J385 3rd Test

Intellectual property

The right to profit financially from one’s creative abilities and resourcefulness

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An umbrella term that includes copyright, trademark, patents, trade secrets

copyright act of 1976

Copyright protection extends to all “original works of authorship” to take into account new kinds of media.

Trademark Act of 1946 (Lanham act)

The Act provides for a national system of trademark registration and protects the owner of a federally registered mark against the use of similar marks if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur.

copyright law protects..

only the form or style – that is, the way something is described, which is embodied in the concept of *authorship* – in which an idea is expressed or communicated.

copyright doesn’t cover

News, facts, ideas, theories, procedures, concepts, processes, systems, narrated ideas, private images

infringement

➝when  someone assumes, appropriates or usurps any of the exclusive rights granted copyright owners, without authorization

proof of infringement

➝1)Show proof of one’s ownership of the copyrighted work

➝2) Copyright owner must prove that the copyrighted work itself has been illegally copied

➝The Copyright Act  provides the right to make fair use of a work, even without permission, under certain conditions:

⇾Criticism

⇾Comment

⇾News reporting

⇾Teaching

⇾Scholarship, research

parody

doesn’t violate copyright and is legal as long as it doesn’t affect original work’s value

**Trademark** law protects

consumers from misleading packaging and ads that would confuse them about sources of products and services they buy

**Trade dress**

characterizes packaging, color, size, shape that’s protected under trademark law if their imitation is likely to result in consumer confusion

copyright infringement in sharing social media posts

is yet to occur

hyperlinking

in and of itself, does not constitute a violation of the Copyright Act since no copying is involved.

**Deep linking**

The practice of bypassing a website’s home page to link to an internal page is illegal

**Inline linking**

Placement of an html link for an image on one website into the code of another website, creating the illusion that the image is part of the second site

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council

SC decision protecting commercial speech under FA. Consumers have a right to receive information from pharmacists about advertised prescription prices

commercial speech

is still afforded “lesser protection” than other forms of speech given that government can control advertising that’s deceptive or misleading

parties regulating commercial speech

—Federal Trade Commission

—Federal Communications Commission

—Food and Drug Administration

—Securities and Exchange Commission

—Department of Transportation

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

A 4 part test:

(1) whether the speech at issue concerns lawful activity (2) whether the asserted government interest is substantial; (3) whether the regulation directly advances the governmental interest asserted; and. (4) whether it is not more extensive than is necessary to serve that interest.

Sorrell v. IMS Health, Inc. (2011)

—Case involved a Vermont restriction that prohibited pharmacies from selling their records of doctors’ prescriptions to data miners and marketers who could use the information to market brand-name drugs to physicians more effectively

—SC found the law to be both a content- and speaker-based restriction because it disfavored a particular type of speech (marketing) and a particular type of speaker (pharmaceutical companies)

Citizens United v. Federal Election Commission

corporate speech is considered commercial speech. Political parties can make as many advertisements as they want without regulation

Influencer Endorsements

FTC regulation requires commercial endorsements be truthful, lawful, not misleading, and have clear and conspicuous disclosure

who regulates deceptive adverts?

Federal Trade Commission (FTC) created in 1914 to regulate unfair competition and now does so much more

Ad regulation boards (regulate within so you don’t have to make external forces regulate).

—Advertising Self-Regulatory Council

—National Advertising Review Board

—Council of Better Business Bureaus

First National Bank of Boston v. Billotti

ruled that the ***First*** Amendment protects the rights of corporations to attempt to influence the outcome of elections in which they have no direct monetary interest

Abigail Scott Duniway

•helped to found a State Equal Suffrage Association and her philosophy was a collage of progressive social and political ideas. Duniway is listed among only six women inscribed in the legislative chambers of the Oregon State Capitol in Salem of the 158 citizens considered prominent in Oregon’s early development

purposes of tort law

compensation, justice, deterrence

**Product liability**

manufacturers and sellers are liable for damages their defective products cause. PR helps navigate organizations’ reputation through these issues

**Misrepresentation**

Negligent misrepresentation happens when a PR practitioner makes a false representation of a material fact, fails to use reasonable care to assess truth, has a duty to those who relied on the representation

**Interference in a business relationship**

Convincing someone to breach a contract with a third party, acting to prevent someone from engaging in a business relationship

A contract

at its simplest, consists of an offer, acceptance, terms, consideration

**Confidentiality agreements**

used to create an atmosphere of confidentiality supporting a mutually-beneficial relationship. Talking before a judge, however, is a different

**Work proposals**

Some PR agencies require that they will maintain ownership unless a client awards the contract. In any event, terms should be discussed up front between agency and client

**The Copyright Act**

defines a “work-made-for-hire” in a limited way, as a “contribution to a collective work, as a part of a motion picture or other audio-visual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.”

PR lobbyists are regulated by

SEC

a legal wrong that damages a person or property as a result of actions of another individual

tort

commercial speech

speech that encourages a commercial transaction

Commercial speech is regulated by

FTC, FDA, Department of transport

Instagram sponsorship disclosure often occurs:

buried in a post

Intellectual Property

The right to profit from your creative ability and resourcefulness

You can use someone’s work without permission to

teach, criticize, report news

shield laws

statutes that provide journalists with a qualified privilege to not disclose the sources of their work.

voir dire

jury selection via background checks, interviewing

sunshine laws

when members of the public are permitted to bear witness to certain activities or to request access to public records

Branzburg V. Hayes

Court case ruling on freedom of press did not create a constitutional privledge protecting reporters from having to testify in grand jury about the identity of their sources

access to information

is a basic human right recognized by 80+ countries in 2 international treaties:  American Convention on Human Rights, International Covenant on Civil and Political Rights

Freedom of information act (FOIA)

requires the full or partial disclosure of previously unreleased or uncirculated information and documents controlled by the U.S. government

shield laws in Oregon

specifically protects all unpublished information and additionally the sources of any information, whether or not published.

**Privacy Protection Act (1980**

protects journalists from police searches and seizures

sheppard vs maxwell

order on media, when context and publicity interferes with the defendant’s fifth amendment due process right to fair trial

Newsgathering in public places

is totally unrestricted!