the definition of “reasonably implemented,” the court opened the door for file-hosting websites to arbitrarily enact lenient repeat-infringer policies that purposely give infringing users multiple chances to upload unauthorized content, while still comporting with the DMCA. Websites are likely to abuse this freedom because they derive profit by having copyrighted content serve as a draw for users,[246] and thus, surely enjoy a delay in terminating infringers’ accounts. Hence, although the court in Veoh may have accurately determined that a policy of terminating a user’s account after two strikes was reasonable,[247] the Viacom court should not have held that a more lenient policy, that allowing for three strikes prior to termination, was also reasonable.

The court also approved YouTube’s policy of not assigning strikes to a user whose video was detected by the Audible Magic fingerprinting tool.[248] Audible Magic is a creator of a tool that automatically scans user-uploaded media files and identifies infringements by matching some portion of the uploaded videos against a database of copyrighted videos submitted by the copyright owner.[249] The tool is now used by a large number of file-hosting websites.[250] Although YouTube currently employs a similar in-house fingerprinting technology called Content ID,[251] Viacom’s allegations concerned YouTube’s earlier use of Audible Magic.[252] Specifically, Viacom alleged that for approximately six months in 2007, YouTube implemented a policy of not assigning copyright strikes to users who uploaded tens of thousands of infringing clips that were blocked by YouTube’s fingerprinting tool.[253] Furthermore, Viacom argued that YouTube deliberately concealed this policy from the public to avoid criticism by copyright owners.[254]

In responding to the issue, the court quickly dismissed Viacom’s argument by holding that YouTube’s initial hesitation in counting these strikes was reasonable, because “the six month delay was needed to monitor the system’s use by rights-holders, and for engineering work to assure that strikes would be assigned accurately.”[255] However, the court apparently ignored the fact that YouTube’s hesitation resulted in thousands of videos being uploaded by users who were not penalized for their actions.[256]

This also raises the issue of whether YouTube took this time off to test its system or rather to attract more users to its website. The year 2007 was a very important one for YouTube.[257] It was the year after Google purchased the company, the year when it officially launched in nine countries, and the year that its Partner Program[258] was launched.[259] Hence, YouTube was surely determined to increase the amount of its users during this time. As a result, it is a fair suggestion that YouTube may have somewhat relaxed its already loose standards of fighting against copyright infringement in an attempt to achieve this goal. Additionally, the fact that it concealed the policy from the public reinforces this argument. If YouTube really needed the six months to test its program, it should have informed copyright owners, so that they could increase their content-monitoring efforts during that time. However, YouTube cleverly chose not to do so.

Furthermore, it is important to examine YouTube’s ongoing policy of assigning “strikes” solely when a copyright owner submits a DMCA takedown notice, but not when its fingerprinting tool identifies a video as infringing.[260] In the opinion, the court held that YouTube’s assignment of strikes exclusively upon the copyright owner’s request that a video be removed was not in violation of § 512(i)(1)(A).[261] The court supported its decision by referring to the Veoh court’s statement that the Audible Magic filter “does not meet the standard of reliability and verifiability required . . . to justify terminating a user’s account.”[262] However, the Veoh case is clearly distinguishable from the Viacom case on these grounds as well. In Veoh, the plaintiff alleged that the service provider’s policy was “inadequate because it does not automatically terminate users who upload videos that are blocked by the Audible Magic filter.”[263] However, Viacom did not argue that YouTube should terminate users when an uploaded video is identified under the fingerprinting tool; rather, it argued that users should simply be assigned one of the three strikes allowed prior to termination.[264] Taking into consideration the fact that YouTube’s users could always appeal a strike,[265] Viacom’s request was clearly not as demanding as the plaintiff’s request in Veoh. Therefore, although Audible Magic may not be reliable enough to automatically terminate a user’s account, it is reliable enough to serve as the basis for an assignment of a single strike to a suspected infringer.

Another issue that was not touched upon by the court was whether YouTube’s fingerprinting technology is really a part of a “reasonably implemented” policy against repeat infringers as required by § 512(i)(1)(A),[266] or whether this technology is simply a marketing tool for YouTube. Both Audible Magic and YouTube’s Content ID technology allow copyright owners to determine, in advance, what happens to potentially infringing videos detected by the programs.[267] Copyright owners can elect to track their videos, block access to them, or monetize (i.e., allow YouTube to place ads around the videos, or within them, and get a portion of the revenues).[268] Since the blocking or tracking of videos leaves copyright owners with no compensation for the unauthorized use of their content, they are often indirectly pressured to choose the latter option.[269] This pressure to monetize content conveniently allows YouTube to enjoy increased profits, since all profits derived from advertisements by the copyright owners are also shared with YouTube.[270]

Conversely, if a copyright owner chooses not to monetize, but to block access and remove potentially infringing videos, the uploader is always given the option of disputing a removal.[271] This will require the copyright owner to act by either individually suing the infringer, which never happens,[272] or submitting a DMCA takedown proposal resulting in a strike against the user.[273] Thus, despite the fact that YouTube advertises its fingerprinting technology as a tool to automatically fight infringement,[274] the burden to act ends up ultimately falling on the copyright owner. Consequently, YouTube’s fingerprinting technology seems to be less of an element of the reasonably implemented repeat-infringer policy required by § 512(i)(1)(A),[275] and more of a novel scheme to generate profits.

6. Viacom Should Not Be Required to Identify Every Infringing Video on the YouTube Website in Order to Have Infringing Content Removed.

In 2007, Viacom submitted a takedown notice to YouTube identifying more than 100,000 infringing videos, and asked YouTube to treat it as a representative list of the videos that should be taken down from its website.[276] However, YouTube did not agree to use the list as a representative sample, and insisted that it would only take down videos for which Viacom specified a direct Internet address (“URL”).[277] The Viacom court approved YouTube’s actions, rejecting Viacom’s argument that YouTube must remove other videos that infringe the same works specified in the representative list, even when a specific address for them is not provided.[278]

Section 512(c)(3)(A)(ii) provides that a DMCA notification of infringement must include an “[i]dentification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.”[279] In other words, “it is not necessary for a compliant notification to list every musical composition or sound recording that has been . . . infringed at that site, so long as a representative list of those compositions or recordings is provided so that the service provider can understand the nature and scope of the infringement being claimed.”[280]

Nonetheless, the Viacom court held that construing the “representative list” reference to mean a “merely generic description” without giving the specific location of the video would “eviscerate the required specificity of notice” that the court felt was needed.[281] The court also added that § 512(c)(3)(A)(iii), which requires that the identification of an infringing material be accompanied by “information reasonably sufficient to permit the service provider to locate the material,”[282] was further proof that DMCA notices required specificity.[283] Lastly, the court felt that holding otherwise would subject the provider “to the factual search forbidden by § 512(m)” of the Act.[284]

Once again, the court erroneously decided the issue. First, as evidenced by the language of § 512(c)(3)(A)(ii), which specifically allows for a “representative list,” it is clear that the provision was enacted to provide for situations where there was mass infringement within a site making it impracticable for a copyright owner to identify each and every specific instance of infringement in a DMCA takedown notice.[285] As the Fourth Circuit noted in ALS Scan, Inc. v. RemarQ Communities, Inc.,[286] the “notification requirements are relaxed to the extent that, with respect to multiple works, not all must be identified—only a ‘representative’ list.”[287] The same court also recognized that § 512(c)(3)(A)(ii) “does not seek to burden copyright holders with the responsibility of identifying every infringing work—or even most of them—when multiple copyrights are involved,” but is actually there “to reduce the burden of holders of multiple copyrights who face extensive infringement of their works.”[288] Therefore, since it seems undisputed that Viacom faces “extensive infringement” of its works because of YouTube, the court should have decided in favor of Viacom and held that Viacom did not have to provide the specific location of every unauthorized video. The language in § 512(c)(3)(A)(iii), which the court also referred to,[289] further supports this idea by providing that the copyright owner need only provide “information reasonably sufficient to permit the service provider to locate” the infringing material.[290]

The court’s decision to approve YouTube’s actions is also contrary to public policy. It would be outrageous to simply place the entire burden on Viacom to find the exact location of every infringing video on the YouTube website, when it is YouTube that allows the copyright infringers to upload unauthorized videos. YouTube could have simply taken the representative list submitted by Viacom, noted the specific videos that were identified as unauthorized in the takedown notice, and used its excellent search engine,[291] or its fingerprinting technology, to prevent the same infringing videos from being displayed on the site. The availability of a specific web address of every infringing video was clearly not a necessity as the court suggested.[292] To place the burden solely on the copyright owner to locate and provide the specific web address or specific location of every infringing video on YouTube’s website would clearly “upset the Congressionally apportioned burden between the copyright holder and the service provider.”[293]

Finally, the Viacom court suggested that holding a service provider to a “factual search” of infringements on its site, prompted by takedown notices, was “forbidden” by § 512(m).[294] Section 512(m), titled “Protection of Privacy,” provides that a service provider need not monitor its service, or affirmatively seek facts indicating an infringing activity, in order to be eligible for DMCA protection.[295] However, the court improperly construed the language of the section to also apply in situations when the service provider had been informed of an ongoing infringing activity via a DMCA takedown notice.[296] The court’s interpretation of § 512(m) resulted in the proposition that the service provider does not have the obligation or the duty to do anything more than respond to specific takedown notices.[297]

Essentially, the court assigned the copyright owner the entire burden of monitoring infringements.[298] However, § 512(c)(3)(A)(iii), which states that a DMCA takedown notice must include “information reasonably sufficient to permit the service provider to locate the material,”[299] implies that there is some sharing of the burden. The language in this section suggests that the service provider has the burden to “locate the material,”[300] after being provided with a “representative list”[301] indicating infringement. Moreover, the legislature specifically stated that “if a service provider becomes aware of a ‘red flag’ from which infringing activity is apparent, it will lose the limitation of liability if it takes no action.”[302] Thus, although YouTube may not be required to engage in constant monitoring of its site before any signs of infringement arise, this changes once it becomes aware of ongoing infringement. This argument is further supported by the underlying principle that DMCA protection of a service provider disappears “‘at the moment the service provider loses its innocence, i.e. at the moment it becomes aware that a third party is using its system to infringe.’”[303]

IV. THE LEGISLATURE MUST REVISE THE DMCA IN ORDER TO ALLOW FILE-HOSTING WEBSITES TO EXIST, WHILE GRANTING COPYRIGHT OWNERS THE PROTECTION TO WHICH THEY ARE ENTITLED

The Viacom court’s holding that YouTube was protected under the Digital Millennium Copyright Act (“DMCA” or “the Act”) stemmed from flawed reasoning and clear misinterpretation of multiple provisions in § 512 of the Act. The court seems to have completely ignored the negative impact that the decision will likely have on copyright owners. The fault, however, should not be attributed solely to the Viacom court, but also to the legislature’s vague drafting of several provisions of the DMCA.[304] Although the DMCA may have granted adequate protection to both service providers and copyright owners when it was initially enacted, this is clearly not the case anymore. With the rapid increase and popularity of file-hosting websites like YouTube, the DMCA in its current state can no longer provide the proper balance between the need to adequately protect copyright owners and the need to promote technological innovation.[305] As a result, Congress must amend the DMCA’s outdated provisions, and the Viacom court’s decision must be reversed on appeal in order to avoid a collapse of copyright protection.

A. The DMCA’s Ambiguous Provisions

When the legislature drafted the DMCA, it clearly did not consider a service provider with such a high volume of user-uploaded content like YouTube.[306] This was apparent by the ambiguities in several of the DMCA provisions, which led the Viacom court to rule in a manner that undoubtedly hurts the rights of copyright owners.[307] As a result, the DMCA must be amended. First and foremost, the legislature must amend the DMCA so that judges know how to deal with the issue of whether service providers such as YouTube need only respond to specific instances of infringement. As already explained, it is imperative that the legislature explicitly require the service provider to remove infringing content from its servers regardless of whether it is informed of specific instances of infringement, or whether it obtains general knowledge of infringement through circumstantial evidence. Additionally, the legislature must explicitly state that service providers that are willfully blind to ongoing infringements will not be entitled to DMCA safe harbor protection. Although § 512 provides that service providers who have circumstantial knowledge of infringement would not be entitled to DMCA protection,[308] the Viacom decision clearly shows that judges can simply ignore the provision.

Arguably, increasing the burden on service providers may not be allowed under § 512(m). Therefore, the legislature should also amend the DMCA to explicitly place some of the burden of monitoring infringement on the service provider. Although it may have been unfair to impose such burden when the DMCA was first drafted, times have clearly changed. File-hosting websites now enjoy a large amount of revenue that is derived from videos uploaded onto their websites,[309] and therefore, they should be required to face at least some of the burden of policing their own servers. A burden imposed solely on the copyright owner in modern times would be unreasonable since the number of websites like YouTube continues to increase rapidly,[310] meaning the copyright owner could potentially go bankrupt if it has to spend the time and money monitoring every one of these sites. This, however, was not a big concern when the DMCA was initially drafted, because video hosting websites were almost non-existent at that time.[311]

Furthermore, § 512(c)(1)(B) also contains many ambiguities, which result in courts reaching opposite conclusions in cases involving similar facts. This section provides that a service provider will not be entitled to safe harbor protection when it has the right and ability to control infringements and derives revenue directly attributable to these infringements.[312] However, the DMCA does not clearly define when a service provider is “able” to control infringement, and when its profits are considered “directly attributable” to infringement.[313] This ambiguity allows courts to subjectively define these terms in a way that best “fits” their ultimate holding. For example, in the Viacom litigation, the court held the right and ability to control infringements also included a knowledge element.[314] This decision clearly fit the court’s ultimate holding that YouTube was protected under the DMCA because it was only responsible for dealing with the specific infringements of which it was aware.[315]

Although the drafters of the DMCA may have intentionally left these terms ambiguous with the purpose of adapting to changes in technology paradigms,[316] this ambiguity could result in unfair decisions. Therefore, in order to adequately protect the rights of copyright owners, the legislature should make it clear that when a service provider has the tools to search and locate infringing content, filter infringing content as it is uploaded onto its servers (e.g. by using fingerprinting technology), and has the ability to terminate user accounts, it has the right and ability to control the infringing activity. Moreover, the legislature should make clear that when a service provider enjoys the commercialization of content posted on its site, and a large portion of that content is unauthorized, the profits derived will be categorized as “directly attributable” to infringements. After all, it is clear that when a large amount of unauthorized content attracts users to a website, and that website’s advertisement-based revenue is almost entirely dependent on the number of its visitors, that revenue is “directly attributable” to the infringements.

Finally, the legislature also left § 512(i)(1)(A) ambiguous. This section provides that a service provider must adopt a repeat-infringer policy that terminates users who infringe on multiple occasions.[317] In an attempt to give courts discretion when analyzing service providers’ repeat-infringer policies, the legislature simply provided that these policies must be “reasonably implemented.”[318] This provision once again demonstrates the legislature’s lack of guidance.[319] Although it may be reasonable to leave policy decisions up to the service providers’ discretion,[320] this freedom should not be limitless allowing service providers to take advantage of it. As explained above, because service providers, like YouTube, derive profits from unauthorized use of copyrighted content on their servers, they may intentionally hesitate to terminate the user accounts of repeat-infringers.[321] This was most likely the case with YouTube. The Viacom court felt that YouTube’s repeat-infringer policy was “reasonable,”[322] despite the fact that repeat infringers who submitted hundreds of unauthorized videos did not necessarily lose their account.[323] The legislature should not allow for such outcomes by leaving the provision ambiguous. For example, the legislature could add a provision to § 512(i)(1)(A) clearly defining the term “repeat infringer.” This clarity would allow courts to reach accurate decisions when they are left to determine whether a certain repeat-infringer policy is “reasonable.”

B. The Combating Online Infringement and Counterfeits Act

Although the Combating Online Infringement and Counterfeits Act (“COICA”)[324] was introduced on September 20, 2010 to help fight copyright infringement,[325] the proposed act may be too aggressive and could potentially lead to an undesirable outcome.[326] The COICA will require “Internet service providers, financial transaction providers, and online ad vendors” to disconnect all ties with websites listed on a “blacklist” created by the Attorney General.[327] The list will include websites that are “dedicated to infringing activities” and where counterfeit goods or copyrighted materials are “central” to the websites’ activity.[328] Due to the broad scope of the COICA,[329] it is feared that if enacted, and the Viacom case is overturned on appeal, YouTube may be one of the sites that are placed on this blacklist.[330] Moreover, even if the Viacom decision is affirmed, YouTube may still be placed on the blacklist if it is determined that its users are using the website for the purpose of copyright infringement.[331]

While the COICA demonstrates Congress’ intent to fight infringement, it could threaten the existence of websites such as YouTube, and may not be the appropriate way to solve the problem of online copyright infringement.[332] While the DMCA allows websites to exist so long as they counter infringement, the COICA provides for the ban of entire websites if it is determined that they host a significant amount of unauthorized content.[333] As a result, it is “not just possible but probable that a great deal of legitimate, protected speech will be taken down in the name of copyright enforcement.”[334] This could certainly pose a threat to websites like YouTube, which host both infringing and non-infringing content.[335] It seems unfair to ban a website because some users choose to illegally transmit copyrighted content. Innocent Internet users who do not engage in Internet piracy, and companies who voluntarily choose to place their copyrighted videos on websites like YouTube, should not have to suffer the negative consequence of having these websites banned as a result of the COICA.[336]

Therefore, rather than enacting an aggressive act such as the COICA, amending the ambiguous DMCA provisions would be more beneficial in the efforts to combat copyright infringement.[337] The legislature may have intended to leave certain provisions of the DMCA ambiguous in order to facilitate the development of innovative technology.[338] However, this goal should not be achieved at the expense of copyright owners’ rights.[339] As Viacom shows, statutory ambiguities not only lead to inconsistent court decisions,[340] but also to unfair and erroneous holdings.[341]

V. CONCLUSION

Viacom is clearly one of the most important copyright cases in recent decades.[342] It illuminates the tension between the need for tools that facilitate the exchange and sharing of ideas and the need to protect copyright owners. However, the court’s decision in Viacom seems to favor the needs of service providers more than the needs of the copyright owners.[343] This results in an imbalance between these equally important interests.[344] Due to the numerous ambiguities in the Digital Millennium Copyright Act (“DMCA” or “the Act”), the Viacom court ruled that the Act provided a defense for YouTube against all of Viacom’s claims.[345] This ruling was erroneous and should be reversed on appeal.

The Viacom decision was erroneous for several reasons. First, YouTube should not have been shielded from liability under the DMCA because it was willfully blind to ongoing infringement.[346] Although the Viacom court suggested that YouTube need only counter infringement when it is specifically made aware of it,[347] the court should have imposed upon YouTube the duty to block access to infringing videos regardless of how YouTube came to learn of them.[348] Second, YouTube’s lack of knowledge of specific and identifiable infringements did not mean that it lacked the right and ability to control infringing activity or that it did not derive financial benefit directly from infringement.[349] Such knowledge is not required,[350] and the evidence clearly showed that YouTube had both the means to control the infringing activity and to earn revenue directly attributable to infringement using its website.[351] Third, the court should have given more deference to previous cases concerning P2P networks because they were applicable to the case.[352] Fourth, YouTube should not have been shielded by § 512(c) because it is not a passive storage provider, but rather an entertainment website that uses stored content to derive profits.[353] Fifth, the court should not have found that YouTube’s repeat-infringer policy was “reasonable” as required by the DMCA, because the policy was too lenient on repeat-infringers.[354] Finally, the court should not have disregarded the provision allowing Viacom to submit a “representative list” of infringing works to YouTube.[355] Once YouTube became aware of infringing works via Viacom’s “representative list,” it should have been required to take down other identical infringing works that were not on this list.[356]

The Viacom decision demonstrates a need for an overhaul of contemporary copyright law.[357] Currently, the DMCA might benefit companies like YouTube, which rely on others’ content to foster their own growth; however, it does not adequately protect copyright owners.[358] While amending the DMCA seems necessary after the Viacom decision, the Act needs to be preserved in order to shield online service providers from liability when they make reasonable efforts to counter infringement.[359] After all, without the DMCA, websites like YouTube would not exist.[360] While this may be desirable to companies like Viacom, such an outcome would harm a great deal of businesses and individuals that choose to generate profit from YouTube.[361] Moreover, such an outcome would negatively impact many non-infringers who simply use YouTube as a means to share business presentations, tutorials, and family videos. The ability of individuals to share such content with others is surely desirable in modern society.

Therefore, while there is a need to reverse the Viacom decision on appeal in order to impose a larger burden on YouTube to counter infringement, the higher court must act carefully so that its decision does not lead to the demise of YouTube.[362] Further, it is necessary that the legislature amend the DMCA in order to enable copyright owners and other web-content providers to happily co-exist in this era of constant technological innovation.

Lior Katz[*]

1. “Facebook is a social networking website” that allows users to create personal profiles, add other users as “friends,” and exchange messages. Josie Myers, What Is Facebook?, WiseGeek, http://www.wisegeek.com/what-is-facebook.htm (last visited Feb. 20, 2011).

2. See What is a News Feed?, Facebook, http://www.facebook.com/help/?page=408#!/help/?faq=18898 (last visited Feb. 15, 2011) (explaining that the News Feed continuously updates a list of “stories” from users’ friends).

3. See Embed a YouTube Video, YouTube, http://www.google.com/support/youtube/bin/answer.py?hl=en&answer=171780 (last visited Feb. 2, 2011) (explaining that YouTube videos can be embedded on sites outside of YouTube such as social networking sites and blogs).

4. See Broadcast Your Campaign, YouTube, http://www.youtube.com/t/advertising_overview (last visited Feb. 20, 2011) (discussing that YouTube sometimes has advertisements accompanying its videos).

5. Mary Bellis, Who Invented YouTube?, About.com, http://inventors.about.com/od/xyzstartinventions/a/YouTube.htm (last visited Jan. 20, 2011).

6. Sara Kehaulani Goo, Ready for Its Close-Up: With Google Said to Be a Suitor, YouTube Enters Mainstream, Wash. Post, Oct. 7, 2006, at D1.

7. See Hulu Continues Ascent in U.S. Online Video Market, Breaking into Top 3 Properties by Videos Viewed for First Time in March, comScore (Apr. 28, 2009), http://www.comscore.com/Press_Events/Press_Releases/2009/4/Hulu_Breaks_Into_Top_3_Video_Properties.

8. Michael Arrington, Google Has Acquired YouTube, TechCrunch.com (Oct. 9, 2006), http://techcrunch.com/2006/10/09/google-has-acquired-youtube.

9. See Alfred Hermida, Has Google Paid Too Much for YouTube?, Reportr.net (Oct. 9, 2006), http://www.reportr.net/2006/10/09/has-google-paid-too-much-for-youtube.

10. Youtube Statistics—2 Billion Views Per Day, Clean Cut Media (June 1, 2010), http://www.cleancutmedia.com/video/youtube-statistics-2-billion-views-per-day-infographic.

11. Id.

12. See File Sharing Information, Antisharing.com, http://www.antisharing.com/encyclopedia.htm (last visited Oct. 2, 2010).

13. Id.

14. See generally id.

15. See, e.g., 4shared, http://www.4shared.com (last visited Oct. 2, 2010); see also MEGAUPLOAD, http://www.megaupload.com (last visited Oct. 2, 2010).

16. See Sharing Videos, YouTube, http://www.google.com/support/youtube/bin/topic.py?hl=en&topic=16569 (last visited Feb. 13, 2011) (explaining how to upload, share, and view videos).

17. See, e.g., How Do I Download Files From MediaFire?, MediaFire, http://support.mediafire.com/index.php?_m=knowledgebase&_a=viewarticle&kbarticleid=8&nav=0 (last visited Feb. 14, 2011) (stating users can access files from unique URLs provided to the person who uploaded the file).

18. See, e.g., Frequently Asked Questions, GigaSize, http://www.gigasize.com/page.php?p=how_it_works (last visited Jan. 6, 2011).

19. See e.g., id.

20. File Sharing Information, supra note 12.

21. See, e.g., BitTorrent, http://www.bittorrent.com (last visited Feb. 8, 2011).

22. File Sharing Information, supra note 12.

23. Id.

24. Janko Roettgers, Piracy Beyond P2P: One-Click Hosters, GigaOM.com (June 17, 2007, 12:00 AM), http://gigaom.com/video/one-click-hosters.

25. See id.

26. See, e.g., RapidShare, http://www.rapidshare.com (last visited Oct. 2, 2010); see also MEGAUPLOAD, supra note 15.

27. About YouTube, YouTube, http://www.youtube.com/t/about (last visited Feb. 20, 2011).

28. Company History, YouTube, http://www.youtube.com/t/company_history (last visited Jan. 5, 2011).

29. See generally About YouTube, supra note 27.

30. See Getting Started, YouTube, http://www.youtube.com/t/about_getting_started (last visited Feb. 14, 2011).

31. At Five Years, Two Billion Views Per Day and Counting, Broadcasting Ourselves: The Official YouTube Blog (May 16, 2010), http://youtube-global.blogspot.com/2010/05/at-five-years-two-billion-views-per-day.html.

32. See, e.g., Greg Sandoval, YouTube Sued Over Copyright Infringement, CNET News (July 18, 2006, 5:40 PM), http://news.cnet.com/YouTube-sued-over-copyright-infringement/2100-1030_3-6095736.html; Premier League to Take Action Against YouTube, Telegraph.co.uk (May 5, 2007, 11:16 AM), http://www.telegraph.co.uk/sport/football/2312532/Premier-League-to-take-action-against-YouTube.html [hereinafter Premier League].

33. Copyrighted Content on File Sharing Networks: Encyclopedia, Antisharing.com, http://www.antisharing.com/Copyrighted_content_on_file_sharing_networks/encyclopedia.htm?show_all (last visited Feb. 20, 2011).

34. See, e.g., YouTube Terms of Service § 6, YouTube, http://www.youtube.com/t/terms; see also MEGAUPLOAD Terms of Service § 3, Megaupload, http://www.megaupload.com/?c=terms.

35. See, e.g., Sandoval, supra note 32; see also Jeff Atwood, YouTube: The Big Copyright Lie, Coding Horror (Oct. 7, 2007), http://www.codinghorror.com/blog/2007/10/youtube-the-big-copyright-lie.html.

36. See Atwood, supra note 35.

37. Id.

38. See, e.g., Search results for “south park”, YouTube, http://www.youtube.com/results?search_query=south+park&aq=f (last visited Feb. 20, 2011).

39. See Atwood, supra note 35.

40. See, e.g., Sandoval, supra note 32; Premier League, supra note 32.

41. See Anne Broache & Greg Sandoval, Viacom Sues Google Over YouTube Clips, CNET News (Mar. 13, 2007), http://news.cnet.com/Viacom-sues-Google-over-YouTube-clips/2100-1030_3-6166668.html?tag=mncol;1n (providing a summary of the lawsuit).

42. Id.

43. Viacom v. YouTube, Copyright Website, http://www.benedict.com/Digital/Internet/YouTube/YouTube.aspx (“This is in fact what the crux of the case is all about—who has the burden of monitoring YouTube . . . YouTube or Viacom?”) (last visited Feb. 20, 2011) [hereinafter Copyright Website].

44. Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 529 (S.D.N.Y. 2010).

45. Hector MacQueen, Charlotte Waelde & Graeme Laurie, Contemporary Intellectual Property 34 (2007).

46. Copyright, Wikipedia, http://en.wikipedia.org/wiki/Copyright_law (last visited Jan. 24, 2011).

47. 17 U.S.C. § 106 (2006).

48. Andrey Spektor, Note, The Viacom Lawsuit: Time to Turn YouTube Off?, 91 J. Pat. & Trademark Off. Soc’y 286, 290, 292 (2009).

49. 17 U.S.C. § 107 (2006).

50. 17 U.S.C. § 512 (2006); see Spektor, supra note 48, at 305.

51. 17 U.S.C. § 106; Spektor, supra note 48, at 290.

52. 17 U.S.C. § 106.

53. S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085 (9th Cir. 1989); Costar Grp., Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688, 694 (D. Md. 2001) [hereinafter Costar I].

54. Mateo Aboy, How Does a Copyright Owner Prove Ownership of a Copyrighted Work?, Mateo Aboy, Ph.D., http://www.mateoaboy.com/f6/blog_files/38dd09cd28fda5cab038117b77c8b2b5-16.html (last visited Oct. 3, 2010).

55. Costar Grp., Inc. v. Loopnet, Inc., 373 F.3d 544, 550 (4th Cir. 2004) [hereinafter Costar II].

56. Spektor, supra note 48, at 290.

57. See, e.g., In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. 2003) [hereinafter Aimster I]; Costar I, 164 F. Supp. 2d at 694.

58. 17 U.S.C. § 107.

59. Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978–2005, 156 U. Pa. L. Rev. 549, 560 (2007–2008) (“The language of section 107’s factors was largely drawn from Justice Joseph Story’s 1841 circuit court opinion in Folsom v. Marsh . . . .”) (citing Folsom v. Marsh, 9 F. Cas. 342 (C.C. Mass. 1841)).

60. Marsh, 9 F. Cas. at 342–43.

61. Id. at 348.

62. 17 U.S.C. § 107.

63. Copyright Basics: Fair Use, Copyright Clearance Center, http://www.copyright.com/Services/copyrightoncampus/basics/fairuse.html (last visited Feb. 13, 2011).

64. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 (1991).

65. 17 U.S.C. § 107(1).

66. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).

67. Harper & Row, Publ’rs, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985).

68. Campbell, 510 U.S. at 579.

69. Id.

70. See id.

71. 17 U.S.C. § 107(2).

72. See Campbell, 510 U.S. at 579.

73. See Feist Publ’ns, Inc., 499 U.S. at 348–49.

74. 17 U.S.C. § 107(3).

75. E.g., Campbell, 510 U.S. at 586–89; New Era Publ’ns Int’l v. Carol Publ’g Grp., 904 F.2d 152, 158 (2d Cir. 1990).

76. Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1263 (2d Cir. 1986).

77. New Era Publ’ns Int’l, 904 F.2d at 152.

78. Id. at 158.

79. Id.

80. 17 U.S.C. § 107(4).

81. E.g., Harper & Row, Publ’rs, Inc., 471 U.S. at 566 (finding that the fourth factor of the analysis is “undoubtedly the single most important element of fair use”); see also Consumers Union of U.S., Inc. v. Gen. Signal Corp., 724 F.2d 1044, 1050 (2d Cir. 1983) (stating the fourth factor is “widely accepted to be the most important”).

82. Campbell, 510 U.S. at 590.

83. Spektor, supra note 48, at 292.

84. Kelly Tickle, The Vicarious Liability of Electronic Bulletin Board Operators for the Copyright Infringement Occurring on Their Bulletin Boards, 80 Iowa L. Rev. 391, 400 n.67 (1995) (citing Gross v. Van Dyk Gravure Co., 230 F. 412 (2d Cir. 1916)) (other citation omitted).

85. Gross, 230 F. at 414.

86. Id.

87. Spektor, supra note 48, at 292.

88. Id.

89. See, e.g., A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 927 (N.D. Cal. 2000).

90. Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).

91. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 437 (1984).

92. A&M Records, Inc., 114 F. Supp. 2d at 920.

93. Id. at 920–21.

94. Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 729 (9th Cir. 2007).

95. “[R]espondeat superior is a basis upon which the legal consequences of one person’s acts may be attributed to another person. Most often the doctrine applies to acts that have not been specifically directed by an employer but that are the consequence of inattentiveness or poor judgment on the part of an employee acting within the job description.” Restatement (Third) of Agency § 2.04 (2006).

96. Gershwin Publ’g Corp., 443 F.2d at 1162.

97. Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963).

98. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1023 (9th Cir. 2001) (stating that although Napster did not charge a fee for the use of its services, the fact that the availability of infringing material acted as a draw for potential users was enough to subject Napster to vicarious liability).

99. Id. at 1023.

100. Id.

101. See Perfect 10, Inc., 487 F.3d at 731.

102. See id.

103. A&M Records, Inc., 239 F.3d at 1024.

104. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) [hereinafter Grokster].

105. Id. at 936–37.

106. Id. at 919–20.

107. Id. at 926.

108. Id. at 913.

109. Id. at 936.

110. Grokster, 545 U.S. 941.

111. Spektor, supra note 48, at 300.

112. Grokster, 545 U.S. at 963.

113. Id. at 937.

114. 17 U.S.C. § 512.

115. S. Rep. No. 105–190, at 1–2 (1998).

116. Id. at 8.

117. Mark F. Radcliffe, The Digital Millennium Copyright Act: A Retrospective After Three Years, 697 Prac. L. Inst. 593, 596 (2002).

118. 17 U.S.C. § 512(c).

119. See Dissecting DMCA §512 Safeharbor Application to User-Generated Content Websites, Technically Legal (Oct. 9, 2009), http://www.technicallylegal.org/dissecting-dmca-§512-safeharbor-application-to-user-generated-content-websites [hereinafter Dissecting DMCA § 512].

120. 17 U.S.C. § 512(k)(1)(A).

121. 17 U.S.C. § 512(c)(1)(A)(i).

122. 17 U.S.C. § 512(c)(1)(A)(ii).

123. See, e.g., Hendrickson v. Amazon.com, Inc., 298 F. Supp. 2d 914, 915 (C.D. Cal. 2003) (stating the plaintiff attempted to notify service provider of copyright infringement); Costar I, 164 F. Supp. at 703 (stating the plaintiff sent notification of infringement); Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082, 1084–85 (C.D. Cal. 2001) (explaining cease and desist letters were sent to the service provider to inform of infringement and order to take down infringing content).

124. 17 U.S.C. § 512(c)(1)(A)(iii).

125. H.R. Rep. No. 105–551, pt. 2, at 57 (1998).

126. 17 U.S.C. § 512(c)(1)(B).

127. H.R. Rep. No. 105–551, pt. 2, at 54 (1998).

128. Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996).

129. Id. at 263.

130. Costar I, 164 F. Supp. 2d at 694.

131. Id. at 705.

132. 17 U.S.C. § 512(c)(1)(B) (providing that a service provider is not liable if it “does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity”) (emphasis added).

133. Hendrickson, 165 F. Supp. at 1093–94.

134. UMG Recordings, Inc. v. Veoh Networks, Inc., 665 F. Supp. 2d 1099 (C.D. Cal. 2009) [hereinafter Veoh].

135. Id. at 1112–13.

136. A&M Records, Inc., 239 F.3d at 1023.

137. Id.

138. 17 U.S.C. § 512(c)(1)(C).

139. 17 U.S.C. § 512(c)(2).

140. 17 U.S.C. § 512(c)(3)(A).

141. 17 U.S.C. § 512(c)(3)(A)(i).

142. 17 U.S.C. § 512(c)(3)(A)(iii).

143. 17 U.S.C. § 512(c)(3)(A)(v).

144. Garth Johnston, Viacom Files Federal Copyright Complaint Against YouTube and Google, Broadcasting & Cable (Mar. 13, 2007, 5:51 AM), http://www.broadcastingcable.com/article/108111-Viacom_Files_Federal_Copyright_Complaint_Against_YouTube_and_Google.php; Copyright Website, supra note 43.

145. Complaint for Declaratory and Injunctive Relief and Damages at 7, Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010) (No. 07 Civ. 2103) [hereinafter Complaint] (specifying that Viacom’s “television channels and trademarks include MTV, Nickelodeon, VH1, Comedy Central, Logo, MTV2, MTV Tres, Nick at Nite, Noggin, TV Land, CMT, mtvU, Nickelodeon [sic], The N, and BET.” Also stating that Viacom’s “motion picture labels include Paramount Pictures, DreamWorks, Paramount Vantage, MTV Films, and Nickelodeon Films.”).

146. Id. at 18–26.

147. Viacom also pointed out that at the time of the filing, it had “identified more than 150,000 unauthorized clips of their copyrighted programming on YouTube that had been viewed an astounding 1.5 billion times.” Id. at 3.

148. Id.

149. Id. at 5.

150. Memorandum of Law in Support of Defendants’ Motion for Summary Judgment at 20, Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010) (Nos. 07 Civ. 2103 (LLS), 07 Civ. 3582 (LLS)) [hereinafter Support for Summary Judgment] (“Because YouTube qualifies for the safe harbor [protections under the DMCA], it is protected against all of plaintiffs’ claims . . . .”).

151. Id. at 21.

152. 17 U.S.C. § 512(k)(1)(B) (2006) (“[T]he term ‘service provider’ means a provider of online services or network access, or the operator of facilities therefore . . . .”).

153. See Support for Summary Judgment, supra note 150, at 28; see also Corbis Corp. v. Amazon, Inc., 351 F. Supp. 2d 1090, 1110–11 (W.D. Wash. 2004) (finding that Amazon was protected by § 512(c) for providing a service that allows individuals to upload images to its site, which are then displayed to users); UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081, 1088 (C.D. Cal. 2008) [hereinafter UMG] (“[T]he § 512(c) limitation on liability applies to service providers whose software performs . . . functions for the purposes of facilitating access to user-stored material.”).

154. See Support for Summary Judgment, supra note 150, at 22.

155. Id. at 23–24.

156. See Complaint, supra note 145, at 15.

157. Support for Summary Judgment, supra note 150, at 31–32.

158. Id. at 48.

159. Id. at 51–52.

160. Id. at 55 (“YouTube removes almost all videos identified in a paper, email, or online DMCA notice within 24 hours or less.”).

161. Id. at 71.

162. Id. at 59.

163. Support for Summary Judgment, supra note 150, at 71.

164. Id. at 78.

165. See id. at 77–78.

166. Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 529 (S.D.N.Y. 2010).

167. See Scott M. Fulton, III, Viacom Files Landmark Copyright Case Against Google, YouTube, BetaNews (Mar. 13, 2007, 12:02 PM), http://www.betanews.com/article/Viacom-Files-Landmark-Copyright-Case-Against-Google-YouTube/1173801741 (classifying the Viacom case as a “landmark case” and stating that it will “likely determine the future of online video sharing at least, and the Internet media economy at most.”).

168. See Viacom Int’l, Inc., 718 F. Supp. 2d 514.

169. 17 U.S.C. § 512(c)(1)(A)(i).

170. Viacom Int’l, Inc., 718 F. Supp. 2d at 519 (emphasis added).

171. On August 11, 2010, Viacom filed a request for an appeal in the United States District Court for the Southern District of New York. See Tom Krazit, Viacom to Appeal YouTube Copyright Decision, CNET News (Aug. 11, 2010, 10:27 AM), http://news.cnet.com/8301-30684_3-20013337-265.html?tag=mncol;1n.

172. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 934 (2005) [hereinafter Grokster].

173. See Tiffany (NJ), Inc. v. eBay, Inc., 600 F.3d 93, 107 (2d Cir. 2010) (holding that in order to find trademark infringement liability, a “service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods. Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary.”); see also UMG Recordings, Inc. v. Veoh Networks, Inc., 665 F. Supp. 2d 1099, 1111 (C.D. Cal. 2009) [hereinafter Veoh] (holding that it is not sufficient for a plaintiff to show a service provider’s general awareness of infringement).

174. Viacom Int’l, Inc., 718 F. Supp. 2d at 525.

175. Id.

176. 17 U.S.C. § 512(c)(1)(A)(ii).

177. S. Rep. No. 105–190, at 44 (1998) (“[S]ubsection (c)(1)(A)(ii) can best be described as a ‘red flag’ test.”).

178. 17 U.S.C. § 512(c)(1)(A)(iii).

179. 17 U.S.C. § 512(c)(1)(A)(i) (“A service provider shall not be liable for monetary relief . . . if the service provider . . . does not have actual knowledge that the material or an activity using the material on the system or network is infringing.”).

180. Viacom Int’l, Inc., 718 F. Supp. 2d at 524.

181. Id.

182. Id. at 520.

183. See In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir. 2003).

184. See Columbia Pictures Indus., Inc. v. Fung, No. CV 06-5578 SVW (JCx), 2009 WL 6355911, at *16 (C.D. Cal. Dec. 21, 2009) [hereinafter Fung] (“In order to obtain safe harbor, a defendant cannot have knowledge of ongoing infringing activities. This ‘knowledge’ standard is defined as ‘actual knowledge’ or ‘willful ignorance.’”).

185. 17 U.S.C. § 512(c)(1)(B).

186. Lisa T. Oratz, YouTube Obtains Summary Judgment in Viacom Case, Digestible Law (July 12, 2010), http://www.digestiblelaw.com/blog.aspx?entry=1095 (“Perhaps one of the most interesting holdings in the case . . . is that the ‘right and ability to control the infringing activity’ also requires item-specific knowledge of the activity.”).

187. Viacom Int’l, Inc., 718 F. Supp. 2d at 527.

188. See 17 U.S.C. § 512(c)(1)(B).

189. Scott A. Zebrak, Viacom v. YouTube: A Missed Opportunity, National Law Journal (July 26, 2010), http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202463839409&iViacom_v_YouTubei_a_missed_opportunity&slreturn=1&hbxlogin=1.

190. Veoh, 665 F. Supp. 2d at 1115.

191. See, e.g., Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082, 1084–85 (C.D. Cal. 2001) (holding that the “ability of a service provider to remove or block access to materials posted on its website or stored in its system” is not sufficient to prove it has the “right and ability to control”). But see, e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1023 (9th Cir. 2001) (holding that the service provider had the right and “ability to control the activities of vendors on the premises” because it reserved to itself the “right to refuse service and terminate accounts”).

192. See, e.g., Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (stating that a defendant who had the “right and ability to supervise the infringing activity” would be liable for infringement even if it “has no actual knowledge” of it); see also Grokster, 545 U.S. at 934 n.9 (“[V]icarious liability . . . allows imposition of liability . . . even if the defendant initially lacks knowledge of the infringement.”).

193. Zebrak, supra note 189.

194. Viacom Int’l, Inc., 718 F. Supp. 2d at 527.

195. Id.

196. Id.

197. Scott Cleland, Why Viacom Likely Wins Viacom-Google Copyright Appeal, The Precursor Blog (June 25, 2010, 3:34 PM), http://www.precursorblog.com/content/why-viacom-likely-wins-viacom-google-copyright-appeal (explaining that it was never Congress’ intent to provide safe harbor for those who are “willing to steal up until the point that, and as long as, the party being stolen from does not formally complain of the theft with the ‘actual’ serial [numbers] of the stolen goods”).

198. Viacom Int’l, Inc., 718 F. Supp. 2d at 525.

199. See Fung, 2009 WL 6355911, at *15–16 (suggesting that distributors of peer-to-peer file sharing programs can seek protection under § 512(d) safe-harbor for information-location tools).

200. See 17 U.S.C. § 512(c); see also 17 U.S.C. § 512(d).

201. Fung, 2009 WL 6355911.

202. Id. at *16–17.

203. Id. at *17.

204. Viacom Int’l, Inc., 718 F. Supp. 2d at 525.

205. Fung, 2009 WL 6355911, at *17.

206. Viacom’s Memorandum of Law In Opposition to Defendants’ Motion for Summary Judgment at 7, Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010) (Nos. 07-CV-02103 (LLS), 07-CV-03582 (LLS)) [hereinafter Viacom’s Memorandum] (“YouTube executives contemporaneously wrote that 70% of their most popular content consisted of copyrighted materials and that ‘the truth of the matter is, probably 75–80% of our views come from copyrighted material.’”).

207. Viacom Int’l, Inc., 718 F. Supp. 2d at 525.

208. Id. at 526 (“[I]t is uncontroverted that when YouTube was given the notices, it removed the material. It is thus protected ‘from liability for all monetary relief for direct, vicarious and contributory infringement’ . . . .”).

209. Zebrak, supra note 189.

210. For example, the opinion would hold that if the distributors of the LimeWire P2P software had responded to takedown notices, they would have been protected by the DMCA despite knowing that 98.8% of the files exchanged through their program were likely to be unauthorized. See generally Arista Records LLC v. Lime Grp. LLC, 715 F. Supp. 2d 481 (S.D.N.Y. 2010).

211. Viacom’s Memorandum, supra note 206, at 33.

212. See generally id. at 34–45.

213. See generally id.

214. UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081, 1087–88 (C.D. Cal. 2008) [hereinafter UMG].

215. Viacom’s Memorandum, supra note 206, at 42; 17 U.S.C. § 512(c).

216. Viacom’s Memorandum, supra note 206, at 42.

217. Id.

218. Id. at 44.

219. Viacom Int’l, Inc., 718 F. Supp. 2d at 526.

220. Id.

221. 17 U.S.C. § 512(k)(1)(A); see also Viacom Int’l, Inc., 718 F. Supp. 2d at 526.

222. See, e.g., Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1148 (N.D. Cal. 2008); see also, e.g., UMG, 620 F. Supp. 2d at 1083.

223. See, e.g., UMG, 620 F. Supp. 2d at 1090-91.

224. S. Rep. No. 105–190, at 8 (1998).

225. Zebrak, supra note 189.

226. See Viacom Int’l, Inc., 718 F. Supp. 2d at 527–29.

227. Id. at 527.

228. 17 U.S.C. § 512(i)(1)(A) (“The limitations on liability established by this section shall apply to a service provider only if the service provider . . . has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”).

229. Viacom Int’l, Inc., 718 F. Supp. 2d at 528.

230. Id. at 527–28.

231. Id. at 528.

232. Id.

233. Id. at 527–28.

234. Veoh, 665 F. Supp. 2d 1099.

235. Id. at 1116–18.

236. Id. at 1118.

237. Id. at 1116.

238. Id. at 1118.

239. Viacom Int’l, Inc., 718 F. Supp. 2d at 527–28.

240. See 17 U.S.C. § 512.

241. See 17 U.S.C. § 512(i)(1)(A).

242. Viacom Int’l, Inc., 718 F. Supp. 2d at 528.

243. H.R. Rep. No. 105–551, pt. 2, at 61 (1998).

244. See Io Grp., Inc., 586 F. Supp. 2d at 1137–38.

245. Id. at 1143 (“When Veoh receives notice that a user has uploaded infringing content after a first warning, then the account is terminated, all content provided by that user is disabled . . . and the user’s email address is blocked so that a new account cannot be opened with that same address.”).

246. See generally Broache & Sandoval, supra note 41.

247. See generally Io Grp., Inc., 586 F. Supp. 2d 1132.

248. Viacom Int’l, Inc., 718 F. Supp. 2d at 528.

249. See Technology Overview, Audible Magic, http://www.audiblemagic.com/technology.php (last visited Jan. 11, 2011).

250. See Customers Content Identification, Audible Magic, http://www.audiblemagic.com/customers-contentid.php (last visited Jan. 10, 2011).

251. See Audio ID and Video ID, YouTube, http://www.youtube.com/t/contentid (last visited Jan. 10, 2011).

252. Viacom Int’l, Inc., 718 F. Supp. 2d at 528.

253. Viacom’s Memorandum, supra note 206, at 47.

254. Id.

255. Viacom Int’l, Inc., 718 F. Supp. 2d at 528.

256. See generally Viacom Int’l, Inc., 718 F. Supp. 2d 514.

257. YouTube Facts & Figures (History & Statistics), Website Monitoring Blog, http://www.website-monitoring.com/blog/2010/05/17/youtube-facts-and-figures-history-statistics (last visited Jan. 10, 2011).

258. A program where copyright owners could become “partners” with YouTube by sharing revenue from relevant in-video ads, and banner ads running next to videos owned by the copyright owner. See Benefits & Qualifications, YouTube, http://www.youtube.com/t/partnerships_benefits (last visited Jan. 10, 2011).

259. YouTube Facts & Figures (History & Statistics), supra note 257.

260. A Guide to YouTube Removals, Electronic Frontier Foundation, http://www.eff.org/issues/intellectual-property/guide-to-youtube-removals (last visited Jan. 10, 2011); see also Viacom Int’l, Inc., 718 F. Supp. 2d at 528.

261. Viacom Int’l, Inc., 718 F. Supp. 2d at 528; 17 U.S.C. § 512(i)(1)(A).

262. Veoh, 665 F. Supp. 2d at 1116.

263. Id. (emphasis added).

264. Viacom Int’l, Inc., 718 F. Supp. 2d at 528.

265. See A Guide to YouTube Removals, supra note 260.

266. 17 U.S.C. § 512(i)(1)(A).

267. Technology Overview, supra note 249; Audio ID and Video ID, supra note 251.

268. Audio ID and Video ID, supra note 251.

269. See Brian Stelter, Now Playing on YouTube: Clips With Ads on the Side, N.Y. Times, Aug. 16, 2008, at C1 [hereinafter Clips With Ads] (“CBS, Universal Music, Lionsgate, Electronic Arts, and other companies have stopped prodding YouTube to remove unauthorized clips of their movies, music videos and other content and started selling advertising against them.”).

270. See Benefits & Qualifications, supra note 258.

271. A Guide to YouTube Removals, supra note 260.

272. Id. (“[N]o typical YouTube user has ever been sued by a major entertainment industry company for uploading a video.”).

273. Id.

274. See generally Audio ID and Video ID, supra note 251.

275. 17 U.S.C. § 512(i)(1)(A).

276. Viacom’s Memorandum, supra note 206, at 50.

277. Id.

278. Viacom Int’l, Inc., 718 F. Supp. 2d at 528–29.

279. 17 U.S.C. § 512(c)(3)(A)(ii).

280. S. Rep. No. 105–190, at 46 (1998).

281. Viacom Int’l, Inc., 718 F. Supp. 2d at 528.

282. 17 U.S.C. § 512(c)(3)(A)(iii).

283. Viacom Int’l, Inc., 718 F. Supp. 2d at 529.

284. Id. at 528–29.

285. See Viacom’s Memorandum, supra note 206, at 51.

286. ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619 (4th Cir. 2001).

287. Id. at 625.

288. Id.

289. Viacom Int’l, Inc., 718 F. Supp. 2d at 529.

290. 17 U.S.C. § 512(c)(3)(A)(iii) (emphasis added).

291. See generally Joshua Hill, YouTube Surpasses Yahoo as World’s #2 Search Engine, TGDaily.com (Oct. 16, 2008), http://www.tgdaily.com/trendwatch-features/39777-youtube-surpasses-yahoo-as-world%E2%80%99s-2-search-engine (identifying YouTube as the second-largest search engine in the world).

292. See Viacom Int’l, Inc., 718 F. Supp. 2d at 528–29.

293. Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1180 (C.D. Cal. 2002) (holding that the service provider was not allowed to take action only when it was provided with a specific web page at which a given work is located, because that would “upset the Congressionally apportioned burden between copyright holder and service provider by placing the entire burden on the copyright owner”).

294. Viacom Int’l, Inc., 718 F. Supp. 2d at 529.

295. 17 U.S.C. § 512(m).

296. See Viacom Int’l, Inc., 718 F. Supp. 2d at 528–29.

297. See id.

298. See id. at 514.

299. 17 U.S.C. § 512(c)(3)(A)(iii) (emphasis added).

300. Id.

301. 17 U.S.C. § 512(c)(3)(A)(ii).

302. H.R. Rep. No. 105–551, pt. 2, at 53 (1998) (emphasis added).

303. In re Aimster Copyright Litig., 252 F. Supp. 2d at 657 (quoting ALS Scan, Inc., 239 F.3d at 625).

304. See, e.g., 17 U.S.C. § 512(c)(1)(B) (2006).

305. See Brett White, Viacom v. YouTube: A Proving Ground for DMCA Safe Harbors Against Secondary Liability, 24 St. John’s J. Legal Comment 811, 843 (2010).

306. See also id. at 843 (“When drafting the DMCA, the legislature was clearly not considering a service provider with such a high volume of user-uploaded content as YouTube.”). See generally S. Rep. No. 105–190, at 1–6 (1998).

307. See Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010).

308. See 17 U.S.C. § 512(c)(1)(A)(ii).

309. See generally File Hosting Service, Wikipedia, http://en.wikipedia.org/wiki/File_hosting_service (last visited Feb. 20, 2011).

310. Top 22 Sites Similar to YouTube, iSoftwareReviews.com, http://www.isoftwarereviews.com/sites-similar-to-youtube (last visited Feb. 20, 2011).

311. See generally File Sharing, Wikipedia, http://en.wikipedia.org/wiki/File_sharing (last visited Nov. 17, 2010).

312. 17 U.S.C. § 512(c)(1)(B).

313. See id.

314. Viacom Int’l, Inc., 718 F. Supp. 2d at 527.

315. See id. at 525.

316. Dissecting DMCA § 512, supra note 119.

317. 17 U.S.C. § 512(i)(1)(A).

318. Id. (emphasis added).

319. See supra Part III.B.2.

320. See White, supra note 305, at 823 (stating that the Ninth Circuit held that implementation of § 512 policy is left to the service providers who must develop a system for dealing with DCMA complaint notifications).

321. See supra Part III.B.5.

322. See Viacom Int’l, Inc., 718 F. Supp. 2d at 528.

323. See id. (“[M]ultiple take-down notices identifying videos uploaded by the user received by YouTube within a two-hour period [did] not mean that the policy was not ‘reasonably implemented’ as required by § 512(i)(1)(A).”).

324. Combating Online Infringement and Counterfeits Act, S. 3804, 111th Cong. (2010).

325. See generally COICA Fact Sheet, Demandprogress.org, http://demandprogress.org/blacklist/coica (last visited Jan. 18, 2011).

326. See Natch Greyes, COICA: A Potential Shift In Intellectual Property Law, Marshall-Wythe Student Intellectual Property Society (Sept. 29, 2010), http://sips.blogs.wm.edu/2010/09/29/coica-a-potential-shift-in-intellectual-property-law (explaining that the COICA may be too broad, could “override existing precedent regarding the provisions of the [DMCA],” and could lead to “massive expansion of U.S. jurisdictional power”).

327. COICA Fact Sheet, supra note 325.

328. Combating Online Infringement and Counterfeits Act § 2.

329. Greyes, supra note 326 (“The real problem . . . is the broad scope of COICA.”).

330. COICA Fact Sheet, supra note 325.

331. Id.

332. See id. (stating that if the bill passes, Viacom does not need to prove YouTube is doing anything illegal as long as it can convince a court that enough people are using YouTube for copyright infringement).

333. Richard Esguerra, Censorship of the Internet Takes Center Stage in “Online Infringement” Bill, Electronic Frontier Foundation (Sept. 21, 2010), http://www.eff.org/deeplinks/2010/09/censorship-internet-takes-center-stage-online.

334. Id.

335. Brian Stelter, Those Funny YouTube Videos Are Pulling in Serious Money, N.Y. Times, Dec. 11, 2008, at A1 (providing examples of individuals who have profited by making YouTube videos).

336. See Clips With Ads, supra note 269, at C1 (noting that only some videos uploaded onto YouTube violate copyright laws, and that copyright owners such as Lionsgate have begun to work with YouTube by placing ads surrounding their copyrighted content).

337. See Dissecting DMCA § 512, supra note 119 (identifying ambiguous terms in the statute).

338. See id. See generally S. Rep. No. 105–190, at 1–2 (1998).

339. See supra Part III.B.

340. See supra Part III.B.1.

341. See supra Part III.B.

342. See Fulton, supra note 167 (classifying Viacom as a “landmark” case and stating that it will “likely determine the future of the online video sharing industry at least, and the Internet media economy at most”).

343. See generally Zebrak, supra note 189 (stating that the recent decision in Viacom v. YouTube has upset the balance between service providers and copyright holders in favor of service providers).

344. See id. (stating that the recent decision in Viacom v. YouTube has upset the balance between service providers and copyright holders in favor of service providers).

345. See Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 529 (S.D.N.Y. 2010) (granting summary judgment to YouTube against all claims filed by Viacom).

346. See id. at 525 (holding that the “[g]eneral knowledge that infringement is ‘ubiquitous’ does not impose a duty on the service provider to monitor or search its service for infringements.”).

347. Id.

348. See 17 U.S.C. § 512(c)(1)(A)(ii–iii) (2006) (specifying that if an infringement is apparent in light of the facts or circumstances surrounding the infringement, the service provider must quickly remove or disable the infringing material).

349. See supra Part III.B.2.

350. See, e.g., Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (stating that a defendant who had the “right and ability to supervise the infringing activity” would be liable for infringement even if it “has no actual knowledge” of it); see also Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 934 n.9 (2005) (“[V]icarious liability . . . allows imposition of liability . . . even if the defendant initially lacks knowledge of the infringement.”).

351. See Zebrak, supra note 189 (explaining that Viacom had submitted evidence to the court that YouTube “had not only general awareness of the infringing activity but also awareness of specific infringing clips”).

352. See Viacom Int’l, Inc., 718 F. Supp. 2d at 525 (holding that case law involving P2P networks has “little application” to the case). But see Columbia Pictures Indus., Inc. v. Fung, No. CV 06-5578 SVW (JCx), 2009 WL 6355911, at *15–16 (C.D. Cal. Dec. 21, 2009) (suggesting that distributors of peer-to-peer file sharing programs can seek protection under § 512(d)’s safe-harbor for information-location tools).

353. See supra Part III.B.4.

354. See Viacom Int’l, Inc., 718 F. Supp. 2d at 527–28 (approving YouTube’s repeat-infringer policy). But see 17 U.S.C. § 512(i)(1)(A) (“The limitations on liability established by this section shall apply to a service provider only if the service provider . . . has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”).

355. See Viacom Int’l, Inc., 718 F. Supp. 2d at 528–29 (rejecting Viacom’s argument that it should be able to submit a representative list to YouTube).

356. ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 625 (4th Cir. 2001) (“[Section 512(c)(3)(A)(ii)] . . . does not seek to burden copyright holders with the responsibility of identifying every infringing work—or even most of them—when multiple copyrights are involved.”).

357. See Zebrak, supra note 189 (stating that the district court’s decision in Viacom v. YouTube upsets the legislative intent behind DMCA, and thus dissuades service providers from fighting against copyright infringement).

358. See supra Part III.B.

359. See Kurt Opsahl, YouTube Wins Summary Judgment in Viacom DMCA Lawsuit, Electronic Frontier Foundation (June 23, 2010), http://www.eff.org/deeplinks/2010/06/youtube-wins-summary-judgment-viacom-dmca (arguing that the DMCA gives strong incentives to service providers to remove copyright infringed material upon notice by shielding them from copyright infringement liability if they comply).

360. Id. (“Without the DMCA safe harbors, sites like YouTube . . . simply wouldn’t exist.”).

361. See Clips With Ads, supra note 269, at C1 (“CBS, Universal Music, Lionsgate, Electronic Arts, and other companies have stopped prodding YouTube to remove unauthorized clips of their movies, music videos and other content and started selling advertising against them.”); see also Stelter, supra note 335, at A1 (giving examples of individuals who have profited by making YouTube videos).

362. See supra Part IV.B.

* J.D. Candidate, Loyola Law School Los Angeles, 2012; B.A., University of California, Los Angeles, 2008. The author would like to thank his family (Mitra, Ortal, Ehsan and Nevab) for their guidance and support throughout the author’s life. This article is dedicated to them. The author would also like to thank Loyola Law School Professor Scott Wood for his continuous help with editing this article. Finally, the author would like to give special thanks to Chief Production Editor Matt Carter and the rest of the editors and staffers of the Loyola of Los Angeles Entertainment Law Review for their tireless efforts and help in making this publication possible.

SCHEDULED SKYPING WITH MOM OR DAD: COMMUNICATIVE TECHNOLOGY’S IMPACT ON CALFORNIA FAMILY LAW

The prominence of real-time, interactive video technology provides individuals the opportunity to communicate in the face of physical separation. The iPhone 4’s FaceTime application, Gmail’s g-chat phone and video application, and Skype software exemplify the realm of tools that facilitate people’s ability to maintain relationships despite the geographical distance between them. Accordingly, family law has adapted to apply such technology when rendering child custody decisions. More specifically, family law courts throughout the country have issued orders requiring “virtual visitation,” which utilizes technology such as web cameras and other Internet tools to provide regular and visual contact between a noncustodial parent and his or her child. This Comment analyzes the national trend toward virtual visitation and then specifically examines virtual visitation’s potential to impact custody rulings in California family courts. Although appellate courts throughout the country have ordered virtual visitation in relocation decisions and state legislatures have passed statutes codifying the principle, California has yet to formally recognize virtual visitation in its appellate court decisions or legislation. This Comment will illustrate that virtual visitation is a practicable solution that should be formally recognized and readily utilized in California.

I. INTRODUCTION TO VIRTUAL VISITATION

A father sees his baby crawl for the first time; a parent watches his daughter playing at the park; grandparents see their grandchild in her cap and gown; and a soldier views his wife’s first sonogram from abroad. Al-though these events may sound like typical, daily-life occurrences, their uniqueness stems from the fact that the people described are witnessing these momentous occasions through the lens of real-time, virtual technology. These scenes are all featured in the commercial advertisement for the Apple iPhone 4’s newest video-calling application, “FaceTime.”[1] Apple’s advertisement for FaceTime states, “[w]ith the tap of a button, you can wave hello to your kids, share a smile from across the globe, or watch your best friend laugh at your stories . . . .”[2] Apple’s advertisement encompasses the idea that technology can be a medium that facilitates and allows communication, although electronic, on a deep, intimate, and interpersonal level.

Apple is not alone in recognizing the prominence and importance of electronic, virtual communication.[3] Given society’s reliance on communicative technologies, it is not surprising that the legal system has also adapted to include and apply such technology in its court decisions.[4] Family law, in particular, has seen the growth of a trend called “virtual visitation,” which “refers to the use of email, instant messaging, webcams, and other internet tools to provide regular contact between a noncustodial parent and his or her child.”[5] Virtual visitation is most frequently applied in the context of relocation cases, often termed “move-aways,” in which the custodial parent wishes to relocate with the couple’s child against the wishes of the noncustodial parent.[6] Relocation is likely to be challenged when the noncustodial parent’s visitation or custodial time with the child would be compromised as a result of the move.[7] Virtual visitation can be used as part of a compromise solution, allowing the child to relocate with the custodial parent, while still maintaining and fostering a relationship with the noncustodial parent.[8] Consequently, virtual visitation may make it more difficult for a noncustodial parent to prevent the custodial parent from re-locating.

Recently, courts throughout the country have recognized the value of virtual communication in maintaining and fostering relationships.[9] Accordingly, there has been a wave of court decisions in which judges have ordered virtual visitation as a condition to allow a custodial parent’s relocation.[10] Courts frequently base such decisions on the rationalization that it is in the child’s best interest to relocate with the custodial parent, while maintaining frequent virtual contact with the noncustodial parent.[11] Courts in New York, Tennessee, New Jersey, and Iowa are among the many states to include virtual visitation in relocation decisions and custody orders.[12] In fact, Philadelphia Family Court Judge Robert Matthews applies virtual visitation beyond relocation cases and is one of the first judges in the country to mandate virtual visitation in all custody hearings that come before him.[13] In ordering virtual visitation in move-away cases, judges can stipulate that the custodial parent can relocate if the custodial parent installs web-cameras or other similar technology, such as Skype, to allow the child to virtually spend time and interact with his or her noncustodial parent.[14] Virtual visitation is ordered to supplement traditional physical visits when the geographic distance of a move precludes frequent, in-person visitation.[15]

Courts can be very specific in their orders and oftentimes note the precise form of virtual visitation that is to be used (such as video conferencing or instant messaging), the equipment that is necessary to install, which parent will pay for the equipment and Internet services, and the schedule for when the virtual visits will occur.[16] Moreover, in addition to case law precedent, states such as Utah, Texas, and Florida have enacted legislation formally recognizing virtual visitation and setting the standards for its usage in the relocation context.[17]

Despite the rise of interactive technology, the increasing number of courts around the country ordering virtual visitation in relocation cases, and states’ passing virtual visitation legislation, California has yet to formally recognize virtual visitation.[18] No appellate court in California has ordered virtual visitation as a condition precedent to allow a custodial parent to relocate, nor has the state enacted any specific legislation on the matter.[19] In fact, as of 2004, the California Supreme Court in In re Marriage of LaMusga limited the presumption favoring the custodial parent’s right to relocate, and held that courts must engage in an intricate balancing test to determine whether the proposed move serves the child’s best interest.[20] Without a presumption in favor of relocation, it becomes difficult for a custodial parent in California to move away with his or her child.[21]

This Comment proposes that virtual visitation has the potential to shift the scales and change the way move-away cases are evaluated in California. The prospect of virtual visitation can make courts more likely to find it is in the child’s best interest to relocate with the custodial parent, while having scheduled virtual visitation with the noncustodial parent. If such a finding is made, the court should then allow the relocation and mandate virtual visitation as part of the order.

In order to understand and explain the rise of virtual visitation in today’s society, the Comment begins by describing the current technological trends and discussing both national and specifically California’s statistics on divorce and relocation. Next, the Comment encapsulates California’s historical as well as current legal standards that determine a custodial parent’s right to relocate with his or her child. Prior California court decisions that have denied a custodial parent’s relocation request will also be analyzed in order to illustrate that the court may have been more inclined to allow the move if virtual visitation was ordered and utilized. Finally, the Comment will analyze out-of-state court decisions and legislation that have employed virtual visitation. The legal standards used in such decisions and statutes will be compared to current California family law jurisprudence. This analysis will demonstrate that the principles guiding virtual visitation as well as other states’ case law and statutes are analogous and complementary to California’s current legal standards. The Comment will thereby conclude that virtual visitation is a plausible solution that should be formally recognized and readily utilized by California’s courts and legislature as a means to ensure the child’s best interest, while allowing a custodial parent to relocate.

II. BACKGROUND INFORMATION

A. The Rise in Communicative Technology

The increasing use of new interactive technology greatly facilitates communication in the face of physical distance and separation. The high percentage of individuals who can access and participate in communicative technology (such as the iPhone 4’s “FaceTime” application)[22] illustrates the usefulness and impact virtual visitation can have on today’s family law court decisions. Nationally, as of 2009, 70.86% of households had Internet access at home.[23] This statistic illustrates that a majority of people have access to personal computers as well as to the Internet and therefore are theoretically capable of partaking in virtual visitation. The likelihood of participating in virtual visitation is especially strong given the statistics indicating the number of people who use the Internet for communication purposes. More specifically, in 2009, 62.5% of households in the United States used e-mail,[24] and 25% of households used instant messaging programs.[25] As will be discussed, e-mail and instant messaging are examples of technologies used to implement virtual visitation.[26]

California’s high rates of Internet usage suggest that virtual visitation would be readily adaptable particularly to Californian’s current patterns of technology usage and consumption. More specifically, 71.67% of households in California have Internet access at home.[27] Additionally, 63.41% of households in California report using e-mail,[28] and 25.44% of households in the state use instant messenger programs.[29] These statistics indicate that a significant number of Californians with Internet access at home use the Internet to communicate, thereby demonstrating that a majority of Californians, if ordered by family courts to use virtual visitation, would already be capable of complying.

Having computer access gives individuals the opportunity to use many forms of virtual communication that are integral to the implementation of virtual visitation. Moreover, a majority of the technology used for virtual visitation is widely accessible[30] at relatively low costs.[31] In 2004, the cost of building a virtual visitation system, (including computer equipment, web cameras, and audio components), totaled approximately $700.[32] The majority of households that already have computers and Internet access only need equipment such as web cameras, microphones, and software, lowering the cost considerably.[33] Additionally, many forms of electronic communication, such as Skype,[34] instant messenger,[35] and g-chat phone,[36] are free and only require a computer and Internet connection.

There are a variety of options regarding the types of technology that can be used when conducting virtual visits. Thus, virtual visitation orders can be tailored to the personalized needs and preferences of each family. E-mail, a mode of electronic communication used by a significant percentage of households both across the country and in California,[37] is the oldest form of computerized communication.[38] Although a means for parents and children to remain in contact, e-mail lacks real-time as well as visual interaction.[39] Instant messaging programs compensate for e-mail’s deficiencies by providing a forum for real-time communication.[40] In addition to being a useful medium for scheduled virtual visitations, specifics of which can be ordered by the judge,[41] instant messaging also allows for spontaneous interaction between parent and child, as the instant messaging program lists when other users are online and available to “chat.”[42] However, implementing instant messaging as a means of virtual visitation would be futile if the children are too young to type and unable to read or to express themselves through the written word.[43]

Thus, other types of personal video conferencing are preferable forms of virtual visitation, allowing the parent and child to communicate visually in real time. Video conferencing technology such as Skype allows parents to physically see and communicate with their children.[44] Reciprocally, children are able to interact with their parents through the computer.[45] Due to the fact that a greater age range of children can utilize the video technology without having to type or read, video-based virtual visitation is a feasible solution to a broad demographic of parents and children.[46]

Moreover, the advent of new technologies with face-to-face capabilities continues to grow, further illustrating the relevance and applicability of virtual visitation as a means for parents and children to communicate. In August 2010, Google announced its new free phone service, which includes free domestic calling along with video capabilities to all users who have free Google e-mail accounts.[47] Additionally, following the advent of the iPhone 4’s FaceTime application,[48] smaller companies began working to provide free video calling between mobile phones.[49] For example, a company called Tango developed an application of the same name, which attempts to diversify and broaden the range of users who can take advantage of the technology beyond Apple-product users.[50] Given the prevalence of new technology designed for virtual, real-time, face-to-face communication, children and parents are likely to easily adapt to virtual visitation.

B. Divorce and Relocation Statistics

As of 2003, approximately “[eighteen] million children have separated or divorced parents, and an additional [seventeen] million children’s parents never married.”[51] More specifically, “43.7% of custodial mothers and 56.2% of custodial fathers [are] either separated or divorced.”[52] At least 25% of children with separated, divorced, or unmarried parents “have a parent living in a different city.”[53] Accordingly, approximately “ten million children do not have standard face-to-face interaction with one of their parents.”[54] Additionally, over twenty-two million people changed their state of residency between the years 1995 and 2000.[55] Approximately eleven million of these domestic migrants relocated to a state in a different region of the country.[56] In terms of single parents’ rates of relocation, 75% of custodial mothers will relocate at least once within four years of separation or divorce, and half of these women will then again relocate for a second time.[57] Thus, given the rates of parent-child separation as well as the significant rate of relocation, virtual visitation is an important solution to facilitate communication between geographically separated parents and children. Additionally, virtual visitation can help alleviate the problems resulting from parent-child separation and a lack of face-to-face interaction. California’s statistics on divorce and relocation rates illustrate a compelling need for the state to formally address and recognize virtual visitation. California’s divorce rate is approximately 54%.[58] In terms of relocation, according to the 2000 United States Census, California had the highest migration rates (movement in and out of the state) in the country between the years 1995 and 2000, exceeding a total of 3.6 million people.[59] California’s high divorce rate, coupled with its high relocation rate, makes California an ideal candidate to implement virtual visitation. With the large number of divorced families coupled with the mass migration in-and-out of the state, courts must have tools to ensure that communication continues between parents and children, even in the face of physical distance and separation following dissolution and parental relocation.

III. CALIFORNIA’S CURRENT LEGAL STANDARD REGARDING RELOCATION: THE CONCERN FOR CONTINUED PARENTAL RELATIONSHIPS AND THE CHILD’S BEST INTEREST

California courts have struggled with the question of when to allow a custodial parent to relocate with his or her child. In 1979, in In re Marriage of Carney, the California Supreme Court ruled that a child custody order could be modified only if the parent proved that there are substantially changed circumstances that render a change in custody “essential” or “expedient” to the welfare of the child.[60] In terms of relocation, subsequent court cases used the Carney holding to prevent custodial parents from moving away with their children in order to uphold the status quo custody arrangement.[61] Accordingly, in applying Carney, courts ruled that new job prospects or moving to be with a new spouse or near family were insufficient reasons to justify a custodial parent’s desire to relocate with his or her child and consequently modify the current custody order.[62]

However, seventeen years after Carney, the California Supreme Court in In re Marriage of Burgess nullified past decisions grounded in Carney and created a presumption favoring the custodial parent’s right to relocate, effectively making it easier for the custodial parent to move with his or her child.[63] In Burgess, the custodial mother wanted to move with her two children from their hometown of Tehachapi, California to Lancaster, California, approximately forty minutes away.[64] The noncustodial father objected to the move and requested permanent physical custody of the children if the mother relocated.[65]

The California Supreme Court overturned the District Court of Appeal’s decision and ruled that the custodial parent must only establish that the move serves the child’s best interest.[66] As a result, the custodial parent no longer faced the burden of proving that changed circumstances rendered a custody change essential, so long as the move was not detrimental to the child.[67] Under Burgess, the parent’s right to relocate was only per se restricted by a bad-faith reason for the move, such as relocating simply to restrict the noncustodial parent’s access to his or her child.[68] Additionally, the Court held that absent detriment to the child, trial courts should preserve custodial parent’s rights, and thereby presumptively allow the custodial parent to move with his or her child.[69] In Burgess, the Court held the mother had the presumptive right to relocate because she was the children’s primary caretaker, was moving in good-faith for employment reasons, and the father would still be able to visit the children regularly.[70]

In 2004, in In re Marriage of LaMusga, the California Supreme Court affirmed, but narrowly redefined Burgess, effectively making it more difficult for a parent to move.[71] In LaMusga, the custodial mother wanted to relocate with her children from California to Ohio, citing that she had family in the state and her new husband had received a job offer as the reasons for the move.[72] The trial court ordered that the noncustodial father would obtain primary physical custody of the two children if the custodial mother were to move.[73] The mother appealed, and the appellate court ruled in her favor based on the custodial parent’s presumptive right to relocate, as established in Burgess.[74] However, the California Supreme Court overturned the appellate court’s decision, ruling that the trial court did not place undue emphasis on the detriment that would result from separating the children from their father.[75] The California Supreme Court narrowed the Burgess holding, effectually shifting the presumption once again away from the custodial parent’s right to relocate.[76] More specifically, LaMusga held that “a noncustodial parent who opposes a . . . relocation . . . bears the initial burden of showing” only that the proposed “relocation would cause detriment to the child.”[77] Once the possibility of detriment is shown, the court then must engage in a balancing test to determine whether the proposed relocation would be in the best interest of the child.[78] To determine the best interest of the child, the court weighs the following factors:

the children’s interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children’s relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody.[79]

The LaMusga Court analogized that just as a custodial parent need not establish that a move is necessary, the noncustodial parent need not establish “that a change of custody is ‘essential’ to prevent detriment to the children.”[80] According to the Court in LaMusga, the burden of the noncustodial parent is only to show that detriment would result from the move sufficient to require a re-evaluation of custody.[81] According to Los Angeles divorce attorney Marshall S. Zolla, under the LaMusga standard “[m]ove-away’s for a custodial parent will now become more difficult.”[82]

Applying this new standard, the California Supreme Court in LaMusga upheld the trial court’s determination that the noncustodial father satisfied his burden of showing that the proposed move would be detrimental.[83] The trial court reasoned that it was in the children’s best interest to “reinforce what is now a tenuous and somewhat detached relationship with the boys and their father.”[84] The California Supreme Court conceded that the mother had been the primary care provider, the move was in good faith, and the children would suffer a “significant loss” if the mother moved without them.[85] However, the Court ultimately ruled that if the mother decided to relocate, the father would gain primary custody.[86] This holding was partially based on a psychologist’s determination that the relocation would detrimentally jeopardize the father-child relationship, as well as the fact that the custodial mother did little to reinforce or encourage the children’s relationship with their father.[87]

The California Supreme Court recognized that whenever a child moves away from a parent, there is bound to be detriment suffered as a result of the separation.[88] Furthermore, the Court recognized that if such detriment alone were sufficient to prevent a parent from relocating, then custodial parents would theoretically never be able to move with their children.[89] Despite these realizations, the California Supreme Court nevertheless held that the probable effect of a proposed move on the noncustodial parent-child relationship is a relevant factor when determining whether the custodial parent’s move would cause detriment to a child.[90] Consequently, such detriment may be sufficient to prevent the custodial parent from relocating.[91] Without the automatic presumption favoring the custodial parent’s right to relocate with his or her child, the LaMusga decision accordingly eliminates the ease and likelihood for custodial relocation that existed in the days of Burgess.[92]

A subsequent case, In re Marriage of Brown & Yana, illustrates the difficulty for a custodial parent to relocate with his or her child under California’s current precedent, even for a parent who has both sole legal and physical custody.[93] Reaffirming LaMusga, the California Supreme Court in Brown held that a parent with sole legal and sole physical custody does not have a presumptive right to relocate.[94] Furthermore, the Court in Brown held that upon showing detriment to the child, the noncustodial parent is entitled to an evidentiary hearing to ensure that a custody plan furthering the child’s best interest is set in place.[95] Thus, under Brown, a parent without any prior custodial rights could theoretically gain custody if able to show the potential for detriment as a result of the custodial parent’s proposed move.[96]

Brown illustrates that without a presumptive right in the custodial parent’s favor, the custodial parent is bound to face difficulty when attempting to relocate under California law.[97] Given the Court’s lowering the threshold needed to illustrate potential detriment[98] coupled with the right to an evidentiary hearing,[99] a legal struggle over the right to relocate is likely to ensue. When faced with a request for relocation, courts now employ a balancing test to determine the child’s best interest.[100] The court’s concern for the child’s welfare exists regardless of whether the parent is relocating to another county, state, or country, though a court is likely to take the distance of the move into account when determining the potential detriment suffered by the child as a result of the relocation.[101]

By removing the presumption favoring the custodial parent’s right to relocate, the courts and legislature seem concerned with fostering parent-child relationships, implying that continued contact and communication is in the child’s best interest. Modeling California courts’ precedent, the state legislature has enacted legislation conditioning the relocation on the child’s best interest.[102] Section 7501 of the California Family Code states, “[a] parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.”[103] To determine the “welfare of the child,” courts look to section 3011 of the California Family Code for factors to consider when determining the best interest of the child.[104] Such factors include, “[t]he health, safety, and welfare of the child;” “[a]ny history of abuse by one parent;” “[t]he nature and amount of contact with both parents;” and “the habitual or continual illegal use of controlled substances or . . . alcohol by either parent.”[105] These factors, together with those set forth in LaMusga, illustrate that courts must consider and weigh a multitude of variables before allowing a custodial parent to relocate with his or her child. Thus, every time a custodial parent wishes to relocate, so long as the noncustodial parent can show how the relocation could potentially be detrimental to the child, the court can conduct a hearing to make an individual, case-by-case determination regarding the relocation, oftentimes creating great uncertainty and expense.[106]

Additionally, the California legislature clearly indicated its intention to maintain parent-child relationships in the face of marital dissolution.[107] Section 3020 of the California Family Code states, “[t]he Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship . . . except where the contact would not be in the best interest of the child.”[108] Applying section 3020 in the context of move-away cases indicates the state’s objective to safeguard parent-child relationships. The legislation, when considered as a whole, illustrates California’s strong intention to make case-by-case determinations to ensure that the custody decisions rendered reflect what is best for the child.[109] Section 3020 and section 3011 of the California Family Code reflect this goal. Accordingly, implementing a virtual visitation system can be an effective means of ensuring the child’s best interest, while still balancing the wishes and needs of both the custodial and noncustodial parents.

IV. THE CASE FOR VIRTUAL VISITATION IN CALIFORNIA FAMILY LAW

A. Participating in Virtual Visitation Can Serve the Child’s Best Interest

As discussed, California has neither required virtual visitation in any appellate move-away case nor codified legislation on the subject.[110] However, given the strength and development of the trend throughout the country, California appellate courts should too officially recognize virtual visitation as a valid solution to settle relocation disputes. Such recognition is likely to change the way courts evaluate move-away cases. Under the current judicial standard, the custodial parent has no presumptive right to relocate.[111] However, if officially recognized and implemented in California, virtual visitation could weigh the factors the courts must consider when determining the child’s best interest in favor of the relocation. In addition to allowing the custodial parent to relocate with his or her child, virtual visitation may also simultaneously foster the noncustodial parent-child relationship, notwithstanding the physical distance resulting from the move.

A custodial parent may often have compelling and valid reasons motivating his or her desire to relocate. In such contexts, virtual visitation is a critical tool that can help meet the custodial parent’s needs and wishes. For example, relocating can be important in the career context.[112] Move-away cases have become more prevalent in part due to the increasing number of stay-at-home custodial mothers who have recently entered the work force.[113] As it becomes markedly more common for both parents to work outside the home, it also becomes more likely that “advancement up the career ladder may require a parent to move to a different community or, indeed, to a different part of the country.”[114]

The need to relocate is further exacerbated by today’s economic climate.[115] Given the recent financial crisis, relocation may be necessary for a family’s financial well-being, especially for a single parent.[116] Divorce tends to place additional financial burdens on a single parent, which are only compounded by the current economy.[117] It is possible a parent will find it necessary to relocate in order to secure a job or to be closer to family members who can help take care of the child.[118] Today, courts must be receptive to this reality and balance the interests and needs of the custodial parent against the noncustodial parent’s reasons for opposing the move.

Relocation is also important in encouraging finality and allowing divorced parents to move on with their lives.[119] Relocation is often necessary when a custodial parent remarries and needs to relocate with his or her new spouse.[120] There is undoubtedly a legitimate state interest in maintaining a child’s relationship with both of his or her parents.[121] However, achieving such interest may become more difficult if the child and noncustodial parent are geographically apart. Nevertheless, courts must recognize that relocation is oftentimes important for the parent’s well-being.[122] So long as the relocation is done in good faith, custodial parents should not have the course of their lives be determined by their former spouse. Virtual visitation can be an amicable solution when relocating is important to a custodial parent. If utilized, virtual visitation can act as a compromise solution, allowing the custodial parent to relocate while helping to still foster an active relationship between the child and the noncustodial parent. Thus, virtual visitation can reconcile both parents’ needs while acting in accordance with the child’s best interest.

In addition to recognizing and facilitating the custodial parent’s desire to relocate,[123] virtual visitation can frequently further the child’s welfare. Specifically, when courts are determining the child’s best interest, virtual visitation can help weigh essential factors in favor of the relocation. If virtual visitation can fulfill one of the factors that would otherwise prevent a custodial parent from relocating, then virtual visitation can play a substantial role in California court decisions. In such cases, virtual visitation should thereby be recognized and utilized.

California court decisions denying a custodial parent’s relocation request are typically dependent on the court’s conclusion that relocating away from the noncustodial parent would not serve the child’s best interest.[124] The court reaches this conclusion based upon, among the list of factors identified in LaMusga, the interest in preserving the noncustodial parent-child relationship and the parents’ inability to cooperatively co-parent and communicate with each other. The rationale in rejecting relocation requests on these grounds is that problems arising from these issues would only be exacerbated by a move.[125] The factors identified in LaMusga are weighed to determine the best interest of the child, and these issues in particular can strongly weigh against a court’s granting a relocation request.[126] As described below, adopting a virtual visitation plan could ease the court’s concerns, and if implemented as part of the decision, make it more likely for a court to grant a move-away request.

When the quality of the child’s relationship with the noncustodial parent would be jeopardized by the custodial parent’s relocation, virtual visitation could provide a means to maintain the noncustodial parent-child relationship.[127] In LaMusga, one of the reasons the California Supreme Court denied the custodial parent’s request to relocate stemmed from the court’s concern that the noncustodial parent-child relationship would deteriorate and be unable to develop and improve if the child were to relocate out of state.[128] Virtual visitation could be a viable solution alleviating the Court’s concern.

Noncustodial parents have voiced their support for virtual visitation, testifying to the quality of communication between them and their children via the technological portal.[129] For instance, Chuck Mason, a divorced father whose daughter lives out of state, experienced the benefits of communicating with his daughter twice weekly for three years via virtual visitation.[130] He shares that the two play online checkers together and that he watches her play songs on her recorder, claiming he can “do virtually everything online that he does during the in-person visits he gets with [his daughter] four times a year.”[131]

This testimonial illustrates the potency virtual visitation can have in ensuring that quality relationships between the child and noncustodial parent are maintained despite physical distance. Applying this idea to LaMusga, if virtual visitation had been an option considered by the Court, the mother might have been allowed to relocate with her children. If so applied, virtual visitation could assure the LaMusga Court that the noncustodial parent-child relationship would continue and develop, thus alleviating the court’s noted reservations. With virtual visitation, not only will communication continue, but the noncustodial parent and child will also be able to interact with each other to further build and enhance their relationship. Court orders stipulating the mandatory schedules for virtual visitation (just as is done for in-person visitation) can ensure that the parties have the sufficient quantity of time needed to generate quality communication. Ensuring sufficient quantity of time also alleviates the court’s concern that the nature and depth of the relationship would suffer as a result of the move.[132] Therefore, virtual visitation offers a feasible means to allow a noncustodial parent-child relationship to develop when a child relocates.

Virtual visitation can also be implemented to ameliorate the court’s concern that relocating would not only deteriorate the quality, but also effectively end a child’s relationship with his or her noncustodial parent. The destruction of such relationship would consequently not serve the child’s best interest and would accordingly violate section 3020 of the California Family Code, which emphasizes the importance of a child’s maintaining relationships with both his or her parents.[133] The case Oliver v. Gaines illustrates this concern.[134] In Oliver, the Court denied the custodial mother’s petition to relocate from California to Texas partly on the grounds that the child would lose his relationship with his noncustodial father as a result of the move.[135] The Court reasoned that the geographic distance and economic expense of the travel could easily prevent the noncustodial parent from visiting and thereby severely jeopardize and eventually end the relationship with the child.[136] The Court noted various factors that must be taken into account that could easily burden maintaining a relationship, including expensive airfare, lost work, the expense of staying in the new area, and the cost of local transportation.[137] According to the Court, these factors could prevent a noncustodial parent from visiting his or her child.[138]

Virtual visitation, however, could alleviate the Court’s concerns in this case by allowing the relationship to continue and develop via the virtual visits, which would allow for frequent contact and interaction between physical visits. As previously mentioned, virtual visitation systems are relatively inexpensive, and courts can additionally order the relocating parent to cover the costs of the system as a condition for the move.[139] Although courts are careful to stipulate that virtual visitation is best used as a supplement to actual in-person visits,[140] virtual visitation can greatly decrease the likelihood of the relationship deteriorating. Virtual visitation would allow the noncustodial parent and child to maintain their relationship virtually when frequent physical visitation may be financially burdensome or logistically difficult.

As mentioned, the Court in Oliver was concerned that given the geographical distance between the child and noncustodial parent, physical visitation would be difficult and lead to the relationship deteriorating.[141] This effect would be extremely problematic, given California’s legislative stance on ensuring a child’s continued relationships with both parents.[142] Ordered virtual visitations, however, could ensure the child will continue to have frequent accessibility to his or her parent even when geographically apart. Michael Gough, a father who launched efforts to bring the first virtual visitation legislation to his home state of Utah, praises virtual visitation as a means for him to preserve a relationship with his four-year-old daughter.[143] He explains how virtual visitation has helped revive their relationship:

After my daughter was relocated from Utah to Wisconsin I had not seen her for about three months when I flew . . . to be with her for the weekend. She did not immediately run up and greet me, but hesitated . . . A few weeks after I started using video calls with her I visited again and this time when she saw me, she ran up and hugged me. The difference: she had just seen me days earlier on the computer via a video call. I was able to read her stories, show her that I was there for her, which helped us to build lasting memories and the security that children need to have with their parents.[144]

If the noncustodial parent is ordered to virtually visit with the child on a consistent basis, the relationship can sustain, ameliorating the court’s concerns.[145] Additionally, if virtual visitation is used, the economic burdens of physical visitation can be alleviated. By participating in virtual visitation, parties will not be forced to rely solely on physical visitation as the only opportunity to see their child or to maintain the noncustodial parent-child relationship.[146]

Furthermore, virtual visitation can ameliorate communication and cooperation issues that arise between divorced parents, a factor California courts consider when determining whether relocating would be in the child’s best interest.[147] Courts often assume that if a child is geographically distanced from his or her noncustodial parent, there will be less likelihood and motivation for the custodial parent to help maintain and foster the noncustodial parent-child relationship.[148] Virtual visitation can alleviate this concern.

For instance, returning to LaMusga, the Court expressed concerns that the custodial mother would not attempt to facilitate contact between the children and their father if she relocated with them.[149] This uncertainty was a significant factor affecting the Court’s denying the relocation request.[150] However, virtual visitation, especially when utilized by older children, could be a viable solution to the problem of poor parental interaction.[151]

Virtual visitation requires very little effort or involvement from the custodial parent, as the communication is only between the child and the noncustodial parent. Specifically in regard to older children, other than providing the software and equipment, which can be achieved through mandatory court order,[152] neither the noncustodial parent nor the child will rely on the custodial parent for the virtual visits. This idea is contrasted with traditional forms of physical visitation that often require the custodial parent to physically transport the children to or from the other parent’s home. Virtual visitation is done from the comfort of one’s own home and can be organized around the child’s and noncustodial parent’s schedules. Additionally, because the court can be very specific in its orders in terms of implementing the virtual visitation schedule (such as the number of visits and the duration of the visits), any violation or attempt to prevent the children from communicating with the other parent could result in the custodial parent being held in contempt of the court’s order.[153] The fact that many older children have personal computers and use the Internet independently prevents the custodial parent from negatively interfering with the virtual visits.[154] These hypothetical applications of virtual visitation to past California court decisions that denied relocation requests illustrate that virtual visitation has the great potential to weigh the relevant factors determining the best interest of the child in favor of the custodial parent’s ability to relocate. Consequently, virtual visitation has the vast capability to affect the way California courts evaluate move-away cases.[155]

Critics may argue that virtual visitation cannot adequately satisfy the best interest of the child, as the relationship is limited to the confines of the computer screen.[156] As a result, noncustodial parents who are unhappy with the prospect of their child relocating tend to claim that the quality of their relationship that comes from being physically with the child is lost.[157] Critics contend that virtual visitation cannot replace the value of a hug or a parent’s being at a child’s sporting game.[158] However, proponents of virtual visitation assert that virtual visitation is only designed to supplement, not replace in-person visitation.[159] Virtual visitation is designed to foster the noncustodial parent-child relationship in between actual visits, sustaining relationships in the face of geographic separation when frequent in-person visits are impractical or even impossible.[160] Virtual visitation is a means for the noncustodial parent to maintain an active role in the child’s life, upon the court’s determination that the move is in the child’s best interest. Thus, concerns and comparisons about the quality of virtual versus actual relationships are unwarranted, as virtual visitation is designed to supplement—as opposed to replace—physical, in-person visitation.[161]

Virtual visitation is a viable solution when the court fears that relocating will sever the child’s relationship with his noncustodial parent or when it appears as if the relocating custodial parent will not help foster that relationship. Virtual visitation can alleviate the court’s concerns by providing a means for continued contact between noncustodial parents and children, thereby ensuring that noncustodial parent-child relationships continue despite the physical distance between them. Move-away cases are fact-specific in nature, and therefore a case-by-case analysis remains essential to determine the child’s best interest.[162]

B. Past Virtual Visitation Case Law and Legislation Are Analogous and Readily Applicable to California Legal Principles

California jurisprudence is well equipped to utilize virtual visitation in its relocation decisions, especially given the fact that other states with similar legal standards (namely, the best interest of the child standard) have employed virtual visitation.[163] Parallels can also be drawn between states that have passed specific virtual visitation legislation and provisions of California’s Family Code, designed to foster parent-child relationships in the face of dissolution and uphold the best interest of the child.[164] These similarities further illustrate that virtual visitation is readily applicable to California law and thus should be explicitly codified.

1. Other State Court Decisions Regarding Virtual Visitation Are Consistent with California Legal Principles

By applying the identical standard California courts use to render relocation decisions, other states have ordered virtual visitation to further the best interest of the child.[165] Given that California family courts operate under the fact-intensive best interest of the child standard,[166] relocation can prove to be an unclear area in the law. Thus, it is useful to look to out-of-state jurisdictions that have adopted virtual visitation to understand the context in which decisions utilizing virtual visitation have been rendered. Out-of-state family courts order virtual visitation as a means to achieve the same goal set forth in section 3011 of California’s Family Code: to serve the best interest of the child.[167] Thus, out-of-state cases ordering virtual visitation demonstrate that virtual visitation is readily adaptable, applicable, and relevant to California’s family law jurisprudence.

Courts across the country have ordered virtual visitation when a custodial parent feels compelled to relocate, such as for financial reasons or to gain a support network from family members who reside out-of-state.[168] Courts that order virtual visitation in these situations do so when it is believed that the gained economic opportunities or emotional support will further and help serve the child’s best interest.[169]

The August 2010 Baker v. Baker decision exemplifies this trend. In Baker, a New York judge in Suffolk County allowed a mother to relocate from New York to Florida with her two children under the condition she make the children available three times per week for at least one hour to have Skype sessions with the father.[170] In its decision to order virtual visitation, the Court reasoned that the move, along with the mandatory Skyping, would be best for the children’s welfare.[171] According to the Court, the custodial mother was in “dire financial straits,” as she had been laid off work, was unable to find a new job, and faced immediate foreclosure on her home.[172] If allowed to relocate, the mother would move to Florida and live with her parents until she was able to secure a job. The mother would additionally have the benefit of her parents and extended family members to act as her support network.[173] In its decision, the Court was able to strike an appropriate balance by means of virtual visitation. The Court allowed the move because relocating would serve the children’s best interest by ensuring their financial security, while maintaining the noncustodial parent-child relationship via the virtual visits.[174]

Baker was not the first case in which a court ordered virtual visitation to serve the child’s best interest. In the Connecticut case Armstrong v. Armstrong, the custodial mother wanted to relocate from Connecticut to Illinois to be near her extended family.[175] The mother suffered from multiple sclerosis, and doctors felt her stress could be alleviated from being close to her family in Chicago.[176] The noncustodial father objected on the grounds that if the mother relocated, he would be unable to maintain an active role in the children’s lives.[177] The Court rationalized that it would not only be in the best interest of the mother to relocate, but also in the best interest of the children to have the familial support network available to them.[178] The Court granted the relocation request so long as a virtual visitation schedule could be utilized to ensure a continued relationship between the children and their father.[179] This rationale also fits within California’s best interest of the child standard, as the Court in Armstrong used virtual visitation to render a decision aimed to serve the children’s welfare.

Similarly, in the Massachusetts case Cleri v. Cleri, the Court allowed the custodial mother to relocate to New York because she had a greater support system available there to assist with raising her children.[180] The Court granted the relocation along with a schedule of bi-weekly virtual visits for the noncustodial father to have with his children, which would allow him to continue fostering a relationship with them.[181] In fact, the Judge explicitly noted that with virtual visitation, the father would be able to help the children with their homework and read them stories.[182] The Judge also ordered both parents to purchase the necessary equipment to facilitate the virtual visitation as a condition to the move.[183]

The court’s reasoning in these out-of-state cases complements California’s current stance on relocation, as the court is ensuring the children’s best interest while still adhering to principles set forth in California Family Code section 3020, which stresses the importance of frequent contact and communication between parents and children following marital dissolution.[184] Virtual visitation is essential in achieving this balance. These cases are especially relevant given the current economic crisis, in which single parents face a greater need to relocate in order to find work and support their families.[185]

Virtual visitation is a means to preserve the parent-child relationship when the noncustodial parent objects on the grounds that he or she will no longer be able to maintain an active role in the child’s life if the child were to move.[186] Courts have often stated that a change in the noncustodial parent-child relationship alone is insufficient to deny a relocation request if alternative plans or solutions could feasibly be utilized to maintain the relationship.[187] Thus, virtual visitation can be used as a type of defense, recognizing that various forms and modes of communication exist to maintain the relationship. This conception of virtual visitation is consistent with California law, as many of the decisions ordering the use of virtual visitation are justified by citing the best interest of the child standard.[188]

The New Jersey appellate court case McCoy v. McCoy exemplifies utilizing virtual visitation as a compromise that serves the child’s welfare as well as the parents’ wishes.[189] In McCoy, the custodial mother wanted to move from New Jersey to California, claiming that she would be able to obtain a job that would allow her to spend more time at home with her daughter.[190] She also asserted that California’s climate would be better for the child’s asthma.[191] The trial court rejected the relocation request, reasoning that the cross-country move would negatively impact the child’s relationship with the noncustodial father.[192] The appellate court overturned the lower court’s decision, calling the mother’s proposed virtual visitation plan of building and maintaining a personalized website for communication “creative and innovative.”[193] The appellate court held that the trial court erred when it concluded that the noncustodial parent-child relationship would be substantially altered without investigating whether other possible means, such as implementing a website for daily communication, could be used to maintain the relationship.[194]

In McCoy, the appellate court stated that relocation alone cannot automatically be considered detrimental to the child’s relationship when there are alternative means to preserve the parent-child relationship.[195] Virtual visitation takes on the important task of maintaining such relationships.[196] Courts enacting virtual visitation decisions are thereby beginning to realize that “[i]n our modern mobile society it may be possible to honor a visitation schedule and still recognize a custodial parent’s right to move.”[197] This rationale fits well within California’s LaMusga precedent, which requires the noncustodial parent to show potential detriment to the child in order for the court to determine whether the move serves child’s best interest.[198] Virtual visitation can thereby limit the circumstances when the noncustodial parent can claim the child will suffer detriment sufficient to prohibit the relocation. Courts will be less likely to find that the child will face detriment simply as a result of relocating, when virtual visitation could be a viable solution to maintain and foster the relationship in between physical visits. The reasoning in McCoy illustrates that virtual visitation can readily be applied to the California precedent grounded in LaMusga, as the motivation behind out-of-state virtual visitation decisions is to effectuate the child’s best interest and ensure his or her welfare.[199]

The rationales courts use to justify virtual visitation orders in the out-of-state decisions discussed above mirror California’s concern for the child’s best interest.[200] Furthermore, the cases previously discussed illustrate that California family courts should adopt virtual visitation to ensure that the noncustodial parent-child relationship will sustain and continue.[201] Virtual visitation is a means to alleviate both the court’s and the noncustodial parent’s concerns that the noncustodial parent-child relationship will terminate as a result of the move.[202] Therefore, in a jurisdiction recognizing virtual visitation, the fear that the noncustodial parent-child relationship will deteriorate is unlikely to be the determining factor or sole reason for a court’s preventing the custodial parent from relocating.[203]

2. Virtual Visitation Statutes Complement California Family Law’s Statutory Scheme

Six states thus far have enacted virtual visitation legislation further indicating the growing significance of the trend.[204] When analyzed as a whole, this legislation, like the case law that has ordered virtual visitation, is grounded in the familiar best interest of the child standard.[205] Virtual visitation legislation is thereby very compatible with California’s current statutory scheme, which encompasses the state’s public policy to maintain parent-child relationships following marital dissolution,[206] as well as the California Family Code’s commitment to serving and protecting the child’s best interest.[207] Consequently, similarities can be drawn between California’s Family Code and the virtual visitation legislation that has recently been enacted throughout the country.[208]

The very nature of virtual visitation complements the intent of section 3020 of the California Family Code, which encourages the “frequent and continuing contact with both parents after the parents have separated or dissolved their marriage . . . .”[209] As discussed, the realities of life post-dissolution compounded with today’s economic climate make relocation necessary for many custodial parents.[210] Thus, by issuing virtual visitation orders, California would fulfill its public policy goals by allowing the child to continue his or her relationship with the noncustodial parent, regardless of the geographic distance separating them as a result of the move.[211]

Looking beyond California’s own legislative scheme, similarities can be drawn between California’s current law and the specific statutes dealing with virtual visitation enacted by other states. In 2004, Utah became the first state to enact legislation on virtual visitation in the context of dissolution or paternity actions.[212] The legislation generally states that “if available, reasonable virtual access [shall] be permitted and encouraged between children and a noncustodial parent.”[213] The statute stipulates that courts can use virtual visitation as a supplement to physical visitation to allow a custodial parent to relocate with his or her child, but cannot use virtual visitation to replace physical visitation.[214]

Much like California’s standard, Utah courts must consider the child’s best interest in determining whether to allow the relocation and to order the virtual visitation.[215] Utah’s virtual visitation legislation also commands each parent to permit and encourage communication between the other parent and the child, including Internet communications.[216] This part of Utah’s virtual visitation statute parallels California’s Family Code section 3020, which acknowledges the state’s public policy of maintaining a child’s relationship with both parents.[217] The fact that Utah is connecting virtual visitation with the importance of maintaining parent-child communication and relationships further illustrates that virtual visitation is readily adaptable and applicable to California’s family law goals and policies.

In addition to Utah, Texas enacted section 153.015 to its Family Code in 2007, which endorses frequent contact between parents and children by phone, e-mail, instant messaging, or video conferencing.[218] Under this section, courts can order reasonable periods of electronic communication between the noncustodial parent and child.[219] Paralleling California’s standard of ensuring the child’s welfare, the first factor Texas courts analyze when determining whether virtual visitation should be ordered is whether such electronic communication would serve the child’s best interest.[220] Other considerations include: what equipment is necessary to facilitate the virtual visitation, the parties’ accessibility to such equipment, and any other variables the courts in their discretion deem appropriate.[221]

Similarly to Utah’s and Texas’ legislation, Florida’s legislation codifies its courts to consider virtual visitation when such electronic communication is supplemented with periods of in-person visitation.[222] When deciding whether to order virtual visitation, Florida courts must consider the child’s best interest.[223] Florida’s law is very explicit and includes provisions specifying the court’s ability to allocate expenses arising from the electronic communication based on the parents’ finances[224] as well as mandating a seven-day deadline for one parent to provide the other with the access information needed to facilitate the virtual visits.[225]

The number of states that are enacting and codifying virtual visitation legislation indicates that the virtual visitation trend is likely to continue and take on a permanent role in both the judicial and legislative branches. In addition to the states already discussed, New Jersey and South Carolina have also enacted comparable virtual visitation legislation.[226] When analyzed as a whole, other states’ virtual visitation legislation indicate not only the increasing development and application of the virtual visitation trend, but also illustrate a concern for ensuring the best interest of the child. Such legislation amalgamates well with California’s interest in protecting the child’s welfare and maintaining parental relationships following marital dissolution, and specifically subsequent relocation. Thus, it seems as if California is well-equipped to enact similar types of virtual visitation legislation that are being codified throughout the country.

V. CONCLUSION

Given the importance of virtual visitation’s role in facilitating noncustodial parent-child relationships in the face of geographical separation, along with the growing number of out-of-state courts and legislatures formally recognizing virtual visitation in their appellate decisions and statutes,[227] virtual visitation’s lack of formal recognition in California family law jurisprudence is a substantial void. California should adopt virtual visitation in family law decisions when a custodial parent’s relocation is contested on the grounds that the noncustodial parent will adversely be separated from the child.

Virtual visitation is a practical solution in its application. Virtual visitation is not meant to be a substitute for in-person, physical visitation,[228] but instead a feasible means to maintain a relationship despite physical distance.[229] Virtual visitation fits well within California’s best interest of the child standard, and in fact can play a substantial role in weighing the necessary factors in determining the child’s best interest in favor of the relocation.[230] Virtual visitation also supports California’s public policy of encouraging a child’s relationship with both his parents in the face of marital dissolution, as the supreme goal of virtual visitation is to promote the continuance of the noncustodial parent-child relationship, albeit through virtual means.

Moreover, today’s technology makes virtual visitation plausible. Communicative technology has become commonplace in today’s increasingly digitally-dependent society. Thus, using technology such as Skype to communicate with a parent or child is both familiar and relevant to today’s generations. This relevance will continue to grow as new mediums of virtual communicative technology continue to develop in the future.[231] The rise of communicative technology is not static, but continues to grow in its influence and application. Thus, virtual visitation will continue to play a critical role well into the future.

Virtual visitation illustrates how technology has the vast capability to interact with the law to consequently serve a legal and meaningful purpose. When a court orders virtual visitation, the court is effectively recognizing the role technology plays in the judicial process. Thus, technology becomes a potent tool to help carry out the goals of family law courts throughout the country. In the context of virtual visitation, technology is being put to positive social use, in effect helping to foster and maintain relationships among people. By formally codifying and thereby recognizing virtual visitation, California would become part of the extraordinary process that amalgamates technology, culture, and interpersonal relationships to help serve and impact people in their daily lives.

Jenna Charlotte Spatz[*]

1. One-tap Video Calling with FaceTime on iPhone 4, Apple, http://www.apple.com/iphone/features/facetime.html (last visited Feb. 20, 2011).

2. Id.

3. See David Welsh, Note, Virtual Parents: How Virtual Visitation Legislation Is Shaping the Future of Custody Law, 11 J.L. & Fam. Stud. 215, 215-16 (2009).

4. Id.

5. Id. at 215.

6. Sarah L. Gottfried, Note, Virtual Visitation: The New Wave of Communication Between Children and Non-Custodial Parents in Relocation Cases, 9 Cardozo Women’s L.J. 567, 570 (2003).

7. See California Move Away Cases, CustodyMatch.com, http://www.custodymatch.com/family-law/move-away.cfm (last visited Feb. 20, 2011).

8. See Gottfried, supra note 6.

9. See McCoy v. McCoy, 764 A.2d 449 (App. Div. 2001); see also Baker v. Baker, N.Y.L.J., Aug. 4, 2010, at *5 (Suffolk Cnty. Sup. Aug. 4, 2010); Anne LeVasseur, Note, Virtual Visitation: How Will Courts Respond to a New and Emerging Issue?, 17 Quinnipiac Prob. L.J. 362, 363 (2004); Gottfried, supra note 6, at 584.

10. See e.g., LeVasseur, supra note 9 at 366–69.

11. See McCoy, 764 A.2d 449; see also Baker, N.Y.L.J. at *4-5; LeVasseur, supra note 9, at 366–68; Gottfried, supra note 6, at 584.

12. Sean McCumber, Virtual Visitation: The Who, the What, the How, & the Where: Long-Distance Parenting in the Digital Age, Sullivan, Taylor & Gumina: Attorneys at Law, http://www.stglawfirm.com/virtual-visitation (last visited Nov. 21, 2010).

13. LeVasseur, supra note 9, at 363.

14. See Mark Fass, Justice Conditions Family’s Relocation on Mother Providing Skype to Facilitate Communication, N.Y.L.J., Aug. 11, 2010, at 1.

15. See LeVasseur, supra note 9, at 363.

16. See Maury D. Beaulier, Virtual Visitation in the Computer Age, HG.org, Worldwide Legal Directories (Feb. 19, 2009), http://www.hg.org/article.asp?id=6001.

17. Welsh, supra note 3, at 216 n.9.

18. Julie Brook, Virtual Visitation, Continuing Educ. of the Bar Blog (Aug. 30, 2010), http://blog.ceb.com/2010/08/30/virtual%C2%A0visitation.

19. Id.; see also Cal. Fam. Code §§ 3040–48 (West 2010); Cal. Fam. Code § 7501 (West 2010).

20. In re Marriage of LaMusga, 88 P.3d 81 (Cal. 2004).

21. See Lynne Ellinwood, Custody—Change of Child’s Residence: Showing That Custodial Parent’s Proposed Move Will Cause Detriment to Child Requires Reevaluation of Custody Arrangement, 2004 Cal. Fam. L. Monthly 1 (2004).

22. One-tap Video Calling with FaceTime on iPhone 4, supra note 1.

23. ProQuest Statistical Datasets, LexisNexis Statistical Insight [Data file], http://web.lexis-nexis.com/statuniv (select Browse by Subject, EASI Market Planner, Media Use, Internet and select Internet Access: At Home) [hereinafter ProQuest Statistical Datasets At Home].

24. ProQuest Statistical Datasets, LexisNexis Statistical Insight [Data file], http://web.lexis-nexis.com/statuniv (select Browse by Subject, EASI Market Planner, Media Use, Internet and select Internet Activities: Used E-mail) [hereinafter ProQuest Statistical Datasets Used E-mail].

25. ProQuest Statistical Datasets, LexisNexis Statistical Insight [Data file], http://web.lexis-nexis.com/statuniv (select Browse by Subject, EASI Market Planner, Media Use, Internet and select Internet Activities: Used Instant Messenger) [hereinafter ProQuest Statistical Datasets Used Instant Messenger].

26. Welsh, supra note 3, at 219.

27. ProQuest Statistical Datasets At Home, supra note 23.

28. ProQuest Statistical Datasets Used E-mail, supra note 24.

29. ProQuest Statistical Datasets Used Instant Messenger, supra note 25.

30. Although considered low in cost and thereby accessible, there are percentages of the population who cannot afford the technology. This reality may be especially true for single custodial parents who cannot afford the technology but face the need to relocate (for job opportunities or child care support). See, e.g., Tricia Rosetty, CNET Disbanding by End of Year, Taylor Daily Press (Nov. 8, 2011), http://www.taylordailypress.net/news/article_a47d0a8a-f2c0-11df-a12d-001cc4c03286.html (stating how programs helping to give Internet access to low income persons are dissolving). But see, e.g., Computers4Kids, http://www.computers4kids.net/ (last visited Nov. 8, 2011) (exemplifying programs helping low-income children access the Internet).

31. Welsh, supra note 3, at 218.

32. Id.

33. Id.

34. Cheap Calls—Skype Prices, Skype, http://www.skype.com/intl/en-us/prices/ (last visited Feb. 20, 2011).

35. See, e.g., Windows Live Messenger —Free Software Downloads and Software Reviews, CNET Dowload.com, http://download.cnet.com/Windows-Live-Messenger/3000-2150_4-10450926.html (last visited Feb. 20, 2011).

36. See Call Phones from Gmail, Google, http://www.google.com/chat/voice (last visited Feb. 20, 2011).

37. ProQuest Statistical Datasets Used E-mail, supra note 24.

38. Beaulier, supra note 16.

39. Id.

40. Id.

41. See id.

42. Id.

43. Id.

44. Beaulier, supra note 16.

45. Id.

46. Id.

47. Call Phones from Gmail, supra note 36.

48. One-tap Video Calling with FaceTime on iPhone 4, supra note 1.

49. Walter S. Mossberg, Tango Brings a New Face to Mobile Video Calls, All Things Digital (Sept. 29, 2010), http://ptech.allthingsd.com/20100929/tango-mobile-video-calls.

50. Id.

51. Welsh, supra note 3, at 216.

52. U.S. Divorce Statistics, Divorce Magazine, http://www.divorcemag.com/statistics/statsUS.shtml (last visited Feb. 20, 2011).

53. Carol R. Flango, Science and Technology for Judges Trends in 2003: Virtual Visitation—Is This a New Option for Divorcing Parents?, National Center for State Courts, http://www.ncsconline.org/WC/Publications/KIS_SciJud_Trends03.pdf (last visited Feb. 20, 2011).

54. Welsh, supra note 3, at 216.

55. Rachel S. Franklin, Domestic Migration Across Regions, Divisions, and States: 1995 to 2000, Census 2000 Special Reports (Aug. 2003), http://www.census.gov/prod/2003pubs/censr-7.pdf.

56. Id.

57. Gottfried, supra note 6, at 568.

58. Marriages and Divorces—Number and Rate by State: 1990 to 2007, Census 2010, http://www.census.gov/compendia/statab/2010/tables/10s0126.pdf (last visited Mar. 21, 2011) (citing California’s previously reporting on the number of marriages and divorces in 1990).

59. Franklin, supra note 55.

60. In re Marriage of Carney, 598 P.2d 36, 38 (Cal. 1979).

61. Glen Rabenn, The Move-Away Dilemma, DivorceNet.com, http://www.divorcenet.com/states/california/ca_art09 (last visited Feb. 20, 2011).

62. Id.

63. See In re Marriage of Burgess, 913 P.2d 473 (Cal. 1996).

64. Id. at 476.

65. Id.

66. Id.

67. See LaMusga Memo, California Family Law Report, http://www.cflr.com/courses/study/LaMusgaMemo.htm (last visited Feb. 20, 2011).

68. Id.

69. See In re Marriage of Burgess, 913 P.2d at 481-82.

70. Id. at 479.

71. In re Marriage of LaMusga, 88 P.3d 81 (Cal. 2004).

72. Id. at 86.

73. Id. at 85.

74. Id. at 89.

75. Id. at 94.

76. Id. at 95.

77. Ellinwood, supra note 21.

78. Id.

79. In re Marriage of LaMusga, 88 P.3d at 100.

80. Id. at 84.

81. Id.

82. Ellinwood, supra note 21.

83. In re Marriage of LaMusga, 88 P.3d at 84.

84. Id. at 89 (quoting In re Marriage of LaMusga, No. A096012, 2002 Cal. App. Unpub. LEXIS 1027, at *19 (Cal. Ct. App. Apr. 10, 2002)).

85. In re Marriage of LaMusga, 88 P.3d at 101.

86. Id. at 102.

87. See id. at 85–86.

88. Id. at 96.

89. Id.

90. Id. at 84–85.

91. Steven Carlson, The “Move-Away” Case, Child Custody Coach, http://www.childcustodycoach.com/moveaway.html (last visited Mar. 21, 2011).

92. See id.

93. In re Marriage of Brown & Yana, 127 P.3d 28 (Cal. 2006).

94. Id. at 32–36.

95. See id. at 38–39.

96. Id. at 33.

97. See id.

98. In re Marriage of LaMusga, 88 P.3d at 84–85.

99. See In re Marriage of Brown & Yana, 127 P.3d at 35.

100. See In re Marriage of LaMusga, 88 P.3d at 84–85.

101. Id. at 100.

102. See Cal. Fam. Code § 7501 (West 2010).

103. Id.

104. Cal. Fam. Code § 3011 (West 2010).

105. Id. (Emphasis added).

106. See In re Marriage of Brown & Yana, 127 P.3d 28.

107. Cal. Fam. Code § 3020 (West 2010).

108. Id.

109. Id.

110. See Brook, supra note 18; Allison Herr, Virtual Visitation: The Use of Webcams for Weekly Visits, Preventative Family Law for Nevada, http://nevadafamilylaw.typepad.com/preventive_family_law/virtual_visitation/ (last visited Mar. 21, 2011).

111. See In re Marriage of LaMusga, 88 P.3d 81, 84 (Cal. 2004).

112. See In re Marriage of Rosson, 224 Cal. Rptr. 250, 259 (Ct. App. 1986).

113. Kimberly K. Holtz, Comment, Move-Away Custody Disputes: The Implications of Case-by-Case Analysis & the Need for Legislation, 35 Santa Clara L. Rev. 319, 319–20 (1995).

114. In re Marriage of Rosson, 224 Cal. Rptr. at 259.

115. See Molly McDonough, Judge Orders Skype Visits as Condition of Mom’s Move, ABA Journal: Law News Now (Aug. 12, 2010), http://www.abajournal.com/news/article/judge_orders_skype_visits_as_condition_of_moms_move.

116. See Betsy Pisik, “Can’t Afford” Divorce in Hard Times, Wash. Times (Feb. 6, 2009), http://www.washingtontimes.com/news/2009/feb/06/cant-afford-divorce-in-hard-time-couples-stick-tog/.

117. See id.

118. See Baker v. Baker, N.Y.L.J., Aug. 4, 2010, at *2, *5 (Suffolk Cnty. Sup. Aug. 4, 2010).

119. See LeVasseur, supra note 9, at 365.

120. Id.

121. See Cal. Fam. Code § 3020 (West 2010).

122. See Holtz, supra note 113, at 319-20.

123. See LeVasseur, supra note 9, at 365.

124. See In re Marriage of LaMusga, 88 P.3d 81.

125. Id. at 88–89.

126. Id. at 100.

127. See Tovia Smith, When an Ex Moves Away, Do the Kids Go Too?, National Public Radio (May 29, 2006), http://www.npr.org/templates/story/story.php?storyId=5425699.

128. In re Marriage of LaMusga, 88 P.3d at 88.

129. See Smith, supra note 127.

130. Id.

131. Id.

132. See Fass, supra note 14.

133. Fam. § 3020.

134. See In re Matter of Oliver and Gaines, No. B209327, 2009 Cal. App. Unpub. LEXIS 10149 (Dec. 22, 2009).

135. Id. at *6–8.

136. Id. at *10–12.

137. Id. at *11.

138. Id. at *11–12.

139. See supra Part II.

140. Welsh, supra note 3, at 222.

141. In re Matter of Oliver and Gaines, 2009 Cal. App. Unpub. LEXIS 10149, at *6–8.

142. See Fam. § 3020.

143. Michael Gough, Virtual Visitation: New Technology Is Changing the Way Divorced Fathers Can Connect with Their Children, Leving’s Divorce Magazine (Mar. 3, 2009), http://divorcemagazine.wordpress.com/2009/03/03/virtual-visitation-new-technology-is-changing-the-way-divorced-fathers-can-connect-with-their-children.

144. Id.

145. See, e.g., id.

146. See id.

147. Cal. Fam. Code § 3011 (West 2010).

148. See In re Marriage of LaMusga, 88 P.3d at 88–89.

149. Id. at 96.

150. See id.

151. See id.

152. See Baker, N.Y.L.J. at *5.

153. See McCoy v. McCoy, 764 A.2d 449 (App. Div. 2001); see also Baker, N.Y.L.J. at *5; LeVasseur, supra note 9, at 365; Gottfried, supra note 6, at 584.

154. See How Do Kids Use the Internet?, National Academic Press, http://www.nap.edu/netsafekids/inter_kids.html (last visited Feb. 20, 2011).

155. Virtual visitation will not always trump issues and weigh in favor of the custodial parent’s relocation, as other factors are involved that make virtual visitation non-applicable or inappropriate. See In re Marriage of Melville, 122 Cal. App. 4th 601 (2004) (holding a custodial mother could not relocate with her disabled son, as it was in the child’s best interest to have stability and continuity, making virtual visitation an impossible solution for sufficiently alleviating the court’s concerns).

156. Welsh, supra note 3, at 222.

157. Id.

158. Id.

159. Id.

160. See Utah Code Ann. § 321 (2004).

161. Welsh, supra note 3, at 222.

162. Holtz, supra note 113, at 329.

163. See McCoy, 764 A.2d 449; see also Baker, N.Y.L.J. at *5; LeVasseur, supra note 9, at 366–68; Gottfried, supra note 6, at 584.

164. Fam. § 3011; Fam. § 3020.

165. Fam. § 3011; Fam. § 3020.

166. Fam. § 3011; Fam. § 3020.

167. Fam. § 3011; Fam. § 3020.

168. See, e.g., Baker, N.Y.L.J. at *2; LeVasseur, supra note 9, at 366.

169. Baker, N.Y.L.J. at *4.

170. Id. at *5.

171. See id.

172. Id. at *2.

173. Id. at *3.

174. See id.

175. LeVasseur, supra note 9, at 366.

176. Gottfried, supra note 6, at 585.

177. LeVasseur, supra note 9, at 366.

178. Id.

179. Id. at 367.

180. Gottfried, supra note 6, at 584.

181. Id.

182. Lee Rosen, Virtual Visitation: Technology Hits Home, WRAL.com (Jan. 22, 2007), http://wraltechwire.com/business/tech_wire/opinion/story/1172531/.

183. Gottfried, supra note 6, at 584.

184. Fam. § 3020.

185. See, e.g., Baker, N.Y.L.J. at *2.

186. See McCoy, 764 A.2d at 454 (noting that virtual visitation can be utilized to preserve the parent-child relationship upon the child’s relocation); see also LeVasseur, supra note 9, at 366-68 (discussing Armstrong v. Armstrong, No. FA 01-0728168-S, slip op. at 1 (Super. Ct., Jud. Dist. of Hartford, July 25, 2002), in which the court-ordered virtual visitation to preserve the non-custodial parent-child relationship following relocation); Armstrong, No. FA 01-0728168-S, at 1.

187. See McCoy, 764 A.2d at 452–53 (holding that ex-wife’s suggested use of Internet to enhance visitation rights was sufficient to establish good faith reason for relocating); see also LeVasseur, supra note 9, at 363–72.

188. See McCoy, 764 A.2d 449; see also Baker, N.Y.L.J. at *4; LeVasseur, supra note 9, at 366.

189. McCoy, 764 A.2d 449.

190. Id. at 451.

191. Id.

192. Id. at 454.

193. Id.

194. Id.

195. McCoy, 764 A.2d at 454.

196. See LeVasseur, supra note 9, at 365.

197. McCoy, 764 A.2d at 453.

198. In re Marriage of LaMusga, 88 P.3d at 84–85.

199. See id.; see also Baker, N.Y.L.J. at *4; LeVasseur, supra note 9, at 365–68.

200. See McCoy, 764 A.2d 449; see also Baker, N.Y.L.J. at *4; LeVasseur, supra note 9, at 365–68. See generally Fam. § 3011.

201. See Gottfried, supra note 6, at 593 (explaining “virtual visitation can be an extremely useful tool in maintaining and even strengthening ties between children and their non-custodial parents in relocation cases”).

202. See Gottfried, supra note 6, at 570.

203. See McCoy, 764 A.2d at 453.

204. Virtual Visitation, Rosen Law Firm: North Carolina Divorce (Nov. 4, 2008), http://www.rosen.com/childcustody/carticles/virtual-visitation/?output=pdf.

205. See Wis. Stat. § 767.481(3) (2010); 2004 Utah Laws 321 § 2 (12); Tex. Fam. Code Ann. § 153.015(b)(1) (Vernon 2010).

206. Fam. § 3020.

207. Fam. § 3011.

208. See Elisabeth Bach-Van Horn, Comment, Virtual Visitation: Are Webcams Being Used As An Excuse to Allow Relocation?, 21 J. Am. Acad. Matrim. Law. 171, 186–87 (2008).

209. Fam. § 3020(b).

210. See supra Part IV.A.

211. See Fam. § 3020; Gottfried, supra note 6, at 593–94.

212. Bach-Van Horn, supra note 208, at 181 n.50.

213. 2004 Utah Laws 321.

214. Id. § 321(1)(2d).

215. Id. § 321(2)(a).

216. Id. § 321(1)(2)(d).

217. Fam. § 3020(b).

218. Tex. Fam. Code Ann. § 153.015 (Vernon 2010).

219. Id. § 153.015(b).

220. Id. § 153.015(b)(1).

221. Id. § 153.015(b).

222. Fla. Stat. § 61.13003(4) (2010).

223. Id. § 61.13003(1)(a)(1).

224. Id. § 61.13003(2).

225. Id. § 61.13003(3).

226. Bach-Van Horn, supra note 208, at 186.

227. See supra Part IV.A–B.

228. See Welsh, supra note 3, at 222.

229. See supra Part II.

230. See supra Part III.

231. See supra Part II.A.

* J.D. Candidate, Loyola Law School Los Angeles, 2012, B.A. University of Southern California, 2009. This Comment is dedicated to my family, friends, and teachers who have inspired me—and especially to my loving Grandfather, Dr. Edward Spatz. Although he is no longer physically here, he remains one of the greatest influences in my life and taught me the importance of hard work and kindness. I am also very grateful to my family, (specifically, my Mother, Lala, Micalla, Jean, and Isabella), for their constant support and love. I would also like to thank Corii David Berg, whom I am very fortunate to count as a mentor, and to Judge Mark Borenstein, who has exemplified how compassion and fairness are integral to family law. Thank you to my USC Professor, Dr. Ann Crigler, who I consider a valued friend, and to my Loyola Law School Professors, Professor Sarah Bensinger and Professor Douglas NeJaime for their valuable guidance and input throughout my writing this Comment. Last but not least, my great thanks and appreciation to the staff and editors of the Loyola of Los Angeles Entertainment Law Review for their hard work and dedication in the production of this Comment.

THESE TATS ARE MADE FOR TALKING: WHY TATTOOS AND TATTOOING ARE PROTECTED SPEECH UNDER THE FIRST AMENDMENT

“The First Amendment serves not only the needs of the polity but also those of the human spirit—a spirit that demands self-expression.”

- Thurgood Marshall in Procunier v. Martinez[1]

This Comment examines the current split among the federal circuit courts of appeal on the issue of First Amendment protection of tattoos and argues for the United States Supreme Court to grant certiorari to Anderson v. City of Hermosa Beach and adopt the approach taken by the Ninth Circuit Court. Traditionally, courts have viewed a restriction on the process of creating pure speech as a restriction on the speech itself. As a result, the courts vigorously protect the process of creating the speech. Tattooing, a process inexplicably linked to the creation of tattoos, must be protected with the same fervor as the process that creates any other pure speech. Subsequently, zoning laws restricting tattoo establishments would be examined under stricter constitutional standards leading to greater freedom of expression.

I. INTRODUCTION

Tattoos, lifelong commitments to particular expressions, have become pervasive in modern society.[2] For most, the choice to get a tattoo is not a rash decision but the result of thorough contemplation—the desire to make “permanent that which is fleeting.”[3] Tattoos can mark rites of passage, express feelings about others, show religious devotion, or symbolize a collection of significant moments in one’s life.[4] Whereas tattoos were previously viewed as the “seedy province of old salts, sideshow freaks and biker[s,]” today, tattoos have firmly planted themselves within mainstream society.[5]

In part, the widespread popularity of tattoos is attributed to both technological advances in the field and refined artistic techniques developed by tattoo artists.[6] New machinery and ink formulations have allowed artists to create detailed tattoos with “thinner lines and more vibrant colors.”[7] Furthermore, many tattoo artists are art school graduates who create “sophisticated, colorful graphic designs,” which sometimes take more than thirty-six hours to complete.[8] Moreover, advancements such as autoclave sterilization and similar tattooing techniques make tattooing safer by preventing the spread of communicable diseases, such as Hepatitis B.[9] These advances have transformed the industry from that of a dark and unwieldy subculture to a mainstream art form in which the general public desires the creation of a variety of unique images.[10] Despite society’s general recognition of tattoos and tattooing as forms of art, most courts deny tattoos’ artistic merit, and thus refrain from awarding tattoos and tattooing the full protection afforded other art forms under the First Amendment.[11]

The issue of First Amendment protection for tattoos and tattooing has recently taken center stage in California’s legal arena.[12] California, like all other states within the United States, permits the establishment of tattoo parlors.[13] However, in order to protect its citizens from communicable diseases, each state places different regulations upon the practice of tattooing.[14] In California, tattoo artists must register with the county health department.[15] The County of Los Angeles permits tattooing; however, the City of Hermosa Beach, a city within Los Angeles County, legislated a complete ban on tattooing within its city limits.[16] The City of Hermosa Beach ordinance provides that, “[e]xcept as provided in this title, no . . . building or land [shall] be used for any purpose except as hereinafter specifically provided . . . .”[17] The ordinance does not name tattooing in the list of permitted uses.[18] However, upon request, the community development director may grant a similar use permit by finding that the proposed “commercial use not listed in the zoning code . . . ‘is similar to and not more objection[able] than other uses listed.’”[19]

In May 2007, Johnny Anderson, a co-owner of a tattoo shop in the City of Los Angeles, attempted to have his plans for a tattoo parlor approved for a similar use permit by the City of Hermosa Beach community development director.[20] Anderson’s request was denied, and he was prevented from establishing a tattoo parlor in the City of Hermosa Beach.[21] Subsequently, Anderson brought a 42 U.S.C. § 1983 action against the City.[22] He petitioned that the zoning ordinance was facially unconstitutional under the First and Fourteenth Amendments and sought declaratory and injunctive relief.[23]

Anderson’s relief was dependent on whether the court found that tattoos and tattooing fell under the protection of the First Amendment.[24] The district court denied this protection because it found that tattooing was not “‘sufficiently imbued with the elements of communication[.]’”[25] The court opined that since “the customer has ultimate control over which design she wants tattooed on her skin” the tattoo artist is not conveying the artist’s own message or idea to others.[26] As a result, the district court applied a rational basis test to the zoning law and upheld the ordinance as a rational means of preventing the alleged health risks of tattooing.[27] However, when Anderson appealed, the Ninth Circuit Court of Appeals found that tattoos and the associated process and business of tattooing are purely expressive activities that are fully protected under the First Amendment.[28] Under the stricter test applied to zoning laws that infringe upon protected speech, the zoning ordinance was declared unconstitutional.[29]

This Comment addresses the historic denial of First Amendment protection to tattoos and tattooing that has resulted in a complete ban of tattoo parlors in certain cities. Part II of this Comment addresses how courts have incorrectly interpreted tattoos under the First Amendment. Part III explains that tattoos and tattooing are entitled to full First Amendment protection because: (1) tattoos are pure speech; (2) pure speech is fully protected under the First Amendment; (3) the process of tattooing is inextricably intertwined with the creation of the tattoo and thus must be fully protected as well; and (4) if viewed separately from the tattoo, the process of tattooing is an expressive activity, in and of itself. Part IV of this Comment urges the Supreme Court to grant certiorari to Anderson v. City of Hermosa Beach to resolve a circuit conflict and to affirm the Ninth Circuit’s decision. Finally, Part V describes how a grant of First Amendment protection to tattooing would potentially affect anti-tattooing zoning laws.

II. COURTS HAVE PERMITTED MUNICIPALITIES TO CONSTRUCTIVELY BAN TATTOO PARLORS BY HOLDING THAT THE PROCESS OF TATTOOING IS NOT PROTECTED UNDER THE FIRST AMENDMENT

A. Historically Courts Have Upheld Zoning Laws Forbidding or Severely Restricting the Establishment of Tattoo Parlors

Despite the widespread popularity and influence tattoos have garnered in the last few decades,[30] some lawmakers still view tattooing as a “barbaric” activity desired by those of “morbid or abnormal personalit[ies.]”[31] As a result, some cities have banned the establishment of tattoo parlors within their limits suggesting that the “health, safety and general welfare” of its citizens warrants protection from this grotesque activity.[32]

Cities attempt to prevent the establishment of tattoo shops in a variety of ways. Some cities completely prohibit tattoo parlors.[33] For example, three Coachella Valley cities in California enacted outright bans on the operation of tattoo parlors.[34] Other places restrict the establishment of tattoo parlors only in certain areas within a municipality.[35] Finally, some cities prohibit “tattooing of human beings except by licensed medical doctors for medical purposes. . . .”[36] These localities justify the enactment of their respective ordinances by citing the health and safety of their citizens while also alluding to the “unsavory clientele prone to crime” that the localities perceive tattoo shops attract.[37]

Anti-tattoo zoning laws have garnered support from courts that find complete or area- specific bans on tattooing constitutional.[38] Courts reason that tattooing is dangerous because it involves “puncturing the skin” with a needle creating openings in the human skin through which diseases can pass.[39] As a result, any regulation restricting a person’s ability to tattoo bears a significant relationship to the state’s police power.[40] Unfortunately, these courts fail to consider the fact that prohibiting legal tattoo parlors within city limits pushes tattoo parlors underground.[41] Consequently, the risks associated with tattooing become harder to regulate since there can be no state-funded agency to monitor tattoo shops’ compliance with sterile tattooing conditions.[42]

B. Some Courts Deny First Amendment Protection to Tattooing

Many tattoo artists have attempted to challenge anti-tattooing zoning laws by arguing that these zoning laws are a restriction on their First Amendment rights.[43] However, courts have denied the process of tattooing First Amendment protection, thus allowing zoning laws to ban tattoo parlors.[44] Three basic mistakes support the denial of First Amendment protection to tattooing: (1) tattoos are not pure speech, (2) tattoos and the process of tattooing are viewed as separate expressions, and (3) the process of tattooing is devoid of any expression.[45]

1. Past Courts Have Not Found that Tattoos Are Pure Speech

The First Amendment to the U.S. Constitution prevents the federal government from implementing laws that infringe upon a person’s right to free speech.[46] The Fourteenth Amendment, which applies the protections listed in the Bill of Rights to state government actions, prohibits the states from creating laws that abridge the free expression of ideas.[47] When devising the Constitution, the Framers sought to ensure that Americans could communicate freely about their country, their government, and its laws.[48] Laws regulating the free expression of ideas are subjected to strict scrutiny to prevent chilling constitutionally protected speech.[49]

When deciding First Amendment cases, courts are especially careful to protect pure speech.[50] Pure speech is the term used for ideas expressed verbally or through written words.[51] In order to achieve the status of pure speech, the speech must be “relatively pure[,]” consisting mainly of verbal and written utterances as opposed to conduct.[52] For example, picketing is not pure speech since it involves conduct that can convey a message absent the spoken or written word.[53] On the other hand, a newspaper qualifies as pure speech because it consists of words and images absent any conduct.[54] The Supreme Court believes the protection of pure speech is of the utmost importance because even though speech “is often provocative and challenging . . . [t]here is no room under our Constitution for a more restrictive view [because] the alternative would lead to the standardization of ideas either by legislatures, courts, or dominant political or community groups.”[55]

Despite the similarities between tattoos and the words and images in newspapers, many courts refuse to acknowledge that tattoos are pure speech entitled to full protection under the First Amendment.[56] In Riggs v. City of Fort Worth, the court held that a tattoo is simply a way for a person to express personal views and beliefs.[57] The court stated that protected speech must address a legitimate public concern and that the tattoo at issue—a Celtic design of the plaintiff’s heritage—was not of concern to the public.[58] Likewise, in Stephenson v. Davenport Community School District, the Eighth Circuit declared that the tattoo at issue—a small cross between the thumb and index finger—was “simply ‘a form of self-expression’” not protected by the First Amendment.[59] In conclusion, some courts refuse to grant tattoos protection under the First Amendment because they view tattoos as self-expression.[60] To these courts, only expression or conduct that addresses issues of public concern are protected under the First Amendment.[61]

2. Courts Analyze the Process of Tattooing Separately from the Tattoo

When determining if the process of tattooing is entitled to First Amendment protection, some courts look at the product separately from the process.[62] For example, in Yurkew v. Sinclair, the court argued “that the issue of whether certain conduct comes within the protection of the First Amendment should not invariably depend on whether the final product of the conduct can by some stretch of the imagination be characterized as art or an art form.”[63] Then, the court held that even if a tattoo was an art form entitled to First Amendment protection, such protection did not extend to the process of tattooing.[64] The court reasoned that a tattoo was clearly more communicative than the process.[65] Likewise, the court in Hold Fast Tattoo v. City of North Chicago found that the process of tattooing is “one step removed” from the expressive tattoo and thus not entitled to First Amendment protection.[66]

3. Separated from the Product, the Process of Tattooing Is Viewed by the Courts as Not Expressive Enough to Be Entitled to First Amendment Protection

Courts have not limited First Amendment protection to just pure speech but have also provided protection to sufficiently communicative conduct.[67] In Spence v. Washington, the United States Supreme Court held that conduct is “sufficiently imbued with elements of communication” when there is “[a]n intent to convey a particularized message,” and “the likelihood [is] great that the message would be understood by those who view[] it.”[68] The Spence test was created to avoid awarding First Amendment protection to a limitless list of conduct, as doing so would make legislation almost impossible.[69] For example, a person walking down the street is engaged in conduct, but it is not the type of conduct that needs to be protected by the First Amendment.[70] Texas v. Johnson explained that only conduct performed with the intention of expressing an idea warrants protection under the First Amendment.[71] For instance, a person burning an American flag at a political event needs protection because they are engaged in controversial conduct that is sufficiently imbued with the necessary elements of communication to be afforded First Amendment protection.[72] Under the Spence test, a wide range of conduct that is not pure speech has been determined to be expressive, such as taping a black peace sign to an American flag,[73] wearing black arm bands in opposition to the war in Vietnam,[74] marching peaceably to express grievances against the government, protesting discrimination by engaging in sit-ins, refusing to salute the American flag, and “parad[ing] with or without banners or written messages.”[75]

Even though some courts are willing to acknowledge that the tattoo itself might be sufficiently imbued with communication, most courts are not willing to extend that protection to the actual process of creating tattoos.[76] Courts that separate the process from the product believe that tattooing is non-communicative conduct; to them, engrafting a tattoo on the skin does not suggest political or social thought to the normal observer, nor does it affect public attitudes and behavior.[77] Other courts claim that the process of creating a tattoo is not an effort to create a particularized message, but rather, an attempt to create the expression of the person who is paying for the tattoo.[78] These courts conclude that tattooing is not speech, symbolic speech, or conduct sufficiently communicative to warrant protection by the First Amendment.[79]

III. LIKE OTHER ART FORMS AND THEIR PROCESSES, TATTOOS AND TATTOOING ARE PURE SPEECH ENTITLED TO FULL PROTECTION UNDER THE FIRST AMENDMENT

Historically, courts that apply the Spence test have offered inconsistent holdings as to whether tattoos and the associated process and business of tattooing should be protected by the First Amendment.[80] Some courts, like the Eighth Circuit, applied the test and found that tattoos—and thus tattooing—are not sufficiently imbued with communicative elements.[81] Other courts applied the Spence test and found that even though the tattoo might encompass communicative elements, the process of tattooing is pure conduct without any expressive elements.[82] Finally, other courts using the Spence test have held that tattooing is expressive conduct entitled to First Amendment protection.[83] However, the courts need not apply the Spence test to tattoos and tattooing because tattoos are pure speech, not expressive conduct, fully protected under the First Amendment.[84] As a result, the process that creates the pure speech is protected as well.[85]

A. Tattoos Are Pure Speech

1. Tattoos Are an Ancient Art Form Older than the United States Itself

The history of tattoos precedes the founding of the United States.[86] In early America, tattoos were viewed as “degraded art”, art for the lower classes, and were ridiculed for being “coarse” and “poorly executed” depictions.[87] Mostly military men wore tattoos as a symbol of their patriotism.[88] However, by the late 1800’s, tattoo artists began establishing their trade in various cities in the United States.[89] Famous tattoo artists emerged, such as Gus Wagner,[90] and advertisements noted that “[t]attooing is quite a fad and many ladies as well as gentlemen have adopted it and their persons bear everlasting symbols of the art.”[91] The acceptance of tattoos in mainstream society led to advances in the tattoo industry, such as the invention of the first electric tattoo machine in New York City in the 1880s.[92] As a result, tattoos became more ornate and were less painful to complete.[93]

However, the pervasive acceptance of tattooing did not last.[94] Conservative Americans began to view tattoos as immoral, vile, and appropriate only for the lower class.[95] By World War I, the military began to regulate the more sexually suggestive content of tattoos.[96] Concurrently, the government began inspecting tattoo shops to ensure compliance with health codes.[97] By the 1950s, journalists lamented that “[t]he venerable art dedicated to skin deep beauty is, unlike its indelible triumphs, fading away.”[98] The post-war society emphasized conformity, and thus tattoos became a symbol of adolescent rebellion.[99] Once again, tattoos were viewed as an art form of the lower class.[100]

In the 1960s, an outbreak of Hepatitis in New York was attributed to an unsanitary tattoo shop.[101] Through the media, word spread that diseases could be transmitted through tattooing, and many states and cities reacted by banning tattooing completely.[102] During the Vietnam War, tattoos moved further away from the mainstream when they became a venue for anti-war and anti-government expression in the counterculture.[103] While many older tattoo artists refused to tattoo anti-military images, younger artists quickly embraced the designs of the counterculture and created “[p]eace signs, marijuana leaves, mushrooms, swastikas and motorcycle emblems . . . .”[104]

During the 1970s, traditionally trained fine artists began applying their skills to tattooing and created a new genre of tattoos with more sophisticated imagery and techniques.[105] Contemporary artists such as Bruce Nauman, Dennis Oppenheim, and Chris Burden focused their attention on creating “body pieces” that “explored ways in which the artist could become both the subject and object” of the artwork.[106] Concurrently, younger tattoo artists such as Ed Hardy, a student at the San Francisco Art Institute, began to establish uniform ethical and hygienic standards in hopes of overturning laws that restricted tattooing.[107] The self-regulation of tattoo artists, combined with the changing attitudes toward body art, created a platform in the 1970s and 1980s that established tattooing as a legitimate art form.[108]

By the 1980s, tattoos reached rock star status.[109] Musicians and their supermodel girlfriends openly displayed their tattoos, and consumer demand for this art form skyrocketed.[110] As tattooing again became more acceptable within mainstream society, states lifted their bans against the process of tattooing.[111] Today, tattooing has become a leading art form, a desirable profession,[112] a profitable sector of the national economy,[113] and the subject of museum exhibits throughout the United States.[114] Today, tattoo artists are known for their “large-scale, unified, custom designs,” and some have even sought copyrights for their finished pieces.[115] Currently, most tattoo artists are graduates of college art programs who seek the “intrinsic appeal of the medium” and desire to break free from the “limitations, distortions and irrelevance of conventional elitist modes of art production.”[116] Tattoos are pervasive; they are found on everyone from athletes to movie stars to public figures who shape American culture.[117]

2. Tattoos, Like All Other Visual Arts, Deserve Protection as Pure Speech

Although the Supreme Court has never heard a case concerning First Amendment protection for visual art, it has held that forms of expression—such as art, music, and entertainment—are protected under the First Amendment.[118] In Ward v. Rock Against Racism, the Supreme Court held that the First Amendment protected the music at a concert where there was also political speech.[119] The Court distinguished the speaker’s political remarks from the music to emphasize that the music itself received full First Amendment protection “as a form of expression and communication.”[120] The court reasoned that music needs First Amendment protection because it is “one of the oldest forms of human expression” that has a long history of censorship.[121] Likewise, tattooing is one of the oldest forms of human expression subjected to censorship by governments in the past, and thus is in need of First Amendment protection.[122]

Similarly, in Burstyn, Inc. v. Wilson, the Supreme Court ruled that motion pictures fall within the “ambit of protection which the First Amendment, through the Fourteenth, secures to any form of ‘speech’ or ‘the press.’”[123] The First Amendment shelters motion pictures because they are a “significant medium for the communication of ideas.”[124] The Court added that movies are deserving of protection because they have the power to affect public attitudes and behavior, from the “espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.”[125] Similarly, tattoos have the power to shape public attitudes and behavior.[126] Tattoos are often used as “cultural icon[s]” in advertisements and promotions to attract younger consumers.[127] For example, Goodyear Tire & Rubber Company has offered a set of free tires to anyone who will tattoo the company’s logo onto his or her body.[128] Furthermore, the website leaseyourbody.com allows advertisers to find people willing to be paid for wearing tattoo advertisements.[129] In a more serious context, other tattoos express pro-war or anti-war sentiments, such as the soldiers during the Vietnam War who tattooed “Sat Cong” (Kill the Communists) on themselves before entering combat, or the anti-war protestors who tattooed peace signs on their bodies to oppose the war.[130]

Some who oppose granting blanket First Amendment protection to tattoos believe that only tattoos making political statements might warrant protection.[131] For example, in Riggs v. City of Fort Worth, the United States District Court for the Northern District of Texas stated that a plaintiff’s tattoo of a Celtic tribal design was an “artistic expression” as opposed to a “political message.”[132] As a result, the tattoo did not receive First Amendment protection because the tattoo was a way to express a personal view and not a matter of “legitimate public concern”.[133] However, the Supreme Court has held that First Amendment protection is granted not only to the discussion of political ideas but also to “philosophical, social, artistic, economic, literary [and] ethical matters.”[134] Thus, the First Amendment provides broader protection than that afforded by the Texas District Court, and thus, tattoos do not need to be political statements to be protected by the First Amendment.

Furthermore, appellate courts have afforded more traditional visual arts pure speech status under the First Amendment.[135] In White v. City of Sparks, the Ninth Circuit Court of Appeals concluded that an artist’s painting ought to be protected as pure speech under the First Amendment because it created thoughtful reflection and discussion and because the Supreme Court has held that “a narrow, succinctly articulable message is not a condition of constitutional protection.”[136] Tattoos, like paintings, provoke thoughtful reflection and discussion by those who view them.[137] Paintings can express a political position, depict a scene in nature, or show deep understanding of movement and color.[138] Nonetheless, courts have found that all types of paintings elicit thoughtful reflection and discussion.[139] Likewise, tattoos can express those same reflections,[140] and often become conversation pieces when people inquire about the significance of a person’s tattoo.[141]

Opponents of this view argue that a tattoo is unlike a painting or sculpture because a painted canvas or sculpture can be displayed for all to see, but a tattoo cannot.[142] However, tattoos are constantly viewed by the public.[143] In fact, tattoos probably receive more viewership than a piece of art located in a museum.[144] Tattoos are an “intimate art form” that people carry on their bodies, thus enabling all people, not just those who pay admittance to an art museum, to see and understand them.[145] Furthermore, determining whether protection should be afforded based on visibility to the public would result in absurd inconsistencies. For example, under this rule, if a person had the exact same tattoo on the thumb and on the back, the visible thumb tattoo would be protected while the other would not. Similarly, a painting produced by Jackson Pollock that was hidden in his attic would not be protected, but a Pollock painting displayed in a museum would receive full First Amendment protection.[146] Thus, the amount of visibility a piece of artwork receives cannot be determinative of its ability to be protected under the First Amendment.

Others oppose giving First Amendment protection to tattoos because tattoos do not convey particularized messages easily understood by their viewers.[147] For example, the Eighth Circuit declared that a tattoo of a small cross located between the thumb and index finger did not convey the requisite particularized message and was instead simply “self-expression.”[148] However, later, the court acknowledged that the opposing party viewed the cross as a gang symbol and “a significant portion of the world’s population” viewed it as a symbol of devotion to the Christian religion.[149] The Eighth Circuit might not have found that the tattoo conveyed the same message to everyone, but it definitely did convey a message.[150]

The Supreme Court has held that if First Amendment protection relied on the delivery of a particularized message, protection would never have been afforded to “unquestionably shielded [speech such as the] painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.”[151] As with the subjective message conveyed by a cross tattoo, two different people might find different messages in Pollock’s Number 1 located at the Museum of Contemporary Art.[152] People may even believe that there is no message and that the painting is just a self-expression.[153] However, regardless of the meaning others read into his work, the work is fully protected by the First Amendment.[154] Similarly, tattoos convey messages, and although the message a particular tattoo conveys may not be consistent or easily understood by all who view it, that is not a valid reason to deny the tattoo First Amendment protection.[155]

Finally, in Bery v. City of New York, the Second Circuit Court of Appeals protected visual art as pure speech because it is as “wide ranging in its depiction of ideas, concepts and emotions as any book, treatise, pamphlet or other writing . . . .”[156] In fact, visual art has the power to convey messages to more people since these expressions can transcend language barriers and reach those who are illiterate.[157] The court concluded that “words may form part of a work of art, and images may convey messages and stories,” but both forms of expression are protected as pure speech.[158] Similarly, tattoos have the power to convey a wide range of ideas, concepts, and emotions.[159] For example, a tattoo of someone’s name can symbolize a close interpersonal relationship, members of a biking group might chose to tattoo their club’s insignia on their body, or a person who has recently experienced a traumatic experience might tattoo an image conveying the emotions stemming from that experience.[160]

B. The Product of Tattoos and the Process of Tattooing Are Inextricably Linked and Thus Protected Under the First Amendment as Pure Speech

1. Tattoos Cannot Be Created Without the Process of Tattooing

The Supreme Court does not treat the process of creating pure speech and the product of that process differently when determining whether the product and the process should be afforded First Amendment protection.[161] This is because the Court sees the process and the product as inextricably intertwined.[162] Therefore, any restriction on the process would be an obstacle to the production of the protected expression, thus chilling the free expression of ideas.[163] For example, in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, the Court cautioned against unfairly burdening the ink and paper used to create a newspaper for fear that it would effectively censor the production of the newspaper.[164] Much like a newspaper that cannot exist without the ink and paper used to create it, a tattoo cannot be created without the process of tattooing.[165] For instance, if a rural town located 500 miles from a tattoo parlor bans the art of tattooing, but not the actual wearing of a tattoo, the town is still effectively banning tattoos, because it leaves no legal place within the town for willing citizens to produce them.[166]

Even though opponents acknowledge that a ban on the physical act of writing would be the functional equivalent of a restriction on books or on written expression in general, they argue that if an author were no longer able to write in graphite, that author would instead pick up a pen.[167] However, the same cannot be true of tattooing. If a tattoo artist were banned from using a needle and ink to create a tattoo, the artist would be unable to resort to another method to obtain the same result.[168] In fact, it is the process of puncturing the skin with ink-filled needles that creates the most critical aspect of the tattoo: its permanence.[169] Everything involved with that permanence is what makes the tattoo—the “pain, the scarification, the exhibitionism,”[170] the “evocation of the private depths of the self upon the surfaces of the body . . . .”[171] If tattoo artists are banned from using needles and ink, they no longer have a method for producing the tattoo, a permanent marking upon one’s skin.[172]

2. The Only Reason to Undergo the Process of Tattooing Is to Receive a Tattoo

Unlike tattooing, processes that are viewed as not inextricably intertwined contain conduct that can be performed without creating the desired expression.[173] Such symbolic conduct may consist of wearing a black armband or walking in a parade.[174] These activities can be done for reasons that have no connection to any expression.[175] For example, a person might wear an armband to prevent sweat from dripping down his or her arm. In this sense, wearing an armband is pure conduct, devoid of any expressive meaning.[176] However, a person undergoes the process of obtaining a tattoo in order to permanently express an idea, belief, or feeling on his or her body.[177] There is never a time when a person is tattooed for any other reason.[178] Even the least expressive form of permanent tattooing, cosmetic tattooing, is still a process sought to leave a permanent mark upon the skin of a customer.[179] These women commission a tattoo artist to create for them what they believe is beauty in the most lasting form.[180]

Tattooing is not conduct that contains speech; rather, it is more akin to the writing process.[181] The tattooing process is the only way to create the tattoo, just like the writing process is the only way to create the book.[182] For both writing and tattooing, only after hours of planning, thought, and work is the final product created in the vision planned by the author and editor.[183] Just as a book and its author would be protected under the First Amendment, so should the tattoo and its artist.[184]

C. The Process of Tattooing, Viewed Separately from the Tattoo, Is Expressive Activity

Under the Spence test, some courts professed that the process of creating a tattoo is not an effort to create a particularized message, but rather an attempt to create the expression of the person who is paying for the tattoo.[185] However, the Supreme Court has held that First Amendment protection does not “require [the creator] to generate, as an original matter, each item featured in the communication” in order to receive First Amendment protection.[186] If First Amendment protection was only given to work that was uninfluenced by another’s creative direction, a mural created by Diego Rivera as a result of a government grant would not be protected because the government was the communicator and not the artist himself.[187] Likewise, a newspaper would not be protected speech because individual reporters and editors dictate and edit the content of news stories.[188] Tattooing is similar to a government-sponsored mural or a news story written for the Los Angeles Times because, in creating a tattoo, both the tattoo artist and the customer contribute their artistic vision to the final product.[189] The customer enters the tattoo parlor with an idea, but it is the artist and his artistic talent that creates the image.[190]

Much like a person seeking a commissioned painting, people who desire tattoos seek out certain tattoo artists.[191] For example, Ed Hardy, who would himself become a famous tattoo artist, sought out Phil Sparrow’s studio for his first tattoo, after hearing about his work through Milt Zeis.[192] Later, Hardy flew to Japan to work with and be tattooed by Horihide, a distinguished Japanese tattoo artist.[193] Moreover, like many other art forms, the cost of tattoos depends on the time invested to create the work and the fame of the artist.[194]

In the past, courts have opined that since the tattoo artist has “no control over the tattoo once its [sic] engrafted on the skin of someone else[,]” it becomes the expression of the paying customer, not the artist.[195] However, the Supreme Court has held that just because a product is produced for profit, the creator’s right to protection is not terminated.[196] In fact, without payment for the final product, most people would not be able to create the protected expression.[197] For example, although Picasso no longer has control over “Guernica”, the painting still remains entitled to First Amendment protection.[198] Similarly, newspapers are protected even after a customer purchases them.[199] There would be little speech value in newspapers if they were never circulated.[200]

Furthermore, tattoo artists, like other fine artists or news reporters, must be attuned to their customers’ needs.[201] They must employ certain strategies to instill confidence in their customers to show that their shop has the desired level of skill and professionalism.[202] Tattoo artists see themselves in a customer-oriented business where meeting their clients’ needs can result in a profitable business.[203] However, they are not willing to sacrifice their personal beliefs for a paycheck.[204] For example, Big Joe Kaplan, a tattoo artist in New York, refuses to tattoo swastikas or a person’s face.[205] Like other artists, tattoo artists remain true to their art, creating pieces that they are proud of and that have the potential to be worth over $10,000.[206] However, it is important to note that even though tattoo artists share many characteristics with other visual artists, First Amendment protection is not dependent on the price of the art or the values it portrays.[207]

IV. THE UNITED STATES SUPREME COURT SHOULD ESTABLISH FULL FIRST AMENDMENT PROTECTION FOR TATTOOS AND TATTOOING

The Supreme Court has never ruled on whether tattoos or the process of tattooing is protected under the First Amendment.[208] As a result, different courts have found different levels of protection for tattoos and the associated process.[209] The Supreme Court will review a U.S. Circuit Court of Appeal’s decision if its ruling conflicts with the ruling of another Court of Appeal.[210] Here, the Ninth Circuit’s ruling not only conflicts with the Eighth Circuit’s prior ruling, but it completely departs from the test the Eighth Circuit used to render its decision.[211] Thus, the Ninth Circuit’s decision in Anderson creates a conflict that will only generate further uncertainty in the law.

A. The Supreme Court Should Grant Certiorari to Anderson v. Hermosa Beach to Resolve the Conflict that Exists Between Different Circuits Within the United States

The Ninth Circuit, which held that tattoos, the process of tattooing, and the business of tattooing were protected by the First Amendment, did not rely upon the Spence Test to reach its decision.[212] The essential element to the Ninth Circuit’s decision is its belief that tattoos are pure speech to be fully protected under the First Amendment to the same extent as a piece of artwork or a novel.[213] Once tattoos are viewed as pure speech and not expressive conduct, the next logical conclusion is that tattooing is so intertwined with the creation of the tattoo that it must be afforded full First Amendment protection as well.[214] Protecting the product without the process would make the creation of the product impossible, as most people do not have the artistic ability or the pain threshold required to stick a needle into their own skin numerous times to create a beautiful image.[215]

On the other hand, the Eighth Circuit, in a footnote, decided that tattoos should not be a protected expression.[216] The Eighth Circuit applied the Spence test to the tattoo itself, not to the process of tattooing.[217] However, the court did this without providing an adequate explanation as to why it applied a test that has only been used to determine whether expressive conduct is entitled to First Amendment protection, rather than applying the test for pure speech.[218] The Spence test is the appropriate test to apply when there is an issue as to whether conduct, like burning a flag or marching in a parade, is sufficiently imbued with communicative elements.[219] However, the test does not apply to situations when speech exists without associated conduct.[220]

The unexplained footnote was then used in subsequent tattooing cases to explain why the process of tattooing was not sufficient to pass the Spence test for expressive conduct.[221] For example, in Blue Horseshoe Tattoo, V, Ltd. v. City of Norfolk, the court not only denied First Amendment protection to a tattoo itself,[222] but also to the process of tattooing.[223] However, courts have not yet explained why the Spence test applies to tattoos or the process of the tattooing.

B. Although Tattooing Previously Conjured Many Negative Associations, These Concerns Are No Longer Realistic

Tattoos and tattooing have received different treatment than other forms of visual art.[224] The Court has never been questioned that “the processes of writing words down on paper, painting a picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection.”[225] However, in cases involving tattoos and First Amendment rights, most courts have consistently applied the Spence test.[226] This decision might stem from the courts view of tattoos and tattooing as attracting criminal elements, spreading diseases and being created upon an objectionable medium.[227] However, First Amendment protection is meant to protect expressions subject to “prejudices and preconceptions [that] . . . have profound unsettling effects as it presses for acceptance . . . .”[228] Without the protection of the First Amendment, the tattoo would be eliminated by “legislatures, courts, or dominant political or community groups” under the guise of the government’s police power.[229] Furthermore, the concerns of crime and health are no longer applicable in light of the changes in tattooing that have evolved in recent years.[230]

Tattoos, like a Rembrandt or Picasso, consist of words, images, symbols, or any combination of these to express various messages.[231] The only difference between a painting and a tattoo is that the tattoo is created on a human’s skin instead of on a canvas.[232] However, a form of speech cannot lose its First Amendment protection solely because of the surface upon which it exists.[233] It is irrelevant whether a drawing “is engrafted onto a person’s skin” or impresses ink upon a canvas; the drawing is still protected.[234] The First Amendment equally protects Henri Matisse’s “The First Dance” created with oil paints and canvas, his “The Snail” created with gouache on paper, and his “The Back Series” etched out of bronze.[235] However, according to the Eighth Circuit and other district courts, if Matisse had created any of these works of art by tattooing the human skin, they would completely lose all protection solely because of his choice of medium.[236]

Furthermore, courts state that they can draw the line between art upon canvas and art tattooed on the human skin because of the associated health hazards.[237] They believe that “injecting dye” into human skin is so repulsive that it must “be subject to state regulation to which other art forms (or non-human mediums) may not be lawfully subjected.”[238] The process is not subjected to a different constitutional standard because it is less communicative, but because of the associated health hazards of invading human tissue.[239] However, even if these health hazards had once been sufficient to outweigh the full First Amendment protection of the tattoos’ expression, they are no longer categorically so.[240]

Tattoo parlors have become a profitable business and thus benefit from ensuring customer safety.[241] Like all other businesses, tattoo parlors are dependent on attracting customers and in order to do so, they must convey to their customers that their methods are safe.[242] For this reason, tattoo artists will self-regulate by using sterile conditions in order to attract and maintain customers.[243] Furthermore, as early as 1963, courts have held that tattooing can be carried out in a safe and sanitary manner.[244] Moreover, medical experts believe that safe tattooing procedures can be conducted by artists who are required to pass examinations that demonstrate an understanding of the principles of bacteriology, sterilization, and asepesis.[245] Finally, sterilized machines and sanitary surroundings can ensure that tattooing is conducted in a safe manner.[246] However, despite acknowledging that tattooing can be performed in a safe and sanitary manner, courts still deny the same protection afforded to other artwork based upon the use of a process that requires “injecting dye into a person’s skin through the use of needles.”[247] Tattooing cannot be both safe and unsafe. Furthermore, even if tattooing does involve some health risks,[248] there are hazards in other First Amendment activities which allow governments to regulate but not ban the activity.[249] For example, paint fumes can be noxious and theatrical performances often involve flammable lighting and other electrical equipment; however, these activities cannot be completely suppressed.[250]

Crime also seems to be a motivation for denying First Amendment protection to tattooing.[251] Tattoos have a troubled history; they have been associated with criminal activity and delinquent behavior.[252] However, these accounts no longer accurately describe the demographics of tattoo seekers.[253] Instead of “servicemen, ex-convicts and members of motorcycle gangs[,]” a growing number of customers at tattoo shops are “teachers, nurses [sic] and grandmothers.”[254] In fact, tattoos are becoming luxury items sought by the country’s elite.[255] The changing cultural status of tattoos from “that of an anti-social activity in the 1960s to that of a trendy fashion statement” calls for a re-evaluation of tattooing because the majority of decisions regarding tattoos relied on decisions made in an “era when tattooing was regarded as something of an anti-social sentiment.”[256]

V. FULL FIRST AMENDMENT PROTECTION FOR TATTOOS AND THE PROCESS OF TATTOOING WILL PROHIBIT MUNICIPALITIES FROM EFFECTIVELY BANNING TATTOO PARLORS

If the Supreme Court affirms the Ninth Circuit’s decision, the product, process, and business of tattooing will be entitled to full First Amendment protection.[257] Whether a business is protected under the First Amendment substantially affects municipal zoning laws since zoning ordinances must conform to the Constitution.[258] Like other content-based laws that restrict protected expression,[259] a zoning law that infringes upon free expression is examined under a strict scrutiny, and not a rational basis, test.[260] On the other hand, laws that are content-neutral are valid regulations of speech only if they are a reasonable “time, place, or manner” restriction.[261] Currently, courts that deny First Amendment protection to tattoo parlors apply a rational basis test, where any legitimate purpose for the challenged laws render the restriction constitutional.[262]

A. If Not Protected, Tattooing Bans Will Remain Constitutional

Under the rational basis test, courts have found zoning regulations that entirely forbid the act of tattooing within a city or regulations that only permit tattooing by or under the direction of a licensed doctor or dentist to be constitutional.[263] Even ordinances that further limit the process of tattooing by requiring that tattoos only be performed by doctors for cosmetic or reconstructive purposes are upheld.[264] Under the rational basis test, these ordinances have been upheld as a legitimate use of the states’ police powers to protect the health, safety, and welfare of would-be tattoo customers.[265]

The rational basis test is a very deferential test, where a law is presumed valid unless the ordinance is clearly arbitrary and unreasonable.[266] Courts have found that legislatures intended to protect customers from the “very real risk of infection or transmission of communicable diseases,” especially serum hepatitis, by passing laws that severely restrict tattooing.[267] Although courts have found this purpose to be legitimate,[268] this restriction on tattooing does not appear to be logical. In fact, courts have upheld bans on tattoo parlors for the safety of the public even when they found that a tattoo shop employed “extensive sterilization procedures” and would not create a risk of infection.[269]

Furthermore, courts such as the Supreme Court of New York have conceded that legislatures have failed to offer a reasonable purpose for complete bans on tattooing, stating that banning tattooing “bear[s] no reasonable relation to the protection of the public health against the contagion of serum hepatitis.”[270] Unfortunately, the denial of First Amendment protection to tattoos sacrifices the tattoo artists’ “right to engage in tattooing” in order to allegedly protect “the public’s right to good health.”[271]

B. If Full Protection Is Awarded to Tattoos and Tattooing, Most Zoning Laws Banning Tattoo Parlors Will Be Declared Unconstitutional

1. Content-Based Anti-Tattoo Parlor Laws Must Withstand Strict Scrutiny

Although zoning laws banning tattoo parlors appear neutral on their face, those that ban tattooing by anyone other than a doctor or dentist can be effectively categorized as content-based restrictions on free speech.[272] Doctors and dentists are not artists and thus cannot create the works of art for which people seek tattoo artists.[273] Instead, the only tattoos permitted would be those for cosmetic or reconstructive surgery.[274] For example, a dermatologist would be able create permanent markings of lipstick, eyeliner, and eyebrows for his patients.[275] However, this would result in a complete ban of all tattoos done for artistic or communicative purposes.[276] These ordinances would not allow a tattoo artist, even one who completed the rigorous coursework to become a doctor, to be able to practice his expressive art.[277] He would only be allowed to tattoo for cosmetic or reconstructive purposes.[278] Thus, these statutes ban tattoos that express messages and ideas that were typically associated with an underclass, but not tattoos that people obtain in order to compete within a society that values a certain idea of beauty.[279]

Laws which are content-based would “require[] the government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’”[280] Although a court would likely find the protection of the general public from communicable diseases a compelling interest,[281] the same court would likely hold that the means to achieve that interest are not narrowly tailored. Tattoo artists can be trained to use safety precautions and prevent the transmission of diseases.[282] The narrowest means to achieve the compelling interest would be to either require tattoo artists to attend medical training where they could learn how to prevent the transmission of communicable diseases or to require government monitoring of tattoo parlors’ health and safety techniques.[283] In conclusion, ordinances permitting only medical practitioners to tattoo would be declared unconstitutional as a “complete ban on the right of free speech.”[284]

2. Content-Neutral Zoning Laws Banning Tattoo Parlors Must Meet the Time, Place, and Manner Test for Regulations of Protected First Amendment Speech

Laws that completely ban tattooing are content-neutral since they seek to eliminate all types of tattooing within their municipalities.[285] Laws that restrict a means of expression, not the content, are constitutional only if they are reasonable “time, place, [and] manner” restrictions.[286] A reasonable time, place, and manner restriction is one that is “justified without reference to the content of the regulated speech, []narrowly tailored to serve a significant governmental interest, and []leaves open ample alternative channels for communication of the information.”[287]

Total bans on tattooing would survive the first element of this test because the bans restrict all tattooing regardless of the content; however, the second element might not be met. On one hand, states could argue that complete bans are narrowly tailored to serve a significant government interest. The state could argue that the injection of ink-filled needles into a person’s skin for any reason brings about too great a risk to the public that it must be completely eradicated from a city, regardless of the operator of the needle.[288] On the other hand, these ordinances might not be narrowly tailored since they are broader than necessary to achieve the government interest.[289] Studies show that complete bans on tattoo parlors push tattooing underground where the tattoo artist is not held to any state-mandated health or safety standards.[290] A total ban on tattooing would result in a law that prohibits not just “unsanitary and unsterile tattooing,” but all types of tattoo shops no matter how safe and sterile those establishments may be.[291] Surely, there are better methods to control the public health hazards involved in tattooing other than a complete ban.[292] For example, regulations requiring tattooing to be performed in a sanitary manner would accomplish the states’ purpose without eliminating the practice altogether.[293]

Finally, these restrictions would not leave open an alternative form of similar communication.[294] As discussed above, the tattoo is a unique expression because it is an “intimate art form” that can be carried on a person’s body for life.[295] In fact, part of the appeal of expressing oneself through a tattoo instead of a painting or sculpture is that paintings and sculptures are commodities that can be bought and sold, whereas tattoos permanently belong to their owner and can never be removed by a bank reclaiming debt or a government foreclosure.[296] Since there is no other way to permanently mark oneself, these laws would not stand the reasonable time, place, and manner restriction.

However, ordinances that allowed tattoo shops in business districts but not in residential districts would most likely be upheld as constitutional because they would satisfy the time, place, and manner analysis.[297] Like total bans, partial bans would apply to all tattoos regardless of the content. They would also be narrowly tailored to serve a significant government interest. For example, the government interest might be to prevent high traffic flow in a residential area.[298] Thus, preventing the establishment of tattoo shops on smaller residential streets would satisfy that government goal. Furthermore, unlike total bans, partial bans would leave open alternative channels for communication because tattooing would be allowed in business and retail areas.

Furthermore, ordinances like the one in Anderson v. City of Hermosa Beach would also be declared unconstitutional. These ordinances would constitute a prior restraint on protected speech and would be subject to even stricter constitutional review than the time, place, and manner analysis.[299] The prior restraint analysis holds that “licensing or permitting scheme[s] which place[] unbridled discretion in the hands of government official[s] or agenc[ies] . . . [or] that are impermissibly vague and that fail to provide ‘narrow, definite and objective’ standards” are facially unconstitutional.[300] Under this analysis, a zoning ordinance that required that a conditional use permit for a tattoo parlor be granted only if the specific site was “‘an appropriate location for such [a] use’ and . . . [the use] will ‘not adversely affect the neighborhood[]’” would be considered too subjective.[301] It would leave the decision to grant or deny the permit to the city officials.[302] Furthermore, ordinances that give city officials the discretion to determine if a tattoo shop in an area will be in the “best interests of the community” or for the “public welfare, peace, safety, health, decency, good order, morals, or conscience” are also unconstitutionally vague and thus not permitted under the prior restraint analysis.[303]

VI. CONCLUSION

First Amendment jurisprudence is an ever-expanding category. Courts have granted First Amendment protection to the most unlikely types of speech, such as soundless and wordless parade marching.[304] This is because our nation is committed to protecting speech regardless of the message conveyed.[305] However, up until the Ninth Circuit Court of Appeal’s decision in Anderson v. City of Hermosa Beach, courts, for the most part, have failed to protect an ancient form of speech: tattoos and tattooing.[306] As a result, legislative zoning ordinances that restrict tattooing only to doctors or complete legislative bans have been held constitutional by district and appellate courts.[307]

However, these courts have erred in their application of First Amendment principles to the issue of tattoos and tattooing. “The Constitution looks beyond written or spoken words as mediums of expression.”[308] In fact, the Constitution protects, as pure speech, all forms of artistic expression.[309] Tattoos are an art form and are thereby entitled to full First Amendment protection.[310] Furthermore, tattoos and tattooing are inexplicably linked, such that any restriction of the process will effectively chill the protected expression.[311] With full protection for tattoos and tattooing, legislatures will no longer be able to eliminate this valuable mode of communication from their municipalities. Once tattoos and tattooing are fully protected, laws restricting or banning tattoo parlors will be examined with stricter scrutiny.[312] As a result, state legislatures will not be able to chill this tool of permanent self-expression.[313]

Carly Strocker[*]

1. Procunier v. Martinez, 416 U.S. 396, 427 (1974) (Marshall, J., concurring).

2. See Susan Benson, Inscriptions of the Self: Reflections on Tattooing and Piercing in Contemporary Euro-America, in Written on the Body: The Tattoo in European and American History 234, 240 (Jane Caplan ed., Princeton Univ. Press 2000) (explaining that in recent years the “tattoo community” has become more organized, visible, and numerous); see also Tattoos Leave Mark on Ads, L.A. Times, Nov. 27, 2007, at C8 (asserting that two out of every five Americans between the ages of 26 and 40 have tattoos, reducing the edginess of tattoos and thus making them less effective marketing tools).

3. Chris Hedges, Wearing Their Hearts Under Their Sleeves, N.Y. Times, Aug. 21, 1990, at B3 (quoting Dr. Gerald W. Grumet on the psychodynamics of tattoos).

4. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061 (9th Cir. 2010); Hedges, supra note 3, at B3.

5. See Michael Kimmelman, Tattoo Moves from Fringes to Fashion. But Is It Art?, N.Y. Times, Sept. 15, 1995, at C1 (asserting that today more middle-class teenagers and adults are getting tattoos).

6. Id.

7. Aurora Mackey, Say It with Skin, L.A. Times, Feb. 13, 1992, at J8.

8. Steve Rhodes, Their Fans Know the Beauty of Tattoos Not Just Skin-Deep, Chi. Trib., Sept. 18, 1993, at N5.

9. Yurkew v. Sinclair, 495 F. Supp. 1248, 1252 (D. Minn. 1980).

10. See Rhodes, supra note 8, at N5 (describing Jim Barron’s technicolor outdoor scenes); see also Richard Abowitz, Tattoo Trendiness Has the Strip Awash in Ink, L.A. Times, Oct. 11, 2009, at D10 (stating that for thirty years, tattoo artists have tried to go mainstream and that it has finally happened).

11. See State v. White, 560 S.E.2d 420, 423 (S.C. 2002) (responding to the dissent’s proposition that tattooing is equivalent to painting, writing, or sculpting, the court asserts that tattooing is “unique in that it involves invasion of human tissue and, therefore, may be subject to state regulation to which other art forms (on non-human mediums) may not be lawfully subjected”); see also Kimmelman, supra note 5, at C1 (stating that art galleries have begun to exhibit shows of tattoo designs, such as “Pierced Hearts and True Love: A Century of Drawings for Tattoos”).

12. See Marcel Honoré & Colin Atagi, Ruling May Affect Cities’ Policies on Tattoo Parlors, Desert Sun, Sept. 10, 2010, at A1 (discussing the impact of the Ninth Circuit’s decision in Anderson v. City of Hermosa Beach).

13. Anderson, 621 F.3d at 1065.

14. Id.

15. Id. at 1056

16. Id. at 1056–57.

17. Id. at 1057.

18. Id.

19. Anderson, 621 F.3d at 1057.

20. Id. at 1055, 1057.

21. Id. at 1057.

22. See id. at 1057–58 (explaining the procedural history of the case and Anderson’s suit against the City of Hermosa Beach under Civil Action for Deprivation of Rights or 42 U.S.C. § 1983).

23. Id. at 1057.

24. Id. at 1055.

25. Anderson, 621 F.3d at 1058 (quoting Spence v. Washington, 418 U.S. 405, 409 (1974)).

26. Id.

27. Id.

28. Id. at 1060.

29. See id. at 1055 (holding that a total ban on tattooing is not a reasonable “time, place, or manner” restriction).

30. See Kyra Kyles, Body of Art, Chi. Trib., Sept. 28, 2006, Redeye, at 6 (referring to the popularity of shows like Inked and Miami Ink).

31. People v. O’Sullivan, 409 N.Y.S.2d 332, 333 (N.Y. App. Term 1978) (quoting Grossman v. Baumgartner, 254 N.Y.S.2d 335, 338 (N.Y. App. Div. 1964)).

32. See id. (holding that the “right to engage in tattooing is not paramount to the public’s right to good health.”).

33. See, e.g., Jake Remaly, Chatham Weighing Tattoo Parlor Limits, Daily Rec. (New Jersey), Aug. 12, 2009 (noting that Chatham, New Jersey had a complete ban on tattooing); Gary Nelson, Mesa Council Ponders Zoning Changes Aimed at Low-End Businesses, Ariz. Republic, Feb. 5, 2010, at 7 (noting that in Mesa, Arizona, tattoo and body piercing shops are required to have a council use permit to establish businesses).

34. See Honoré & Atagi, supra note 12, at A1 (listing that Desert Hot Springs, Indian Wells, and Rancho Mirage ban tattoo parlors).

35. See Amy Picard, Art-4-Long?, Newark Advoc. (Ohio), Apr. 24, 2008, at A1 (declaring that tattoo shops were not allowed in a neighborhood business district because the zoning laws only allowed for services that residents would need on a day-to-day basis).

36. O’Sullivan, 409 N.Y.S.2d at 333.

37. See Honoré & Atagi, supra note 12, at A1.

38. See State v. White, 560 S.E.2d 420, 424 (S.C. 2002) (applying a rational basis test after concluding that tattooing is not constitutionally protected conduct under the First Amendment).

39. Golden v. McCarty, 337 So. 2d 388, 390 (Fla. 1976).

40. Id.

41. See James V. O’Connor, Tattooing: More Female Clients Enter a Formerly Male Realm, N.Y. Times, Oct. 6, 1996, § 13 (Westchester Wkly.) at 1 (noting that Becky Shaffner got a tattoo from an illegal parlor in Manhattan since tattoo parlors are illegal in New York City).

42. See State ex rel. Crabtree v. Franklin Cnty. Bd. of Health, 673 N.E.2d 1281, 1283–84 (Ohio 1997) (supporting the state’s assertion that banning tattoo parlors would drive the establishments underground and would thus prevent government regulation of sterile equipment in legal tattoo shops).

43. See Bobby G. Frederick, Note, Tattoos and the First Amendment—Art Should Be Protected as Art: The South Carolina Supreme Court Upholds the State’s Ban on Tattooing, 55 S. C. L. Rev. 231, 234–36 (2003) (illustrating an overview of certain cases where petitioners sought relief from anti-tattooing zoning laws: Grossman v. Baumgartner, 218 N.E.2d 259 (N.Y. 1966), Yurkew v. Sinclair, 495 F. Supp. 1248 (D. Minn. 1980), and State v. Brady, 492 N.E.2d 34 (Ind. Ct. App. 1986)).

44. See Blue Horseshoe Tattoo, V, Ltd. v. City of Norfolk, 2007 WL 6002098, at *2 (Va. Cir. Ct. 2007) (stating that in the city’s brief, the city cited numerous federal and state court cases supporting the allegation that tattooing is not constitutionally protected speech).

45. See id. (summarizing past laws on tattoos and tattooing and finding that tattoos are not protected expressions under the First Amendment and that tattooing is not sufficiently communicative in nature to be encompassed by the First Amendment).

46. See U.S. Const. amend. I (prohibiting Congress from making a “law . . . abridging the freedom of speech”).

47. Anthony Jude Picchione, Note, Tat-Too Bad for Municipalities: Unconstitutional Zoning of Body-Art Establishments, 84 B.U. L. Rev. 829, 834 (2004).

48. See Erwin Chemerinsky, Constitutional Law 1206 (3d ed. 2009) (noting that the First Amendment was intended to protect against common law sedition laws and prevent prosecution for speaking out against the government).

49. See id. at 1248 (emphasizing the importance of avoiding vagueness in laws restricting free speech so as to avoid chilling speech).

50. See Picchione, supra note 47, at 834 (stating that pure speech is of the highest concern).

51. John P. Collins, Jr., Note, Speaking in Code, 106 Yale L.J. 2691, 2694 (1997).

52. Id.

53. Id.

54. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755 (1988) (holding that there is “explicit protection” for speech and the press in the text of the First Amendment).

55. Cox v. Louisiana, 379 U.S. 536, 552 (1965) (quoting Terminiello v. Chicago, 337 U.S. 1, 4–5 (1949)).

56. Riggs v. City of Fort Worth, 229 F. Supp. 2d 572, 580 (N.D. Tex. 2002) (stating that a police officer’s tattoo was not protected under the First Amendment right of free speech).

57. Id. at 580 n.11.

58. Id.

59. Stephenson v. Davenport Cmty. Sch. Dist., 110 F.3d 1303, 1305, 1307 n.4 (8th Cir. 1997).

60. Id. at 1307 n.4.

61. See id. (stating that Plaintiff’s tattoo is a mere self-expression and not in the same category as wearing an armband in protest of the Vietnam War); see also Riggs, 229 F. Supp. 2d 572 at 581 n.11 (relegating the Plaintiff’s tattoo to simply his own personal views and beliefs and not speech about “legitimate public concern”).

62. See Yurkew, 495 F. Supp. at 1254 (arguing that even if a tattoo was entitled to First Amendment protection, the process of creating a tattoo is not).

63. Id.

64. Id.

65. Id.

66. Hold Fast Tattoo, LLC v. City of North Chicago, 580 F. Supp. 2d 656, 660 (N.D. Ill. 2008).

67. White, 560 S.E.2d at 423.

68. Spence v. Washington, 418 U.S. 405, 410–11 (1974).

69. United States v. O’Brien, 391 U.S. 367, 376 (1968).

70. City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).

71. Texas v. Johnson, 491 U.S. 397, 403 n.3 (1989).

72. See White, 560 S.E.2d at 423 (explaining the Court’s holding in Johnson, 491 U.S. at 403 n.3).

73. See Spence, 418 U.S. at 408–10 (holding that taping a black peace sign to an American flag was an expression of anguish about the government’s foreign and domestic policy).

74. See generally Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (holding that the state cannot forbid students from wearing black arm bands in protest of the Vietnam War).

75. Bery v. City of New York, 97 F.3d 689, 694 (2d Cir. 1996).

76. Yurkew, 495 F. Supp. at 1253.

77. Id. at 1254–55.

78. Hold Fast Tattoo, LLC, 580 F. Supp. 2d at 660.

79. See White, 560 S.E.2d at 423 (holding that tattooing is not sufficiently communicative to be protected by the First Amendment); see also O’Sullivan, 409 N.Y.S.2d at 333 (holding that tattooing is not speech or symbolic speech).

80. See, e.g., Blue Horseshoe Tattoo, V, Ltd. v. City of Norfolk, 2007 WL 6002098 (Va. Cir. Ct. 2007) (reviewing the various court decisions in tattooing cases).

81. Stephenson v. Davenport Cmty. Sch. Dist., 110 F.3d 1303, 1307 n.4 (8th Cir. 1997).

82. See Yurkew v. Sinclair, 495 F. Supp. 1248, 1254 (D. Minn. 1980) (providing a list of reasons why tattooing is not “sufficiently communicative”).

83. See MacNeil v. Bd. of Appeal, No. 02-CV-01225, 2004 Mass. Super. LEXIS 282, at *2 (Mass. Super. Aug. 9, 2004) (stating that tattooing was found to be expressive conduct in Commonwealth v. Meuse, No. 9877 CR 2644, 1999 Mass. Super. LEXIS 470, at *3 (Mass. Super. Nov. 29, 1999) and Lanphear v. Commonwealth, Mem. Decision and Ord., Docket No. 99-1896-B (Mass. Super. Oct. 20, 2000)).

84. See Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir. 2010) (holding that a tattoo is pure speech).

85. See id. at 1059 (holding that the Spence test is used when a process does not produce a pure expression).

86. See Arnold Rubin, General Introduction to Marks of Civilization 13, 14 (Arnold Rubin ed., Regents of the Univ. of Cal. 1988) (noting that body art was practiced by people of Africa, Asia, and the Americans during the Age of Exploration); see also Picchione, supra note 47, at 832 (noting that tattoos were found on soldiers in the Continental Army).

87. Alan Govenar, The Changing Image of Tattooing in American Culture, 1846–1966, in Written on the Body: The Tattoo in European and American History, supra note 2, at 212–13.

88. Picchione, supra note 47, at 832; see also Govenar, supra note 87, at 213–14 (noting that tattoos were so pervasive in the military that by the late nineteen hundreds “95 per cent of the 26th US infantry and 90 per cent of the sailors serving on American men-of-war were tattooed.”).

89. Govenar, supra note 87, at 214.

90. Id. at 215 (memorializing Gus Wagner, who traveled around the world studying other tattoo artists’ techniques and was known for his great work and skill).

91. Id.

92. Frederick, supra note 43 at 233; Hedges, supra note 3, at B3.

93. Frederick, supra note 43 at 233; Hedges, supra note 3, at B3.

94. See Govenar, supra note 87, at 226 (describing the attempt to regulate tattooing).

95. Picchione, supra note 47, at 832.

96. See Govenar, supra note 87, at 214 (suggesting that this restriction might be a result of the more suggestive images of nude women depicted in tattoos during the early twentieth century); see also Picchione, supra note 47, at 832 (describing the sexually suggestive tattoos that emerged during the early 1900s).

97. See Govenar, supra note 87, at 229 (discussing military regulations of tattoos and government inspection of tattoo shops).

98. Id. at 230.

99. Id.

100. Id. (noting that tattoos were associated with “blue-collar workers, drunks, hot rods, motorcycle clubs and street gangs”).

101. Frederick, supra note 43, at 233.

102. Id.

103. Picchione, supra note 47, at 833.

104. Govenar, supra note 87, at 233.

105. Meuse, No. 9877 CR 2644, at *2.

106. Govenar, supra note 87, at 233.

107. Id.

108. Id.

109. See generally Tattoos Leave Mark on Ads, supra note 2, at C8 (describing how tattoos have garnered popularity especially among rock stars and movie stars).

110. See generally id. (describing the commercial impact of tattoos on advertising).

111. See Frederick, supra note 43, at 236 (noting that between 1960 and 2003, statewide tattoo bans had been repealed in all states except South Carolina and Oklahoma); see also Janice Francis-Smith, OK Governor Henry Signs Tattoo Legalization into Law, J. Rec. (Okla. City), May 11, 2006 (declaring that Oklahoma was the last state to repeal its ban in 2006, making tattooing legal in all fifty states).

112. Meuse, No. 9877 CR 2644, at *3.

113. See id. (stating that tattooing “is the sixth-fastest growing retail business in the United States [and] [t]he single fastest growing demographic group seeking tattoo services is . . . middle-class suburban women.”).

114. See id. (noting that the American Museum of Natural History in New York City had a current exhibit titled, “Body Art: Marks of Identity” which was attended by many high-profile Manhattanites dressed in formal attire and tattoos).

115. Arnold Rubin, The Tattoo Renaissance, in Marks of Civilization, supra note 86, at 235.

116. Id.

117. Meuse, No. 9877 CR 2644, at *3.

118. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952) (holding that motion pictures are protected under the First Amendment as a form of “speech”); see also Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) (holding that music is protected under the First Amendment).

119. Ward, 491 U.S. at 790.

120. Id.

121. See id. (noting that music has been censored since the time of Plato).

122. See Jane Caplan, Introduction to Written on the Body: The Tattoo in European and American History, supra note 2, at xi–xii (discussing the goal of modern literature on the history of tattooing to establish tattooing as a legitimate art form as opposed to the “dishonorable and penal reputation” it has in Western culture); see also Govenar, supra note 87, at 229 (discussing the censorship of tattoos in the military during the second half of the 20th century).

123. Joseph Burstyn, Inc., 343 U.S. at 501.

124. Id.

125. Id.

126. See Tattoos Leave Mark on Ads, supra note 2, at C8 (arguing that the pervasive use of tattoos in advertising has made them less effective marketing tools).

127. Id.

128. Id.

129. Id.

130. Govenar, supra note 87, at 233.

131. See Riggs v. City of Fort Worth, 229 F. Supp. 2d 572, 581 n.11 (N.D. Tex. 2002) (hinting that courts might protect tattoos which “state” political messages).

132. Id. at 580 n.11.

133. Id.

134. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977).

135. See White v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007) (holding that arts and entertainment are protected forms of expression, and visual art is included in that category).

136. See id. at 956 (illustrating that paintings may express a social position, condemnation of foreign policy, demonstrate an artist’s vision of movement and color, or shape public opinion) (quoting Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995)).

137. See Clinton R. Sanders, Drill and Frill: Client Choice, Client Typologies, and Interactional Control in Commercial Tattooing Settings, in Marks of Civilization, supra note 86, at 219, 223 (describing why men and women get tattoos in different locations based on others’ interpretation of the tattoo).

138. White, 500 F.3d at 956.

139. Id.

140. See Rubin, supra note 115, at 238 (showing a picture of a back tattoo called the “Warrior”).

141. See Sanders, supra note 137, at 222–23 (describing five reasons why people get tattoos and then transcribing a conversation between a tattoo artist and a customer concerning why that customer chose a specific tattoo).

142. Brief for Appellee at 3, Anderson v. City of Hermosa Beach, 621 F.3d 1051 (2009) (No. 08-56914) [hereinafter Brief for Hermosa].

143. See Tattoos Leave Mark on Ads, supra note 2, at C8 (noting that Angelina Jolie, Josef Stalin, and Thomas Edison all have/had viewable tattoos).

144. Sanders, supra note 137, at 223 (quoting one tattoo artist as saying “nobody ever sees [museum art]”).

145. Id.

146. See White, 500 F.3d at 956 (holding that Jackson Pollock’s paintings are protected under the First Amendment).

147. See Stephenson, 110 F.3d at 1307 n.4 (noting that Stephenson’s tattoo does not convey a particularized message).

148. Id. at 1307 n.4.

149. Id. at 1308.

150. See id. (noting that the meaning of Stephenson’s tattoo is contested).

151. Hurley, 515 U.S. at 569.

152. See Jackson Pollock “Number 1,” The Museum of Contemporary Art, http://www.moca.org/audio/postwar/audio_popup_pollock.html (last visited Nov. 13, 2010) (explaining the significance of Pollock’s painting).

153. See id.

154. See Hurley, 515 U.S. at 569 (stating that the First Amendment “unquestionably” protects Jackson Pollock paintings).

155. See Sanders, supra note 137, at 222-23 (describing five reasons why people get tattoos).

156. Bery v. City of New York, 97 F.3d 689, 695 (2d Cir. 1996).

157. Id.

158. Id.

159. Sanders, supra note 137, at 222.

160. See id. (explaining the various reasons for getting a tattoo).

161. Anderson, 621 F.3d at 1061.

162. See id. at 1062 (comparing tattooing to writing where the entire purpose of the process is to create the final product).

163. See generally Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 585 (1983) (holding that a tax on the production of a newspaper can threaten its operation and in essence censor the press).

164. Id.

165. Anderson, 621 F.3d at 1062.

166. Contra Brief for Hermosa, supra note 142, at 47 (arguing that a city that bans tattooing does not ban tattoos).

167. Id. at 30.

168. See Yurkew, 495 F. Supp. at1252 (noting that tattoos require injecting dye into the person’s skin through the use of a needle).

169. Benson, supra note 2, at 251.

170. Kimmelman, supra note 5, at C1.

171. Benson, supra note 2, at 251.

172. Kimmelman, supra note 5, at C1 (stating that the uniqueness of tattoos stems from their permanence and the control over permanently marking one’s body).

173. See State v. White, 560 S.E.2d 420, 423 (S.C. 2002) (explaining when the Spence test is used).

174. Anderson, 621 F.3d at 1061.

175. Id.

176. Contra Spence v. Washington, 418 U.S. 405, 410 (1974) (noting that sometimes the context surrounding an action gives that action a symbolic meaning; for example, wearing an armband within the context of the Vietnam War conveyed an unmistakable message about an issue of intense public concern).

177. See Sanders, supra note 137, at 222–23 (presenting five reasons why a person would get a tattoo).

178. See Kimmelman, supra note 5, at C1 (reporting that tattooing has to do with taking liberty over one’s own body).

179. See KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 328 F.3d 1061, 1065 (9th Cir. 2003) (describing the types of permanent make-up customers seek).

180. See Govenar, supra note 87, at 217 (noting that since the early 1900s, women sought permanent make-up to meet the idea of beauty).

181. Anderson, 621 F.3d at 1062.

182. Id.

183. See Sanders, supra note 137, at 221 (detailing the process of tattooing as a time consuming, planned activity).

184. See Bery, 97 F.3d at 695 (stating that visual artwork is an embodiment of the artist’s expression just like a book is the embodiment of the author’s expression).

185. Hold Fast Tattoo, LLC v. City of North Chicago, 580 F. Supp. 2d 656, 660 (N.D. Ill. 2008).

186. Hurley, 515 U.S. at 569–71.

187. See Anderson, 621 F.3d at 1062 (explaining that even commissioned artwork is entitled to protection).

188. Id.

189. Id. (stating that tattooing is a collaborative creative process where both the customer and the tattoo artist engage in expressive activity).

190. See generally Sanders, supra note 137, at 220 (describing the relationship that develops between that tattoo and the tattoo artist who has the “skill and . . . consequent right to control the interaction”).

191. See Abowitz, supra note 10, at D10 (referencing a tattoo artist who has a two-year waiting list for clients who pay a minimum charge of $10,000 for his work).

192. Rubin, supra note 115, at 242.

193. Id. at 245.

194. See Abowitz, supra note 10, at D10 (reporting that Mario Barth has a two-year waiting list of clients willing to pay $10,000 for a piece of artwork); see also O’Connor, supra note 41, at 1 (stating that a tattoo can cost between $75 and $70,000).

195. Brief for Hermosa, supra note 142, at 4.

196. See Riley v. Nat’l Fed’n of the Blind of N.C. Inc., 487 U.S. 781, 801 (1988) (holding that a speaker’s rights are not terminated because the speaker is paid to speak).

197. Bery, 97 F.3d at 696.

198. See Anderson, 621 F.3d at 1062 (arguing that Michelangelo’s paintings in the Sistine Chapel are no longer in his possession but are still protected).

199. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 768 (1988) (holding that the activity of circulating newspapers is protected); see also See Joseph Burstyn, Inc., 343 U.S. at 501 (holding that the fact that movies are produced, distributed and exhibited as part of a large-scale, for-profit business does not affect their First Amendment protection).

200. Plain Dealer Publ’g Co., 486 U.S. at 768 (citing Ex parte Jackson, 96 U.S. 727, 733 (1878) and Lovell v. Griffin, 303 U.S. 444, 452 (1938)).

201. See Sanders, supra note 137, at 221 (describing how to interact with an incoming customer).

202. See id. (describing how to interact with an incoming customer).

203. See id. at 222 (describing how tattoo artists see themselves).

204. O’Connor, supra note 41, at 1.

205. See id. (explaining how tattoo artists can choose to refrain from tattooing certain tattoos).

206. See Abowitz, supra note 10, at D10 (stating that there is a two-year waiting list to be tattooed by Barth at a minimum charge of $10,000).

207. See Anderson, 621 F.3d at 1062 (arguing that the First Amendment protects a commissioned painting completed by Michelangelo which was completed for money and conveyed the commissioner’s values).

208. Hold Fast Tattoo, LLC v. City of North Chicago, 580 F. Supp. 2d 656, 659 (N.D. Ill. 2008).

209. See supra, Part III.

210. Sup. Ct. R. 10a.

211. Compare Stephenson v. Davenport Cmty. Sch. Dist., 110 F.3d 1303, 1307 n.4 (8th Cir. 1997) (using the Spence test to determine if Stephenson’s conduct is protected by the First Amendment), with Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1059 (9th Cir. 2010) (holding that tattooing is a purely expressive activity and entitled to full First Amendment protection without applying the Spence test).

212. Anderson, 621 F.3d at 1059.

213. Id. at 1061.

214. Id. at 1062.

215. See id. (stating that the purpose of tattooing is to produce the tattoos, which cannot be created without the tattooing process).

216. Stephenson, 110 F.3d at 1307 n.4.

217. Id.

218. Id.

219. See State v. White, 560 S.E.2d 420, 423 (S.C. 2002) (noting that the First Amendment protects conduct if it is sufficiently imbued with communicative elements according to the Spence test).

220. See id. (noting that the Spence test is applied to conduct when that conduct is at issue).

221. See Blue Horseshoe Tattoo, V, Ltd. v. City of Norfolk, 2007 WL 6002098, at *2 (Va. Cir. Ct. 2007) (reviewing various court decisions in tattooing cases).

222. Id. at *2 (discussing Riggs v. City of Fort Worth, 229 F. Supp. 2d 572 (N.D. Tex. 2002) and Stephenson, 110 F.3d 1303).

223. Id.

224. Anderson, 621 F.3d at 1061 (noting that the courts typically do not draw “a distinction between the process of creating . . . pure speech . . . and the product of these processes.”).

225. Id. at 1062.

226. See Blue Horseshoe Tattoo, V, 2007 WL 6002098, at *1; see also Hold Fast Tattoo, 580 F. Supp. 2d at 659.

227. See People v. O’Sullivan, 409 N.Y.S.2d 332, 333 (N.Y. App. Term 1978) (noting that four Justices of the Appellate Division found tattooing to be “associated with a morbid or abnormal personality”) (quoting Grossman v. Baumgartner, 254 N.Y.S.2d 335, 338 (N.Y. Sup. Ct. 1964)); see also Golden v. McCarty, 337 So. 2d 388, 390 (Fla. 1976) (noting that because tattooing punctures the skin numerous times, it creates an “opening . . . for infection and health impairment.”).

228. Cox v. Louisiana, 379 U.S. 536, 552 (1965) (quoting Terminiello v. Chicago, 337 U.S. 1, 4–5 (1949)).

229. Id.

230. See Honoré & Atagi, supra note 12, at A1 (describing the court’s opinion in Anderson v. City of Hermosa that complete bans on tattoo parlors in municipalities are an “unconstitutional overreaction to health concerns that can be addressed through regulations to ensure sanitation”); see also Body Art: Tattoos and Piercings, Center for Disease Control and Prevention, http://www.cdc.gov/Features/BodyArt/ (last visited Jan. 3, 2011) [hereinafter Body Art] (listing safety procedures for tattoo shops).

231. Anderson, 621 F.3d at 1061.

232. Id.

233. Id.

234. Id.

235. See Piarowski v. Ill. Cmty. Coll. Dist., 759 F.2d 625, 628–32 (7th Cir. 1985) (declaring that art for art’s sake is protected under the First Amendment).

236. See Golden, 337 So. 2d at 391 (stating that the method used for tattooing is sufficient to deny tattooing First Amendment protection).

237. Id.

238. White, 560 S.E.2d at 423.

239. Id.

240. See Body Art, supra note 230 (listing safety procedures for tattoo shops).

241. See Abowitz, supra note 10, at D10 (relaying that “‘tattoo shops make a lot of money’” and have “‘incredible profit margins’”).

242. See id. (stating that the owner of a tattoo parlor has created an atmosphere in his shop that allows people to know it is safe).

243. See Govenar, supra note 87, at 233 (noting Ed Hardy’s desire to establish health guidelines for tattoo shops).

244. Grossman v. Baumgartner, 242 N.Y.S.2d 910, 916 (N.Y. Sup. Ct. 1963).

245. Id.

246. Yurkew v. Sinclair, 495 F. Supp. 1248, 1252 (D. Minn. 1980).

247. Id. at 1254.

248. Body Art, supra note 230.

249. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (holding that governments can impose reasonable restrictions on activities fully protected under the First Amendment).

250. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502–04 (1952) (noting that First Amendment protection is not absolute but that there cannot not be a prior restraint on protected expression unless there exists extraordinary circumstances).

251. See Kennedy v. Hughes, 596 F. Supp. 1487, 1494 (D. Del. 1984) (quoting the mayor’s statement that “tattooing was inconsistent with the ‘nice family type town’ image of Rehoboth Beach”).

252. See Clare Anderson, Godna: Inscribing Indian Convicts in the Nineteenth Century, in Written on the Body: The Tattoo in European and American History, supra note 2, at 102, 106 (tracing the history of the tattoo to ancient cultures that used the tattoo for punitive purposes, to mark delinquent slaves and criminals).

253. See O’Connor, supra note 41, at 1 (noting the changing demographics of tattoo customers).

254. Id.

255. See Abowitz, supra note 10, at D10 (describing Mario Barth’s shop at Mandalay Bay in Las Vegas).

256. White, 560 S.E.2d at 425 (Waller, J., dissenting).

257. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1055 (9th Cir. 2010).

258. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981).

259. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641–42 (1994) (defining content-based laws as those that “stifle” speech based on its message or a requirement that a particular message be uttered and thus requiring a rigorous scrutiny).

260. See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000) (holding that content-based regulations must withstand strict scrutiny) (citing Sable Commc’n of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989); see also Chemerinsky, supra note 48, at 1214 (acknowledging that the distinction between neutral and content-based restrictions affects the outcome of a decision).

261. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

262. Kennedy v. Hughes, 596 F. Supp. 1487, 1494 (D. Del 1984).

263. See, e.g., State v. White, 560 S.E.2d 420, 424 (S.C. 2002); Piperato v. Zuelch, 395 So. 2d 1231, 1232 (Fla. Dist. Ct. App. 1981).

264. White, 560 S.E.2d at 421.

265. Id. at 424.

266. Hold Fast Tattoo, LLC v. City of North Chicago, 580 F. Supp. 2d 656, 662 (N.D. Ill. 2008) (citing Clark v. County of Winnebago, 817 F.2d 407, 408 (7th Cir. 1987)).

267. State ex rel. Med. Licensing Bd. v. Brady, 492 N.E.2d 34, 39 (Ind. Ct. App. 1986).

268. Kennedy, 596 F. Supp. at 1494.

269. Brady, 492 N.E.2d at 39.

270. Grossman v. Baumgartner, 242 N.Y.S.2d 910, 913 (N.Y. Sup. Ct. 1963).

271. People v. O’Sullivan, 409 N.Y.S.2d 332, 333 (N.Y. App. Term 1978).

272. See Kennedy, 596 F. Supp. at 1495 (holding that a plaintiff who followed sanitary procedures could still be denied the ability to operate a tattoo parlor).

273. Golden v. McCarty, 337 So. 2d 388, 391 (Fla. 1976) (Sundberg, J., dissenting).

274. White, 560 S.E.2d at 426 (Waller, J., dissenting).

275. Gina Piccalo, Botox, This Is Your Big Week, L.A. Times, Mar. 18, 2003, at E1.

276. Golden, 337 So. 2d at 391 (Sundberg, J., dissenting).

277. White, 560 S.E.2d at 426 (Waller, J., dissenting).

278. Id.

279. See Turner Broad. Sys., Inc., 512 U.S. at 641 (holding that content-based laws are those that the government passes because it agrees or disagrees with the message being communicated); see also Piccalo, supra note 275, at E1.

280. Citizens United v. FEC, 130 S. Ct. 876, 898 (2010) (quoting FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 464 (2007)).

281. Brady, 492 N.E.2d at 39.

282. See Golden, 337 So. 2d at 391 (Sundberg, J., dissenting) (observing that there is “no reasonable relation between health hazards associated with tattooing and the limitation of its performance to those licensed to practice medicine . . . .”).

283. Kennedy, 596 F. Supp. at 1495.

284. White, 560 S.E.2d at 426 (Waller, J., dissenting).

285. See Turner Broad. Sys., Inc., 512 U.S. at 643 (stating that “laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral”).

286. Anderson, 621 F.3d at 1064.

287. Id. (citing Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).

288. See Golden, 337 So. 2d at 391 (Sundberg, J., dissenting) (contemplating that an absolute prohibition on tattooing might be what the public health hazards require).

289. See Anderson, 621 F.3d at 1065 (noting Anderson’s argument that the city’s regulation on tattooing is substantially broader than it needs to be).

290. See O’Connor, supra note 41, at 1 (reporting that certain customers go to illegal parlors in Manhattan).

291. Grossman, 242 N.Y.S.2d at 916.

292. Anderson, 621 F.3d at 1065.

293. Id.

294. Id. at 1065–66.

295. Sanders, supra note 137, at 223.

296. See Benson, supra note 2, at 251 (commenting on the permanence of tattoos until one’s death); see also Kimmelman, supra note 5, at C1.

297. See Anderson, 621 F.3d at 1064 (explaining that only laws that are reasonable time, place, and manner restrictions are constitutional).

298. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (recognizing that state interests in traffic safety may justify zoning regulations).

299. MacNeil v. Bd. of Appeal, No. 02-CV-01225, 2004 Mass. Super. LEXIS 282, at *16 (Mass. Super. Aug. 9, 2004).

300. Voigt v. City of Medford, No. 2005-00163F, 2007 Mass. Super. LEXIS 38, at *7–8 (Mass. Super. Jan. 30, 2007) (quoting Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969)).

301. MacNeil, 2004 Mass. Super. LEXIS 282, at *19.

302. Id.

303. Id. at *19–20.

304. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995).

305. Id. at 581.

306. See Rubin, supra note 86, at 14 (noting that people of Africa, Asia and the Americans practiced body art during the Age of Exploration); see also Picchione, supra note 47, at 832 (noting that tattoos were found on soldiers in the Continental Army).

307. See State v. White, 560 S.E.2d 420, 426 (S.C. 2002) (upholding a statute that limited tattooing to only licensed physicians and only for cosmetic or reconstructive purposes); see also Piperato v. Zuelch, 395 So. 2d 1231 (Fla. Dist. Ct. App. 1981) (upholding a statute that allowed tattooing only when performed under the supervision of a doctor or a dentist).

308. Hurley, 515 U.S. at 569.

309. See Piarowski v. Ill. Cmty. Coll. Dist., 759 F.2d 625, 628–32 (7th Cir. 1985) (declaring that art for art’s sake is protected under the First Amendment).

310. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1055 (9th Cir. 2010).

311. See Spence v. Washington, 418 U.S. 405, 408–10 (1974) (separating conduct from speech when the expression at issue was mainly conduct); see also Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 585 (1983) (holding that a restriction on the process is a restriction on the product when the product is pure speech).

312. Chemerinsky, supra note 48, at 1214.

313. Kimmelman, supra note 5, at C1.

* J.D. Candidate, Loyola Law School Los Angeles, 2012; M.A., Education, University of California, Los Angeles, 2004; B.A., University of California, Los Angeles, 2000. The author would like to thank her family (Ali, Barbara, Gail, Jack, and Stephen) for their support and her friends, her boyfriend (Louis Epstein), and her mentors, especially Gary Wax, for their guidance throughout the production of this article. Loyola Law School professor, Justin Levitt, provided invaluable expertise in the field of First Amendment law. In addition, the author appreciates the dedication of the staff and editors of the Loyola of Los Angeles Entertainment Law Review in making this publication possible.

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