COMM 3700 TEST 2

De minimus Use

A copyright infringement claim is de minimus if the use of the copyright material is unsubstantial: if it is extremely small and the copyrighted work is not recognizable. Nowadays doesn't work, no one can take even small portions and be protected. RIP De Minimus

ASCAP v. Pandora

A federal judge refused to force Pandora to renegotiate its blanket license. Publishers wanted more money, but Pandora still under 5 year contract for radio internet blanket usage.

Zeran v. AOL

Case in which Court ruled in favor of the online forum AOL when someone sued them saying they had negligently allowed material to stay up after they had been informed it was false. Court said there was no way AOL could possibly single out each message with false information to remove it. Shows that online publishers are protected by Communications Decency Act even if they know a posting is false.

Nabisco v. PF Brands 1995

Cheesy crackers shaped like fish for promotional line of "CatDog" crackers. PF Goldfish won case on grounds of consumer confusion and trademark dilution.

Burnett v. Twentieth Century Fox Film Corp. 2007

Carol Burnett sues because Family Guy showed her as a cleaning lady in a porn shop, offensive? yes. but the "more distasteful and bizarre the parody, the less likely the public is to mistakenly think that the trademark owner has sponsored or approved it".

Ventura v. Kyle

Chris Kyle (defendant) was a Navy SEAL and the author of American Sniper, the Autobiography of the Most Lethal Sniper in the U.S. Military History. A subchapter of this book described an interaction with Jessie Ventura (plaintiff), a former wrestler, actor, and governor of Minnesota

Curtis Publishing v. Butts

Football coach was accused of fixing the game to lose. (RECKLESS DISREGARD FOR THE TRUTH) Public figures, just like public officials, must prove that the press acted with actual malice in order to recover damages for defamation.

Fox News v. Penguin Group

Fox News files for injunction of book publishing claiming unfair usage of TM "Fair and balanced". "might tarnish our TM" - basically laughed out of courtroom, an expensive 'pissing match' between O'Reilly and book author Al Franken who hate each other.

Statutory Defenses

Generally protected when simply referring to the mark. - advertising or promotion that permits consumers to compare goods or service, or parody or commenting on a famous mark. - all forms of news reporting and commentary - any noncommercial use of a mark.

Best defense for using copyrighted material?

Get consent first or buy a license!

Federal Dilution Act

Gives permission to owners of famous trademarks the right to forbid others from using their trademark or similar marks so as to protect h/er brand from dilution.

Ringling Bros. v. Utah Div, of Travel Development

Greatest SNOW v. Greatest SHOW Ringling Bros. lost because they couldn't prove financial loss or consumer confusion.

MGM v. Grokster

Grokster distributed softwaqre that encouraged file-sharing. MGM sued, alleging that Grokster's software infringed on their copyrighted works. SC ruled in favor of MGM, claiming that file-sharing was so widespread that it would be impossible for MGM to address each individual case reasonably. The software company was liable for promoting and profiting from file-sharing.

Miller v. Universal City Studios

Kidnap victims buried for 5 days. Book written about incident, Tv script written. Can't copyright idea, only the way you organize it. Florida journalist first to report story, SC ruled fact doesn't originate with the author depicting the scene. Didn't discover the fact

NYT v. Sullivan

Libel and slander are not protected, and you need to prove malicious intent.

BMI v. Pandora

Pandora sued for playing all BMI songs o=under blanket license. Ultimately, BMI has contracts with owners and publishers for rights to streaming, Pandora couldn't play songs without direct permission.

Creative Appropriation

Taking someone's work and transforming it. Is it transformative enough to not be derivative? Ex. Sampling. Is there anything that's 100% original?

Gertz v. Robert Welch, Inc.

Under the Gertz case, a person does not become a public figure just because he is involved in a controversy which is heavily covered by the media. Public figures are those who "usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy."

Moseley v. Victoria Secret Catalogue

Victor Moseley had sex shop named "Victor's Secret", sued by Victoria's secret. Mental association not enough grounds, must prove actual dilution of brand or economic harm.

Bally Total Fitness v Faber

You can use a domain name to criticize

Slander

gossip, talk, ORAL communication

Fair Use Defense

1. Purpose and character of the use 2. the nature of the copyrighted work 3. the amount used in relation to the copyrighted work 4. the effect of the use on the market for the value of the copyrighted work

Rights of copyright owners

1. to reproduce copyrighted works 2. to prepare derivative works 3. to distribute copies 4. to perform copyrighted works publicly 5. to display works publicly

US v. Alvarez

2011, Xavier Alvarez claimed during a speech to have a congressional medal of honor. Convicted under Stolen valor act of 2005. Court says statements alone do not pose a grave and imminent threat therefore Alvarez is not guilty, overturns stolen valor act.

AMF v. Sleekcraft

AMF, Inc. v. Sleekcraft Boats AMF Slickcraft = fishing boat ($40,000) Nescher Sleekcraft = sport boat ($90,000) AMF sued Nescher to try and save brand. Sc ruled in favor of Nescher saying no likelihood of confusion considering the wide price ap between the two boats. BUT Nescher must always state "Nescher Sleekcraft" in advertising from now on.

Worldwide Church of God v. Phil. Church of God

Absence of market doesn't assure fair use case. When Philadelphia church began using the book with success, WW church can't claim that preacher's writings aren't fair use when public repudiated writings beforehand.

Derivative Works

Added to law in 1976: if you created characters, others could use them in their own stories/fan fiction. (Now abolished in 2017)

Suntrust Bank v. Houghton Mifflin Co.

Alice Randall with Suntrust wrote book from perspective of maid in Gone with the Wind. GA court tried to stop publication but SC stopped "prior restraint" law. Allowed publication. Transformative works not often protected.

TEACH Act 2002

Ammendment made during Bush administration regarding distance ed teachers/online teaching. Protects them when using still slides and content. Any display of work in amounts comparable to typical face-to-face displays.

Kelly v. Arriba Soft Corp.

An internet search engine copied Kelly's photos from internet. Photos converted to small thumbnails that when clicked would take users to large-scale photo on Kelly's page. Thumbnails of pictures not copyrighted, Kelly had no case. Thumbnails transformative enough, didn't replace his original art.

Trademark Dilution Revision Act 2006

Because of Moseley case... If you water down the value of a famous mark, you are in trouble even if it a slight dilution. 'Any work that impair distinction of another'.

What cannot be trademarked?

Flags & symbols of government, geographic name, purely descriptive terms, name, portrait or signature of a living person, EXECPT IF NAME IS ASSOCIATED WITH FIRM

DMCA 1998

Digital Millennial Copyright Act: - criminalizes circumventing anti-piracy software - Requires webcasters pay licensing fees to record companis - safe harbors for Internet service providers Not consistent with 1A and Fair use, it actualy prevents it. Fights against scientists, artists, journalists and helps copyrighters, corporations, anyone making the money...doesn't allow people to back up their own work essentially gives Copyrighted work more power than our 1A rights

Hutchinson v. Proxmire

Dr. Hutchinson claimed that Senator William Proxmire defamed him when he claimed Hutchinson's studies made a "monkey out of a tax payer" and that his studies were worthless. - Claimed it held him up to public scorn, damaged his professional and academic standing. - was settled out of court with a public apology. (EXAMPLE OF CIVIL SUIT) Stated that members of Congress cannot be sued for what they say during sessions or "on the floor"; but they can be sued for libel. (Golden Fleece Award case")

AP vs. Walker

During enrollment at University of Mississippi black people were enrolled, Walker was accused of starting the riots, Walker sued for libel. The trial court and Texas Court of Civil Appeals awarded compensatory damages to him, because AP could not prove that its published statements were true, but denied punitive damages because Walker could not prove malice on the part of the news organization.

Laham Act

FIRST FEDERAL TRADEMARK LAW. spells out what kinds of marks can be protected and the exact method for protecting them.

Libel

FIXED form, written

What are the key components of a libel case?

Falsity, Publication, Identification, Harm, FAULT

A&M Records v. Napster

First case to apply copyright laws to person-to-person file sharing and , ruled in favor of A&M because Napster was infringing on A&M's copyright privileges.

Reply to defamation PEE WEE DEFENSE

Opportunity for correction, if you are libeled, you can fix it.

Genericide

If you can convince the court that your mark has lost secondary meaning because of dilution.

Religious Tech Ctr. v. Netcom On-Line Comm Services

Internet posting of church of Scientology documents by a vocal critic was not fair use. Information seized from home of defendant after asked to stop posting, but this is actually stifling religious speech, Government squashing protected speech.

Eldred v. Ashcroft

It is not unconstitutional for Congress to increase the term limits for copyright protection.

Kahle v Gonzales

Kahle challenges new "opt" out standard for 1964-1977 extensions created by 1992 renewal act and Sony bono act. HE LOST

Merger Doctrine

May be exception to the copyright term rule. When there are only very few ways to express an idea, it's not copyrightable i.e. directions to my house, only very few ways to express it. Can't copyright

Philadelphia Newspapers v. Hepps

Media bears the burden of proof of truth only in cases in which the plaintiff is a private person involved in an issue of private concern. In all other cases, the plaintiff must prove falsity (public officials, public figures, private persons involved in matters of public concern).

Morrissey v. P&G

Morrissey published rules for a sweepstakes/ competition. P&G had a similar competition and used very similar version of the rule concerning social security numbers. US ct of appeals ruled uncopyrightable, no case.

Lenz v. Universal Music corp.

Mother of baby in youtube video sues UMC for demanding the video be taken down. Mother wins case because fair use established, must be determined before something is taken down.

New Kids on the Block v. Gannet Satellite Info Network

NKOTB sued newspaper for publishing public poll about 'who's your favorite?' - SC ruled in favor of newspaper, fair use of NKOTB trademark. Nominative fair use because: - newspaper needed to identify group for purpose of the poll - used as small a part of the mark as possible - didn't imply sponsorship

Bridgeport Music Inc. v. Dimension Films

NWA's song "100 Miles and Runnin'" contained 2 second guitar riff similar to another song. Court ruled band must get license or they can't sample music/riffs from other band. Didn't have de minimus rights...

Harper & Row v. Nation magazine

Nation magazine scooped the story from Time magazine about President Ford pardoning Nixon. Story initially promised to H&R, manuscript leaked to Nation, published it w/o license. H&R previously negotiated with Time, after leak Time doesn't pay other half of money because they didn't get to publish story. Because of ruling, defendants must now prove that the copyright owner is 'unreasonable' to be able to win fair use case.

Two Pesos v. Taco Cabana

One Mexican restaurant could not copy its competitor's unique décor.

DMCA Revision 2010

One can undermine software ONLY under these circumstances: 1. University film and media studies classes 2. Documentary filmmakers may use clips 3. For non-commerical videos i.e. trainings, informational

Mattel v. Walking Mountain Products

Plaintiff Mattel, Inc., a toy manufacturer, alleged that defendant Tom Forsythe, a photographer and owner of Walking Mountain Productions, infringed its famous Barbie doll by creating a series of photographs depicting a Barbie doll in absurd and sometimes sexualized positions, usually posed with various kitchen appliances. Defendant asserted that his work was an attempt to critique the objectification of women. Plaintiff appealed the district court's ruling that defendant's Barbie doll photographs were parodies protected by fair use.

Ben & Jerry's Homemade Inc. v Rodax Distributors Inc.

Porn company copied ben and Jerry's ice-cream look

Ringgold v. Black Entertainment Television

Poster of quilt visible on set in scene. Ringgold (creator) sued and won because nobody paid for permission to use her design/creation.

Princeton Univ. Press v. Michigan Document Services

Private copy store sued for producing course packets. Princeton 'didn't get paid because of it'. (publisher usually gets to decide fair use or not, thus the generally biased decisions)

how long is something trademarked for?

RENEWS, as long as it is being used

Salinger v. Random House

Random House author quoted Salinger letters for unauthorized biography- ruled unpublihsed letters are assumed to have a copyright on them *Writers may acquire injunction to stop publication (owner has copyright)

Process of Securing a Copyright

Register and place copyright notice (c) with the library of congress.

Masson v. New Yorker Magazine

Reporters can edit direct quotes so long as they do not alter the quotes to add defamatory meaning.

harmful impact

Statements that tend to expose person to hatred, ridicule, or contempt.

Matal v. Tam

The "disparagement clause" of the Lanham Act, which prohibited trademarks that disparaged individuals or groups of people, is unconstitutional.

Dallas Cowboys cheerleaders v pussycat cinema

The United States District Court for the Southern District of New York issued preliminary injunctions against the Appellants, Pussycat Cinema, Ltd. and Michael Zaffarano (Appellants), prohibiting them from exhibiting or distributing a motion picture on the grounds of trademark infringement, unfair competition, and dilution of trademark.

Utah Lighthouse Ministry v. Discovery Computing

The panel affirmed summary judgement in favor of parody web site and domain names that used the mark of UTAH LIGHTHOUSE, a site criticizing the LDS church direct internet users with opposing views

Capital City Record v. Thomas-Rasset

Thomas-Rasset sued for file sharing, an individual, private person. Charged him $222,000 for 24 songs. State judge initially lowered the fine but the circuit court reinstated it later.

Fruit of the Loom v. Girouard

Trademark & Service Mark Raised thresholds for Secondary Meaning to be held valid. Fruit of the Loom did not have enough social presence to claim the use of Fruits and Clothes is a Secondary Meaning (adult store chain was doing the same).

Zatarains, Inc. v. Oak Grove Smokehouse, Inc.

Zatarains sued Oak Grove for using similar phrasing on seasoning product "Fish-Fry". Qualifies as Traditional Fair Use because Oak Grove did everything they could to distinguish brand apart from Zatarains. (different packaging, and colors) Fish Fry qualifies as purely descriptive.

Libel law makes people

accountable for false statements that cause harm

Milkovich v. Lorain Journal

article claimed coach lied under oath, coach sued for libel, court said even an opinion piece must consider object facts and factual connotation to not be considered fair comment. The statement "in my opinion, he is a liar" was not a protected opinion immune from a libel suit but rather a false statement of fact.

Baker v. Selden

idea/expression/Merger Doctrine- if something can only be expressed in one way, the idea and the expression have merged and it cannot be copyrighted

Dun & Bradstreet v. Greenmoss Builders

credit reports are a private matter and not a matter of "public concern."

Time v. Firestone

divorce case, wife claimed defamation, Time claimed she was a public figure; court said she was not a limited public figure because she did not thrust herself into public light voluntarily; she was married to someone famous. clarified limited public figure

Bono Act

extends copyright protection by 20 years, life plus 70

Can you sue for libel if you are dead?

no

Trademark

protects money, somebodies investment, logo, slogan, company name

Basic Books v. Kinkos

ruled that Kinko's practice of copying articles and compiling them into custom textbooks to be sold to college students was an infringement. Involving course packets and printing college materials. Kinkos sued, didn't pass fair use test, Kinkos lost.

plantiffs

the one who brings the charges/ have to prove their case

Copyright

universal, protects movies, pictures, someones creation of something TANGIBLE

privilege of participant

when you're in a debate, hearings, you can't sue for libel you're protected

can tattoos be copyrighted?

yes

Fair comment

you can have public opinions about a public place