Exam 3 Law

key function of all marks

to clearly identify the source or origin of a product and service with a specific company and, to prevent consumer confusion. allows a company to tout its quality and advertise with their marks, standing for the goodwill & quality of that product or service.

key goals of copyright law

to provide incentive for creation by giving a monopoly to creators and eventually enrich public domain after it expires

it is the first person who uses the mark not who first registers the mark who holds the right to the symbol or word or phrase

trademark registration

short phrases and slogans

trademarks not copyright

Juvenile Hearings

traditionally closed to the press and the public, protecting the victim and the accused. Rehabilitation efforts might be more difficult if the community is informed about the offender. Access to the hearings isnt unusual lately

Severe Emotional Distress

Must be substantial and enduring, not minor and fleeting. Courts ask "would a reasonable person in the position of the plaintiff have suffered severe emotional distress?"

what is a "useful article"

an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article Ex: Batman mobile is copyrighted but under the hood is not a mural on a wall

the term "trademark" includes

any word, name, symbol or device or combination thereof

trade dress

appearance of the product (tiffany box wrapped up) -relating to such distinctive looks and appearances -must be non-functional, not essential to use of the product packaging and labeling product design store appearances

andrei lanuci

applies for a writ, no response but by Nov 8, has a chance to file his petition - Issue: whether prohibituion on the federal resgistration is.. do not know if they will take the case yet

dilution tarnishment

associating product with something negative in publics mind - titleist mark made "titties, Ben and Jerrys adult films)

___ and ____ were the only charges placed on juveniles 50 years ago ___ , ____, and even ___ charges are not uncommon today

petty theft, assault --> robbery, rape, murder charges

the key to determining whether protection is merited is whether

there is some novelty or originality in the manner in which the facts are organized, selected or coordinated.

public domain vs private rights

after 70 years, may be copied by any person for any reason without the payment of royalty to the original owner.

When can you use the trademark in the circle (R)

after it has been approved, until then TM

to be trademarked, colors must have

an acquired distinctiveness or secondary meaning

Inherently distinctive marks

fanciful, arbitrary, suggestive

Erik Brunetti

federal circuit- he has a clothing line and tries to register with USPTO, denied bc was scandalous and immoral. Dec 2017- FUCT 15 US.C 1052 clause is unconstitutional so they reverse it and let him register the mark - FCC V Pacfica, court didnt uphold gov't right to censor. have to distinguish Pacifica. only government interest related to immoral/scandalous provision we can discern from gov'ts briefing is its interest in "protecting public order and morality - Cohen V California Supreme court precedent makes clear the governments general interest in protecting public from marks seems "off-puting" whether to protect general public or gov't itself is not a substantial interest

information, indictments, search warrants and supporting affidavits, evidence and other materials related to sentencing

first 4 all relate to materials generated in charging a suspect with a crime, or gathering material for prosecution. Sentencing materials may also include items not admissible as evidence in determining an individuals guilt or innocence.

Richard Spencer

hate speech: he never goes over the line, engaging in political dissenting speech (protected) we would rather protect spencer's speech then have the government tell us what is valuable marketplace of ideas will guide us to the truth, as well as education.

2 part test to determine if a proceeding or document is open also called the

history-and-logic test or the experience-and-logic test.

blurring dilution

idea that over time the senior mark loses its distinctive property, other sources will wear it down, impairs distinctiveness of famous mark, power weakened -jack daniels bottle

Kansas v. Meadors (2012)

illustrates that swearing sometimes can amount to fighting words, particularly when an unfriendly tension already exists between individuals involved. Divorced couple who shared custody of their children. Ex-husband yelled im going to get you, middle finger, etc as she dropped off her kids at his house, approached the vehicle. Testified "traumatic for her and the children" called police. Arrested on disorderly conduct charges, claimed his speech covered by 1A, court ruled it constituted unprotected fighting words. a threat of violence not required for speech to constitute fighting words. Instead, " a threat is merely a factor to be considered by the court when determining whether the words spoken were fighting words." legislatures must be very precise when trying to carve out statutory exceptions for categories of speech they believe shouldnt be protected by 1A.

true threats

in fear of imminent bodily harm or death

court ruling in Hustler V Falwell

in order for a public figure or official to win an emotional distress claim, it would be necessary to prove 3 things 1. that the parody/satire amounted to statement of fact, not an opinion 2. that it was a false statement of fact 3. that the person who drew the cartoon or wrote the article knew it was false, or exhibited reckless disregard for the truth or falsity of the material. Proof of actual malice is necessary.

2 ways to sue over trademark

infringement and dilution

intelectual property

intangible property that a person cannot touch, hold, or physically lock away for safekeeping.

intellectual property law

intangible works, cannot hold, touch, lock away for safekeeping -no useful or utilitarian purpose -copyright law, trademark law, patent law and trade secret law

Copyright Law, trademark law, patent law, trade secret law constitute a larger body of law known as

intellectual property

different kinds of patent protections

inventions that have utility (machine/process) designs, plants not reproduced through seeds (asexually) -useful, non-obvious inventions -dont exist until issued by the US government (pat. pending)

1972 fighting words

laws prohibiting fighting words be limited to words "that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." High court has given states permission to restrict so-called fighting words because they could result in a breach of peace, fight, riot, not because they offend someone or insult them. No official list of words, depends on the context of how it is used and to whom is it addressed.

trademark infringment

likelihood of confusion among consumers who use the product factors: similarity of marks (appearance, sound, underlying meaning) strength of plaintiffs marks proximity of goods/services evidence of actual confusion

danger category

losing mark overtime/ genericide -google, xerox -aspirin, cellophane, yo-yo

The trial judge (once it has to close part) must

make evidentiary findings to support this decision and prepare a thorough factual record relating to the closure order, a record that can be evaluated by an appellate court. Must fully articulate the alternatives to closure and the reasons why the alternatives would not protect the movant's (the party seeking closure) rights.

trade dress/dress marks

marks relating to such distinctive looks and appearances total image of a product -shape, size, color combo, texture, graphics

service marks

marks used to identify the source of services

KOVR TV V Superior Court: 1990s, Sacramento, CA

mother on a street killed her children then herself, KOVR TV sends reporter to get reaction from neighbors, goes up to dark home with big light, 3 young girls come to door and they ask them if anyones home, reveals their friends were killed (7,5,11 years old) while they're home alone, don't run the story but gathering process caused emotional distress. -satisfied IIED

if there are no viable alternative to closure, it is the responsibility of the judge to

narrowly tailor the closure so there is an absolute minimum of interference with the rights of the press and public to attend the hearing or see the document. a pretrial hearing on evidence might include many issues beyond the single issue that could harm the defendant. the court must close only that portion of the hearing dealing with the single issue, or must exclude the press & public from only that portion of a witness's testimony that might cause embarrassment or humiliation, not the entire testimony.

can you copyright "news"

no but you can copyright a story -event V story of the event

trademark dilution

no likelihood of confusion or need for goods and services to be similar, requires a "famous" mark widely recognized by general consuming public in the US by duration & extent

can you copyright "history"

no, can copyright an original telling of history or a fictional telling of history

can you copyright titles, names, short phrases?

no, may be able to trademark such items

can you copyright a useful product/ good with "utilitarian" purposes

no, you can copyright an artistic element of the product.

can you copyright "facts"

no, you can copyright an original rendition of facts (expression of facts in a news story)

True Threats of Violence

not protected by 1A those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. Justice O'Connor- "intimidation in the constitutionally proscribable sense of the word is a true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." "Political hyperbole" not a true threat

Trademark Dilution Act of 2006

only apply to and protect "famous" trademarks, including names, slogans and logos. Protected from having their value weakened by other marks regardless of whether or not the other marks are for similar products and regardless of whether consumers are actually confused as to who is producing the rival products. Proving a likelihood of distinction is not required in a dilution lawsuit. They can sue for both. 1. what is a famous mark - according to federal statute 15 USC 1125 "widely recognized by the general consuming public of the US as a designation of the goods/services of the mark's owner" -duration, extent and geographic reach of advertising and publicity of the mark amount, volume, and geographic extent of the goods or services offered under the mark. EX: Americas team (cowboys) Rolex, burberry? 2. how is a famous mark diluted? - by blurring: impairs the distinctiveness of the famous mark by the degree of similarity between the diluting mark and famous mark and by whether the user of the diluting mark intended to create an association with the famous mark. -by tarnishment, mark tarnishes the reputation of the famous mark by connecting it with something distasteful, negative or objectionable. remedy: injunction, prohibiting the use of the diluting mark, monetary damages "provide a defense of parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner" and for "all forms of news reporting and news commentary."

copyright extends to

original and creative works of authorship fixed in any tangible medium of expression fixed in a tangible medium- the work that is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration. - extemporaneous performances/speech, improvised sketches, still cant be filmed w/o permission bc right to publicity and common-law copyright. once they are written down, recorded, filmed or fixed in a tangible medium they come under the protection of the new law

infringement case defense

parody- chew vuiton

Pat Pending

patent rights do not exist until it is issued by the US government.

copyright infringement

people who believe that their exclusive right to control the use of a copyrighted work has been violated will sue for infringement. The federal copyright statute does not actually define infringement, states that anyone who violates the rights of the holder is guilty of an infringement of copyright. 1. is the copyright on the plaintiffs work valid? Looks at proper registration, and mostly examination to determine whether the work is original that can be protected by copyright. 2. did the defendant have access to the plaintiff's work prior to the alleged infringement? 3. are the two works substantially similar?

6 Exclusive Rights of Copyright

- Reproduce - Publicly Distribute - Publicly Perform - prepare and create derivative Work - Display Publicly - Publicly Perform a Digital sound recording

Chaplinksy V New Hampshire

"God D**M" racketeer and "D**M fascist" court says theyre fighting words, last time supreme court upheld a conviction under fighting words doctrine. Chaplinsky handng out Jehova Witness flyers on public sidewalk, people compained about noise and riot was going to break out, city Marshall came and chaplinksky cursed him out. -does 1 and 14 amendment include personal offense? no, only to keep peace, universal offenses everyone can relate to.

fact-expression dichotomy

"no author may copyright facts or ideas. The copyright is limited to those aspects of the work- termed "expression" - that display the stamp of the authors originality"

why register a mark

-legal presumption it's yours (own it) -nationwide -puts public on notice that you own it -others can find it and avoid selecting similar marks

What cannot be copyrighted?

1) Trivial materials (titles, slogans) 2) Ideas (pi song) 3) Facts 4) Utilitarian goods (things that exist to produce other things, lamp, chair, dress/uniform) 5) Methods, systems and mathematical principles (description of it can, a math book) 6) Unoriginal works

Olivia N V. National Broadcasting Co.

Born Innocent with Linda Blair, she ends up in Juvenile home for girls, graphic scene where she is gang raped with plunger by girls. Kids artificially raped a girl on a beach with coke bottle, NBC sued for airing tis. -court ruled in favor of NBC, not directed to hurt anyone, not imminent bc the gap, wasnt likely people would commit this.

Meaning of symbols

TM- trademark SM- service mark

elements of emotionally distress (have to do them ALL)

1. Extreme and outrageous conduct by defendant- goes beyond the bounds of decency in a civilized society and makes you scream "that's outrageous" 2. Done with the intent or reckless disregard for causing plaintiff harm- mens rea element - reckless disregard: reasonably foreseeable that the conduct would cause harm and the defendant would do nothing to stop it. Disjunctive not conductive! 3. Causation of harm to plaintiff 4. Severe emotional distress suffered by plaintiff - must actually be severe and plaintiff will only win if it is severe more than the usual vicissitude of everyday life- this can be subjective so how do we make it more objective? courts ask: would a reasonable person have suffered severe emotional distress

what can be copyrighted/works of authorship

1. Literary works; 2. Musical works and accompanying words; 3. Dramatic works and accompanying music; 4. Pantomimes and choreographic works; 5. Pictorial, graphic, and sculptural works; 6. Motion pictures and other audiovisual works; 7. Sound recordings;

4 factors of fair use

1. Purpose & character of the use, including whether it is of a commercial nature or is for nonprofit education purposes; (where classroom projects come in; if your video is being used for a project to get a grade don't worry about using a song and not copyrighting) 2. Nature of the copyrighted work in question, is it something that requires enough creativity that merits to be copyrighted? 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; (key part, even if its short) 4. The effect of the use upon the potential market for or value or the copyrighted work weigh all these in a holistic approach - seperately -similar to criteria for common law fair use doctrine, new law endorses the purpose/general scope of the judicial doctrine of fair use, but doesnt freeze it, courts free to adapt it on a case by case basis. section 107 intended to restate the present doctrine, not to change, narrow or enlarge it.

Press Enterprise Test

1. The party seeking closure (either defendant or government, sometimes both) must advance an overriding interest that it is likely to be harmed if the proceeding or document is open. 2. Whoever seeks the closure must demonstrate there is a "substantial probability" that this interest will be harmed if the proceeding/document remains open. 3. trial court must consider reasonable alternatives to closure 4. if the judge decides that closure is the only reasonable solution, the closure must be narrowly tailored to restrict no more access than is absolutely necessary. 5. the trial court must make adequate findings and put them into the record to support the closure decision.

if the proceeding or document is presumptively open, burden shifts to defendant or government to convince the court theres a good reason to close the proceeding/seal the document.

1. advance an overriding interest that is likely to be harmed if the proceeding remains open or the court permits access to the court document (right to a fair trial for the defendant or protection of a witness's privacy) 2. prove to the court that if the hearing/document is open to the press and public, there is a substantial probability that this interest will be harmed (jury will be prejudiced or the privacy of the witness will be invaded)

3 categories of unprotected speech

1. incitement to violence - I am trying to incite you to commit violence to others (brandenburg V Ohio, Natural Born Killers, Hustler, Born Innocent, Nwanguma V Trump) 2. fighting words- youre going to hit me back cause someone to fight (Chaplinksy V New Hampshire) 3. true threats - I say something that puts you in fear of life or death (Watts V United States, Snyder V Phelps)

3 kinds of patent protections

1. inventions that have utility (a machine/process/typewriter/way of reducing noise) 2. designs- appearance of an article of manufacture (furniture design/tire thread/belt buckle) 3. plants (only those reproduced asexually through means other than seeds, like cuttings or graftings)

4 main functions of trademarks and service marks

1. they identify one seller's goods and distinguish them from goods sold by others. 2. They signify that all goods bearing the trademark/service mark come from a single source 3. They signify that all goods bearing the mark are of an equal level of quality 4. They serve as a prime instrument in advertising and selling goods.

many states have classified juvenile proceedings into 2 groups

1. those in which a juvenile is charged with a crime 2. those which the juvenile is the subject of a hearing related to child abuse, parental neglect, family reconciliation, dependency, etc. law in many states that use this has made the first (a criminal case) presumptively open and the second (social problems) presumptively closed, At least a dozen states now regard this second kind of hearing presumptively open as well. Some courts grant access only if the journalists agree to refrain from identifying the parties in any story. Juvenile crime has taken on far more serious proportions in the last .25 century, the second reason for increased openness.

how to determine whether the proceeding or document is presumptively open (Press-Enterprise test)

1. whether this kind of hearing (or document, if access to a court record is involved) has traditionally and historically been open to the press and public, or 2. whether public and press access to this hearing will play a positive role in the functioning of the judicial process.

Hustler Magazine

1980's published a parody series of widely circulated ads for Campari liquor, real ones had sexual overtones, double entendres on "first times." Parody of fictitious interview with Rev. Jerry Falwell, He described his 1st sexual experience with his mother, also characterized as a drunk, small disclaimer at the bottom says it's fiction.

Nancy Grace/Melinda Duckett Case

2-year-old child of Duckett was missing in Florida. CNN's Nancy Grace, former prosecuter interviewed Duckett by telephone and verbally attacked Duckett, intimating she killed her own child. Just before the interview aired Duckett killed herself. The family sued for IED/wrongful death, claiming the interview was solicited by Grace under false pretenses and used to increase ratings. Federal court denied CNN's motion to dismiss the case, noting the plaintiff's had correctly alleged all needed elements of IIED action and a trial would be needed. Judge noted very few IIED cases in Florida where damages have been awarded and affirmed but courts have tended to find that conduct that would normally be merely insulting or careless can become outrageous if it follows the death of a family member. 2009 Grace reached a settlement with the Duckett estate in which she agreed to establish a $200,000 trust dedicated to finding duckett's missing son.

court docket sheet

2nd US court of appeals ruled in 2004 that there is a qualified 1A right to inspect these sheets that provide an index to judicial proceedings and documents.

documents filed in pretrial proceedings

9th US court of appeals ruled that pretrial proceedings are open and "there is no reason to distinguish between pretrial proceedings and documents filed in regard to them"

pre sentencing and post-sentencing reports

9th circuit of Appeals ruled that unless a judge could demonstrate a compelling need to keep such records sealed, they should be open for public inspection.

Doctrine of Fair Use

A rule of reason.. to balance the authors' right to compensation for his work, on the one hand, against the public's interest in the widest possible dissemination of ideas and information on the other

Road rage in San Jose, California/can owner sue for IIED

Andrew Burnett upset by woman driving, gets out of car and yells at her, notices she has a dog and reaches in, grabs it and throws it into incoming traffic- convicted in criminal court. Yes

Elonis v. US (2015)

Anthony Elonis sentences to 44 months in jail for Facebook postings he said were rap lyrics, inspired by Eminem. Prosecuted under federal statute 18 U.S.C. 875 that makes it a crime to transmit in interstate commerce "any communication containing any threat... to injure" another person. 3rd US Circuit of appeals upheld his conviction ruling that Elonis' subjective intent did not matter, it mattered that he intended to communicate a message for others to see and a reasonable person could interpret his speech as threatening. He appealed, said 1A protected him and intent of speaker (him) should matter to decide if it was a true threat. June 2015, supreme court reversed the 3rd circuit's hearing and remanded the case, but without resolving the key 1A issue. Court only addressed the statutory grounds for his conviction in its opinion, court used 18 USC 875 and ruled was inconsistent with the conventional requirement under criminal law that a criminal needs to have "awareness of some wrongdoing" On statutory grounds, they reversed and remanded the case. This case has continued- on remand from supreme court in October 2016, 3rd court of appeals ruled that even had a jury considered his intent- no jury would have doubted that he knew his lyrics would intimidate the targets. ----------------example of the judicial principle of constitutional avoidance in action, holds that the court can resolve a case on statutory grounds without ever reaching the constitutional issue, then it should do so. Roberts court often employs constitutional avoidance.

trademark

Any word, name, symbol, device, or any combination thereof that is used by a company (or individual) to identify and distinguish its goods and services from those produced by other companies and to indicate the source of the goods, even if that source is unknown. (brand names: Nike, Mcdonalds) (Brand logos: arch, swoosh) brand slogans (im lovin it, just do it) dont have to register to use it, can use right away -15 USC 1127

Lee v. Tam (2017) Metal V Tam

Asian-American rock band from Oregon called "The Slants" 2011- Simon Tam tried to register the name as a trademark for his band. They were using reappropriation whereby members of minority groups reclaim epithets and racial slurs and turn them into badges of pride. USPTO denied it bc disparaging clause. US court of appeals for federal circuit en banc struck down USPTO decision and that disparaging section as unconstitutional, related to Redskins. (stripped of trademark rights) Issue: does the disparagement clause of Lanham Act (2a) violate free speech clause of 1A Conclusion: unanimous, speech cannot be banned on the ground that it expresses ideas that offends- Slants wins! Concurring opinion (Kennedy): constitutes viewpoint discrimination- a form of speech suppression so potent it must be subject to rigorous constitutional scrutiny Court DIDNT address the constitutionality of another clause that allows the USPTO to deny registration for marks that relate to "immoral, deceptive, scandalous matter" vagueness arises from this 2A of Lanham Act bars registration of a mark that "consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons living or dead, institutions, beliefs, national symbols, or bring them into contempt or disrepute. Federal Circuit ruled 2a was content-based and viewpoint discriminatory regulation of speech to stifle the use of certain disfavored messages. too much inconsistency. gov't argued that denying trademark registration isnt equivalent to denying someone the right to speak. Same with redskins. Just isnt trademarked. 2017: supreme court heard oral argument in Lee V Tam, now Matal V Tam, 8-0 decision court held 1052 was a viewpoint based restriction on freedom of expression and unanimously held the gov't couldnt deny registration for positive/benign words. - Alito, Roberts, Thomas, Breyer: intermediate scrutiny -Kennedy, Sotomayor, Ginsburg, Kagan: strict scrutiny bc viewpoint discrimination

Target V Burberry

May 2015- example of trademark infringement iconic check print, burberry sued

Chaplinsky v. New Hampshire (1942)

Chaplinsky, a jehovah's witness, where face-to-face proselytization/confrontation is a part of the religious practice. He attracted a hostile crowd as he attempted to distribute religious pamphlets in Rochester, NH. City marshal intervened and Chaplinksy called the officer a "god-d***ed racketteer and a d***ed fascist" He was tried and convicted of violating a state law that forbids offensive/derisive speech or name-calling in public. Supreme court affirmed by 9-0 vote. Justice Murphry wrote majority about the fighting words doctrine.

How a trademark can be lost

Failure to use a name for as little as three years (Ford Futura & Pep Boys) if the owner of the mark allows others to use it in a generic way. (makers of super glue allowing others to call their adhesive super glues) EX: Nylon, dry ice, escalator, toasted corn flakes, raisin bran, aspirin, lanolin, mimeograph, cellophane, linoleum, shredded wheat, zipper, yo-yo, brassiere- were all registered trademarks whose owners failed to protect them.

Spectrum of Distinctiveness

Fanciful: strongest marks, made-up/invented names. EX: Lexus, Exxon, Xerox, most drug companies (Viagra) Arbitrary: 2nd strongest, an existing word for the good/service unrelated to the common or ordinary meaning of the existing word. EX: Apple, Camel, Pledge) Suggestive: Weaker, suggest to consumers but do not clearly describe the product, must think. EX: Coppertone, Microsoft, Chicken of the Sea) Descriptive: (may be protected, not immediate) Weakest, directly describes features or qualities with no add'l thinking. Can only be registered with USPTO after an extended period of continuous use (typically > 5 years) in which they acquire a "secondary meaning" or "acquired distinctiveness" that they become associated exclusively with a particular company among members of the public that consume the product/service in question. EX: Arm & Hammer, Holiday Inn.

Hustler v. Jerry Falwell

Hustler appealed the $200,000 in damages for emotional distress, a unanimous 3-judge panel of US court of Appeals for the 4th circuit upheld the damage award, noting that all the proof that was needed was that the item was sufficiently outrageous as to cause emotional harm and published intentionally. Hustler appealed and in 1988 in a unanimous ruling, the high court reversed the appellete court ruling. Chief Rehnquist, noting most people would see the parody as gross and repugnant, rejected Falwells argument bc he was seeking for severe emotional distress over reputational harm, a standard different from that applied in libel. Falwell believed it was making a mockery of political cartoons to compare them to Hustler, and the law should protect even public figures from these characterures, Rehnquist disagreed and said the outrageousness standard of liability would not work.

fighting words

I say something & you hit me back -Cohen not an instance bc directed at the draft not a particular person. personal abusive epithets directed at a person who has the characteristics then is used requirements: face-to-face, personally abusive epithets, inherently likely to lead to a violent reaction. -determine this by looking at how and whom words said -not a "list" of words- how they are used, who to, case-by-case basis

Herceg V Hustler Magazine

Orgasm of death- "dont try this at home" 14 year old does it and dies. mom sues for wrongful death, fails under Brandenburg test. -warnings (direct) -time gap, article out for months (imminent) -(lawless), practice of auto whatever not against the law -(likely) prob not bc lots of people read it Mom won in trial court, appellate reverses, goes to supreme and they denied.

Klen v. City of Loveland

Plaintiffs Edward and Stephen Klen were building contractors upset at what they perceived to be unreasonable, deliberate delays over issuing of permits in loveland, CO. Klens used profane language on multiple occasions and insults out of frustration. -10th circuit- didnt constitute fighting words "although Klens used less than polite epithets...no indication they were accompanied by provocative gestures or threats." Nor did their use of vulgar or offensive language necessarily make their outbursts fighting words. -appellate court added they werent trying to provoke a fight- just express ideas. Offensive speech not the same as fighting words.

Fair Use Factors

Purpose and character of use -more likely to be considered a fair use if noncommercial or nonprofit, criticism and comment, teaching and scholarship and research. Nature of the copyrighted work -still available (out of print more likely), consumable (not fair use), informational/creative(info more likely)? Amount and substantiality of portion used in relation to copyrighted work as a whole Effect of use on potential market for or value of copyrighted work- given greater weight by most courts

examples of marks the USPTO has found disparaging

Redskins- allowed bc disparaging clause is unconstitutional Amishhomo Ride Hard Retard Democrats shouldnt breed abort the republicans N.I.G.G.A Naturally intelligent God Gifted Africans

Feist Publications, Inc. v. Rural Telephone Service Co.

Rural Television Service issued a standard white pages directory of its customers names, addresses & phone numbers. Feist Publications - publishes regional phone directories of small phone companies asked for permission to include the names of Rurals customers, they said no. Feist used it and Rural sued for copyright infringement. supreme court rejected both arguments, it couldnt be coprighted bc no novelty/originality.

Bollea V Gawker Media

Sex Tape of Hulk Hogan that gawker got a hold of, Bollea didnt know it was being made and sues for IIED. Bc he is a celebrity, Gawker could say needs to prove the 5th, different bc it is factual information, court doesnt need to apply the 5th.

Burning a cross

Supreme court faced this decision in 1992 when it struck down a St. Paul, MN ordinance that forbade the display of a burning cross/swastika/any writing/pic that arouses anger, alarm or resentment in others on the asis of race, color, creed, religion or gender. MN said it was fighting words, but it violated 1A bc it was content-based. High court revisited this in a case involving Virginias law against cross burning and ruled that a state could proscribe cross burning without infringing 1A as long as it made it a crime to burn a cross with the purpose to intimidate the victim. Threat couldnt be inferred (key) Highlights true threats of violence (Virginia)

Snyder v. Phelps (2011)

Supreme court issued a ruling that protected what many people would consider hate speech. WBC near the funeral for Marine Lance Corporal Matthew Snyder, killed in Iraq, carrying signs with anti-gay and anti-military messages such as "Thank God for dead soldiers" "Semper Fi Fags" "God Hates Fags" they stood 1000 feet away. Albert Snyder, the father, sued the members for intentional infliction of emotional distress and intrusion into seclusion, WBC argued 1A protected their speech and an 8-justice majority agreed with WBC. -speech in question, offensive but dealt with matters of public concern, church members had a right to be where they were (1000 feet away) protest was not unruly, no shouting/profanity/violence. Court concluded that "speech is powerful and can inflict great pain, but as a nation we have chosen to protect even speech on public issues to ensure we do not stifle public debate." Lone dissenter- Samuel Alito wrote that our profend national commitment to open debate is not a license for the vicious verbal assault that occured in this case, Mr. Snyder wanted what is surely the right of any parent .. to bury his son in peace. Family awarded $5 in damages by district court, circuit held judgement violated 1A protections on religious expression, affirmed lower courts decision. Issue: does 1A protect protestors at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased? Rule: yes

4 parts of intentional infliction of emotional distress

The defendants conduct was intentional and reckless the defendants conduct was extreme and outrageous the defendants conduct caused the plaintiff emotional distress the emotional distress was severe

Where does american copyright law derive from

US Constitution, article I, section 8, clause 8. "The congress shall have power...to promote the Progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. code 302: "copyright in a work created on or after Jan. 1, 1978, subsists from its creation...and endures for a term consisting of the life of the author and 70 years after the authors death" title 17 code 102: Copyright protection subsists in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device."

Lollipop "c**ksucker" trademark

USPTO objected to it b/c it is immoral and scandalous (rooster shaped lollipop) court said "clearly vulgar" double entendre

Copyright Notice

Under older laws, prominently displayed notices were required that included the copyright symbol (c), owner, and the year. While these notations are still a good idea, notification rules are no longer in effect. -protects the innocent infringer from liability for infringement. should contain the word "copyright" abbreviation "Copr" or symbol, © (P for phono-records) for books: the year it went on sale must have the name of the owner, most authorities recommend symbol and word, since symbol is required for international copyright agreements. anywhere visually perceived

Nwanguma V Trump

Veteran allegedly attacks Nwanguma after Trump sas "get em' out of here" noo dont hurt them trouble with media, Brandenburg comes into play- decision Sept 11, 2018- not SC but circuit courts. They hold "yes" his speech enjoys 1A protection bc he didnt specifically advocate imminent lawless action

Duration of Copyright

Works created after January 1, 1978: life of the creator + 70 years works created by more than one person: life of last living creator + 70 years Works for hire: 95 years after publication works created before january 1, 1978: 95 years

tort

a civil wrong in which there is no contrast b/w plaintiff and defendant = noncontractual (suing for monetary damages)

summary jury trial

a device used by courts to attempt to get the parties in the case to settle their dispute before going to a full-blown jury trial. attorneys present much-abbreviated arguments to jurors, no witnesses are called, and objections to evidence or other matters are strongly discouraged. After hearing arguments, jurors issue an informal verdict that can be used to settle the case. No 1A right of access to such proceedings bc not historically recognized and permitting access might work against its purpose.

a trademark should be used as

a proper adjective (never as a verb/noun) -a Kleenex tissue= can suffer Genericide but is used as an ajective to modify the brand -a Xerox copy - a google search -plastic strip adhesive V band-aid brand

the right of access to a presumptively open judicial proceeding or document under Press-Enterprise is not _____

absolute, it is only a qualified or limited right of access- one that can be overcome and denied if each of the 5 rigorous steps are satisfied.

surname trademarks

acquired distinctiveness necessary EX: Hilton, Hyatt

Copyright Registration

before a copyright owner can sue for infringement under the law, it must be registered with the federal government. 1. fill out proper form 2. pay a varying fee ($35 for an online book) 3. deposit two complete copies of the work with copyright office (one for unpublished works) 90 days to register a work, but after that you can still register it and bring suit, but a successful plaintiff in a suit cannot win statutory damages or compensation for attorney fees.

goal of trademark law

benefit customers:avoid confusion in the marketplace for goods/services benefit businesses: helps to advertise/prevent "free riding"

"extreme and outrageous"

beyond the bounds of decency and utterly intolerable in a civilized society. More than just insults and indignities

marks

branding:words, phrases, symbols and designs used to distinguish and identify source of goods/services -if it has a utilitarian purpose, then you cant register it for a mark -Nike swoosh (symbol) -publix "where shopping is a pleasure)

Very few types of speech fall completely outside the scope of the First Amendment protection... Unprotected categories of speech include:

child pornography including real minors, obscenity, fighting words under Chaplinksy, incitement to violence under Brandenburg V Ohio, certain types of libelous statements, advertising that is false, misleading or about an unlawful product or service.

Brandenburg V Ohio

clear & present danger/Brandenburg test. Brandenburg is member of KKK in Ohio, prosecuted for violating Ohio's criminal syndicalism law, prohibiting speech that advocates various legal activities. "we're not a revenging organization, but if our president, our congress, our supreme court continues to suppress the white race, it's possible that there might have to be some vengeance taken." -to his clan, no one but then & camera crew (bc good visuals) targets not there so no violence liley to occur bc no hostile crowd. Not imminent bc theyd have to go somewhere to find people, not directed language bc he says "if" and "might" Issue: did Ohio's criminal syndicalism law violate Brandenburgs right to free speech by 1A and 14? -loses until supreme court Rule: Court says 1969: "constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except... - Where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action •Directed in mens rea speak: intent •Imminent - certain proximity in time •Lawless: only people there were klan members, the targeted people were not there, no hostile crowd to attack in the situation. Makes it not imminent also. Brandenburg applies where media products incite violence: Bowling for Columbine movie

marks can also be:

colors distinctively associated with a brand, sounds distinctively associated with a company, distinctive design and appearance or look of a product, its packaging, a store, a restaurant.

Armstrong V H&C Communications, INC

complaint: invasion of privacy & outrage (in FL, IIED= tort of outrage) - armstrong suing for IIED. Regina abducted in orlando as 6-year-old and body discovered by construction worker. defendants take possession, media finds out. Memoral service & reporter goes to police wanting to do a story & see her remains, office shows her, she films it. Averse to running story, talks to news director above her, Ramsey. Air the footage on same day of memorial, Ramsey said were gonna run it "**** it" Gruesome & macabre at time of broadcast, watched by family. Armstrongs end up winning. defense of media company: we didnt intend to cause emotional distress

if the advocate or closure proves there is a substantial probability that such harm may occur, then the judge must

consider whether there are reasonable alternatives to closure that might solve the problem, perhaps through voir dire or change of venue would reduce probability of prejudice. Closure of the hearing or sealing of document should be the last option, not first, considered by the court.

fair use/limitations

defense you may assert if someone sues you for violating copyright •17 USC 107 •"reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use) scholarship, or research is not an infringement of copyright."

Generic words/terms

describe broad categories or classes of products or services and cannot be trademarked EX: Texas Toast, Duck Tours, Pizza Parlor, Shoe Store. (Apple is a generic term for a fruit and cannot be trademarked, unless used in an arbitrary way)

strength of a trademark is based on its

distinctiveness The more distinct, the easier to register with the USPTO and stronger it will stand in a trademark and infringement lawsuit.

Jerry Falwell

evangelical preacher in 1980s who led a conservative political group called 'The Moral Majority.' Sued Hustler for libel, invasion of privacy and intentional infliction of emotional distress. Trial judge and its publisher, Larry Flynt, dismissed invasion of privacy but sent the other 2 to jury. Jurors rejected libel (farfetched, not verifiable, rhetorical) but awarded him $200,000 in damages for emotional distress. ($100,000 for competitive, $100,000 for punitive damages) sues Hustler & Larry Flint in his home of Virginia, federal court. Jury finds it is IIED, they know, respect Falwell, agree with him. -goes to 4th court of appeals and Hustler loses again -writ and go to supreme court, granted. Supreme Court says if you are a public figure and you sue for IIED, you need to prove beyond the 4 elements and prove theyre factual, published with actual malice. would have to prove the parody was a false factual assertion, Hustler knew it was false. Hustler wins 8-0 bc it said "not to be taken seriously" -if Falwells mom was alive, private figure, she probably would have won the case.

Sweat of the Brow Doctrine

even though facts arent copyrightable, someone who invests substantial time and energy in amassing these facts deserves a reward for hard work. (phone book) rejected by supreme court (o Connor) as a bogus argument.

Natural Born Killers

poked fun at societies infatuation of media violence and glamorizing violence. People watch and then went to Wawa and shot clerk like in the movie, she sued Oliver stone: should not be held liable bc the intent/directed was to entertain/satire, not imminent bc the movie didnt tell people to go and shoot a clerk right then and there, not likely to incite an action.. 1 in millions actually did it. -Fails under Brandenburg test

Traditional military courts

press and public access to military courts is generally open under both military law and 1A. Exceptions: classified information, press and public access to pretrial hearings and courts-marshal of those in uniform has been routinely denied for years. Military has refused in many cases to provide any information about the pretrial hearing, declined to disclose courts-martial schedules and docketing information for both pre-trial and courts-martial and even withheld basic details such as the defendants name and criminal charge at issue.

in most situations, the following proceedings are regarded as open and can be closed only by a strong showing of the substantial probability of harm to some other compelling interest

pretrial detention hearings bail hearings plea hearings voir dire proceedings sentencing hearings attorney disciplinary hearings

____ has forced increased scrutiny of the juvenile justice process

public concern

secondary meaning/acquired distinctiveness

purchases, over time, associate mark with single source or origin for a single product -5 years continuous use, then register it -if you stop using your mark, you could lose it -use survey evidence to demonstrate it (if you show ppl louboutins and ask them to identify the brand)

use-based system

rights acquired by priority of actual use or file application with USPTO before use but have a "bona-fide intent" to use

Grand Jury Proceedings

secret, always have been.

stylized marks V character marks

stylized: design/logo used to register words/letters with a specific appearance, wording or design. character: used to register words, numbers, letters, combo

6th court of appeals said the press and public do not enjoy a presumptive right of access to a

summary jury trial

what gives congress the right to promote the sciences and the useful arts by protecting the rights of inventors (patents)

the Constitution

Genericide

the process of a once-trademarked term losing its trademark-protected status. Comes to represent as entire class of goods and no longer a specific brand within that class.

Fighting Words Doctrine

there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problems. These include... fighting words- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

misappropriation

unfair competition; sometimes invoked as an additional legal remedy is suits for copyright infringement, common law. Stops people passing off work as the work of someone else, work of someone else as their own. Supreme Court: AP V INS - pirated news. AP cant copyright bc there is too many and transmitted too fast, so INS said that it was in public domain to be used by anyone. opinion: no property in the news itself, but still some property interest.

Trademark Infringement

use of another company's business name or logo without permission, have to prove a likelihood of confusion.

patent

useful, non-obvious inventions and processes with utilitarian functions

First question in the Press Enterprise Test

whether the proceeding or document is presumptively open or closed. A hearing that is presumptively open, is one that is normally open to the public and the press.

since 1986 american courts have ruled that a ____ range of judicial proceedings are presumptively ____ to the press and public

wide, open

hate speech

words written or spoken that attack individuals or groups because of their race, ethnic background, religion, gender, or sexual orientation

plea agreements

written agreements between a prosecutor and a defendant in which the accused agrees to plead guilty, usually to a lesser charge than originally filed.

can 2 identical marks coexist

yes but only if unrelated -delta airlines/faucets - dove soap/dove chocolates

can a living persons name be used as a trademark

yes but you have to get permission to use it USPTO may deny if it consists/comprises a name, portrait or signature identifying a living individual except by his written consent Man from Ohio wanted to register Kavanaugh beer

show copyright how?

© Year by Name: dont have to have this, but if you do, you are claiming it, can put C in circle without actually registering it. -year = year of first publication today: U.S. no longer requires use of a copyright, is suggested as it provides notice toothers. ℗ - sound records

bundle of rights for copyright owner

•17 USC 106 •exclusive rights to: -reproduce copies -create derivative works -perform publicly -display/disturb property