Communication Law Test #4

There is a test for when a reporter must give testimony for a grand jury. It states....

"convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."

novelty standard

A standard requiring that an invention or process must be unique and original to be patented and that the patent applicant must show that no other identical invention or process exists. Requires that a patent was not known or used by others in the U.S. nor was it known or used abroad. The invention must be patented within one year of its invention otherwise the patent is invalid.

product confusion

For instance, Charmin toilet paper is a trademarked name. If a company not affiliated with Charmin wanted to create Charmin paper towels that could create a trademark violation. The product confusion is obvious. Consumers would think Charmin paper towels is the same company as Charmin toilet paper—even though in this hypo they are not.

FOIA

Freedom of Information Act, requires disclosure of all governmental information unless exempt under Act. A freedom of information act request. They apply to the government only. There is no private sector equivalent of this for journalists. Know that these are used for gathering government documents.

Patentable Subject Matter standard

Patents are given to a wide array of products. There is a general rule that a business method or printed material cannot be patented. Think back to copyright section of the last exam. Printed material would be protected longer under copyright than a 20-year patent.

Privacy Rights

_______ are personal and do not survive the death of the individual. Some exceptions with autopsy photos of a deceased man. Some states, like New York and Oregon, do not recognize a tort action for invasion of privacy

Trial Publicity

is the intersection of the First Amendment's freedom of the press and the Sixth Amendment's right to a fair criminal trial and the Fifth Amendment's due process clause.

Branzburg v. Hayes (1972)

it's important to note that the U.S. Supreme Court has NOT ruled that reporter's privilege exists within the First Amendment. The closest we've ever gotten to that is in _______________ in a 5-4 decision.

patent

(n.) exclusive rights over an invention; copyright; (v.) to arrange or obtain such rights; (adj.) plain, open to view; copyrighted limited licenses given by the U.S. federal government's Patent and Trademark Office (USPTO).

patent application process

-nature of invention -prior art -technique; must be novel and understandable to "person having ordinary skill in the art" (PHOSITA) -must be new, useful, and non-obvious process is usually a back-and-forth process in which amendments must be made. Patents typically are exclusive for 20 years.

Four Types of Marks

1) Arbitrary or Fanciful mark: a trademark that has no logical relationship to the product, e.g. Apple computers. 2) Suggestive: trademark that evokes the characteristic of the product, such as Coppertone sun tan lotion 3) Descriptive: trademark that describes a characteristic of the product, such as Eyeworks glasses store 4) Generic: this is not capable of being trademarked because it is too general. For instance computer cannot be a trademark because it is a generic term.

1. Disclosing Private Facts 2. False Light 3. Commercial Exploitation of Person's Name 4. Intrusion Upon Seclusion

1960 Prof. Prosser recognized 4 distinct privacy torts:

1) bringing the product into the market and 2) being the first to register the trademark with the USPTO. NOTE: it is NOT a requirement for a trademark to be registered. However, it makes the claim for trademark infringement easier to prove.

2 Ways Trademarks are given out:

1. This tort is seen as a remedy for unauthorized use of a person's name or likeness. 2. Remedy is confined to commercial exploitation 3. No remedy for use of likeness in journalism

3 things to know about appropriation...

(1) patentable subject matter, (2) utility, (3) novelty, (4) non-obviousness, and (5) enablement.

5 Requirements for a Patent

Trademark

A brand that has exclusive legal protection for both its brand name and its design; a word, symbol or device that is identified with a product. The main issue with trademark is product confusion

Genericity

A trademark can be lost if the owner abandons the trademark or through ___________. __________ is a form of language that changes over time. If the word becomes ________, meaning that it becomes identified with a particular general item, then anyone can use that name. For instance: thermos, aspirin, cellophane, and zipper were once product specific names that have now fallen into _______ use, and therefore lost their trademark protection.

Tort Law

About suing people for wrongs; A civil lawsuit w/ money damage because of a breach of a duty on the part of an organization or a person EX: Water on floor at grocery store; woman slips; causes personal injury w/ monetary damages because the employees/store didn't keep the floor dry

Patent Rule Caveat

All patents prior to June 8, 1995 were given protection 17 years after the issuance of a patent. That rule, however, is no longer that important since it has been 17 years since that date (thus all of those patents are expired). There is no ability to extend the life of a patent by adding things to it. There is also no formal process by which patents can be extended by application. However, you will below that this is not always the case. Once the patent has expired there is no longer any protection for the patented item.

i. Did the newspaper lawfully obtain the information ii. Does imposing liability on the newspaper serve an state interest of the highest order that is narrowly tailored

Court holds that in order to punish a newspaper of releasing a name under privacy the court asks...

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Department of Justice has guidelines for issuing a subpoena to reporters to reveal their confidential sources. Their standard is before any subpoena may be issued, the attorney general must approve the issuance. The attorney general's review for a subpoena to a member of the news media shall be based on the following criteria

In criminal cases, there should be reasonable grounds to believe, based on information obtained from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation—particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information. In civil cases there should be reasonable grounds, based on non-media sources, to believe that the information sought is essential to the successful completion of the litigation in a case of substantial importance. The subpoena should not be used to obtain peripheral, nonessential, or speculative information. The government should have unsuccessfully attempted to obtain the information from alternative non-media sources. The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information. Even subpoena authorization requests for publicly disclosed information should be treated with care to avoid claims of harassment. Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents.

(1) that the information sought was crucial to a litigant's case, and (2) that the information could not be acquired from any other source.

In the DC Circuit (a very influential federal circuit) they find that reporter's privilege does exist under the First Amendment. They say that there are two criteria to determine if reporter's privilege trumps a subpoena...

trade secrets

Information owned by the company by which the company gains a competitive advantage; Unlike patents and trademarks, ____________ are protected under state law. There is no specific set time a __________ can be protected. I can be protected forever if properly managed. EX: client lists, secret formulas, Google algorithm

a) Extreme and outrageous conduct by the defendant b) That produces serious emotional consequences to the plaintiff

Intentional Infliction of Emotional Distress is defined as:

Non-obviousness standard

Invention must be something more than that which would be obvious, in light of publicly available knowledge, to one who is skilled in the relevant field. TEST: whether the subject matter sought to be patented and the prior art (meaning the specific nature of the patent) are such that the subject matter of the patent would be obvious to a person having ordinary skill in the art at the time of the invention That means would a person who works in a particular field know how to invent this invention because of its sheer obviousness. For example, it's not patentable to just add something pre-existing to a pre-existing item, such as attach a pencil to a notebook

sunshine laws

Law requiring agency meetings and decision-making process to be open to the public. One way of making agencies more accountable to Congress and the public. apply to government meetings and the transparency that is required in having open meetings. This does not mean all government meetings must be public. However, there have been an increased move for governmental transparency.

FOIA/sunshine laws

Issues with Newsgathering

Florida Star v. BJF (1989)

Newspaper printed information about a sexual assault victim. Newspaper is not at fault because they obtained the information through legal and truthful means and it was in a public record. Florida newspaper released the name of a rape victim. The paper found the name of the victim from a released police report. The Florida paper violated its own policy by releasing the name. The Supreme Court J. Marshall holds that damages against the newspaper violate the first amendment. The Court holds that Cox Broadcasting is not controlling in this situation because that concerned an indictment and this is a police report.

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

elements of intrusion

One who intentionally intrudes, physically or otherwise b) Upon the solitude or seclusion of another or his private affairs or concerns a. Is subject to liability to the other for invasion of his privacy b. If the intrusion would be highly offensive to a reasonable person i. offensiveness is decided by considering the extent to which the intrusion was justified by legitimate motives of gathering news. *Remember this case occur with wiretapping or surreptitious recordings

Brandeis' 1890 articles The Right to Privacy.

Privacy began in...

10th Cir.

Public concern in ________ uses a reasonable editor standard that states that things are newsworthy if "no reasonable editor could draw them other than through guesswork or speculation"

Enablement standard

Requires the patent to be written out to each detailed specification in the application. No "rough" ideas → must be able to be used and made

Branzburg v. Hayes (1972)

Ruled that reporters do not have a First Amendment right to refuse to reveal the identity of confidential sources when subpoenaed to testify before to a grand jury. This case was over an issue of a reporter at the Courier Journal (Louisville) who wrote two stories on drug use in Kentucky. During his reporting he witnessed several people using drugs. In addition to the Kentucky reporter other reporters were working on stories for the NYT involving the Black Panthers. All reporters were subpoenaed to disclose their information to the government because of the illegal activities they witnessed. The case provides no concrete rule for when reporters must disclose information.

trade dress

The image and overall appearance ("look and feel") of a product that is protected by trademark law. Usually consists of colors and packaging. ____________ relate to identification only and cannot contain a functional component of the product. For instance, the blue in a Tiffany box can be trademarked, but a box that has a particular hinge cannot be trademarked (at best a function design like a hinge can be patented).

Cox Broadcasting v. Cohn (1975)

The press cannot be held liable for the tort of publication of private facts if the facts come from public court documents. 17-year-old Georgia rape victim's name is released by Cox Broadcasting. Cox obtained the name from the indictment. Father of the victim brought forth a claim of invasion of privacy. The U.S. Supreme Court majority with J. White held that the public relies on the press for information and by placing the victim's name in public records illustrates that the public has an interest in being informed. J. White held that releasing information found in government documents is important for our democracy. J. White feared what types of retaliation could occur from placing our public records as private.

Utility standard

This goes to the usefulness of the patent itself. There are requirements from the USPTO that states that a patent must be credible, specific, and substantial. Credibility means there is support for utility of the patent itself. Specificity means there is a particular use for a patent that used for a specific purpose. Substantiality means the use of the patent is concrete and not speculative. It cannot be something that future users would need to do research on to create potential uses.

Public Disclosure of Private Facts

This tort requires a. Disclosure is high offensive to a person of reasonable sensibilities [offensiveness is determined by contemporary mores] b. The information disclosed if of no legitimate public concern or not newsworthy

Lanham Act

Trademark is governed by both state and federal law. However, the main law governing trademarks is the ___________, which is a 1946 federal act that provides trademark protection. State trademark law is a holdover from a time when there was no federal protection of trademarks.

Uniform Trade Secrets Act (UTSA)

While state-to-state trade secret laws vary most state laws (40 states) are based on the _________. This Act defined Trade Secrets as: information, including a formula, pattern, compilation, program, device, method, technique, or process, that derives independent economic value, actual or potential, from not being generally known to or readily ascertainable through appropriate means by other persons who might obtain economic value from its disclosure or use; and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

appropriation

_________ claims involve the attempts of people to control the exploitation of their names likeness and fame and any pecuniary value resulting therefrom

False Light

_________ is different because it is a false information about a person but does not have any real negative implications for him. This is the opposite of defamation. _________ actions can be a remedy for cases of emotional distress that do not cause harm to a reputation. Remember it differs from public disclosure of private facts because ________ is about false portrayals, not true facts. Frequently ________ and defamation claims have cross over. Sometimes plaintiffs will bring both claims under both sets of facts.

The issue with trade secrets

__________ is how well is the secret made secret. The extent the secret is known is paramount to its strength under the law. USTA states that what courts should examine when evaluating whether a trade secret is in fact a secret is the level of protection around the secret itself. Remember the secretive nature of trade secrets means there's no formal registration and no licensing. The secret becomes protected under the law by the behavior of the company. NOTE: within public relations trade secrets can be client lists, which is the basis of trade secret issues with social media ownership.

descriptive mark

a trademark describes a characteristic of the product, such as "Eyeworks" glasses store

suggestive mark

a trademark that evokes the characteristics of the product, such as Coppertone sun tan lotion

arbitrary or fanciful mark

a trademark that has no logical relationship to the product, e.g. Apple computers (strongest type)

Sheppard v. Maxwell (1966)

controversial trial in which conviction of Sheppard was overturned due to prejudicial publicity . . . . in which decision criticized the judge for not controlling the courtroom. Sheppard was a wealthy doctor in the Cleveland suburb of Avon Lake. His wife was killed while he was downstairs sleeping on the couch. He claimed he heard a noise, ran upstairs, fought with the assailant, was knocked unconscious by a figure huddled over his wife's bed. Press sensationalized Sheppard's affair with a nurse, quoted a judge as saying he was "guilty as hell," questioned why he had not been arrested and brought to trial, printed names of jurors and urged readers to call or write. Sheppard was convicted, overturned, re-tried, acquitted.

Duty Breach Causation Harm

four elements of tort...

Reporter's Privilege

reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources

generic mark

this is not capable of being trademarked because it is too general. "Computer" cannot be a trademark because it is a generic term. (weakest type)

Sheppard v. Maxwell (1966)

trial publicity has limits given the U.S. Supreme Court's holding in ______________