comm law

what are the 5 discrete rights of copyright owners (these are the rights granted through the copyright act TO copyright owners)

-public performance -public display -sale/rental/transfer of work -reproductions -creation of derivative works

criteria 1 for a trademark to be registered: *is the mark already taken*

-search the Patent and Trademark Office database to see whether someone is using the same mark, and also google it and use urban dictionary -its possible for different companies to use same mark for different kinds of products (ex. Dove soap vs. Dove chocolate) ; but there has to be little chance that the consumer will be confused, like between chocolate and soap

what is a compilation?

a work formed by collecting and assembling preexisting materials or data that are "selected, coordinated and arranged in such a way" as to create *a new original work*, which is copyrightable; compilation can be an assembly of discrete facts that, individually would not be copyrightable

3rd discrete right to copyright owners: *reproduction*

any reproduction of a work; this is the exclusive right to copy or produce a work -photocopying a book, downloading a copyrighted film, recording from the internet, or sampling musical phrases from a recording for inclusion in another musical work are all forms of reproduction -the copyright owner of the expression in a book, mag article, podcast, recorded song, motion picture, or computer program has the right to control when and if the expression is reproduced -courts/gov't curb some illegal copying; ex. statute that prohibits movie goers from recording motion pictures at a movie theatre -it is hard to prohibit illicit copying of digital info on the internet bc thousands of copies can be produced quickly and flawlessly (millions of songs/movies are downloaded illegally everyday)

what is a copyright notice? and the 3 elements necessary for one?

copyright notice is a sign attached to work warning that a copier needs permission to reproduce the work, and also signifies the author has not abandoned their work into the public domain *3 elements are:* -the c with the circle around it, or the abbreviated form/ actual word copyright -year of creation -name of creator aka copyright owner

what is the public domain?

lacks copyright protection; things transfer into the public domain in 2 ways: -the copyright expires bc a copyright lasts for the life of the creator plus 70 years OR -if the creator waives copyright protection and lets anyone use it (like if the creator does not care anymore and says I want everyone to use this)

copyright owners of *registered* work can sue an infringer for ...

*actual damages*, which are lost sales and for profits the infringer illegally obtained

copyright protects the property value in the ...

*expression* of information and ideas, not juts information and ideas

primary goal of trademark law

*prevent against consumer confusion* by helping people identify brands/products etc. so consumer can distinguish one set of goods from another -you can trademark symbols, product names, logos, device or combination thereof that a manufacturer or merchant adopted and used to identify his goods and distinguish them from those manufactured or sold by others

if copyright owner registered the work BEFORE infringement took place, he or she can seek ...

*statutory damages*; instead of actual damages, stat damages are awarded to owners of registered copyrights simply bc copyright is infringed, without needing proof of financial damage; can only claim stat damages if you register your work within *3 months of publishing* (court can award $750-$40,000 per infringement)

are unregistered works protected under copyright law?

*yes* unregistered works are protected, however authors may not sue for infringement until its registered

typically copyright is owned by whoever created the work, but some wrinkles on that are:

-*joint copyright:* if you create with other people, all share copyright equally, unless a contract says otherwise (ex. a composer and a lyricist may be joint authors for a collaborative song -*work made for hire:* when an "author" who owns the copyright, hires an employee or commissions a freelancer to create a work. work for hire is either 1. a work prepared by an employee within the scope of his/her employment" or 2. a work specifically ordered or commissioned; copyright belongs to publisher, broadcaster, firm or agency that employs the creators; even an article written off hours bc company assigns the task, risks the resources to carry it out and directs the work of the creator

examples of infringement

-Dallas cowboys; porno of Dallas cowboy cheerleaders, cowboys sued and said you marketed the film using our name and infringing our trademark bc your confusing the cowboy cheerleaders w girls in a porn video (court ruled in favor of cowboys bc of confusion and that the producer made no effort to establish the difference between the two) -playmate of the year for playboy: girl named Teri Wells; created a blog abt her life and career and being playmate of the year, prominently disclaimed that she is no longer a bunny or the website is not connected to playboy, and Playboy sued bc she used 'playmate of the year' term (court found in favor of Teri bc she made a disclaimer that she was no longer apart of playboy nor is the website) -someone created "The Big El Show" a program that imitated the dead singer's performances; they used promotions for it such as the "elvis pose" and the lightning bolt that he wore on his jacket and had on his plane and such; court said these are strong marks distinguishing the entertainment services and performances of the real Elvis and his intent was to capitalize on Elvis's popularity; in likelihood of confusion court did not suggest that ppl who bought tickets to this show would think that Elvis was alive but the court said, the ticket buyers were likely to believe incorrectly that the show was related to, associated with, or sponsored by Elvis

Fair Use Doctrine

-area within copyright that raises the most questions -this doctrine creates an exception to the law prohibiting unauthorized copying of copyrighted expression; its the law's attempt to reconcile the "exclusive rights" granted to authors to encourage creativity with a sometimes conflicting interest in ensuring that knowledge of creative achievement is widely disseminated and discussed -this doctrine is supposed to address the progress of science in useful arts—we must be able to build on the work of others if we want to advance -*this doctrine allows critics, commentators, reviewers, scholars, and others to copy limited portions of copyrighted expression for comment and criticism* (for them to discuss and evaluate copyrighted work, its usually necessary to copy at least small portions of the original work; therefor copyright law permits limited copying for comment and criticism under the doctrine)

criteria 1 for Fair Use Doctrine: *the purpose and character of your use* :

-court is interested in how you express areas such as *science, education, news reporting, and commentary* (if you use copyrighted material in these areas you have a point towards you for getting away with it) -Peters is using photos for his lectures in an education setting: therefor court would say you're using the work for advancements -under this section of fair use, it does not define the uses of copyrighted material as "fair", but says that fair use is likely to be found when the purpose is "criticism, comment, news reporting, teaching, scholarship or research" -many journalists believe that if you use something for news, you're safe from a copyright claim which is NOT true -news reporting/commentary: law allows reporters and scholars to quote brief excerpts from copyrighted works without paying royalties -copyright material can appear as background to events being reported; same with copyrighted painting as background in news footage

deep linking vs. in-line linking

-deep linking: hypertext with linking websites (url) = PROTECTED -in-line linking: if you imbed copyrighted material (like social media content in news story) and do it properly then its not a copyright problem bc of 2 things: court says you're *showing it in its original form* so its not a reproduction; or *terms of service contain an agreement* that says these platforms allow someone to imbed content (ex. screenshot is against copyright law, but if you find the photos and imbed them in your website within a story thats okay)

what is trademark dilution?

-even if trademark would not deceive or confuse the public, a use might be prohibited if it would tarnish or dilute the value of the mark (or weaken the mark's identity/harm its reputation) -ex. poster that said "enjoy cocaine" that was printed in script and color identical to coca cola's; poster company said it was satirical but court said that the unwholesome association of coca cola with an illegal drug could dilute the value of their trademark -ex. court found that owners of the Victoria's Secret trademark had not proven that Victoria's little secret, an adult novelty store diluted the value of their trademark;; court said the dilution act requires proof of harm such as loss of a mark's distinctive identity rather than speculation about future harm -ex. writing a tv show; depicted a product in a horrible manner (doesn't work, insufficient, is not safe) could be a dilution case

what does not count as trademark infringement?

-exact similarity is *not* required -parodies and artistic uses: both protected by 1st amendment; as an artist you can paint a brand but do not imply/suggest that there is a relationship between you and a company ex. Jordache jeans and the parody 'lardache' jeans w big butts; no risk of consumer confusion bc its obvious parody -news gathering or editorial use: as a reporter you typically will report abt companies; if someone says go dig into coca cola and you publish a rly critical report, you using their name and the logo are protected; there is no risk of confusion here so no violation of infringement

Matal vs. Tam

-his band name is "the slants" bc they're Asian -PTO denied band name application, then review board said no also, then appeals and goes to 3 judges on appeals court and they also upheld PTO decision -but then he had some luck with the appeals court 'en banc' and went onto the supreme court where they *disbarred the disparaging clause* -disparaging was removed and is for sure dead but what about immorality clause? ; not dead yet, 3 weeks ago it went to court to strike down this clause bc its also a view point law **this could change at any time, immorality clause could be dead soon

criteria 3 for a trademark to be registered: *is it immoral or disparaging* (disparaging clause no longer exists)

-historically PTO wouldn't register immoral or disparaging marks; this didnt stop owners from using them just meant they couldn't protect them under trademark statute -o determine whether mark was immoral or disparaging, PTO evaluated whether "a substantial composite of the general public" would find the mark—as used—to be shocking, offensive, or vulgar -rulings are NOT consistent

criteria 2 for a trademark to be registered: *is the mark sufficiently distinctive or have a secondary meaning*

-mark has to be distinctive enough to make you think of ONE brand -general rule: a merely descriptive name/title is not applicable for trademark; a company cannot trademark the ingredients/description; ex. Raisin Bran from Post and Kellogs, its literally brand cereal and raisins -ex. 'Brilliant' furniture polish is *suggestive* and can be trademarked, bc it suggests one's furniture will be brilliant; but the same word cannot be a trademark for a diamond bc brilliant would merely be describing the gem -ex. Vanish toilet cleaner and Coppertone suntan lotion are suggestive not descriptive -*suggest not describe*; although marks cannot be registered if they merely describe goods or services, they can be if they acquire a *secondary meaning* (this is the mental association in a buyer's mind between a mark or symbol and the source of a product even if its not distinctive) -a mark acquires secondary meaning when the name and business become one in the public mind) -if trademark becomes used generically its no longer protected

what is trademark infringement? (guiding principle: what would confuse consumers?)

-to infringe a mark, your use of it must create a "likelihood of confusion" in the mind of the ordinary consumer are: the product's origin/sponsorship -in deciding whether a trademark has been infringed, courts consider things like: strength of the mark, similarity in appearance of the products, meaning of the mark, kind of goods in question, and intention of the defendant in using the mark -plaintiff in trademark case may sue to have the infringing use stopped and collect illegal profits, damages, attorney fees, and court costs

What is not copyrightable?

1. *ideas* - general idea of a rom com is not something you can copyright, just the movie's story line 2. *facts* - cant copyright basic facts; ex. writing a book about facts from the bill of rights is not copyrightable 3. *names and short phrases* -cant copyright your own name 4. *federal gov't work* -gov't employees cannot copyright any writings/statements called for my official duties, only things created for personal use or comments/annotations they made on a set of laws

besides 1 of these 4 scenarios occurring, trademark will last indefinitely

1. mark is no longer used in commerce; called "abandonment" if not used for 2 years 2. registration expires and not renewed. mark is initially registered for 5 years; can be renewed every 10 and be continually renewed as long as its in use. (initial period is 5 years, renew every 10) 3. mark is successfully challenged. competitors and others can challenge mark's validity, and court can invalidate mark or find that other party has prior use and superior rights 4. name becomes generic (ex. the velcro, bandaid, bubble wrap)

to get all benefits, trademarks must be filed with Patent and Trademark Office (PTO); the PTO will accept a trademark application if it meets this criteria (3 things)

1. the mark is not already taken 2. it is sufficiently distinctive or has acquired a secondary meaning 3. X it is immoral or disparaging X

when a court is determining if copying constitutes as *fair use*, they use this set of criteria (4) :

1. the purpose and character of your use 2. the nature of the copyrighted work 3. the amount and substantiality of the work used in relation to its whole 4. the effect of your use on the market for, or value of the original work

when you CAN use copyrighted works

1. through *a licensing agreement*: legal and business contract (most risk free); think about the territory in which you have the agreement like US vs. the whole world, time frame/duration in which the agreement allows you to use it, and exclusivity like am i giving you and only you the rights 2. if it *wasn't copyrightable* to begin with: facts, ideas, gov't works 3. or if its in the *public domain*

the 2 conditions that the law says if you meet, we can place you in a safe harbor where you cannot be sued

1. website has to have a *notice and takedown procedure* in place (the site has to take down anything that that they are notified is a copyrighted/infringing material or hosting/linking to infringing material immediately) , AND 2. you as a website cannot have any *knowledge or "red flag" knowledge* otherwise that you were hosting copyright infringing content, including employees/staff (if a site knows generally that many user-generated posts contain infringing copyrighted works, the service provider is not obligated under the DMCA to find and remove it) -basically ex. youtube has no obligation to look for materials that might infringe copyright, just responsible to take down materials if they had been told of specific infringing materials)

copyright allows authors to control how their creative expression is ...

copied, distributed and performed

2nd discrete right of copyright owners: *public display*

as a copyright owner you have the right to choose how and when a work is *displayed in public*; like displaying a portrait, painting or picture; if its a painting in a gallery you have to have a copyright but not in your own home -to "display" a work publicly means to show a copy either directly or by means of a film, slide, television image or other device to a substantial amount of people beyond the normal circle of friends and acquaintances -thus, owner has a right to control when and if photos are placed on exhibit, projected on a screen in public place, or made available to the public browsing the internet

1st discrete right of copyright owners: *public performance*

as a copyright owner you have the right to choose how and when the work is *public performance*; to do something in public, performance of play, film or musical act, doesn't matter if its paid just if its in public for ppl to see -can be live, projected from film or tape, broadcast to an audience, webcast or otherwise performed (to be an infringement, work must be performed publicly or transmitted to public without authorization)

criteria 4 for Fair Use Doctrine: *the effect of your use on the market for, or value of the original work*

based on how you're using the original, has your use negatively affected the financial value for the creator? are you making it harder for the creator? (whether your use has negatively effected the financial value of the original work) -questions the effect of copying not only on the present market but the potential market -courts are less likely to find fair use when works are copied for commercial purpose and the copyright owner's commercial market is damaged; they are more likely to find fair use when original work is transformed into a new work that does not damage the potential market -ex. a financial newspaper printed summaries of commercial reports and court found that that infringes on copyright bc they made it unnecessary to purchase the original report bc it was summarized so effectively; and also it wasn't making its own analysis and wasn't commenting/criticizing the work and wasn't taking tried quotes or seeking opinions, instead it wrote verbatim the most creative/original aspects of the report which was a substantial investment of time, money and labor on the writer of the original report's behalf -ex. Ford memoirs in the newspaper took away from the potential and actual effect on the market for the book; also bc Time had the rights to the memoirs so they cancelled their contract to write the memoirs (contract cost money) and the newspaper took part of the market that Time would have had -ex. court ruled it was fair use for household to record entire copyrighted tv programs off air bc it wasn't for commercial purposes and wouldn't damage the commercial market for the copyright holder; studio productions losing money over recordings is only speculation; court also said that ppl recording at home might actually allow for more ppl to view the broadcast

4th discrete right to copyright owners: *sale/transfer/rental of the work*

copyright owners can distribute copies of work -this exclusive right includes the author's authority to publish, sell, loan or rent copies of a copyrighted work -a book publisher (who usually owns the copyright of a book) distributes the work in physical form to book stores or digitally -these rights do not include control over a resale of a copy; author's control and receipt of royalties stop with the "first sale" of each lawfully produced copy of a book/film/other work; author receives royalty on first sale not on subsequent sales (ex. library can sell or loan copies copies of a book it purchased without consulting or paying the copyright owner) -this right includes the right to pick the time when, or if, a work will be distributed; ex. when a magazine published stolen excerpts of President Ford's memoirs that were to be published in a different magazine that had an exclusive contract to publish them before the full book was distributed

criteria 3 for Fair Use Doctrine: *the amount and substantiality of the work used in relation to its whole*

how much of the work did you use? a lot or a little? ; the less of the original work you use the more likely it is to be seen as fair (no clear lines) -determining the substantiality is more than the quantity of work copied, it is also a question of the quality of the portion used -even if amount of material copied is small, copying may be infringement if the "quality" of material is high; ex. newspaper that quoted only 300-400 words from Ford's memoirs constituted as a small portion of the book but was substantial bc they were the "heart of the book" and most interesting and moving parts that embodied Ford's expression -general rule, you're prohibited from copying whole works; critic or reporter should not quote more than a few paragraphs of a book or few lines from an article at one time in a criticism or review

the exception to the distinctive rule for registering a trademark is *secondary meaning*, meaning ..

if company can prove to the court that your company is the only one that you could possibly think of (like is Post didn't exist) -ex. Vogue is a word of common usage but it acquired a secondary meaning when it appeared on a magazine; vogue acquired an association between the magazine and the clothing/jewelry worn by the models -supreme court ruled a distinctive color can also be trademarked (ex. red coke can)

criteria 2 for Fair Use Doctrine: *the nature of the copyrighted work*

looks at a number of things, 2 most important: whether the copyrighted work is *published or unpublished* ; unpublished work gets greater protection against copyright (bc ur the only person in the world that gets to decide whether or not you want to publish, if you publish someone else's work ur taking away the owner's right of first publication) -what was the original work and how does it compare to ur use of the work? did you transform it? -ex. mash up of copyrighted songs, but transformed them into something new through your own creative process -ex. court ruled publishers of biographies violate copyright in unpublished letters by copying or paraphrasing significant portions bc copyright in those letters belong to the person who writes them -courts ruling on fair use also consider the nature of the copyrighted work: its length, its factual or fictional nature, effort involved in creating it and its availability (some works bc of their nature are subject to more fair use) -work such as databases, lists and stock tables which require much effort but not much originality, receive less copyright protection than work such as novels and plays that embody more originality; news reports are less protected than movies and novels also bc news contains facts which cannot be copyrighted

basic criteria for any copyright, must be ___ and ___

must be *original* and *fixed* -copyright law protects original works .. fixed in any tangible medium of expression

does trademark depend on originality?

no, unlike copyright, trademark does not depend on originality, invention or discovery

when is an advertiser given copyright expression?

not for the choice of an actor or a special editing technique, but they DO have copyright protection for the *expression* resulting from a combination of artistic choices, including selection of all the actors, composition of each frame, the place of editing, camera angles, hairstyle, jewelry, decor and make up

5th discrete right to copyright owners: *creation of derivative works*

this is a transformation or adaptation of an existing work; derivative work pay be copyrighted; derivative works include translations from foreign languages, movie version of plays and novels, and dolls/toys based on a cartoon character -ex. the author of a novel may create or authorize others to create a sequel, play version or cartoon version based on his/her original novel (separate copyright can be owned in each derivative work)

does trademark protection occur automatically?

some trademark occurs automatically, upon *any legitimate use of a mark in commerce*

unlike trademark infringement, (designed to protect consumers) dilution is designed to protect ..

the *trademark holder* -news and commentary: as long as reporting is truthful, it is protected by 1st amendment -parody and satire -comparative advertising: (most common issue) ex. of two towels: one absorbing more than the other, this is allowed in advertising; can be actual products or could use generic with no name; ad claims about performance you must be able to back it up: by trial, survey award

trademarks

the use of product names and logos

DMCA safe harbor

this is a legislation that protects online service providers from liability for money damages for infringement when the service providers merely transmit or temporarily store digital info for their subscribers. under this statute, online service providers are not liable IF they act as mere conduits (means of transfer) of information sent or received by others

what is the Digital Millennium Copyright Act? (DMCA)

was passed to address copyright in a user generated content area (internet and social media); *provides an immunity/shield to liability for website operators* (ex. says to Facebook or Youtube that "you're not liable for copyright infringements of your users")

linking

website that has copyrighted material (*you cannot be sued if you link to the website)

can copying an author's copyrighted words, music, or other expression without permission infringe on the copyright of the original work *even if* the copier acknowledges the source of the expression?

yes

is a work copyrightable immediately upon creation?

yes; ex. a short story is fixed when it is saved on a computer or printed on paper, photo is fixed when the shutter snaps