Media Law and Ethics Test 3: Intellectual Property

List the three things necessary for the plaintiff to show to prove copyright infringement

1. A substantial similarity between the original and copied work. 2. A valid copyright on the original 3. That the accused had access to the original.

Two circumstances that determine a work for hire.

1. An employee produces a work as part of regular employment will not own the copyright. 2. A written contract determines that a specific work has been commissioned, and will be owned by the employer, not the employee.

List the five categories of distinctive trademarks

1. Arbitrary. 2. Fanciful. 3. Suggestive. 4. Descriptive. 5. Generic.

List five Genericized trademarks

1. Asprin 2. Heroin 3. Cellophane 4. Escalator 5. Trampoline. 6. Thermos 7. Dry ice 8. Kerosene 9. Laundromat 10. Linoleum 11. App store 12. Yo-Yo 13. ZIP code 14. Zipper 15. TV Dinner

List five types of works that are protected by copyright

1. Books 2. Movies 3. Audio Recordings 4. Plays 5. Video games and software 6. Music and lyrics 7. Pantomime and choreographic work 8. Paintings, graphics, and pictures. 9. Arcitecture.

A trademark must be:

1. Distinctive. 2. Identify the source of a particular good.

List the two significant interests outlined in the Lanham act

1. Interest of the consumer in knowing that a given product comes from a trusted producer. 2. Interest of the manufacture in being permitted to develop and control the good will associated with a product.

Fair Use requirements

1. Purpose of the use 2. Nature of the work 3. Substantiality of the portion used. 4. Effect on the mark.

List the elements necessary for a trademark infringement claim.

1. The plaintiff must prove that the defendant's use of the mark has created a likelihood-of-confusion between the goods. 2. Plaintiff must show they have developed a protectable trademark right. 3. Plaintiff must show the defendant that the defendant is using a confusingly similar mark. 4. The confusion can be that the defendant's products are the same, or the defendant is somehow associated with the plaintiff.

The copyright holder cannot successfully sue for online infringement if:

1. The site operator didn't know the content was used without permission. 2. The operator didn't earn money from the material 3. The operator quickly complied with a takedown notice.

List five works, items, etc. NOT protected by copyright

1. Works in an unfixed form (a song you sang in the shower) 2. Works in the public domain. 3. Ideas or facts. 4. Processes or systems 5. Titles, names, short phrases and symbols 6. Works by the federal goverment.

Lanham Act

1946 federal law that governs trademarks.

Sonny Bono and the Copyright Term Extension Act

1998, the House and Senate passed this act, and it was signed by Bill Clinton. Previously, copyright protection was preserved for 50 years after the death of the author. This act allowed for protection up to 70 years after the death of the author. The provisions applied to all works under copyright on the date of implementation. Named for Sonny Bono, singer and congressman thought copyrights should last forever. Disney helped lobby for the act after Bono's sudden death. Disney has vested interest in extending copyrights, since Mickey Mouse has been under copyright for a long time. Now, under the Act, Mickey's copyright won't expire until 2023. Mickey is worth $3 billion to the company.

How long does a copyright last?

95 years

Divisibility of copyright

A copyright can be divided and subdivided and each part can be sold independently.

Derivative Work

A later work based on the original, like a movie based on a book.

Arbitrary Trademarks

A symbol that has a common meaning that is unrelated to the good being sold (Apple for computers, Lotus for software)

Service mark

A word, name, symbol, etc. that is intended to identify the services of one provider from another.

Parody

A work is parody if it ridicules another by imitating it in a comic way. By nature, parody demands some taking from the original. Extensive use of the original work is allowed in order to "conjure up" the original.

Federal Trademark Dilution Act of 1955

Act of Congress that expanded the rights granted to famous and distinctive trademarks. Draws a distinction between normal infringement and "dilution." With dilution, there is no need to prove that confusion is likelihood to occur, nor is there a need to show competition. The use of a famous mark is all that is needed. Certain actions, such as fair use, non-commercial use, and news reporting do not constitute dilution.

Secondary Meaning

Arises when consumers identify a trademark over time. When this happens a business may be able to register a trademark they wouldn't have originally.

Blurring

By which the connection between the plaintiff's mark and the plaintiff's goods/services is weakened.

Generic trademark

Cannot be protected, since it describes a category or product or service. Corporations lobby and advertise to prevent their trademarks from becoming genericized.

Commentary and Criticism

Commenting on or critiquing a copyrighted work falls under fair use, and reproducing some of the work is allowed to achieve that purpose, such a quoting a few relevant lines from a song.

Trademark law protects

Consumers

Sid and Mary Kroft TV Productions v. McDonald's

Creators of H.R. Pufnstuf claimed McDonaldland commercials infringed on their copyright because settings and characters were similar in the two. This was because former Kroft employees had helped McDonald's develop the commercials.

1998 Digital Millenium Copyright Act

DMCA, also in 1998, provided copyright protection for internet broadcasting and works.

T or F: A TV news broadcast of a story belongs to the reporter who read it, not the station that aired it?

False: It belongs to the station.

T or F: The Bible cannot be copyrighted in any way?

False: Many modern translations of the Bible are copyrighted.

T or F: Under the first sale doctrine, the copyright holder keeps control of both their creation and any objects containing the creation.

False: The copyright holder only maintains control of their creation itself.

T or F: The Super Bowl, Who Dat, the Olympics, Madness, and the Elite Eight are not trademarked.

False: They all are.

T or F: Trademarks and service marks are exclusively regulated by state law.

False: Trademarks can be regulated by both state and federal laws.

T or F: Copyright infringement cannot occur on the internet.

False: it can occur on the internet just like in print.

T or F: Joint ownership does not work the same regardless of how many people are involved in the creation of the work?

False: it does work the same.

T or F: Downloading copyrighted music or videos does not infringe on a holder's rights?

False: it does.

T or F: 200 words is the upper limit of fair use on a written work.

False: it is 300 words.

T or F: Taping a TV program for personal use is copyright infringement.

False: it is legal under copyright law to tape a TV program so long as no profits are made off of it.

T or F: It is forbidden to rent a audiobook/book on tape.

False: it is legal.

True or false: registration with the US copyright office is required for a work to be copyrighted.

False: it is not.

T or F: A copyright disappears when the holder dies.

False: it remains in place.

True or false: If a copyright is infringed upon, the holder can sue even if the copyright has not been registered.

False: the copyright must be registered for a suit to be filed.

T or F: Video sharing sites are not protected from having to pay monetary damages if a user, rather than the site posts copyrighted material without permission

False: video sharing sites are protected from the actions of their users in this instance.

Intellectual property law

Governs copyright, trademark, and patents

Design Patents

Granted to anyone who invents a new design for an article of manufacture.

Plant patents

Granted to anyone who invents or discovers and produces a new variety of plant. DO NOT GET THIS WRONG!!!!!!!

Utility patents

Granted to anyone who invents/discovers a process, machine, composition of matter, new and useful improvement.

Takedown notice

Informs an ISP that posted content infringes copyright and it should be removed.

Harper and Row v. The Nation

Magazine published a section of Gerald Ford's memoir: the section which explained why he pardoned Nixon. Since this was the main part that people wanted to read, the Court ruled that publishing that section hurt the book's marketability. Harper and Row lost their contract.

Blurred Lines Case

Marvin Gaye's estate claimed that Pharrell Williams' and Robin Thicke's song "Blurred Lines" violated the copyright on Gaye's song "Got to Give it Up". Though the songs do not share any similarities that can be seen on sheet music, it was argued that the song is written in a similar style. Somewhat surprisingly to many commentators, the District Court ruled in the favor of Gaye's estate, which some believe allows artists to copyright a musical style. Which can be dangerous because it opens just about any artist who was ever inspired by another up to copyright infringement claims.

Exclusive right

Means only the person holding the copyright can determine how the work is used or copied

Can the news be copyrighted?

No, but a story about a certain incident can be. Neither can one news source prevent another from writing about a certain event.

Copyrights

Protect books, papers, manuscripts, music, film, software, and are

Patents

Protect scientific processes and inventions

Trademarks

Protect symbols, images, words, and phrases which identify products and services

What does copyright law allow the owner of a copyright exclusively to do?

Reproduce it, create derivative work, distribute copies, and perform/display it

Fanciful Trademarks

Symbol invented for the sole purpose of advertising and has no meaning other than for advertising the certain brand. Strongest type to protect. (Exxon, Kodak)

NY. Times v. Tasini

The Supreme Court ruled that freelance journalists can retain copyright on individual articles if they transfer copyrights between papers/magazines

Tarnishment

The defendant's use of the plaintiff's mark is unsavory/unwholesome, or the mark is used in connection with inferior products.

Substantial similiarity

The key in deciding infringement cases

Suggestive Trademark

The mark suggests what the good is used for and its benefits. (Jaguar is a fast automobile).

Bright Tunes Music Corporation v. Harrisongs Music

The plaintiff, Bright Tunes claimed that George Harrison's song "My Sweet Lord" copied substantially from "He's So Fine" by the Chiffrons. Harrison claimed he didn't know the song and didn't mean to plagiarize it. Court ruled that infringement happened because Harrison must have been subconsciously influenced by the song.

First Sale Doctrine

The policy that someone who buys a copy of a work they do not own the copyright to can do whatever they want with it. The copyright holder no longer has control over the situation. Distinguishes between physical object and intellectual creation.

T or F: The more an organization controls the work, the more likely it will be a work for hire?

True

T or F: When someone creates a work as part of their employment, the copyright is given to their employer?

True

T or F: it is forbidden to rent software and music

True

True or false: A copyright owner can sue an infringer for damages, and in some cases the government can bring criminal charges

True

True or false: A judge can award attorney's fees to the winning party in an infringement case.

True

True or false: An original work in a tangible medium is protected from the moment of creation?

True

True or false: Copyright protection is automatic once material is fixed in a tangible medium of expression?

True

True or false: ISPs can be sued based on content their users put on the system?

True

True or false: News cannot be copyrighted, but the description, and the style in which a report of the events that occurred, can?

True

True or false: The owner of a copyright can partially or fully sell away their exclusive rights?

True

True or false: Unauthorized copies of copyrighted material may be seized and destroyed

True

True or false: the owner can shorten or rearrange lengthen the work?

True

T or F: A columnist and newspaper can sign a contract that determines that the columnist will retain copyrights to their columns when/if they leave the paper?

True.

T or F: A copyright holder can transfer a copyright in their will.

True.

T or F: A works creator owns the copyright with some exceptions.

True.

T or F: Copying pictures owned by another into a website or paper without permission violates copyright law.

True.

T or F: Copyright holders can license or lease their rights.

True.

T or F: Copyrights and patents are exclusively regulated by federal law.

True.

T or F: If two people create a work, each of them owns half of the copyright.

True.

T or F: The DMCA forbids software that would disable anti-copying features on DVDs.

True.

T or F: The DMCA prohibits removing or changing copyright information

True.

T or F: The DMCA protects ISPs if they remove material that is illegally posted

True.

T or F: The Super Bowl is both copyrighted and trademarked?

True.

T or F: The elements of a successful trademark claim are established under both federal and state case law.

True.

T or F: a scholar who writes a book about a specific historical topic cannot prevent someone else from writing about the same event.

True.

True or false: Certain things pass into public domain?

True.

True or false: a copyright holder can sue for actual damages including income the holder lost and profits the infringer made

True.

Work for hire

When an employer owns a work created by one of its employees.

Can domain names by copyrighted?

Yes, but the suffix (.org, .com) cannot be.