Media Law - Exam 3

Obscenity

A narrow class of material defined by the Supreme Court in the Miller test; material that is legally obscene is not protected by the First Amendment

Indecent Materials

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

The Hicklin Rule (pre-1957)

A work is obscene if it has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it might fall

The Roth-Memoirs Test (1957)

1.The dominant theme of the material taken as a whole must appeal to the prurient interest in sex
2. The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters
3. The material is utterly without redeeming social value

The Miller’s Test (1973)

1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest
2. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law
3. The work in question lacks serious literary, artistic, political or scientific value

Scienter

Guilty knowledge; whether the defendant was knowledgeable about the contents before it was sold, published, or distributed

Postal Censorship

• No government agency is more diligent in policing obscenity in the U.S. than the Postal Service

• Today, postal patrons may request to block the delivery of solicitations for adult material or other obscene publications sent through the mail

• 1873 Comstock Act provides the basic authority for the U.S. Postal Service to regulate the flow of erotic material in the mail

Film Censorship

• Motion pictures were not granted First Amendment protection until 1952

• Historically, there was significant censorship of motion pictures by local community censorship boards

• Currently local censorship of films is infrequent as adult theaters have almost disappeared

Sexually Oriented Businesses (SOBs)

Businesses such as strip clubs, adult video stores and adult theaters are subject to two kinds of local laws:
1. Zoning regulations: A community cannot, under the guise of zoning, completely bar or even significantly reduce the number of adult bookstores, movie theaters or newsstands
2. Expressive conduct regulations: Municipalities are also allowed to adopt reasonable rules designed to prevent sexual conduct and contact between dancers and patrons

What does a state have to prove in order to regulate an SOBs expressive content?

• It serves a substantial interest unrelated to the content of speech

• Is narrowly tailored (not substantially broader than necessary) to serve the interest

Child Online Protection Act (1998)

Prohibits commercial Web sites from knowingly transmitting to minors material that is harmful to them

Children’s Internet Protection Act (2001)

Requires public libraries to install anti pornography filters on all computers with Internet access in order to receive federal funding

Communication Decency Act (1996)

Made it a crime to transmit indecent material or allow indecent material to be transmitted over public computer networks (This act was ruled unconstitutional by the Supreme Court in 1997)

What is copyright?

An area of the law that deals with intangible property—property that a person cannot touch or hold or lock away for safekeeping

Patents

Gives the inventor a monopoly on selling the product for 20 years

What are the three kinds of patents?

• Inventions with utility

• Designs

• Protect plans

Trademarks

Any word, symbol or device (or combination of the three) that differentiates an individual’s or company’s goods and services from those of competitors

Plagiarism

The act of taking ideas, thoughts or words from another and passing them off as your own

Six Rights under Copyright Law

1. The right of reproduction of the work
2. The right of preparation of derivative works
3. The right of public distribution of the work
4. The right of public performance of the work
5. The right of public display of the work
6. The right of public digital performance of a sound recording

What can be copyrighted?

1. Literary works
2. Musical works
3. Dramatic works, including accompanying music
4. Pantomimes and choreographic works
5. Pictorial, graphic and sculptural works
6. Motion pictures
7. Sound recordings

What can NOT be copyrighted?

1. Trivial materials such as titles or slogans
2. Ideas
3. Facts
4. Utilitarian goods
5. Methods, systems, mathematical principles, formulas and equations

Misappropriation

A tort also called unfair competition

What does misappropriation intend to stop?

1. A person trying to pass his or her work off as the work of someone else
2. A person trying to pass off the work of someone else as her or her own work

Duration of copyright

After a copyright expires, a work falls into the public domain and may be copied by any person for any reason without payment of royalty to the original owner

Concept of ‘fair use’

Permits limited copying of an original creation that has been properly copyrighted and has not yet fallen into the public domain

Categories of copyright under fair use

• Criticism and comment

• Teaching

• Scholarship and research

What are the rules of fair use for teaching purposes?

1. Brief—under 1,000 words
2. Spontaneous, with no time to get permission
3. Not occur more than 9 times a term, with limited copying from a single author
4. Labeled with a copyright notice
5. Used in a way that does not substitute for the original work and costs a student no more than the actual copying

Copyright Notice

Until 1989, the failure to affix a copyright notice (Copyright © 2015 by Jane Adams), meant a work would not be protected from infringement

Copyright Infringement

1. Is the copyright on the plaintiff’s work valid?
2. Did the defendant have access to the plaintiff’s work prior to the alleged infringement?
3. Are the two works the same or substantially similar?

Digital Millennium Copyright Act

Prevents the circumvention of technological measures that control access to copyrighted works—so-called encryption codes

PICON

Public Interest, Convenience, or Necessity

License Renewals

A broadcaster’s license is renewed every 8 years, if:

• The station has served the public interest, convenience and necessity

• The licensee has not committed any serious violations of the Communication Act or FCC rules

• The licensee has not committed any other FCC violations that, taken together, would constitute a pattern of abuse

Regulation of Children’s Programming

• Only 10.5 advertising minutes are permitted each hour on weekends, 12 minutes each hour on weekdays

• At least three hours of “educational” children’s programming must air each week

• There must be a buffer between commercials and program content (“We’ll be right back...)

• An advertisement for a product cannot air in a program associated with that product
  

V-Chip

In 1996, Congress mandated that all manufacturers of television sets include a V-Chip to block out violent programming

Television Ratings System

– TV – Y approved for all children
– TV – 7 approved for children 7 and over
– TV – G suitable for all ages
– TV – PG parental guidance
– TV – 14 parent strongly cautioned
– TV – MA mature audiences only

Content Ratings System

– V – violence
– S – sexual situations
– L – coarse language
– D – suggestive dialogue

Candidate Access Rule

Broadcasters must allow candidates for federal office access to, or the purchase of, airtime

Equal Times Rule

If a broadcasting station permits one legally qualified candidate for any elective public office to use its facilities, it must afford an equal opportunity for all other legally qualified candidates for the same office

Must Carry Rules

Cable television systems must carry local over-the-air television broadcast channels

Patents are good for how many years?

20

What is the difference between copyright and trademark?

Copyright is for books, movies, and ideas (intangible) & trademark is branding, logos, slogans, etc.

Works created before January 1st, 1978, are protected by copyright for how many years?

95

Works created after 1978 are protected by copyright for the life of the author/creator plus how many years?

70

What is the term that permits limited copying of an original creation, that’s copyrighted, but not in a public domain?

Fair Use

For educational use, you can photocopy under how many words?

1,000

To register a copyrighted work,  you need to complete a registration form, deposit two complete copies of the work with the copyright office, and what’s the final thing you need to do?

Pay a fee

What is the name of the act from 1998 that prevents copyrighting off the internet?

Digital Millennium Copyrighting Act

If a plaintiff wins a copyright lawsuit, what is the name of the damages they get?

Statutory

There are three different rules that measure/test obscenity in the media. What is the name of the rule that predated 1957?

Hicklin Rule

What is the name of the test from 1957 to 1973?

Roth Memoirs Test

What is the current test to measure obscenity?

Miller’s Test

What was the name of the law from 1996 that barred the sale and distribution of any images that appeared to depict minors performing sexually explicit acts?

Child Pornography Prevention Act (CPPA)

What is another term for guilty knowledge?

Scientor

What is the name of the act from 1873 that provides the basic authority for the U.S. Postal Service to regulate the flow of erotic material in the mail?

Comstach

Motion pictures were not granted First Amendment protection until what year?

1952

A strip club, adult video store, and adult theaters are considered SOBs. What are SOBs?

Sexually-Oriented Businesses

What was the name of the regulation in 2001 that required public libraries to install anti-pornography filters on all computers?

Children’s Internet Protection Act (CIPA)

Starting in 2011, what was the suffix that was approved for domain names for adult entertainment websites?

.xxx

What is the major provision from the Radio Act of 1910?

1 radio operator must be on all naval vessels

What is the major provision from the Radio Act of 1912?

All naval vessels must have 2 radio operators (Titanic)

What is the major provision from the Radio Act of 1927?

It adopted PICON

Which agency came from the Federal Communications Act of 1934?

FCC

Name something that came out of the Telecommunications Act of 1996?

An unlimited number of how many radio stations one person could own

How many commissioners are there on the SCC?

5 (2 Democrats, 2 Republicans, and 1 seat for a member of the President’s party)

Which type of television programming is regulated the most?

Children’s

Under the television rating system, what does the letter D mean?

Suggestive Dialogue

What is the section number to give equal time to each qualified political candidate?

315