Intellectual Property and First Amendment Law Lexicon

Flashcards covering key legal terms, tests, and judicial cases related to Copyright, Trademark, the First Amendment, and Media Law based on the lecture notes.

Common Law Copyright

Protection for unpublished works before federal statute; replaced by the Copyright Act after publication.

Copyright Act of 1976

Federal law protecting original works fixed in a tangible medium and granting exclusive rights.

Copyright

Protects creative expression (books, music, films).

Trademark

Protects brand identifiers (logos, names, slogans).

Copyright Attachment

Occurs automatically when a work is original and fixed in a tangible medium.

Copyright Term (Individual)

Life of author + 70 years.

Copyright Term (Work for Hire)

95 years from publication or 120 years from creation.

Copyright Registration

Required to sue and to obtain statutory damages and attorney’s fees.

Direct Infringement

Personal violation of copyright owner’s rights.

Contributory Infringement

Knowingly assisting or enabling infringement.

Substantial Similarity

Whether an ordinary observer would find works similar.

Extrinsic Test

Objective comparison of specific elements (expert analysis).

Intrinsic Test

Subjective comparison based on ordinary audience impression.

Fair Use (4 Factors)

1. Purpose/character (transformative?) 2. Nature of work 3. Amount used 4. Effect on market.

Transformative Use

Adds new meaning or message; favors fair use.

Parody

Imitates a work to comment on it; strongly protected.

Work for Hire

Employer owns copyright of employee-created work.

Independent Contractor Rule

Creator owns copyright unless contract states otherwise.

First Sale Doctrine

Owner of a lawful copy can resell it.

Time-Shifting

Recording content to watch later; legal.

Digital Millennium Copyright Act (DMCA)

Provides safe harbor for platforms and takedown system.

Lenz Case Rule

Copyright holders must consider fair use before takedowns.

Berne Convention

International copyright agreement recognizing rights globally.

Sonny Bono Act

Extended copyright duration (life + 70 years).

Lanham Act

Federal trademark law governing registration and infringement.

Genericide

Trademark becomes generic (e.g., “aspirin”).

Secondary Meaning

Public associates a mark with a specific source.

Dilution

Weakening of a famous trademark (blurring or tarnishment).

Matal v. Tam

Struck down ban on disparaging trademarks.

Iancu v. Brunetti

Struck down ban on immoral/scandalous trademarks.

Obscenity

Unprotected speech.

Indecency

Protected but subject to regulation.

Miller Test

1. Prurient interest 2. Patently offensive 3. No serious value.

Prurient Interest

Shameful or morbid sexual interest.

Hicklin Rule

Old test focusing on most vulnerable audiences.

Variable Obscenity

Material can be obscene for minors but not adults.

Child Pornography Rule

Completely unprotected speech.

PROTECT Act

Strengthens child pornography laws.

Secondary Effects Doctrine

Regulation based on effects (crime, property value), not content.

Commercial Speech

Speech proposing a commercial transaction.

Central Hudson Test

1. Lawful & not misleading 2. Substantial gov interest 3. Direct advancement 4. Narrowly tailored.

FTC Authority

Regulates deceptive/unfair advertising.

Corrective Advertising

Forces advertisers to correct misinformation.

Corporate Speech Doctrine

Corporations have First Amendment rights.

Brandenburg Test (Incitement)

Intent + imminent lawless action + likelihood.

Fighting Words Doctrine

Unprotected speech likely to provoke violence.

True Threat Standard (Counterman)

Requires recklessness regarding whether statement is threatening.

Prior Restraint

Government suppression before publication; almost always unconstitutional.

Near v. Minnesota

Established strong presumption against prior restraint.

Pentagon Papers Case

Government failed to justify prior restraint.

O’Brien Test

1. Gov power 2. Important interest 3. Content-neutral 4. Narrow restriction.

Texas v. Johnson

Flag burning is protected speech.

Tinker Test

Speech allowed unless it causes substantial disruption.

Bethel v. Fraser

Schools can punish vulgar speech.

Hazelwood Test

Schools can regulate school-sponsored speech.

Morse v. Frederick

Schools can restrict pro-drug speech.

New York Times v. Sullivan Rule

Public officials must prove actual malice.

Actual Malice

Knowledge of falsity or reckless disregard for truth.

Gertz Rule

Private individuals must prove negligence.

Bartnicki v. Vopper

Media can publish truthful info of public concern.

Cox Broadcasting v. Cohn

Publishing public records is protected.

Sony v. Universal

Time-shifting is fair use.

Grokster Case

Inducing infringement creates liability.

Campbell v. Acuff-Rose

Parody is fair use.

Warhol v. Goldsmith

Limited transformative use doctrine.

The Supreme Court in Hazelwood v. Kuhlmeier (1988) ruled that high schools may regulate content in student publications:

as long as the regulation is related to legitimate pedagogical concerns.

California’s “Leonard Law,” passed in response to Hazelwood, requires the high school administrators to recognize student newspapers as:

public forms

The sign Morse held up along the Olympic torch route that led to the 2001 case of Morse v. Fredericks said:

Bong Hits for Jesus

Which is not an area of speech that can be regulated in schools:

Political speech