JMC 4813 Media Law Final Exam

intellectual property

any product of the human intellect that the law protects from unauthorized use by others

copyright, trademark, patent, and trade secret law

what are four types of law regarding intellectual property?

copyright and trademark issues

what types of intellectual property law/issues are media professionals most concerned with?

trademark

any word, name, symbol, device, or any combination thereof that is used by a company (or individual) to distinguish its goods and services from those produced by other companies

to clearly identify a product or service with a specific company and prevent consumer confusion

what is the function of a trademark?

the more distinct a mark is, the easier it is to identify with a company

why is it easier for a more distinct mark to be registered as a trademark?

1. fanciful (strongest category)

2. arbitrary

3. suggestive

4. descriptive (weakest category)

what four categories make up the spectrum of distinctiveness in trademarks?

fanciful trademark

a word or symbol that has been created specifically to be used as a trademark and has no other meaning than acting as a mark

arbitrary trademark

a word or symbol with a known meaning but that meaning is not related to the product or service with which it is used

suggestive trademark

a distinctive mark that alludes, implies, or hints at some quality of a product or service, but does not actually state or describe the product or service outright

descriptive trademark

a word or symbol describing the purpose or function of the product or service, its components or ingredients, its use or quality

1. identify one sellers' goods and distinguish them from goods sold by others

2. signify that all goods bearing the trademark/service mark come from a single source

3. signify that all goods bearing the mark are of equal quality

4. serve as a prime instrument in advertisement/selling goods

what are the four main functions of trademarks and service marks?

famous trademarks

trademarks that are widely recognized by the general consuming public as a designation of source of the goods or services of the mark's owner

added some additional protection to "famous" trademarks

what did the Federal Trademark Dilution Act of 1996 do?

1. blurring lines between the famous trademark and diluting trademark (user of the diluting mark is trying to associate with the famous mark)

2. dilution by tarnishment (the diluting mark harms the reputation of the famous mark in some way)

in what two ways can dilution of the trademark take place?

1. in parody

2. in criticism or commentary

3. in all forms of new reporting/commentary

in what three ways can people lawfully use trademarked images?

if the plaintiff can prove "bad faith" on the defendant's part

when would a trademark court case end with a defendant having to pay the plaintiff money over trademark infringement?

1. if a company stops using the particular image or mark

2. if a company allows others to use mark in a generic way

when can a trademark be lost (two different ways)?

copyright

a form of protection provided by the laws of the United States for "original works of authorship," including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations

the body of exclusive rights granted by law to copyright owners for protection of their work

what has copyright come to mean?

the constitution

what is modern US copyright law derived from?

1976 (US copyright law is basically just federal law)

when was the US' current copyright law adopted?

1. reproduce the work

2. prepare and create derivative works

3. publicly distribute the work

4. publicly perform the work

5. publicly display the work

6. publicly perform a digital sound recording

copyright gives the author/owner of the work the right to do what six things?

the consent of the copyright owner must be obtained

before a copyrighted work may be printed, broadcast, dramatized, or reproduced, what must happen?

they could be sued for copyright infringement

what might happen to those who distribute copyrighted material without permission and not under fair use?

tangible medium

any work "fixed in a ____ ____" is eligible for copyright protection

literary, musical, and dramatic works, choreography, pictorial, graphic, and sculpture works, movies and other audiovisual works, sound recordings

what can be copyrighted?

titles or headlines, slogans, ideas, facts, utilitarian goods, mathematical equations

what cannot be copyrighted?

the author's right to compensation for the work with the publics' interest in the dissemination of ideas and information

what does fair use of copyrighted material attempt to balance?

1. the purpose and character of the use

2. the nature of the copyrighted work

3. the amount and substantiality of the portion used in relation to the work as a whole

4. the effect of the use on the potential market for or value of the copyrighted work

what four areas should courts consider when deciding if fair use applies to copyrighted material?

1. criticism and comment

2. teaching (there are limits)

3. scholarship and research

purpose and character of use is one element courts consider in fair use cases; what are common legal uses of copyrighted material?

1. is the copyrighted work still available?

2. is it a consumable work?

3. is the work informational or creative? (more likely to fall under fair use if informational)

4. is the work published or unpublished? (if published, more likely to be fair use)

the nature of the copyrighted work is one element courts consider in fair use cases; what questions might judge ask?

the less the proportion (the less of the copyrighted material that was used), the easier to prove fair use

how does proportion/the amount of a copyrighted material used affect fair use?

the effect of the use on the potential market for or value of the copyrighted work (this deals in harm to the plaintiff/author because actual monetary value can be assigned)

of the four areas that courts should consider when determining fair use, which one often carries the most weight?

the plaintiff must prove copyright ownership and that the defendant had access and copied/violated the original copyrighted work

how does a plaintiff prove copyright infringement?

$750-$30,000 (can sometimes pay as much as $150,000 per infringement if the court determines it's fair)

a guilty defendant in a copyright case typically pays what in damages?

that the defendant willfully infringed for commercial advantage or financial gain

what must a prosecutor prove in order for a copyright infringement to become a criminal case?

1. statute of limitations has expired

2. you had no reason to know the work was protected by copyright

3. your infringement is permitted under fair use doctrine

4. you created your work independently without copying

5. you had a license to use the work from the copyright owner

what are five common defenses for copyright infringement?

made it a violation to circumvent a technological measure to access a copyrighted work, and made it a violation to traffic in devices whose purpose is to circumvent the technological measure to either access the work or otherwise infringe the copyright

what did the Digital Millennium Copyright Act of 1998 do?

commercial

advertising is a type of ___ speech

1. false or misleading ads

2. ads for unlawful goods and services

while advertising content does have some First Amendment protection, this protection does not cover what two things?

1. a substantial state interest

2. advancing that particular interest

3. a reasonable fit between the state's interest and the particular regulation

what are the three conditions of the Central Hudson Test?

1. self regulation

2. lawsuits by competitors and consumers

3. state and local laws

4. federal regulations

what are the four types of advertising regulation?

rules and ethical guidelines the industry imposes on itself

what does self regulation involve?

1. the national advertising division

2. the child advertising review unit

the Better Business Bureau's Self Regulatory Council is an example of self regulation; what two divisions specialize in offering advice to advertisers concerning disputes/sensitive issues?

advertisers could no longer make false statements about their own or competitors' products

what happened upon the adoption of the Lanham Act in terms of competitors?

truthful and not misleading

advertisers can use comparative advertising, but those comparisons must be

economic or reputational injury from the false advertising

what does the Lanham Act say taht consumers have to prove?

mini or "little ftc"

many state or local statues/laws are viewed as ___ or ____ regulations

federal trade commission

created by Congress in 1914 to "police unfair methods of business competition," and its power was extended in 1938 to protect against unfair and deceptive acts in commerce, regardless of compeition

protect consumers and maintain competition in broad sectors of the economy

today, the FTC is the only federal agency with the jurisdiction to do what?

food and drug administration

this administration is responsible for protecting the public health by ensuring the safety, efficacy, and security of human and veterinary drugs, biological products, and medical devices; and by ensuring the safety of our nation's food supply, cosmetics, and products that emit radiation

1. advertising must be truthful and not misleading

2. all claims made in advertisements must be substantiated, and for claims relating to health and safety (this substantiation must be based on competent and reliable scientific evidence)

what are the FTC rules on deceptive advertising?

relevant information is omitted, implying an untruth, and unclear disclaimers

what is included or meant by the term "misleading" when it is used in the FTC rules of deceptive advertising?

1. must be a representation, omission or practice that is likely to mislead consumer

2. act of practice must be considered from the perspective of a consumer who is acting reasonably

3. the representation, omission, or practice must be material (it's something important to the consumer when making a choice about the product)

what is the three part definition of false or deceptive advertising?

1. policy guides and the COPPA act

2. voluntary compliance

3. consent agreements

4. litigated orders

5. substantiation

6. corrective advertising

7. injunctions

8. trade regulation rules

what are 8 strategies through which the FTC deals with deceptive advertising?

voluntary compliance

agreeing to terminate a problematic ad campaign and not use it again

consent agreement

a written agreement between the FTC and the advertiser for the advertiser to refrain from using specific claims in future campaigns

commonly

consent agreement is the most ___ used FTC tactic against deceptive advertising

corrective advertising

the FTC forces the advertiser to inform the public of a past dishonest or misleading advertising campaign or claim

infrequently

corrective advertising is the most ____ used FTC tactic against deceptive advertising

injunction

FTC lawyers request this, the immediate halting of the advertising in question, in federal court

when the FTC believes that the advertising has violated the law and that it can cause harm

when does the FTC impose an injunction?

1. testimonials

2. native advertising (also called advertorials)

3. bait and switch

what are three types of problematic ad styles?

the 1950s

when did obscenity become a significant legal issue?

no

has obscenity ever had first amendment protection?

growth of hardcore pornography in the 1950s

what prompted the Supreme Court to create standards of classification for the "obscene"?

that all obscene materials were non mailable (however, no definition of obscene was established)

the Comstock Act, which became law in 1873, declared what?

tendency to deprave and corrupt those whose minds are open to such immoral influences

the Hicklin Rule stated that work is obscene if it has a

that if material influenced the mind of child or the mentally ill, it was considered obscene for everyone

what did the Hicklin rule mean or imply?

1930s, the Ulysses Decision

when and with what decision did states begin to relax their interpretations of the Hicklin rule?

Roth v. United States

what case caused courts to abandon the Hicklin Rule completely when considering obscenity?

violating a state and federal anti-obscenity law for mailing obscene material (think of comstock act)

what was Roth convicted of in Roth v. US?

insisted that all anti-obscenity laws contain specific safeguards to limit their application (narrowed down the definition of obscenity)

what did the Supreme Court do as a result of Roth v. US?

1. dominant theme of the work taken as a whole must appeal to prurient interest

2. the material must depict sexual matters in a patently offensive way

3. the material must be without redeeming social value

in the decade following the Roth case, a variety of cases helped further shape and clarify what became known as the Roth Standard - what are the three parts of that test?

a work could be declared obscene if it could be assumed that it might induce sexual thoughts in a hypothetical average person

why was the Roth Standard eventually not viewed as narrow enough?

it was case of how material was sold

how was the Ginsberg case different from other obscenity cases?

selling "girlie magazines" to a minor (materials not obscene for adults can be found obscene if children are allowed access to them)

what was Ginsberg convicted of?

a time, place, and manner distinction

what restriction can be found/in part resulted from the outcome of the Ginsberg case?

Ginsberg case (the magazines were obscene for children, but not obscene for adults)

variable obscenity is evidenced in what case?

variable obscenity

material that is considered obscene when viewed by children and young people but not obscene when viewed by adults

the Miller Test

what test replaced the Roth Standard?

a three pronged test courts use for obscenity

what is the Miller Test?

1. whether the average person applying contemporary community standards would find the work (taken as a whole) appealing to the prurient interest

2. whether the work depicts or describes sexual conduct specifically defined by the applicable state law in a patently offensive way

3. whether the work, take as a whole, lacks serious literary, artistic, political or scientific value

what are the three parts of the Miller Test?

average adult

the material should not be examined as though a child or mentally impaired adult is seeing it

prurient interest

a shameful or morbid interest in nudity, sex, or excretion

contemporary community standards

states are allowed to use their own standards

patent offensiveness

started as a way of saying "blatantly and openly offensive, but as come to a more precise meaning determined by the supreme court that limits patent offensiveness within the miller test to only mean 'hardcore pornography'"

serious value

narrowed from the Roth Standard to say the work must lack serious literary, artistic, political, or scientific value

false

true or false: pornography is a legal term

2 multiple choice options

no

is pornography synonymous with obscenity?

non obscene erotic material; as songs that have sexually explicit lyrics

most of what the general population refers to as pornography would be considered what? it would be in the same grouping as what?

regulate indecent materials being shared over the internet (would use a similar definition of the FCC's indecent content)

what did the Communications Decency Act of 1996 aim to do?

because materials online deserved the same First Amendment protection as materials in print (if it had passed, it would likely censor issues of sexual, health, violence, and identity online)

why did the Supreme Court rule the Communications Decency Act unconstitutional?

judges found that the language of the act restricted too much other content/content aimed at adults

why did COPA (the child online protection act) not become law?

it would have required public libraries to install anti-porn filters on computers (if they were to continue receiving federal funding); deemed too restrictive to adult's rights

why did CIPA (the children's internet protection act) not become law?

it is criminal on its own (and therefore not a first amendment issue)

why does child porn not need to be defined as obscenity?

1. privacy of autonomy

2. privacy of space

3. privacy of information

what are the three ways in which we think of privacy?

privacy of autonomy

individuals are free to make their own choices and decisions

privacy of space

a physical zone of privacy free from others' intrusions