MC 401 Test 3

Tinker v. Des Moines (1969)

Students wore black armbands to protest Vietnam War, broke school police

Q: Is wearing armband symbolic speech with 1st protection

H: Yes, close to pure speech & entitled to protection

Tinker Standard

students have right to express opinions on controversial subjects without materially or substantially interfering with school operation or rights of others

Bethel School District v. Fraser (1986)

Fraser used sexual metaphors in speech nominating student for elective office & was suspended

Q: Does 1st prohibit a school district from suspending a student who used lewd language in speech given at a school assembly

H: No, a different standard applies to school sponsored vehicles than to expression such as that in Tinker; also used to ban drug, tobacco, & alcohol images and ads

1st does not prevent schools from

prohibiting speech which is not included in the “fundamental values of a public school education”

Hazelwood School District v. Kuhlmeier (1988)

high school newspaper planned edition with birth control, teen pregnancy, juvenile delinquency & divorce; principle deleted them without informing students

Q: were students 1st rights violated when articles were deleted

A: No, schools may regulate speech that’s school sponsored / part of the curriculum, as long as speech censorship is “reasonably related to legitimate pedagogical concerns”

Morse v. Frederick (2007)

Frederick had sign with “bong hits for Jesus” at school sponsored event, suspended for violating school policy about promoting illegal drugs; Frederick sued principal Morse on 1st violations

Q: can schools prohibit students from displaying messages promoting illegal drug use without violating 1st

H: yes, deterring drug use among schoolchildren is a compelling gov interest

3 types of school publications

• school-sponsored newspapers

• student-controlled newspaper produced on campus

• student newspaper produced and distributed off campus

Leonard Law

applies 1st to private colleges and universities

Mahanoy Area School District v. B.L. (2021)

B.L. made JV cheer team instead of Varsity and posted Snapchat with profanity about the school, violated school rules and was suspended from cheer

Q: does 1st prohibit public school officials from regulating off-campus student speech

H: 1st limits but does not entirely prohibit regulation of off-campus student speech by public school officials

Diei v. University of Tennessee Health Science Center (2021)

Diei expelled from UT College of Pharmacy after posting profane lyrics to picture of booby picture online, unprofessional and unethical conduct standard for UT students; case dismissed after she graduated and UT settled

Copyright

right granted by statute to the author or originator or certain literary or artistic productions whereby he is invested

copyright owners have control over

copying and reproduction; derivatives, authority to publish, sell, loan, or rent; display / perform work; moral rights; withdraw from distribution

copyright protects form of an idea

NOT the idea

Property

laws concerning ownership of things and rights of ownership

First Sale Doctrine

the purchaser of a copyrighted item may use, lend, sell, and give it away but cannot make or distribute copies of the item

Wheaton v. Peters (1834)

copyright violations over “Wheaton’s Reports,” a compilation of SCOTUS decisions; Court upheld Congress’s power to grant copyright protection; can’t copyright an idea or certain information

1909

copyright renewal term increased from 28 years to 56 years

Copyright Act of 1976

copyright extended to life of author + 50 years; copyright laws made uniform by superseding state laws; all US copyright law is federal

1989

US joined Berne Convention

Copyright Term Extension Act of 1998 (CTEA)

Sonny Bono; life of creator + 70 years, Berne Convention standard; multiple creators = life of last living creator + 70 years; works before 1978 = 95 years from original copyright; works for hire (movies, tv, etc.) = 95 years after publication

Performative rights

organizations (ASCAP, BMI, SESAC); licenses for podcasts, music videos, movies, commercials

Direct Infringement

copying, performing, etc. without permission

Contributory Infringement

contributing to infringement without infringing directly

Vicarious Infringement

a supervisor can stop infringement, but doesn’t and profits by it

Circumventing Technology (Infringement)

circumventing or disabling technology that prevents copying

Browne v. McCain (2009)

copyright infringement seeking permanent injunction and damages for video that appropriated a song; settlement in 2009, Browne got money and an apology

Can’t use someone else’s music as

political speech

Blanket Contracts

signed by artist and allow product to be used for anything when purchased

Compilation

an arrangement of material or data that already exists to create a new original work (ex. databases)

Feist Publication, Inc. v. Rural Telephone Services, Co. (1991)

regional phone book using material from smaller one not copyrightable

Yellow Pages

can be copyrighted because of layout, design, etc.

Collections

can have own copyright, but individuals may retain original copyright

Derivative Works

adaptation of original work; translations, movie adaptations, toys, etc.; copyright owner of original work gives permission; adapter may be given copyright for adaptation

Copyright ownership exceptions

works made for hire (employee work under job guidelines, freelance ordered by an entity); federal government employees (can’t own a copyright for works published for government)

NYT Co. v. Tasini (1999)

SCOTUS ruled that newspapers and magazines did not have rights to publish freelance work on websites or electronic archives without permission from freelancers; most contracts now require this permission for freelances

Plaintiffs must prove in infringement

1. copyright ownership of original work (must be registered)

2. exclusive rights were violated

3. its certain the work was copied
   a. access
   b. substantial similarity

Fair Use Doctrine

intellectual property used for purposes such as criticism, comment, news reporting, teaching, scholarship, or non commercial research

Transformative Uses

using original work to create new work for different purposes; no hard rules, case-by-case basis

Harper & Row Publishers, Inc. v. Nation Enterprises (1985)

Q: Does “fair use” allow the unauthorized use of quotes from a public figure’s unpublished manuscript; does publication of such newsworthy material have 1st protection

H: no, publication usurped Ford’s right of first publication (event was newsworthy, book wasn’t)

Campbell v. Acuff-Rose Music, Inc. (1994)

Campbell and record company sued for parody of Roy Orbison song (own version of song); Acuff-Rose didn’t give permission, Campbell did it anyways; Campbell won on parody

Q: can fair use doctrine protect a parody from a copyright infringement claim

H: yes (in this case), parody was transformative, different audiences so no lost revenue (or limited loss)

Lanham Trademark Act of 1946

any word, name, symbol, or device to identify goods from others

Service Marks

distinguishes services rather than the produces, ie. slogans & logos

Must be registered with

US Patent and Trademark Office

Trademarks must be renewed

every 10 years

Trademark threatened by

likelihood of confusion, dilution

Federal Trademark Dilution Act (FTDA)

name gets so watered down that it becomes generic term

Fanciful

coined term that has no other meaning

Arbitrary

usual meaning has no relation to product or service

Suggestive

suggest what a product does with describing it

To be registered trademarks

it must be inherently distinctive (fanciful, arbitrary, suggestive), or descriptive

Daniel Moore

painted sports, UA sued for trademark violations; court ruled college colors are “weak marks” and not functional, painting uniforms doesn’t infringe on trade dress

Goldsmith v. Andy Warhol Foundation

photographer Goldsmith sold Prince photo to VF for Warhol commissioned artwork; Goldsmith sued Andy Warhol Foundation when they licensed the image as “transformative work” for VF cover

H: no definitive decision on what qualifies as transformed

Patent Trolls

have idea on paper and file for patent and make real company pay for it; now illegal, must prove being active

FTC began regulating false claim advertising

1914

Advertising is

most regulated form of speech and press

Commercial Speech

speech that does “no more than propose a commercial transaction”

Chaplinsky v. New Hampshire (1942)

ruled not all expression contains ideas - well-defined and narrowly limited classes of speech can be punished

Valentine v. Chrestensen (1942)

NYC Police Commissioner Valentine stopped Chrestensen from distributing handbill ads based on litter laws; Chresetensen printed protest on reverse side of handbills; SCOTUS ruled no 1st protection on commercial speech

NYT v. Sullivan (1964)

actual malice standard for public figures; “false” info published in ad; ad’s political message warranted 1st protection

Pittsburgh Press Co. v. Pittsburg Commission of HR (1973)

PB had ordinance prohibiting employment discrimination; PB Press had helped wanted ads that separated into male/female; held ordinance didn’t violate 1st, wasn’t over broad, no prior restraint, didn’t endanger other protected speech

Bigelow v. Virginia (1975)

Virginia Weekly ran ad for women’s services org; Bigelow (editor) charged under VA law outlawing ads for abortion services; court struck down law

VA State Board of Pharmacy v. VA Citizens Consumer Council (1976)

VA Statute forbade licensed pharmacists from advertising prescription drugs; SCOTUS ruled limited 1st protection for purely commercial advertising; public interest in free flow of economic information

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

NY PS commission prohibited utility companies from promo ads; court struck down prohibition created Central Hudson Test to determine when government restrictions on commercial speech are permissible

Central Hudson Test (Commercial Speech Doctrine)

Gov may ban advertising that is misleading, false, or deceptive, and unlawful goods or services

Gov may regulate truthful advertising for legal goods and services if there is substantial state interest to justify the regulation, must be narrowly tailored

44 Liquormart, Inc. v. RI (1996)

RI statue banned advertising retail liquor prices, store challenged, court ruled complete ban was overbroad; failed to prove ban would significantly advance the state’s interest in temperance

Lanham Act

allows for redress of competitive harm, tries to stop unfair competition, plaitiff must be a competitor to prove economic or reputational injury

FTC False or Deceptive Advertising

a representation, omission, or practice that is misleading from perspective of a “reasonable consumer,” likely to mislead a consumer, material to the consumer