Media Law Test #3

What is the current copyright protection for single authors?

The creator's life + 70 years (established in Eldred v. Ashcroft)

What are the exclusive rights of copyright holders?

Reproduction, derivative works (adaptation), distribution, performance, display, and perform sound recordings publicly

What are the four considerations of fair use?

- Purpose and character of the use

- Nature of the copyrighted work

- Amount and kind used relative to the whole work

- Effect on potential market

What is the transformative use test?

A way to balance copyright and free speech law, the test holds that if an artist used other copyrighted works but transformed the work into their own creation, the "fair use" doctrine applies. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work

International News Service v. Associated Press (1918)

The two news rivals went to court over copyright and intellectual property. The Supreme Court ruled that information collected by news companies can be considered quasi-property, entitling them to protection from interference. Facts are not copyrightable, but how someone reports those facts can be, leading to a precedent in future cases.

Rosemont Enterprises v. Random House (1966)

When work from another individual, in this case Howard Hughes, is not directly copied and is used in good faith (either scholarly or public forum like Keats' biography), the information belongs to the original owner. The court ruled in favor of Keats' fair use claim, especially because Hughes was seen as newsworthy and a public figure.

Time Inc. v. Bernard Geis Associates (1968)

Federal District Court decision involved the Zapruder film of the assassination of President Kennedy, which Time had purchased the copyright to. A publisher of a book that examined the assassination attempted to buy the photos taken from the film, but Time refused. The author then included charcoal sketches that were based on the photos. The court stated that this was fair use because of a legitimate public interest and the defendant's sketches did not present unfair competition.

Krofft Television Productions v. McDonald's (1977)

McDonald's had noticeably similar characters in a commercial compared to HR PufnStuf, a children's TV show. Krofft won because the court's decision showed that infringement doesn't just mean a word for word/exact copy of material. It created intrinsic and extrinsic tests to determine copyright, which decided that McDonald's characters were too similar.

Miller v. Universal City Studios (1978)

No distinction between research and facts. Copyright law protects the expression of the story, not the facts of the story. Court favors Universal, which had heavily used Miller's book on the Barbara Mackel kidnapping.

Triangle Publications v. Knight-Ridder (1980)

The Miami Herald published a television booklet next to actual-sized reproductions of Triangle Publications' TV Guide. Triangle sued for copyright and moved for both preliminary and permanent injunctions. The court denied the injunction, ruling that commercial use does not necessarily negate a fair use defense, and that Triangle was not actually harmed from the comparative advertising.

Universal City Studios v. Sony Corp of America (1984)

The case favored Sony, with the term "time shifting" coming from this (allows for DVR recordings today). The Betamax video tape recorders that Sony sold to the general public did not constitute contributory infringement of copyrighted public broadcasts. Again, just because there is a possible illegal use for some technology does not mean it should be banned.

Harper & Row Publishers v. Nation Enterprises (1985)

SCOTUS rejects fair use defense of a magazine that published material lifted from a forthcoming autobiography of former President Gerald Ford. The verbatim language damaged the marketability of the work, and showed that publishing parts of a public figure's work does not automatically mean it is fair use.

Salinger v. Random House (1987)

A Random House author quoted Salinger's (author of Catcher in the Rye) unpublished letters for an unauthorized biography. The use had an adverse impact on the market. The court then ruled that unpublished letters are assumed to have a copyright on them.

Basic Books Inc. v. Kinko's Graphics Corp. (1991)

For years, photocopy corporations had been "anthologizing" textbooks, which meant copying book excerpts into course packets to sell to college students. Publishers sued because they were losing sales, and the court found that the excerpts were not fair use. Prior to this case, it was assumed that works used for education were protected under the fair use doctrine, but the court favored publishers/authors.

Recording Industry of America v. Diamond Multimedia Systems (1999)

The Rio device, which was portable and made by Diamond without a Serial Copyright Management System, was not subject to to the requirements for digital audio recording devices under the Audio Recording Act of 1992. If a device can do illegal things but has legal purposes, it should not be banned.

A&M Records, Inc. v. Napster (2000)

This case involved a file sharing network that allowed peer-to-peer transfer of music and had a searchable list of available music, which was then sued for copyright infringement. The circuit court ruled that downloading full-length songs off the platform (no sales) without artist or copyright owner consent was a violation.

New York Times v. Tasini (2001)

Freelancers had been writing for publications, and the publishers licensed their stories to a service with a database (Nexis) of the stories in text-only format. Court ruled that the publishers infringed freelancers' copyright if they make available freelancers' stories and photos in e-databases without getting freelancer permission or paying them for the distribution.

Eldred v. Ashcroft (2003)

This case ruled that it is not unconstitutional for Congress to increase the term limits for copyright protection (the creator's life + 70 years).

Viacom v. Youtube (2012)

Viacom sued Youtube claiming that it promoted copyright infringement by encouraging people to upload content. This ruling narrowed the scope of what actions were protected under the DMCA where it applies to video-sharing sites and user information. It created strict guidelines on what users would be able to post on YouTube without receiving a copyright strike from the platform itself.

Flo & Eddie, Inc. v. Sirius XM Radio, Inc. (2016)

"Happy Together" by The Turtles was originally released in 1967 and was played on the air. Band members sued for copyright infringement, but the Florida Supreme Court ruled against them. It stood by the Federal Copyright Law, which protects all sound recordings copyrighted after Feb. 15, 1972. This leaves almost a century of recorded music unprotected, but favors large digital broadcasting that depends on providing music to listeners.

Pharrell Williams, et al v. Bridgeport Music, et al (2018)

The creators of "Blurred Lines" were sued by Marvin Gaye's family and Bridgeport Music, which claimed the song infringed on the copyrighted work "Got to Give It Up" for sounding the same. Court ruled that Gaye's song was entitled to broad protection because musical compositions aren't confined to a narrow range of expression. This ruling makes it harder to understand the line between creativity and infringement.

Skidmore v. Led Zeppelin (2020)

The court ended up ruling that Zeppelin's "Stairway to Heaven" did not infringe on the copyright of "Taurus." The ruling overturned a long-standing precedent, known as the "inverse ratio rule," which holds that if one party can prove a high degree of access to a certain work, the less substantial the similarities need to be to prove infringement.

Indecent Material

Sexually graphic; often referred to as adult or sexually explicit material that is protected under the First Amendment; such material may be barred in works available to children and in over-the-air radio and television broadcasts

Pornography

This term has no legal significance but is often used by laypersons and politicians to describe anything from real obscenity to material that is simply offensive to a viewer

What are the three most important obscenity cases that shaped current law today?

1. Roth v. U.S.

2. Miller v. California

3. Pope v. Illinois

What is the Roth Test?

The landmark case established that obscene material was not protected by the First Amendment and could be regulated. The test asks:

Whether to the average person - applying contemporary community standards - the dominant theme of the material taken as a whole appeals to prurient interest (a morbid, degrading or excessive interest in sexual matters)

What is the Miller Test?

1. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to prurient interest

2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law

3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value

How did the Pope v. Illinois decision revise the Miller test?

The decision revised the Miller test by changing to a "reasonable person" standard and suggesting that serious social value should be decided based on national standards

Regina v. Hicklin (1868)

Under the Hicklin test, if any part of the material was considered obscene, then the publication as a whole was considered obscene. There was no provision for the potential social or artistic value of the material, making the standard very restrictive. The Supreme Court used this British case for a while before establishing tests in Roth and Miller.

U.S. v. One Book Called "Ulysses" (1933)

The United States government does not have the right to confiscate or destroy a book that has scenes of obscenity in it (conflicts with First Amendment). This case established that work should be taken as a whole when considering whether or not it should be deemed obscene.

Burstyn v. Wilson (1952)

Supreme Court ruled that motion pictures are a medium for the communication of ideas and thus protected by the First Amendment. So, a state could not stop a film from being shown simply because it deemed the movie "sacrilegious"

Roth v. US (1957)

Roth owned and operated a mail-order bookstore in New York, and he was convicted of mailing an obscene book to requesters that violated an obscenity law. Ruling established that "obscenity is not within the area of constitutionally protected speech or press"

Ginsberg v. New York (1968)

A magazine containing nudity was sold to a 16-year-old, and the owners were charged under a criminal obscenity statute. The Court ruled that material that is not obscene for adults may still be harmful to children, and thus its marketing can be constitutionally regulated.

Stanley v. Georgia (1969)

Police searched a citizen's home looking for bookmaking (gambling) materials, but they instead found pornographic films and arrested him for possessing obscene materials in violation of Georgia law. Court overturned the conviction and ruled that there is a constitutional right to possess and use even obscene materials in the privacy of one's home.

Miller v. California (1973)

The owner of a mail business specializing in pornographic films/books mailed out a brochure promoting adult material. The case favored California and established that community standards be used in determining whether the material is obscene in terms of appealing to prurient interest, being patently offensive, and lacking in value.

Jenkins v. Georgia (1974)

A manager of a movie theater was convicted of distributing obscene material after showing the film Carnal Knoweldge. The court ruled that this violated his First and Fourteenth Amendment rights. Affirms the application of the obscenity standard to materials determined to be hard-core, also limiting juries' abilities to say what is obscene based on personal whims.

IL Citizens' Committee for Broadcasting v. FCC (1975)

The commission and a broadcast that aired M-F from 10 am to 3 pm went to court over two programs that talked about sex, which included specific descriptions of oral sex techniques. Court favored the commission and concluded that it was constitutional to limit certain mature subject matter to be broadcast only during times when children are less likely to be listening.

FCC v. Pacifica Foundation (1978)

During a mid-afternoon weekly broadcast, a radio station aired George Carlin's monologue, "Filthy Words." The station warned listeners that the monologue included "sensitive language which might be regarded as offensive to some." The FCC received a complaint from a man who stated that he had heard the broadcast while driving with his young son. The Court held that limited civil sanctions could constitutionally be invoked against a radio broadcast of patently offensive words dealing with sex and execration. Audience, medium, time of day, and method of transmission are relevant factors in determining whether to invoke sanctions.

New York v. Ferber (1982)

A bookstore owner sold two films that police discovered had two boys masturbating. The Court upheld a law that permitted criminal prosecutions for those who produce or sell material in which minors perform sex acts, without any proof of obscenity.

Pope v. Illinois (1987)

Two store attendants were arrested after selling adult magazines to police. The Court ruled that serious social value should be decided based on national rather than local standards and should be based on what a reasonable person would decide.

Skyywalker Records & Luke Records v. Navarro (1990 and 1992)

The song "As Nasty As They Wanna Be" was declared obscene, but the actions of the county sheriff's office were declared unconstitutional for prior restraint. The district court made an error when applying the Miller test. Even if music is filled with profanity and misogynistic language, it is not automatically obscene.

ACLU v. Gonzales (2007)

The court ruled that the Child Online Protection Act violated First and Fifth Amendment rights of the plaintiff. COPA was deemed over broad, vague, and not sufficiently tailored. For example, providers can't know if they will be punished for posting content that's harmful to young children but not high schoolers.

CBS v. FCC (2008)

The network was fined for airing an act of indecency, which was Janet Jackson's exposed breast during the 2004 Super Bowl (for less than one second). The action was actually permitted under the FCC policy at the time, which allowed for instances of "fleeting" indecency to air without sanction. Court ruled that it was arbitrary and capricious to change policy retroactively and impose a steep fine on the network without notifying it of the change.

FCC v. Fox Television Stations (2009)

Court upheld FCC's sanctions (Golden Globes Order) of fleeting use of four-letter words like "shit" during live broadcasts, regardless of how many times they're said. The FCC standard sanctions stations for the use of four-letter words during live awards show.

What is the Central Hudson test?

Established in Central Hudson Gas & Electric v. Public Service Commission of New York, the case created a test for determining whether a regulation of commercial speech satisfies First Amendment review:

1. First, the court must ask, does the speech concern lawful activity and is it non-misleading?

2. The government then must have a substantial interest

3. The regulation must directly and materially advance the government's substantial interest

4. The regulation must be narrowly tailored, showing a "reasonable fit" between state interest and government regulation

What is the Fairness Doctrine and is it still in effect today?

An FCC policy that ended in 1987 and required licensed radio and TV broadcasters to present fair and balanced coverage of controversial issues of interest to their communities, including by devoting equal airtime to opposing points of view.

What are equal times rules and how do they differ from the Fairness Doctrine?

The equal-time rule deals only with political candidates, meaning the media had to give the same amount of time to all candidates in a race. The Fairness Doctrine deals with the discussion of controversial issues.

Valentine v. Chrestensen (1942)

The owner of a Navy submarine made a handbill advertisement to attract visitors for its exhibition, but this violated a New York ordinance. He made another two-sided ad that included protest information. The Court ruled that his intent was to evade the ordinance and that states may regulate communication on streets. The ordinance was deemed lawful regardless of including public information.

FTC v. Colgate-Palmolive (1965)

The company ran an ad claiming its rapid shaving cream worked so well it could be used on sandpaper, followed by a display of shaving "sandpaper" (sand on glass). This was ruled a deceptive trade practice and forces advertisers to remain truthful in advertising products. As a result, commercials often feature "dramatization" notifications.

Red Lion Broadcasting v. FCC (1969)

A broadcast company failed to meet its obligation of reply time under the Fairness Doctrine when it did not give Fred Cook the opportunity to respond after being personally attacked in a series on the air. The Court ruled that the Fairness Doctrine did not violate the First Amendment and protected the interest of the public to hear both sides.

Bigelow v. Virginia (1975)

A news editor was convicted of advertising abortion in a state that outlawed the action. The court decided that his speech was not purely commercial and was therefore protected by the First Amendment. The advertisement contained truthful information that should not be restricted from a public that could benefit from being aware of the service.

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976)

This decision overrode the Court's previous position on commercial advertising in Valentine v. Chrestensen. A statutory ban on advertising prescription drug prices by licensed pharmacists violated commercial speech under the First Amendment. States cannot protect professionalism interests at the expense of the public's knowledge of lawful competitive pricing terms.

Central Hudson Gas & Electric v. Public Service Commission of New York (1980)

The Court ruled that a regulation - prohibiting electric companies from promoting electricity use during the 1970s energy crisis - violated the First & Fourteenth Amendments. The government's interest in discouraging consumption did not outweigh the value of speech in this case, which established a four-step analysis to determine restrictions on commercial speech.

Branch v. FCC (1987)

A TV reporter running for office tried to petition that the "equal time" law was not intended to apply to on-the-air news coverage by newscaster candidates. The government stated that the reporter lacked standing to bring the suit to federal court and that being on TV every night could be an advantage. The newscaster would have to take unpaid leave during the campaign with no guarantee that he'd resume if he wished to maintain his candidacy.

Syracuse Peace Council v. FCC (1989)

This case brought an end to the Fairness Doctrine because the bad effects outweighed the good. It no longer served public interest. The media landscape changed and the doctrine had a chilling effect on the press.

City of Cincinnati v. Discovery Network (1993)

News racks authorized by the city were placed on public property in response to the distribution of free magazines that contained content about adult education, recreational and social programs, and info about general events. The city revoked the permits, but the court ruled the ban against the magazines violated the First Amendment. The selective and categorical ban did not have a reasonable justification.

Action for Children's Television v. FCC (1995)

The "safe harbor" concept for protecting children was considered constitutional. But the court gave FCC instructions to revise the regulations to permit broadcasting of indecent material between 10 p.m. and 6 a.m.

Lorillard Tobacco Co. v. Reilly (2001)

The Court ruled a state law - which prevented cigarette/smokeless tobacco advertising within a 1000 ft radius of a school or playground - unconstitutional. It violated the First Amendment because the outdoor ad regulations were more extensive than necessary to advance the state's interest in preventing underage tobacco use.

U.S. v. American Library Association (2003)

The Children's Internet Protection Act (CIPA) was ruled constitutional. CIPA prevents public libraries from receiving federal funding if they do not install web filtering software that limits access to obscene pictures/videos. This did not violate the First Amendment because Internet access in a public library is not a traditional public forum and patrons could request that material be unblocked.

Fair Housing Council v. Roomates.com (2012)

A website for roommate selection was sued based on claims of discrimination by requiring a profile that answers personal questions like sexual orientation. The court affirmed that the Fair Housing Act does not apply to the selection of roommates because it is considered an intimate association with substantial safety precautions that is included in one's fundamental rights.

EEOC v. Abercrombie (2015)

A practicing Muslim woman was not hired because of a company's strict "look policy" that banned wearing caps or hats, and the interviewer never discussed her wearing a hijab. The Court's rule set a motive standard for Title VII of the Civil Rights Act, meaning that having automatically discriminatory rules (like a "look policy") is enough to trigger protections and prove a company's motive was discriminatory in its hiring practices. This case helps further protect religious minorities.

U.S. Telecom Association v. FCC (2016)

This decision was a victory for net neutrality. Broadband providers offer access to Internet content as a utility, therefore they do not qualify for protection under the First Amendment and should be subject to open Internet rules that ensure they remain neutral providers.

What is FOIA?

The Freedom of Information Act (1966) requires public agencies to provide certain types of information requested by citizens, which journalists utilize

How long does the government have to turn over requested documents?

Within 20 business days

What are exemptions to FOIA requests?

1. National security matters

2. Housekeeping materials

3. Material exempted by statute

4. Trade secrets

5. Working papers and lawyer-client privileged documents

6. Personal privacy files

7. Law enforcement records

8. Financial institution materials

9. Geological data

Is it generally a good idea to promise confidentiality?

No. Journalists should pursue sources that will go on the record. There are many things to consider like: giving an absolute promise of confidentiality, whether others (police, attorneys, etc.) will want to know the identity of the source, and if it's possible to use information from a source without disclosing where it came from

Situations most likely to result in contempt (of court) problems for the press include:

- Failure to pay a judgement in a libel or privacy case

- Failure to obey a court order

- Refusal to disclose the identity of a source

- Critical commentary about the court

- Tampering with a jury

What are Shield Laws?

Laws protecting the confidentiality of key interview subjects and reporters' rights not to reveal the sources of controversial information used in news stories

**varying degrees of protection and virtually every state has some

Who does the court consider a journalist?

A person engaged in investigative reporting, who is gathering news, and possesses the intent at the beginning of the news-gathering process to disseminate this news to the public.

The Internet's Own Boy

A documentary about Aaron Swartz, who was a well-known computer programmer, entrepreneur, writer, political organizer, and Internet hacktivist. A U.S. government case against Swartz, involving JSTOR & access to scholarly articles, led to his early death by suicide in 2013.