Copyright law can be both the friend and foe of the student media. While the law protects student journalists against the unauthorized use of their stories, drawings or photographs, it also limits their ability to reproduce the works of others. The following guide, which explains the basics of copyright law, should provide student journalists with most of what they need to know to both safeguard and exercise their rights.
What Is Copyright?
Copyright is a set of federal laws,1 stemming from Article I, Section 8, Clause 8, of the U.S. Constitution, which grant authors and artists the exclusive right to benefit from their creations.
The basics of copyright are fairly straightforward. A copyright is a property right. A person owns a copyright in much the same way he owns a car. Just as it is against the law to use or borrow someone else’s car without the owner’s permission, it is generally against the law to use someone’s copyrighted work without first obtaining her consent. Additionally, just as no one but the automobile owner can legally sell, give away or change the appearance of a car, no one but the copyright owner, with a few exceptions, may legally transfer or alter a copyrighted work.
Copyright law encourages and rewards the creativity of authors and artists. If, for example, members of the public (or a movie studio) could freely copy the novel The Fault in Our Stars without compensating or obtaining permission from author John Green, he and other authors would likely be unwilling to invest the time, energy and resources necessary to create books in the first place. Copyright, therefore, ensures a robust collection of original works available for public enjoyment and benefit, which is its main goal.2
Relationship to Trademark and Patent Law
Copyright is just one means of providing legal protection for creative works. Patent law protects inventions. Trademark law protects the symbols and slogans that identify businesses to their consumers. Together with copyright, these two comprise the area of the law known as intellectual property.
Patent law issues should cause little or no problem for the student media. You do not, for example, violate a patent by publishing information about a new invention or explaining — even in very specific detail — how something works.
Likewise, trademark law presents relatively few concerns for the student media. While copyright protects a creator’s rights, trademark law should be viewed more as a protection for consumers. Trademarks — for example, the Nike “Swoosh” symbol or the brand name “Coke” — and service marks — for example, the “Golden Arches” used to identify a McDonald’s restaurant — are unique symbols, names or other “marks” that companies use and consumers rely upon to distinguish one product or service from another. Trademark law is generally only a problem when a trademark or service mark is used in a way that would confuse a potential consumer. For example, it would be a trademark violation for the El Cheapo Shoe Company to start putting a “Swoosh” symbol on its tennis shoes. If this were allowed, buyers might purchase El Cheapo’s tennis shoes thinking they were actually Nike brand tennis shoes, which clearly would not be fair to either the consumer or Nike. If, on the other hand, there is no likelihood that a consumer would be confused by the use of a trademark, there is generally no violation. That’s why, for example, there would be no problem in a student yearbook publishing a photograph of a pair of Nike shoes (complete with the “Swoosh”) to illustrate a feature story on popular footwear worn by students. There is, obviously, no likelihood that a consumer would pick up the yearbook thinking it was a Nike shoe — or, if published in the context of a “regular” news story, even an official Nike publication.
Note, however, that some works are protected by both trademark and copyright (and maybe even patent) law at the same time and you will need to analyze your intended use under each. If the editor above wanted to use a flashy Nike ad simply to “decorate” an inside page (and not as part of a legitimate news story), the outcome would be different. Again, there would be no trademark problem. A student yearbook and athletic shoes are so different that no consumer would be confused by the use. However, the ad is also copyrighted and its unauthorized use will be prohibited unless the editor demonstrates a “fair use,” which is unlikely here since the advertisement is being used simply as a page design graphic rather than to illustrate an actual news story (for more information on “fair use,” see the discussion below).
There are only two instances in which trademark protections typically concern the student media. The first issue arises when a student media outlet attempts to use a name already in use by a competing entity, or vice versa. For example, a new independent student publication wishing to call itself The Independent Daily Student may have a trademark problem if the existing official student publication is already called The Daily Student. The Daily Student would argue, and probably rightly so, that both its readers and advertisers could be confused by the name of the competing publication. Interesting questions have also surfaced regarding the use of domain names to identify companies or other entities conducting business on the Internet.
A second — and potentially more troublesome — branch of trademark law for the student media is that of trademark dilution. Trademark dilution statutes3 generally prevent the use of a mark by a non-owner if such use would whittle away at the distinctiveness of or otherwise “tarnish” an existing mark. Unlike traditional trademark infringement claims, it is not necessary that the owner show a likelihood of confusion. For example, the Coca-Cola Company was successful in preventing a T-shirt maker from printing shirts with the slogan: “Enjoy Cocaine,” in the well-known Coke script and typeface.4 Clearly, no reasonable person would have thought they were purchasing a shirt made by the Coca-Cola Company. Rather, the court found that the T-shirt slogan tarnished the reputation of the famous Coke trademark. Most state statutes and the federal Trademark Dilution Act do not allow prosecution in cases involving news commentary and news reporting, and they even provide great leeway for parody.5
What about Plagiarism?
Plagiarism is not a legal term. It is a term for an academic crime, usually defined by professional or academic bodies. Simply stated, a plagiarist is a person who poses as the creator of words, ideas or methods that are not his own. In contrast, a person infringes on another’s copyright when he makes unauthorized use of material that is protected by copyright. For example, a person could plagiarize Shakespeare’s works by not giving the Bard proper credit. He would not, however, be guilty of copyright infringement because all of Shakespeare’s works, now about 400 years old, are in the public domain and cannot be protected by copyright. You will not be punished by a court of law if you are found guilty of plagiarizing someone else’s work, but you might be subject to punishment or censure by your publication staff. And you should certainly be embarrassed.6
What Does Copyright Protect?
Copyright protects literary works, sound recordings, works of art, musical compositions, computer programs and architectural works, provided that the work satisfies certain requirements. 7
First, the work must be original.8 This means that the author must have shown at least a small spark of creativity when she made the work. For example, courts have said that simply arranging listings in a telephone book alphabetically according to the last name of the phone service subscriber lacks the creativity necessary to qualify for a copyright.9
Second, the work must be “fixed in any tangible medium of expression.”10 This “fixation” requirement means that only works preserved in a tangible form (a book, a newspaper, a video, a website, etc.) — as opposed to those existing entirely in an artist’s mind — will receive copyright protection.
What Cannot be Copyrighted?
Copyright does not extend to some forms of expression, even though they are arguably original and fixed. Slogans, titles, names, words and short phrases, instructions, lists of ingredients and familiar symbols or designs are generally ineligible for copyright because they lack the necessary originality and creativity necessary to distinguish them from the ideas they represent.11 For example, the words in Nike’s slogan “Just Do It” cannot be copyrighted and therefore could be used as a headline or tag to illustrate a photo collage of school athletes in a high school yearbook. The actual slogan (words in special typeface with “Swoosh” logo) probably cannot be used — barring permission or a “fair use” argument — because unlike the three “bare” words, the design of the ad is sufficiently creative and can be copyrighted.
Facts/Ideas Not Subject to Copyright Protection
Copyright law also recognizes a distinction between “expression” and “ideas.”12 Only creative expression, and not mere ideas or facts, qualifies for copyright protection. So while Time magazine will have a copyright in the exact words and arrangement of an article on teen drug use, the facts discovered in Time’s reporting belong to no one and can therefore be used as a source for other reporters. Additionally, ideas, thoughts or scientific research are not — by themselves — subject to copyright protection, thoughthe description of such ideas, thoughts or research may be.13
Who Owns A Copyright?
Generally, the creator of a work owns the copyright.14 However, under the “work for hire” exception, an employer owns the copyright of works created by her employees while working in the scope of their employment.15 This grants your employer the right to do pretty much whatever it wants with your work and prohibits you from doing the same.
On the other hand, if you are what is known as an “independent contractor,” you — and not the employer — own the copyright for your creations. In such cases, the employer may generally use your work only once, and you control all subsequent uses.
The issue of who is an employee is particularly significant for the student media where the traditional employee-employer relationship may not exist. While there are no reported cases involving student journalists, the U.S. Supreme Court has provided a list of factors to be considered in determining if someone is an employee or an independent contractor:16
The amount of skill required to perform the work. Students whose jobs require special skills, like graphic designers, are more likely to be considered independent contractors.
The source of supplies and tools. For example, a photographer who uses his own camera and film is more likely to be considered an independent contractor than one who uses school equipment.
The location of the work. Students who work in their own homes or studios are more likely to be considered independent contractors than those who work in school facilities.
The duration of the relationship. For example, a student artist who contributes a comic strip to a school newspaper once is likely to be considered an independent contractor.
The hiring party’s ability to assign additional projects to the creator. If the student editor cannot delegate assignments to the student writers, artists and photographers but rather they select their own projects, they are likely to be considered independent contractors.
The creator’s discretion regarding when and how long to work. For example, a reporter who sets her own schedule is more likely to be considered an independent contractor.
The tax treatment of the creator. Students from whose paychecks the publication withholds no social security or income taxes are likely to be considered independent contractors.
None of these factors alone is determinative in the analysis.17 Nevertheless, taken as a whole, they would seem to require a fairly formal and traditional employer-employee relationship, something which is arguably missing in most student media situations where students often volunteer their time and services. When students are paid, it is often on a per photo/story/issue basis, much like a freelancer, which would suggest treatment as an independent contractor.18
Nevertheless, the surest way to determine if one is an independent contractor or an employee of a student newspaper, yearbook or other “collective work” is to anticipate the issue in advance. Before starting work, both parties should establish the nature of their relationship and put their agreement in writing. Regardless of the above factors, an agreement specifying that one party is the copyright owner of certain works would determine the outcome of most controversies that arise. In some cases, however, it will be impossible to characterize a work as a “work forhire,” and a statement in which the creator assigns his or her rights to the publication will be necessary, if this is what the parties intend. Every student publication should have a written agreement signed by each student staff member spelling out who owns the copyright to the works created.
What Rights Does Copyright Provide?
A copyright gives its owner five exclusive rights: reproduction, adaptation, distribution, public performance and public display.19 The popular song “Uptown Funk” by Bruno Mars can illustrate these rights.
“Uptown Funk” is the subject of at least three copyrights: one for the lyrics and musical arrangement, one for the actual sound recording and one for the art used to illustrate the package of the CD. Assuming that Bruno Mars owns each of these copyrights (although he has probably transferred rights to his record company), he is the only person who can legally exercise any of copyright’s exclusive rights. For example, no one but Bruno Mars can dub copies of the original sound recording for profit. (Note, though, a provision of copyright law unique to sound recordings does allow someone to make and distribute their own version of an original song without the copyright owner’s permission, as long as they pay the owner a fee.) Only Bruno Mars can legally sell copies of the CD or reprint the song’s lyrics on promotional merchandise or sheet music. And Bruno Mars is the only person who legally could display the art from the CD package in public.
Copyright owners like Bruno Mars can, in addition, sell or grant permission to others to use their works. Therefore, someone else could legally reproduce, adapt, distribute, publicly perform or publicly display “Uptown Funk” as long as she had Bruno Mars’ permission.
What Formalities Does Copyright Require?
Depending on when a work was created, the law recognizes three technical copyright requirements: (1) notice,20 (2) registration21 and (3) deposit.22
A formal copyright notice includes the copyright character, the creation date and the name of the copyright owner. For example (copyright character) 2016 Student Press Law Center. Where notice is required, this notice must appear on all copies of a copyrighted work. For works created after March 1, 1989, notice is not required to claim copyright. Works produced after this date are automatically copyrighted from the moment they are created. Regardless, it is a good “non-legal” idea to include a copyright notice if for no other reason than as a courtesy to users who may wish to contact the copyright owner. For works created before Jan. 1, 1978, a copyright notice was mandatory. Notice was also mandatory, with a few exceptions, for works created between Jan. 1, 1978, and March 1, 1989.
Registration of creative works with the Copyright Office in Washington, D.C., is voluntary. Nonetheless, registering a copyrighted work and obtaining a certificate of registration can be advantageous to the copyright owner. First, registration is the key to the courthouse door. Only a copyright owner who has registered her work with the Copyright Office may sue someone who infringes her copyright. Additionally, while you have the right to register your work at any time while your copyright is in effect, certain damages and reimbursement for your attorney fees are only available to those who formally register their work within three months of publication or one month of learning of an infringement, whichever is earlier.23
Registration is easy. It requires completing relatively straightforward forms for the Copyright Office, mailing them copies of your work and paying a fee ($35-55 as of 8/1/15). Attorneys or other specialists are not required. Forms may be obtained at the U.S. Copyright Office’s website or by calling (877) 476-0778. An online application is processed more quickly than a mailed registration form, and the website provides an online status tracker. Special registration requirements are available for serial publications (newspapers, weekly magazines, etc.) that make registration cheaper and easier to accomplish.
The final copyright formality is deposit. Creators must deposit two copies of their work with the Copyright Office within three months of publication. Electronic copies may be submitted for deposit in some cases. For the address to which hard copies should be sent for deposit, visit the U.S. Copyright Office’s website. While copyright law mandates deposit, failure to send in the required copies of your work will not affect the validity of your copyright.
Questions about any aspect of copyright registration or deposit can be directed to an information specialist at the U.S. Copyright Office toll free at (877) 476-0788 or by visiting the U.S. Copyright Office’s website.
How Long Does Copyright Protection Last?
Calculating the duration of copyright protection can be a complicated task. It can also be very important because once copyright expires, the work becomes part of the public domain and can be freely used without permission from the former copyright owner. For example, film producers in Hollywood could create a script and movie of Nathaniel Hawthorne’s book The Scarlet Letter with no legal liability for copyright infringement because the novel — like any work originally published before Jan. 1, 1923 — is now in the public domain. For works created before Jan. 1, 1978, copyright lasts for the life of the creator plus 70 years. The copyright for works for hire created after that date extends for either 95 years from publication or 120 years from creation, whichever comes sooner. Copyright always expires on Dec. 31 of the appropriate year.
What Remedies Are Available To Copyright Owners?
Copyright owners who have complied with the requisite formalities may sue for copyright infringement if someone has exercised one of the copyright owner’s exclusive rights without permission or in a manner that would not be considered a fair use. If the copyright owner prevails in the action, the court may award her either actual24 or statutory25 damages, as well as injunctive relief and impoundment of copyrighted material.
Actual damages are the measure of the actual amount of money lost by the copyright owner due to the unauthorized use plus any profits made by the infringer that are not included in the first computation. These are calculated using evidence provided by the copyright owner.
Statutory damages range from $200 to $100,000 per infringement depending, in part, on whether the infringement was “innocent” or “willful.” The actual amount awarded by the court is in the discretion of the judge. Copyright owners may choose whichever damages are greater when they prevail in a copyright infringement.
Injunctive relief, which is normally a court order to stop violating a copyright, and impoundment, the court-ordered confiscation of copyrighted material and the machinery or tools used to create it, are also common remedies.
Obtaining Permission to Use a Copyrighted Work
The surest way to use a copyrighted work legitimately is to get permission from the copyright holder. Simply giving the copyright owner credit for their work is not enough. Explicit permission is required. Sometimes that is not difficult. For example, a daily commercial newspaper would probably agree to allow a nearby high school student yearbook to reprint a photo of a local news event, as long as the students gave credit to their source. On the other hand, getting permission can sometimes pose a challenge. Many organizations have strict policies regulating the use of their copyrighted work, from barring permission altogether to detailed, time-consuming procedures by which permission must be secured to charging expensive licensing fees. Video yearbooks and other non-print media will often find that obtaining permission to use popular music or films can be an especially trying experience. You may want to limit your use of these items to what would be considered a “fair use,” (for example, to accompany your official survey of the five most popular music videos at your high school, you could probably run a very short clip of each) or you may want to contact a company that specializes in obtaining copyright permissions.
If you think it will be necessary to obtain a copyright, start early. While the time required varies, you should allow yourself months, rather than days or even weeks, to secure a copyright permission.
The first step is to locate the copyright holder, either by using the copyright notice (for example, (copyright) 2015 Time, Inc.) or by contacting the Copyright Office in Washington, D.C. You can search their copyright registration records yourself on the office’s website,26 or you can pay them to do the search for you.
Once you know who owns the copyright, you need to ask that person for permission. While it is probably worth an initial telephone call, particularly at a smaller or less formal organization, most copyright holders require a written request. Your request should include:
- Your name, address and telephone number; the name and expected date of publication; the number of copies you intend to produce and the price, if any, you will charge. If you are a non-profit student publication, be sure to make that absolutely clear.
- A precise description of what you want to use and, if possible, a photocopy or sketch of your plans.
- A (polite) statement regarding your deadline for hearing back from them.
This is a very important exception to the general rule that copyrighted material cannot be used without consent. It is particularly significant to the news media, which is in the business of conveying information, some of it based on copyrighted work.
Federal copyright law states that an individual other than the copyright owner can use a copyrighted work without permission if the use would be considered a “fair use.”27 The Fair Use Doctrine is, in effect, a compromise. It represents a balance by lawmakers of the need to encourage scientific and cultural progress by making sure creators get credit for what they do against society’s need for readily accessible information. Recognizing the inherent conflict in these two goals, fair use strives to find a reasonable middle ground.
Whether or not the use of a copyrighted work by a non-owner would be considered a “fair use” is not always an easy call. There is no black and white rule; each case must be examined on its own. Indeed, it is this lack of a hard and fast standard that has lead some to label fair use “the metaphysics of law.” Nevertheless, as one of the country’s leading experts on copyright law has said: “Ninety-nine times out of a hundred a scholar who wants to quote a reasonable portion of a copyrighted work can do so without obtaining permission as long as the quotation does not constitute a substitute for the original.”28
Courts look at four factors to determine if the use of a copyrighted work is a fair use:29
- The purpose and character of the use. Non-commercial uses for purposes like news reporting, teaching, criticism or commentary are more likely to be fair.
- The nature of the copyrighted work. Uses of works containing mostly factual material like maps or biographies are more likely to be fair than uses of highly creative and original works like novels and cartoons.
- How much of the original work is used. No more of the work than what is necessary may be used fairly. The test is both quantitative (how many words of a 200,000 word book are reproduced?) and qualitative (using the “core” or “heart” of a work — no matter how small — is less likely to be a fair use).
- The effect of the use on the commercial value of the copyrighted work. This is the most important factor.30 If consumers are likely to buy the use as a substitute for the original, it probably will not qualifyas a fair use.
The most important factor is usually the first, which courts use to determine whether the use is “transformative.”31 The more the use “transforms” the copyrighted work by adding new value — such as attaching new meaning, information or aesthetics — the less weight other factors (such as commercial use) will be given and the more likely the use will be labeled a fair use. A work that just involves the same material but in a new form, though, is not “transformative” because it does not add anything to the copyrighted work.32 For example, compiling news stories from the print edition of the New York Times to post on a blog, but making no other changes, is not transformative. However, copying parts of New York Times stories into a blog post critiquing their coverage of a particular topic would likely be transformative.
Fair use therefore authorizes the use of limited amounts of copyrighted works for purposes like news reporting and education so long as the use does not destroy the commercial value of the copyrighted work. Thus, a student newspaper can probably reproduce a single photograph — particularly one that is reduced in size from the original — of the cover of “The Fault in Our Stars” to illustrate a review of the book without obtaining John Green’s (or his publishing company’s) permission. Other fair uses probably include: use of a single frame from a comic strip to illustrate a news article reporting the retirement of the strip’s creator; reprinting a Joe Camel advertisement taken from a national magazine to illustrate a story on the effect of cigarette advertising on minors; reprinting two lines from the senior class song as part of a yearbook editor’s “The Year Gone By” column. But using an entire comic strip or Joe Camel advertisement on senior class T-shirts or printing all the lyrics from the senior class song on the inside cover of the yearbook will probably not be fair uses.
Fortunately for the student media, copyright law gives parodies and spoofs a fair share of breathing room. The U.S. Supreme Court has recently ruled that the use of copyrighted material in parodies or spoofs can constitute a fair use if the use satisfies certain conditions.33 First, the parody must be obvious.34 The audience must reasonably perceive that the use is a criticism or commentary of the original. A disclaimer or notice that clearly alerts readers of the parody may prove useful. Second, the use must reproduce no more of the work than the minimum necessary to conjure up the original in the audience’s mind.35 For example, a slight change in the appearance of a cartoon character will be insufficient to satisfy fair use.
Finally, the use must not destroy the market of the original work.36 If the public will buy the use instead of buying the original or a parody of the original created by the copyright owner, then the use is not fair. So, for example, an artist’s depiction of an otherwise exact copy of Homer Simpson choking Bart Simpson that only altered their eye color or clothing would not qualify as a parody, but a drawing of a man and boy who vaguely resemble Homer and Bart Simpson giggling about school events probably would.
The basics of copyright law are not difficult to understand, particularly when you understand the reasoning behind the law. While this short guide will not provide you with all of the answers you need, it should at least alert you as to the questions you must ask.
For those needing additional help, the Student Press Law Center provides free legal information to student journalists and their advisers on copyright and other issues. Please contact us.
1. 17 U.S.C. §§ 101-1101.
2. See, e.g., Campbell v. Acuff-Rose Music, 114 S. Ct. 1164, 1169 (1994).
3. About 38 states have anti-dilution statutes on the books. David S. Welkowitz, State of the State: Is There A Future for State Dilution Laws?, 24 Santa Clara Computer & High Tech. L.J. 681, 682 (2008). The federal Trademark Dilution Act, passed in January 1996, and amended by the Trademark Dilution Revision Act of 2006, can be found at 15 U.S.C. § 1127.
4. Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972). See also, Chemical Corp. v Anheuser-Busch, Inc., 306 F.2d 433 (5th Cir. 1962), cert. denied, 372 U.S. 965 (1963) (“Where there’s life…there’s Bugs”); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200 (2d Cir. 1979) (use of uniforms nearly identical to Dallas Cowboys cheerleaders in pornographic film “Debbie Does Dallas”); Pillsbury Co. v Milky Way Products, Inc., 215 U.S.P.Q. 124 (depiction of Pillsbury’s Poppin’ Fresh doughboy performing various sexual acts). But see, L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir. 1987), cert. denied, 483 U.S. 1013 (1987) (court refused to apply Maine’s antidilution statute to the publication of a parody of L.L. Bean’s mail order catalogue in sexually oriented magazine).
5. Eldred v. Ashcroft, 537 U.S. 186, 192, (2003).
6. For more information on plagiarism, see, Hiestand, M., Special Report: Plagiarism, Student Press Review (Summer/Fall 1994), at 24.
7. 17 U.S.C. § 102.
8. 17 U.S.C. § 102(a).
9. Feist Publications Inc. v. Rural Telephone Service, 499 U.S. 340 (1991).
10. 17 U.S.C. § 102(a).
11. Circular 1 (Copyright Basics) (May 2012), U.S. Copyright Office, at page 3.
12. 17 U.S.C. § 102(b).
13. See, e.g., Detective Comics, Inc. v. Bruns Publishing, Inc., 111 F.2d 432 (2d Cir. 1940) (while an author may copyright a superhuman character from another planet who lives among human disguised as a newspaper reporter, dons blue tights emblazoned with a gold “S” and saves the world from injustice using his powers of strength and flight, he may not copyright “the mere character of a ‘Superman’ who is a blessing to mankind.”).
14. 17 U.S.C. § 201.
16. 490 U.S. 730, 751-52 (1989).
18. See, e.g., Marco v. Accent Publishing Co., Inc., 969 F.2d 1547 (3rd Cir. 1992) (freelance photographer for magazine classified as independent contractor where evidence showed he used his own equipment, paid his own taxes, supplied his own studio, did not receive employee benefits and was paid by the job); Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 412 (7th Cir. 1992) (“no one could suppose…that [freelance photographer] was an employee….” where specific statement to that effect was not signed prior to work being performed.)
19. 17 U.S.C. § 106. Sections 107 through 122 contain exceptions to these rights.
20. 17 U.S.C. §§ 401-406.
21. 17 U.S.C. § 408-412.
22. 17 U.S.C. § 407.
23. 17 U.S.C. § 412.
24. 17 U.S.C. § 504(b).
25. 17 U.S.C. § 504(c).
26. Records after Jan. 1, 1978, are searchable through a digital records catalog. Records prior to 1978 are accessible through scanned volumes of the records catalogs.
27. 17 U.S.C. § 107.
28. L. Ray Patterson (Brock Professor of Law at the University of Georgia), cited by Stowe, D., Just Do It: How to Beat the Copyright Racket, Lingua Franca (Nov./Dec. 1995), at 38.
30. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985).
31. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
32. Cariou v. Prince, 714 F.3d 694 (2nd Cir. 2013).
33. Campbell, 510 U.S. at 569.
34. Id. at 582.
35. Id. at 588-89.
36. Id. at 590.