New York Law School

Infringe That!

Future after Aereo

The case of American Broadcasting Services V. Aereo is currently with the Supreme Court. The short summary of the case is that the commercial broadcasters of American network television such as ABC, NBC Universal, CBS and Fox want Supreme Court to tell Aereo, small start up, that it is illegal to rebroadcast their programs. The premise of Aereo is that they will stream broadcast television on your computer or phone for a low price of $8. The way they do it is by using a small antenna that is allocated to your account, which links it to a virtual version of DVR.
The Main argument that Aereo uses is that broadcast television is specifically designed to be free over the airways, so instead of having an antenna on top of your house, users can access it through their accounts. However, Broadcasters lose about $3b in licensing fees that cable companies currently pay broadcasters to do the same but legitimately.
This case is of particular interest because it demonstrates the shifting landscapes of the media business, but as with many other Supreme Court cases, this particular case addresses more important issues indirectly. The cloud computing and internet streaming would be affected tremendously when this case is decided. During the oral arguments, Judge Sonia Sotomayor demonstrated deep understanding of the technological nuances of this case, when she asked questions about cloud computing and streaming companies. In addition, Justice Stephen Breyer was inquiring whether this decision against Aereo would be a bad precedent for the cloud computing industry. Based on the recording of the oral argument, it seems that Justice Sotomayor has the best understanding of the issues. It is highly likely that she is going to be the one writing the decision.
If Aereo wins then cable companies would be able to establish similar services that would save them billions in licensing fees. The landscape of the media business would not shift overnight but it would take sometime. However if Broadcasters win then we could expect that all cloud based technology would be at risk. It could be argued that if they did not bring this issue into their brief then the decision against Aereo would have been very narrow that would put an end to Aereo like services. Even though, it seems that Broadcasters attack on all cloud based service is not intentional it would open up doors to similar law suits from companies that oppose cloud based services.

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When Reality TV Gets Real Part II: Teresa and Joe Giudice Plead Guilty to Fraud

At the end of 2013, things looked quite bleak for Real Housewives of New Jersey star Teresa Giudice and her husband Joe. As discussed in When Reality TV Gets Real: How Bravo May Play a Role at Teresa Giudice’s Trial, Bravo’s employees were almost certain to be called as witnesses at the Giudices’s impending trial. Everything changed, however, when the Giudices pled guilty to their fraud charges in early March. Bravo may no longer fear testifying at trial or turning over video evidence, but the company now must respond to the media firestorm surrounding the Giudices’s sentencing, and fans are expecting answers.

Season six of Real Housewives of New Jersey premieres on July 13th, and fans are anxiously awaiting the new drama brought to this season. Instead of taking a break from her reality gig, Teresa continued filming the docudrama despite her legal troubles. While there have certainly been lawyer-filled episodes of Real Housewives in the past, this is the first time a housewife may end up in prison as the season concludes. In fact, the Giudices’s sentencing is scheduled for July 8, just days before the season begins. While continuing on the show may not have been the smartest choice for Teresa, as her four young daughters are constantly in the spotlight, it appears that Bravo is taking advantage of Teresa’s current fame.

Andy Cohen, executive producer and television personality at Bravo, said that Teresa is “very much a part” of the new season, but that he is thinking about her kids. In other words, it seems as if Bravo is cashing in on Teresa before they may have to stop production. If the Giudices do end up in jail, it seems like Teresa will have no choice but to stop filming the show. However, with rumors circulating that Teresa may get house arrest, it’s unclear whether or not her storyline will continue.

Fans, of course, want to find out Teresa’s fate, and have an inside look at how she dealt with life during this difficult time. Yet how far will Bravo go this season? It will be interesting to see whether Teresa’s storyline is a continuation of her elegant lifestyle and family feud with brother Joe Gorga, or whether her legal battle will be in the spotlight. With the duty of confidentiality protecting Teresa’s communications with her lawyer, it is unlikely that she will waive those privileges and share every detail of her legal crisis. In fact, Bravo may stray away from filming any conversations that might inflict liability onto them as well. Whatever happens, fans should remember that there is a further reality behind the television screen.

Television | Comment

The ‘Right to be Forgotten’

Recently the European Court of Justice held that a person has ‘a right to be forgotten.’ That’s right, a right to be forgotten. While the US has always sought to protect our freedom of speech as well as the freedom of the press, the big question on all of our minds is: How will this ruling affect US!!? While many Americans are no doubt excited at the prospect of being able to escape their pasts on the Internet, should everyone be afforded this right?

In 2010, Spanish citizen, Mario Gonzalez, brought a suit against both Google Spain and Google Inc. claiming that when people “Googled” his name links to an article published in a Spanish newspaper broadcasting the financial difficulties he had 16 years ago would appear. The article specifically announced the auction of his house in connection to the great debt he incurred at the time. As the article is 16 years old, Gonzalez argues that the information contained in the article is no longer relevant and representative to his current financial situation. The Court of Justice of the European Union not only agreed with Gonzalez but also ordered Google to remove the links to the outdated newspaper article.

The EU court was careful to narrow its holding to apply only to information that is both outdated and irrelevant to societal interest, rather than every old piece of information on the Internet. The court further reasoned that the economic rights of an Internet service provider, like Google, must be weighed against the privacy rights of the individual who is affected by the online dissemination of their private information. While the EU court ruled that Gonzalez’s right to privacy outweighed Google’s economic interests in keeping the links online, the court also noted that the legitimate rights of Internet users to have access to that information must also be considered.

When considering the interests of Internet users in being able to access information on the web, courts typically consider the nature of the information in question and the role played by the subject of the information in society. Put more simply, the court must determine whether the information is ‘newsworthy’, or of public interest, and whether the subject of the information was a public figure, such as a politician or celebrity, or a private figure. The distinction between public and private figures is based on the logic that public figures seek out the attention of the media and arguably have the means and access to social media tools to counter any negative press published about them online or otherwise.

Although the justification for this makes sense to us, you can’t help but to feel bad for the person whose privacy is being invaded just because society might be interested in that information. In Europe you’ll never have to feel this way as this ruling affords more protection to the information of private figures than public figures. Unlike in the US, where courts have countlessly protected social media defendants from privacy claims brought by private figures where the information complained of is newsworthy and of particular relevance and interest to society at large.

Moreover, while the ruling only compels Google to remove the link to the information, and not the information itself, Google has already faced many requests from Europeans anxious to delete their mistakes that have been cyber-haunting them. Since major search engines like Google or Bling have the power and ability to keep private information alive indefinitely though a simple link, one picture taken on the one night you had too much to drink could affect your future. As it is increasingly common for employers to “Google” or Facebook stalk a potential employee, the right to be forgotten is a dream come true for those who are haunted by pictures from that one drunken night in college.

While only time will tell how this decision will impact the freedoms we as Americans have always enjoyed under the Constitution, its seems unlikely that the right to be forgotten will be forgotten any time soon!




Internet | Comment

House of Cords

Over the years, there has been a pronounce trend in the rise of cable bills. In 2009, the average digital cable bill was close to $75 per month and satellite TV bill was $69. Although digital cable has dropped marginally to almost $70 in 2011, satellite and fiber-optic services have risen to $76.80 and $99.67 respectively. Thus, signing to much lower priced on-line streaming has attracted more consumers away from the traditional cable television service.  According to the Convergence Consulting Group. 2.65 million Americans canceled their cable TV subscription between 2008 – 2011.

However, mergers of such companies like Comcast and Time Warner Cable are developing creative business ventures to ensure that traditional cable companies and their cords are not going away completely. In fact they are becoming more of a necessity. Even with the advancement of Wi-Fi, cable services providing Internet connections are still significantly quicker and more dependable than any other type of digital connection provider. Thus, consumers who rely on streaming from their computers as their main source of television, still find that the best connection to their on-line streaming still comes through a cable cord.

In addition, now once-free networks such as ABC and Fox, are requiring that users provide a verification of a subscription to cable or a Hulu Plus account in order to watch the shows that stream on these networks websites. Thus, such a requirement is still allowing cable and paid-for content providers to still have a competitive edge in the entertainment market after seeing a large drop in cable subscriptions upon the creation of on-line streaming such as Hulu and the free content that was once provided on the major networks websites. Thus, if consumers want to continue to view their favorite shows and movies at their fingertips, they will have to sign on to a cable or charged streaming plan in order to experience their entertainment that they always have before.

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Dumb Starbucks

On February 7th, 2014, Los Feliz, California briefly welcomed a “new” coffee shop, which was shut down by the Los Angeles County Department of Public Health a mere three days after the grand opening on February 10th, 2014. The name of the coffee shop was “Dumb Starbucks” and everything about the coffee shop from its beverages to its ambiance to its music was strikingly identical to the original Starbucks. The only difference between the two coffee shops was that “Dumb Starbucks” added the adjective, “dumb”, before everything. And I mean everything: Dumb Caramel Frappuccino, Dumb Vanilla Latte, Dumb Norah Jones…you get the point. The cups, the colors, the menu, and the store sign used the same exact trademark logo as the original Starbucks with the mere addition of….you guessed it….the word, ”dumb”, preceding everything.
The “mastermind” behind this idea was Comedy Central’s Nathan Fielder, who is now planning to open up another “Dumb Starbucks” in Brooklyn. This either seems like a temporarily comical publicity stunt or a bold/”dumb” move. Not only is Starbucks notorious for its litigious behavior but it is also known to be one of the most valuable and protected trademarks currently in existence.
“Dumb Starbucks” founder, Nathan Fielder, attempted to defend his coffee shop from liability by claiming a parody defense under copyright law. He claimed the fair use doctrine, which would allow him to use Starbucks’ copyrighted material as a parody without permission from Starbucks. He defended himself by citing fair use as the same doctrine that permitted Weird Al to use Michael Jackson’s, “Beat It”, for his parody version, “Eat It.” However, the main issue here is whether copyright law is the proper law to use or whether trademark law is the proper law to use.
Regardless, the U.S. Supreme Court in Campbell v. Acuff-Rose Music defined parody as using a portion of someone’s original work to create a new one that acts as a commentary on the original work. Here, all “Dumb Starbucks”, did was add the word, “dumb”, to precede every word. This does not seem like a big enough distinction or newfound commentary on Starbucks. Perhaps “Dumb Starbucks” would have had a higher chance at litigation victory if they did not copy as much of the Starbucks branding as they did.
Although “Dumb Starbucks” may have a chance strongly due to Starbucks’ fame and recognition, the “parodical” coffee shop has literally reproduced everything identically and fails to prove itself as a commentary. Granted, victory depends on each side’s argument, it would be smart for “Dumb Starbucks” to be wary of the weaknesses in their potential arguments and Starbucks’ powerful litigation team.

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Veronica Mars Kickstarter Creates New Era of Movie Financing

In 2004, then UPN, then followed by the CW, television network premiered the American television show Veronica Mars, starring actress Kristen Bell as a high school student whose extra-curricular activities includes solving cases as a private investigator. The critically acclaimed series ran for three seasons and had a substantial following during its run. However, when executive producer Rob Thomas presented his script to Warner Bros. for a feature film, the company turned it down. Thomas then took his idea to Kickstarter and through that fundraising campaign raised the $2 million goal in less then ten hours.

Kickstarter, considered one of the world’s largest crowd funding sites, is a company that allows creative artists to raise money for their projects by offering various awards for donations to fund the project. Contributors to Kickstarter’s projects donate what they want and based on the amount of the donation, receive a “reward” for that contribution. In the case of Veronica Mars, rewards included an emailed copy of the script for $10 contributions, a download of the movie, t-shirt and script for $35 all the way up to a small walk-on role for $10,000. Although the studios and even Kickstarter say this form of financing projects is a revolutionary change to how films will be made, others aren’t so quick to support the campaign.

Critics of the campaign argue that this kind of fundraising is merely charity for big name studios and actors like Warner Bros. and Zach Braff to benefit from this financing yet get to walk away with the profits once the project blossoms into fruition. The success of the Veronica Mars Kickstarter makes people wander why should a studio risk its own money when thousands of fans could do it for them?

Typically when someone invests in a film project they eventually get to see some of their investment return in the form of profit. With Kickstarter, however, the over 91,000 investors make it so the studio gets the money it wants but doesn’t have to pay back any of the profits if the film proves successful because the backers of the project are not entitled to any bite of any profits.

Thomas and other backers, however, say that the rewards contributors get are worth the contributions. They claim that the rewards provide fans of these projects to experience the process in a way they may not have done before. In addition, the fact that so many people are backing the projects in the form of their contributions means that the studio must make the film. As noted on Kickstarter’s website, project creators must agree to “fulfill rewards or refund backers if a project is not fulfilled and could result in damage to your reputation or even legal action on behalf of the backers.” In other words, both the creators of these projects get to see their ideas come to life and creators are entitled to ensure fans get to see the film they obviously want.

The success of this fundraising effort has even inspired other big names like Melissa Joan Hart and Zach Braff to begin their own Kickstarter campaigns for their respective projects. This leaves the question of whether Kickstarter campaigns that help fund big studio projects is just a form of a handout in which the studio’s profit more from had they funded the projects on their own or is this the beginning of a new era to bring fans closer to the film-making process? I guess only time and the aftermath of the debut of Veronica Mars in early 2014 will tell.

Film, Television | Comment



It’s undeniable that social media has tremendously changed our society over the last decade. We are connected to each other more than ever before, even if it’s just through Wi-Fi. It’s easier to stay in touch with old classmates who have moved away, former colleagues who we have worked with, and even with our favorite celebrities. Facebook, LinkedIn, and Twitter have all been the gateways for that. Instagram is another medium that allows Smartphone users to share pictures instantly. The users may upload their own original pictures, pictures that have been shared by other users, or pictures that were obtained from the Internet. The pictures may be reposted without the notification to the original owner. The concern is that the content posted by the users may be copyrighted and therefore infringe on the original owner’s right to reproduction and the right to create a derivative work.

Instagram does not claim ownership to any pictures posted, instead obtains a sub-license to use the content posted. When the user agrees to the Terms of Use upon creating an account, the user warrants that he or she has the right to share the content. The problem is that even if the Terms of Use are enforceable, it does not stop the user from posting unlicensed content. With the accessibility that Smartphone’s allow, it is easy to screenshot and repost a photo within seconds. The pictures may be uploaded from the user’s stored database and a filter may be added that enhances the photo. Even though the photo may be altered, it does not necessarily mean that it is so transformative that it may fall under the fair use defense.  Even though there are these implications, the increased exposure may outweigh the need to bring about copyright infringement claims.

Instagram’s feature that allows to “tag” posts with hashtags allows any other user to find all pictures that have been tagged with the same word or phrase (so long as that user’s account is public). Essentially, any one can search for a picture of a person, a brand, or a city. It opens the level of exposure to be available to many more people than before and people can view posts that they otherwise would have not before. This is great for marketing purposes because even though if someone is reposting another’s post, it is expanded to a larger group of people. Of course, there are still privacy concerns, but the assumption is that if a person’s account is public, they are posting content that they have deemed acceptable for the general public to see.

The content that is reposted can be anything from a picture of the sunset to a collection of nail polish. Instagram is a great forum to share new ideas and trends so a new clothing line, or even an established coffee shop like Starbucks, may actually benefit from the constant stream of new photos and reposts. It becomes something that the individual sees not only on traditional advertising medium, but also as part of the news feed on their phones. It is more likely than not that the increased exposure will lead to an increase in the market. So even though there are infringement concerns, the level of exposure and awareness that this “infringement” provides may outweigh those concerns all together.

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Life on the Demand

The way people watch TV has changed; people no longer want to wait for a new episode week by week. Binge-watching, also referred to as binge-viewing, has become much more appealing to people with limited available time to watch TV. Nowadays, with longer work days, not everyone can dedicate every Thursday night to watch a new “Park and Recreations” episode. Even though most of the networks offer on-demand streaming, it is not as appealing as Netflix because of constant commercials breaks. In addition, Netflix’s mission to provide quality original content will attract more subscribers, especially at such a time where costs of movie theater tickets are very high. If Netflix chooses to offer original movies, they would be guaranteed popularity with an increase in subscriptions.
It is clear that Netflix is on its winning streak; its benefits are clear to the subscribers: easy access, affordability, award-winning content and etc. Aside from winning their subscribers, Netflix executives are making deals across the country. One of the biggest deals that Netflix made recently is with The Weinstein Company, which gave Netflix exclusive first-run licensing to all Weinstein and Dimension Films releases starting in 2016. The Weinstein followed TWC deal with Netflix, which is a similar deal but only dealing with foreign films and documentaries.
Most recently, Netflix has their eyes set on the Oscar race. It’s been reported that Netflix are negotiating to acquire exclusive rights to Jehane Noujaim’s documentary about Egyptian unrest “The Square.” This documentary would be released under the Netflix banner in a manner of its original TV-style series, such as “House of Cards” and “Orange Is The New Black.” It might be be safe to say that in a year or two, Netflix would establish itself as a power in original content to rival established entities.
Right now, Neflix is competing with Hulu but Netflix’s model proved to be successful, in that it inspired new providers. Netflix’s biggest competition in the near future is Amazon Prime, which is outgrowing Netflix every day. Even though it is not that big of a competition at this moment, Amazon Prime has a potential to be a bigger threat to Netflix in a few years. Amazon Prime increased its Prime Instant Video selection this year and added exclusive content from CBS/Showtime, Sony Pictures, and tons of content from Viacom after Netflix’s mistake in not renewing their contracts. Amazon Prime even tried to break into producing its own original content. Alpha House, which is a show that follows four senators living together in a rented house in Washington D.C., is popular with the subscribers. However, the show did not receive any nominations this year at any major awards shows. It is going to take a couple of years for Amazon Prime to develop more critically acclaimed shows, while Netflix already has popular series that are entering their second season.
Overall, Netflix is going to grow further next year, but there are certain obstacles it will face. One of the most severe obstacles is that it is losing its content. Netflix already lost Viacom shows, which were picked up by Amazon Prime, and will continue to lose more in the next year when their contracts are expired. Amazon Prime, is most likely going to pick up all of Netflix’s losses, which will put Amazon Prime in a stronger position. However, if Netflix invests more in the original programming, then its subscribers are more likely going to stay with it for the benefit of watching their original shows.

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Copyright in Tattoos, Artist vs. Canvas

You want to get a tattoo. Normally, you spend time choosing the perfect design and placement. Then you spend hours reading reviews on Google to find the perfect (read: cleanest) tattoo shop in your area and make an appointment. You arrive for the appointment and after agreeing on a design you are handed a sheet of paper that looks very official and includes a lot of words you don’t understand. However, the excitement from getting a tattoo means you sign anyway and nervously get in the chair. Up until recently, the release you signed would include the basic things about acknowledging the risk of getting a tattoo, agreeing not to hold the tattoo shop liable for any complications associated with the tattoo, and certifying you are not drunk while getting this tattoo. In the future though, the releases could include a provision that states that the artist retains all copyright interests in the design of the tattoo. This change will likely be brought about by the changes that are happening at the moment in the realm of copyright law and how it applies to tattoos.

Up until the early 2000’s no one considered tattoos a form of copyrightable material. Then in 2005 a Portland, Oregon tattoo artist sued Detroit Pistons forward Rasheed Wallace claiming he owned the copyright interest in the tattoo design and sought to stop a Nike ad featuring the tattoo from being disseminated over the internet. He also sought damages. The case settled out of court, but sparked a new kind of copyright infringement suit. More recently, the tattoo artist who created the distinctive face tattoo for Mike Tyson sued the creators of The Hangover 2 for infringing his copyrighted material when they gave Ed Helms a similar tattoo in the movie. The artist, S. Victor Whitmill sought to prevent the movie from being released and argued that the movie producers failed to get his consent to use his tattoo design on someone besides Mike Tyson in the movie. The case settled before trial, but the judge’s comments were ground-breaking. The judge stated in her comments,

“Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that. They are not copyrighting Mr. Tyson’s face, or restricting Mr. Tyson’s use of his own face, as the defendant argues, or saying that someone who has a tattoo can’t remove the tattoo or change it, but the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.”

Her comments are the first time that a judge has opined on the copyrightability of tattoos and according to her they are entirely within the realm of copyright law. The ramifications from this are vast and potentially open up a vast number of celebrities to law suits from tattoo artists who want to benefit from the fame of the celebrity.

Most recently, tattoo artist, Christopher Escobedo, sued THQ, the creator of the video game, UFC Undisputed for copyright infringement when they included a detailed representation of fighter Carlos Condit (and his tattoos) in their game. Escobedo stated, “It’s an exact replica of my art,” says Escobedo. “That’s like a $5,000 tattoo that I got no recognition for.” This case is still up in the air, after Escobedo refused a settlement offer of $22,500 and if the case moves forward this could be the first time a court has actually had the chance to rule on a tattoo copyright infringement case. This ruling if it comes will pave the way for definitive changes in how a celebrity and even normal people go about getting a tattoo.

The National Football League Player’s Association (NFLPA) has already taken preemptive steps to prevent themselves from being held liable in future tattoo claims. They have asked players getting tattoos to get a waiver from their artist that they will not hold the NFLPA liable for any infringement. They have also suggested that players that already have tattoos try and get a waiver from their artist. This could very easily translate into the tattoo artists taking preemptive steps of their own to secure their copyright interests. Since it seems that a judge would likely rule that a tattoo design is copyrightable, it would only make sense for the artists to start including a provision in the release that states they retain an interest in the copyright. This won’t be a problem for us run of the mill citizens who don’t have million dollar endorsement deals, but for celebrities this could prove problematic. It would seem that the celebrity could either pay more money up front for the right to exploit the tattoo or they could show up to a tattoo session with their own waiver saying that either the artist transfers the copyright interest to the canvas or that the artist agrees to not unreasonably withhold consent to any future use of the tattoo in a video game, ad campaign, magazine cover etc.

It will be interesting to see if the Escobedo or any future cases actually get before a judge, but either way a new precedent has been set by the tattoo artists who have chosen to stick up for their copyrighted material.

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When Reality TV Gets Real: How Bravo May Play a Role at Teresa Guidice’s Trial



Reality television, though nearly nonexistent at the start of the 21st century, is now an American phenomenon. In the year 2010, 320 reality shows graced our television screens, with thousands of every day people plummeting into the world of stardom. Whether it is through competition shows, such as Survivor, or makeover programs like What Not to Wear, it seems many of us have left the realm of fiction and entered the world of reality when we turn on our TV screens each night.

At the top of our obsessions are “docudramas,” documentary-style programs that follow a group of people through their every day lives. Bravo TV, a member of the NBCUniversal network, is home to many docudramas with large, cult followings. Though the channel originally launched in December 1980 as “the first television service dedicated to film and the performing arts,” it is now home to a plethora of reality programming, with the Real Housewives franchise leading the pack.

Originating in Orange County, the Real Housewives shows follow women in the major United Stated cities as they go about their lives. Though not necessarily married nor homemakers, the Housewives are better described as wealthy drama queens. With big hair, fancy mansions, and designer clothes, the ladies of the Real Housewives capture audiences with ease. In the Real Housewives of New Jersey, for instance, viewers meet family-oriented Teresa Giudice. Teresa is a mother to four girls, and is known for spoiling her children (and herself) with a lavish lifestyle. At first, it seemed like Teresa had it all, but in June 2010, she and husband Joe filed for bankruptcy. Unfortunately, that was just the start of the couple’s legal troubles.

While the Real Housewives of New Jersey continued as planned for the next few seasons, the Giudices were charged with a 39-count indictment this past summer. Amongst the charges are conspiracy to commit mail and wire fraud, bank fraud, making false statements on loan applications, and bankruptcy fraud. As scary as Teresa and her husband must feel, Bravo TV is also on the chopping block. In fact, producers and cameramen for the show may be asked to testify at trial, and turn over any film they have of the Giudices that was edited out of the televised episodes.

Unlike news agencies that would receive First Amendment protection in a legal battle like this one, Bravo is an entertainment network, and cannot safeguard against the information it may have in the Giudice case. Yet where does the law draw the line between entertainment and reality? While the Real Housewives may not be newsworthy, the show is supposedly depicting the cast members’ real lives in an authentic way. It seems Bravo’s biggest loss in this matter might be admitting that its content is not as real as we would like to think.

Today, audiences understand that just some of what we see in reality shows is less than real (New York Housewives were recently caught faking scenes!), but networks like Bravo never falter when it comes to upholding the documentary aspect of their programs. It will be quite interesting to see how Teresa’s trial plays out, and if any Bravo employees will be asked to testify. With a court date set for February 2014, audiences will have to ponder the outcome of the trial, as well as what will happen to the beloved Real Housewives of New Jersey. Whether Bravo ends up confessing to knowing details of Teresa’s crimes or not, I think it’s safe to say that fans will continue to seek out the drama-filled Housewives we know and love for seasons to come.

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