Media Law Exam #4

intellectual property

legal category, intangible property (copyright, trademark, patent law)

purpose of copyright

encourages/rewards creativity of authors and artists for their time and creations

copyright

protects intellectual creations from unauthorized use

• happens at a FEDERAL level, no state copyright law anymore

3 things copyright holders have

• right to copy and distribute those copies

• authorize adaptations

• perform and display work publicly

copyright registration

copyright ownership = self executing

• once you start creating, it’s yours, don’t have to register unless filing a lawsuit

overall copyright rule

if you didn’t create the work and/or own the copyright to it, you MUST get permission to use it

• just giving credit is NOT enough

3 requirements for copyright

• Expression: can’t just be in your head

• Originality: small spark of creativity

• Tangible Medium: capable of being reproduced

**doesn’t have to be UNIQUE, just needs to be independently produced

#TOE

5 things that CANNOT be copyrighted

ideas, facts, procedures, short phrases, ingredients

compilations

protected, the ARRANGEMENT of facts is copyrightable but not the facts themselves

• cannot copyright alphabetical arrangement

why was the telegraph not enough?

needed a communication method WITHOUT wires, ships at sea need to communicate

creation of the FCC

early days of radio were wild, broadcast scared people because anybody could access it

• created because of SPECTRUM SCARCITY

Public Interests Standard

• 1927 Radio Act, 1934 Communications Act

• guided by public interest and necessity

spectrum scarcity

there are only so many licenses in broadcasting, need a different standard of protection

Fairness Doctrine

2 key components

• required broadcasters to devote some airtime to discuss matters of public interest

• contrasting viewpoints had to be presented

GONE NOW

Red Lion v. FCC (1969)

• fairness doctrine ruled constitutional

• broadcast has much more limited first amendment protection than print

#fairnessDoctrineDoesNOTcrossTheLion

Equal Time Rule

• result of the communication act of 1934

• candidates must be afforded OPPORTUNITY to reach same audience

  • no requirement for the appearance of a message, just need to be offered

• only applies to candidates and advertising, NOT topics

exceptions to the Equal Time Rule

news is exempt if:

• program is regularly scheduled

• broadcaster, not candidate controls program

• editorial decisions: reasonable judgement (guests selected for newsworthiness)

**late-night talk shows generally count as news

broadcast hoaxes

FCC prohibits broadcasting hoaxes

• War of the Worlds, fake broadcast but some tuned in late and freaked out

BUT: not everybody will just blindly believe radio

Children’s Television Act

consistent concerns about children

• limits advertising time during programming

• commercials cannot feature children as characters (ex. elmo cannot sell products)

Reno v. ACLU (1997)

OVERTURNED the communications decency act, ruled it overbroad and vague

#ReNoMoreCommunicationsDecencyAct

Communications Decency Act

• cannot engage in online speech “indecent” or “patently offensive” that could be viewed by children

• punishable by up to 2 yrs in prison

net neutrality

all traffic should be treated equally

• internet companies should not slow down sites, tendency would be to favor your own content

copyright duration

• constitution copyright clause specified “limited times”

• 70 years technically limited

• AKA a LONG period of time

public domain

all the creative work to which no exclusive intellectual property rights apply

copyright infringement

• lawsuits typically involve some altered use of protected materials

• 2-pronged evidence

  • access to copyright work (has this ever appeared online)

  • substantial similarity

poor man’s copyright

mailing yourself your own work is NOT a substitute for registration, easier ways to establish timeline

who owns the copyright?

generally speaking, the creators of the work, HOWEVER

• employer owns when there is a clear employer/employee relationship

  • “work for hire” included

CCNV v. Reid (1989)

• R builds this statue for C, C starts profiting off it but not paying R

• ruled independent contractor is NOT an employee

• variety of factors

  • own supplies, work site location, length of work time

  • know your rights! confirm copyright control

#ReidTheContract(or)

fair use

• exception to general copyright rule

• using a limited amount of copyright-protected work for news, educational, or informational purposes without consent

  • commentary/criticism

  • parody

4 things needed to establish fair use

• purpose of use

• nature of copyrighted work

• amount + substantiality of portion taken

• effect of use on potential market

#PeopleNeedAmazingEffects

Campbell v. Acuff-Rose Music

• 2-live Crew parodies Pretty Woman, publisher said too much taken from original

• Big Outcome: court ruled parody IS protected speech

  • depends on extent to parody original vs serve as a market substitute for original

#CARMaChameleon

Basic Books v. Kinko’s (1991)

• K offered to make short copies of textbooks so students don’t have to buy the whole thing

• purpose was to make money, arrangement was copyrighted, used a LOT of the work, would have had a big effect on market

• court ruled in favor of BB

how does copyright work on social media?

• you generally maintain control of your copyright as long as content is eligible

• certain protection may be relinquished because you are allowing work to be posted

• social media outlets do NOT gain ownership of your work

trademark

any word, name, slogan, design or symbol used to distinguish product

• purpose: increase reliability of identification

Ⓡ (registered trademark symbol)

does not need to be used every time, single use per document is signifcant

commerce

• was there a significant effort to market product?

• was mark used in trade with actual customers?

  • no legally sanctioned way to reserve a trademark for future use

**aka need to actually make a sale

5 levels of distinctiveness

1. fanciful marks

2. arbitrary marks

3. suggestive marks

4. descriptive terms

5. generic terms

fanciful marks

most distinctive, words by themselves offer no clue (often made up)

• Exxon, TikTok

arbitrary marks

common words combined in unique ways

• Apple Computers, United Parcel Service

suggestive marks

provide some clues about the product

• Playboy, Orange Crush, Costco

descriptive terms

explicitly describe product, may or may not be sufficiently distinctive for protection

• Surfing News

generic terms

common words already in use that cannot be trademarked

• cat food

reasons to sue for trademark infringement

• likelihood of confusion

• dilution

likelihood of confusion

confused about source, sponsorship, approval of a product

dilution

blurs the distinctiveness of the mark or tarnishes it

• ex. Charbucks Blend, court ruled against Starbucks, said marks were only “minimally similar”

• no “presumption of actual association”

  • “distinct but related”

Schenck v. United States

• key court case on national security

• S opposed the war → attested for mailing anti-war pamphlets

• Big Outcome: SC upheld the conviction, free speech protections are generous but not limitless

  • established the clear and present danger test

#ShanksAreClearlyDangerous

Near v. Minnesota

• MN “public nuisance” bill

  • N publishes accusations that local officials are being corrupt → gov ordered him to stop

• challenge is prior restraint

• Big Outcome: SC found that prior restraints are almost always unconstitutional → chilling effect

#NearlyGotRestrained

NYT v. Sullivan

• ad arranged by civil rights leaders, detailed events without names

• NYT could only prove truth of ad, some statements technically not true

• Big Outcome: protection of erroneous statements is required to give freedoms of expression room to breathe

  • established ACTUAL MALICE

Sheppard v. Maxwell

• corrects Estes ruling of NO right to record in courtroom

• Big Outcome: press coverage may exist but significant coverage creates a prejudicial trial (AKA you can have cameras just don’t get too many)

U.S. v. O’Brien

• burnt draft card to avoid going to vietnam, argued federal law against burning draft cards was unconstitutional

• Big Outcome: O’Brien test

  • restriction is within const powers of gov

  • furthers important or substantial gov interest

  • related to suppression of expression

  • narrowly tailored

#O’burninThatDraftCard

Brandenburg v. Ohio

• clear and present danger test not working, too subjective

• ohio prohibitis unlawful ways to change the gov → B fined for incitement

• Big Outcome: SC said law is overbroad, established INCITEMENT TEST

Tinker v. Des Moines

• students wear armbands to protest war

• Big Outcome: Tinker Test

  • generally speaking, speech can be regulated to prevent a substantial disruption

  • ruled in favor of students

Branzburg v. Hayes

• 4 cases consolidated, court heard them together

• reporters refused to show for subpoenas or refused to ID sources

• Big Outcome: ruled AGAINST journalists

  • no privilege for journalists according to court

  • BUT it should be protected, just not on a federal level, should eval case by case

Miller v. California

• M sends out a mailer about his porn business

• Big Outcome: Miller Test created to determine if sexual expression was protected speech

FCC v. Pacifica Foundation

• radio airs a bunch of curse words

• Big Outcome: FCC has the power to regulate indecent content

  • bc of unique pervasiveness of broadcast media (aka uniquely accessible to children even if they can’t read)

#PacifiCAN’Tcurse

Ward v. Rock Against Racism

• excessive noise from concerts in central park

• Big Outcome: 3-pronged test to determine if restrictions violate the 1st amendment

  • regulation must be content neutral

  • narrowly tailored

  • ample alternative channels for communicating message

    • court ruled in favor of NY, there are other ways you can express yourself

Texas v. Johnson

• burned an american flag, got fined + went to prison (went from civil to criminal)

• Big Outcome: preserving the flag is a legit state interest, can have laws of HOW it is displayed BUT cannot justify criminal punishment

  • can’t spread a message if in jail = suppression of speech

Milkovich v. Lorrain Journal Co.

• high school wrestling match brawl → school board hearing → column says M LIED at the hearing while under oath

• Big Outcome: opinion columns are not necessarily protected under the opinion defense

  • column wasn’t “couched in hyperbole”

  • not protected if implies an assertion of objective fact

Virginia v. Black

• VA had a statute against burning crosses with purpose of intimidation, VASC said this was unconstitutional, overturned it → went to the USSC

• Big Outcome: court rules in favor of B, states can ban cross burning but cannot say that it is automatically hateful

  • AKA can’t have a symbolic act and immediately say it is true threat

Elonis v. U.S.

• E makes a bunch of threats online against a federal employee, super specific, threatens to shoot up a school → arrested

• Big Outcome: court ruled that it’s not enough for a reasonable person to perceive speech as a threat, need to also consider if writer had INTENTION to communicate a true threat

Mahanoy Area School District v. B.L.

• girl posts mean things after being rejected from varsity → coach sues for defamation

• Big Outcome: schools cannot punish students for off-campus speech unless there is a heavy burden for justification

obscenity

material so offensive, NO 1st amendment protection

indecency

not necessarily obscene, might be legally allowable in other avenues of expression

• specific to electronic media

early obscenity law

• really wasn’t a big deal until 1800s

• 1821: VT passes first law prohibiting publishing of obscene materials

• Comstock Act

Comstock Act

prohibited mailing obscenities

• got out of hand in 1900s, mailing sex ed pamphlets

Miller Test

created to determine if sexual expression was protected speech

• 3-prong test (all must be true)

  • avg person in contemporary communication standards found the work taken as a whole appealed to prurient interest

  • depicts in a patently offensive way sexual conduct defined by state law (nudity generally OK, hardcore sex not)

  • as a whole, the work lacks serious literary, artistic, political or scientific value (SLAPS) (aka lacking social value)

#Miller? I hardly know ‘er!

prurient

intended to incite lewd thoughts about sex

regulating indecency

FCC prohibited from censoring broadcast media BUT congress authorized FCC to police/regulate “indecent” speech

safe harbor hours

FCC regulations, indecent and profane content prohibited on broadcast tv/radio from 6 AM - 10 PM

• BROADCAST tv, NOT cable

profane

grossly offensive language considered public nuisance

media violence

US courts have never found violence can be declared legally obscene, attempts to ban porn have also failed