MC 401 Exam 3

Advertising Law Advertising and the First Amendment -Before ..., advertising ... ... ... by the First Amendment (any ... ... was fine) Bigelow v. Virginia (1975) "The relationship of speech to the ... of ... or of s... doesn't make it valueless in the ... of ...!" BUT advertising is "subject to ... ..." -Advertising is one of the more highly ... forms of speech. BUT for decades adverising was not considered ... by the First Amendment meaning there was no limit on ... ... 1975-on, but really 1978-on, not all regulation by the government was acceptable Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) -Basis for the ... ... D... Commercial Speech Doctrine -Also known as the ... ... ... The First Amendment does not protect either ... or ... ads or ads for ... goods or services Example: A political speech or discourse involving ... claims on Twitter is allowed BUT ... claims in advertising is not Example: Commercial promoting apple juice, says it cures cancer - ... claim and is not allowed! Government may regulate ... advertising for ... goods and services if the following conditions are met: 1. There is a ... state ... to justify the ... 2. There is evidence that the ... directly ... the ... (cannot be speculative!) 3. There is a ... ... between the state ... and the ... ... If you do regulate ... advertising for ... goods or services, need a particular reason for doing so and demonstrate the ... ... targets that particular reason Aim is to protect as much speech as possible but ... the harmful speech of government concern Think of it like obscenity law: Obscenity is never OK (like ... or ... ads or ads for ... goods or services) Indecent material is limitedly protected by the First Amendment but can be subject to regulation based on particular reason and evidence regulation will advance that reason (like ... advertising on ... goods or services) What is "commercial speech?" Expression that either: a. Is related solely to ... interests of the ... and its ..., OR (promoting commerce to a particular company) b. Proposes a ... t... (buy this good or service from me!) To determine if speech is commercial speech, three factors: 1. Whether the expression is an ... (aim to sell a product) 2. Whether it refers to a ... ..., and 3. Whether the speaker has an ... ... for speaking (to make money for selling a product) If it is commercial speech, then you apply the ... ... ... Unprotected Commercial Speech -Receives NO First Amendment protection whatsoever 1. Government may ban ..., ..., or ... advertising 2. Government may ban advertising to ... goods and services Regulating Protected Commercial Speech (... and ... commercial speech) Central Hudson Test 1. Government must assert a ... state ... to justify the ... -Advertising by doctors and lawyers often limited by states: their ... state ... is the public isn't sophisticated enough to evaluate claims made by these professionals, and even perfectly truthful claims can be deceptive - protecting the public from such deception -Support reasonable drinking by prohibiting liquor ads on TV (... state ...) -Links between smoking and cancer, reduce advertisements for smoking to mitigate smoking use (... state ...) 2. Government must demonstrate the ... on advertising it has instituted will ... ... the ... -Think of the interest as a kind of ... the state is seeking to reach: will the ... on advertising help the state reach this ...? -Goal: Reduce but not eliminate (people make their own choices) amount of alcohol consumption or smoking consumption - Regulation: allow print ads but not TV ads (print ads have smaller, more refined audiences than TV) 3. The state must show there is a "... ..." between the state ... being asserted and the government's ... "... ..." pertains to facts, not ...! "... ..." = ... ..., but doesn't have to be the ... ... means available (can go a little beyond the goal if reasonable!) Example: Ban on listing alcohol content on labels attached to bottles and cans of beer and malt liquor - don't put the content on the can to prevent young people from wanting to buy the one with the highest content - taking that on will not solve the problem, the assumption of advertising does not translate into how real people would use or react to such advertising

-1975, was not protected (government regulation) -"The relationship of speech to the marketplace of products or of services doesn't make it valueless in the marketplace of ideas" Yet the court was also clear in Bigelow that advertising is "subject to reasonable regulation" Regulated, protected, government restriction Commercial Speech Doctrine Commercial Speech Doctrine The 1A does not protect either FALSE or MISLEADING ads or ads for UNLAWFUL GOODS or SERVICES Government may regulated truthful advertising for legal goods and services if the following conditions are met: a. There is substantial state interest to justify the regulation b. There is evidence that the regulation directly advances the interest c. There is a reasonable fit between the state interest and the government regulation Central Hudson Test False, false, false Truthful, legal, regulation narrowly targets Narrow False, misleading, unlawful Truthful, legal Determining what constitutes commercial speech, however, is not easy! Courts still wrestle with this threshold issue, often defining it as expression that either è Is related solely to economic interests of the speaker and its audience, or è Proposes a commercial transaction In some cases it is not easy to distinguish political speech from commercial speech, as courts recently have observed! But the difference is critical because it is much easier for the government to justify a law regulating commercial speech under the Central Hudson test (as the commercial speech doctrine is sometimes known) than it is to regulate political speech under the strict scrutiny standard. In cases involving speech transpiring (occurring) in the context of promotional materials and activities (a doctor, for instance, giving a talk or seminar about a new drug), court sometimes weigh three factors to help determine if it is commercial: (1) whether the expression is an advertisement, (2) whether it refers to a specific product and (3) whether the speaker has an economic motivation for speaking Central Hudson test 1. The government may ban advertising that is false, misleading or deceptive 2.The government may ban advertising to unlawful goods and services. Legal and true 1. The government must assert a substantial state interest to justify the regulation 2. Next, the government must demonstrate that the ban on advertising it has instituted will directly advance the interest Goal, ban, goal 3. Finally, the state must show that there is a "reasonable fit" between the state interest being asserted and the government's regulation Reasonable fit, facts, assertions Narrowly tailored, least restrictive

Factors of Fair Use 3. Proportion of Work Used -... of work used is not as important as the r... ... of a work used Example: You use 200 words of a work. OK, but how does this translate to the ... of the work? (200 words of a 2000 word essay versus a 500 word article, very different r... ...!) -A sentence in a book vs. a sentence in a tweet (the r... ... is very different!) Includes both ...g and ...g! Music Sampling Example: Daft Punk - always sampling in their music - borrowing and reappropriating other songs - mix and transform in some kind of way -... and ... use is important! -In this case, they use not even a full lick of the song - taking a section and chopping it up to create a new song Appropriating copyrighted work but the ... allows this to occur! In this example they made the original ... (therefore not stealing the ... ... through this use, is ...!) VS. If they took 2-5 seconds of the song and repeated it (not a ... use!) Parody -1992, ... Circuit Court of Appeals ruled that "... ... can ... be fair use!" -Supreme Court ..., clearing way for ... ... [Supreme Court said no!] -Copyright law doesn't require a work to ... on the ... to be protected by fair use! -A parody does not have to be a ... of the thing it is ..., can be a ... of ... ...! Example: Saturday Night Live - taking an ad and recreating it exactly but lampooning ... ... entirely!

-Amount of a work used is not as important as the relative proportion of a work used. Whole Relative proportions Includes both copying and paraphrasing Music sampling Proportionality, proportionate use Proportionality Indistinguishable, original audience, transformative Transformative Parody -1992, 6th Circuit court of appeals ruled that "commercial parody can never be fair use." -Supreme Court overruled, clearing way for commercial parody -Copyright law doesn't require a work to comment on the original to be protected by fair use. Critique, parodying, critique of something else Something else

Review: Trademarks are any w..., n..., s..., d... or combination thereof that is used by a company or individual to ... its ... and ... -Has to do with b... and ...! -These are ... for s...! Service marks are used to distinguish a company or individual's services Example: GreatCuts or Massage Envy (not selling a product, selling a service) 4 functions of trademarks: 1. ... one ...'s goods and services and ... from goods sold by others 2. Signify that all goods bearing the trade- or service mark come from a ... ... 3. Signify that all gods bearing the mark are of an ... ... of ... 4. Serve as a prime instrument in ... and ... goods Trademarks are ... unless... -A mark is not used to identify a product for 3 or more years -Genericide - a once-trademarked term losing its trademark-protected status (due to its common vernacular use, a company not protecting its brand from such common usage) -Blurring - a diluting mark impairs the distinctiveness of the famous mark by the degree of similarity between marks VS. patents -... years -Exclusively permit the invention itself -Protects how a product is produced not how a product is marketed/advertised to set it apart from similar products iPhone example: Patents: The iPhone, including its technical components and design features that make it a useful object Trademark: The little apple logo on the back of the phone (brand logo), the layout and design features of the store (trade dress), aspects of packaging of the product that are designed to help consumers distinguish between iPhones and their Android competitors (trade dress), the brand name "Apple" Copyright: Apple produces a television show that you can exclusively watch on Apple TV, that television show would be copyrighted by Apple Copyright (has duration too, unlike ... - not ...) -Obtains to ... works! -Extends to "... works of authorship fixed in any ... ... of ..." ...: Some ... or ... in the manner in which the facts are organized or selected or coordinated -Cannot copy ... works (Example: Fanfiction - need permission of original authorship) ...: Sufficiently ... or ... to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a ... duration -Example: Running down the street and shouting random words - this is ephemeral/... -Snapchat - posts that disappear in a few seconds, hard to copy that -Must be ... - designed to circulate or be ...! Purpose is not to ... the ... of authors (which is why there is an ending to protection, it isn't forever) - but to promote the ... of ... and the ... Example: Works are protected finitely, then it goes into the public domain -Great Gatsby -Pride and Prejudice -These are works now in the public domain - almost immediately have derivative works published With copyright protection, comes six exclusive rights recognized under the law 1. ... the work - because we're dealing with ..., why it has to be fixed in a tangible medium 2. Prepare and create ... works - this is another work based on characters you created 3. Publicly ... the work 4. Publicly ... the work 5. Publicly ... the work 6. Publicly ... a ... ... ... If you do not own the content (and therefore own the copyright) you cannot do this without permission of the copyright owner - but there are ...! One such ... is ... ... - this is what allows us to use a small direct quotes from creative works copyright protected -Depends on the ... of the thing you're ...! Example: 1 line in a 300-line poem vs. 1 line in a 3-line poem (works with short durations, gets complicated) Review: Intangible property - can't be ..., ... or ... ... away for ... ... -Harder to protect, wide and sprawling area of the law -This property is out in the world circulating Example: We all own books, can do whatever we want with the ... ... (burn, donate, send to friend) But the ... contained within the book, someone else owns that - cannot ... or re-... it! Four areas of intellectual property law 1. Copyright 2. Trademark 3. Patent 4. Trade law - intellectual property related to business ideas (not covering) Patents -Protect and i... ...! -... give the details and secrets of their ... to the government, the government then publishes them (publicize to protect it! and people can see the work you've done and build on it) Example: Ergonomic chair -Other inventors can look at this chair and try to tweak and improve it - not aimed to ... one inventor but to take the idea and build upon it ... get a ...-year, ...-sanctioned .... -> the ... is allowed to sell for ... years with no ... (sell the original design with no ...) - after the ... years, anyone can use it Example: Velcro invented the hook-and-loop tech, after ... years other companies could use it without paying Velcro company (the original company who designed the tech) Three types of patents: 1. ... with ... (a ... or ...) 2. ... (the ... of an article of manufacture) Example: a phone looks a certain way, chair is shaped a certain way (FOR FUNCTION) 3. Plants reproduced asexually (cuttings or grafting) - doing it on purpose, take the plant and another to hybridize Trademarks Any ..., ..., ..., ... or combination thereof used by a company/individual to ... its goods and services from those produced by others All about ... a product To ... it from other products of similar companies (Vs. patent that has to do with invention, a new product or item) Both patent and trademark involve some element of ... (but the ends of ... are different) -Patent - the ends of ... is utility of the product (how it functions, operates)! -Trademark - the ends of ... is selling the product! Four main functions 1. Identify one ...'s ... and ... them from the ... sold by ... 2. Signify all goods bearing the trade- or service mark come from a ... ... Example: Buying something that says "Apple," you know you will get that same surface interface/quality 3. Signify that all goods bearing the mark of an ... ... of ... Example: Whether Coke is in a can or in a bottle, you expect and know the taste/quality will be the same (you know what you'll be getting) 4. Serve as a prime instrument in ... and ... goods Copyright -"... works of authorship ... in any ... medium of ..." -Protecting ... works! Could be a book, image, art, music, film, and much more So if patents deal with invention; trademark deals with selling things; copyright deals with the protection of ... works (same blank) Original = "some ... or ... in the manner in which facts are organized, selected, or coordinated" Tangible: "sufficiently ... or ... to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a ... duration" The purpose isn't to ... the ... of authors, but to promote progress of ... and the ... Both copyright and patent have ... - neither can be blurred, only end through time and ...! Trademark has no end - unless a period of non-use has occurred for three or more years (must reapply for trademark protection), genericide, blurring

-Any word, name, symbol, device or any combination thereof that is used by a company (or individual) to distinguish its goods and services from those produced by other companies. -Four main functions: 1.Identify one seller's goods and distinguish them from goods sold by others. 2.Signify that all goods bearing the trademark or service mark come from a single source. 3.Signify that all goods bearing the mark are of an equal level of quality. 4.Serve as a prime instrument in advertisement and selling goods. Branding and marketing Goods for sale Indefinite 20 years Trademarks, forever Creative Derivative Fleeting Tangible, reproduced -Copyright extends to, "original works of authorship fixed in any tangible medium of expression." -Original: "some novelty or originality in the manner in which the facts are organized or selected or coordinated" -Tangible: "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration" -Purpose is not to reward the labor of authors, but to promote the progress of sciences and the arts. Six exclusive rights recognized under law: 1.Reproduce the work 2.Prepare and create derivative works 3.Publicly distribute the work 4.Publicly perform the work 5.Publicly display the work 6.Publicly perform a digital sound recording Reproduction Loopholes Loophole, fair use %, reproducing Touched, held, physically locked away for safe keeping Physical book Ideas Duplicate, resell Incentive invention Inventors, invention Reward Inventors, 20 year, government sanctioned monopoly, competition Inventions, utility (machine or process) Design, appearance Word, name, symbol, device Distinguish Selling Distinguish Design, design, design, design Seller's goods and distinguish, goods, others Single source Equal level of quality Advertisement, selling Durations, duration

Copyright and Infringement -Your copyright ... should include the following: -The word "..." -The symbol "..." -The ... of ... (periodicals = ... of publication; books = ... when first offered for sale) -The ... of the copyright .../... ("by ...") Example: Copyright © 2022 by Josh LeBerte Before 1989, ... were ... in order to be protected from infringement After 1989, ... are not ... but ...! Copyright law protects the "i... i..." from liability - someone who claims to accidentally infringe but not intentionally (did not know the copyright existed) ... helps prevent these claims of i... i...! ("You should have known!") Copyright Registration -Before a copyright holder can ... for ..., copyrighted work must be ... with the ... ...! 1. You fill out a form 2. You pay a fee (e.g., $35 for registering a book) 3. You deposit ... ... of the work with the federal Copyright Office (only ... ... for ... works!) Must register within ... days of .../p... Failure to do so means no ... d... or ... f... Can just not register your work before ... days, but there would be no financial rewards/damages should you register after an infringement occurs (going to sue for infringement) You have ... at the date and time of ..., but there is the incentive to ...! To receive those financial rewards/damages if you need to sue Copyright Infringement -The ... of ... is ... years! (This is how long you have to ... after an infringement occurs) But courts are split on how to define this ... of ... (same blank)! ... rule - the clock starts ticking when an ... ... o...! (regardless of if the copyright ... ... of the infringement or not!) ... rule - the clock starts ticking when the copyright ... l... of infringement! Different jurisdictions will use different rules! Some jurisdictions have not e... a... ... rule! But the ... of ... is still ... years regardless! More on Copyright Infringement -There is no ... ... of "infringement" (no ... ...) -Anyone who violates any of the "... ..." infringes [violate the "... ..." to reproduce, distribute, creative derivative works, etc.] Three criteria for determining infringement: 1. Is the ... on the plaintiff's work ...? -Did you indeed write the work, have it then ... and ... it before filing for an infringement suit Did you ... the copyright like you were asked to, provide evidence you published in that particular year, etc. Things get more complicated for works not ... yet - for ... work it is critical you ... to protect it (you should ... it to protect it) 2. Did the defendant have ... to the plaintiff's work ... to the alleged infringement? -Plaintiff has to prove this is not just ... ... - like with the estate of Marvin Gaye: Proving the creators (defendants) knew about the original song - deposition under oath: Did you know Marvin Gaye had this one song or have you ever heard this one song? Can not be the product of ... ... - need to prove the defendant had means of ... Example: A U.S. and U.K. author work on a fantasy novel, happen to publish at same time on the same idea/premise -If in the same country and both published, would be a lot easier to prove Vs. J.K. Rowling stole the work I have in my journal I have yet to publish! (Rowling would have no ... to your journal) 3. Are the two works ... ...? -The ... or ... will sit down and compare the two works - all a ... ...! This is during the trial when the judge and jury look at the works in front of them and note their similarities or differences D... or l... ... seems easy enough to challenge But many cases involve appropriations of the "f... e... or s... of the work" (things get more complicated) Example: The words between the works are not identical, but the logical progression of narrative is similar or the character development is similar Example: Repetitive elements in songs - similar riffs, notes, musical gestures When this happens and it goes to trial, the court applies... S... S... test (this test is to determine whether ... has occurred in more n... cases): 1. Is the g... ... or ... ... of the works the same? 2. If yes, then how is the ... or concept ... in the works? This is up to the ... of the .../... in the case -Not easy to prove ..., but many try -Most cases ... ... of ... - the process of litigation is ... and it also depends on what ... or ... will decide the case (whether or not they rule in your favor, all putting it up to chance) (some do not want to risk that) - why a lot of these cases are ... ... of ... (same blank) (think of the long-lasting, cost-intensive process of going to trial and then appealing) Example: There are two books centered on a boy wizard who learns about magic -Even if it is slightly different in plot, overall the same structure or similar plot development (could be ... ...!)

-Before 1989, required in order to be protected from infringement. -After 1989, not required but recommended. -Copyright law protects the "innocent infringer" from liability -Notice helps prevent claims of innocent infringement Notice Copyright © Year/date of publication (going to be a year) Name, holder/owner Notices, notices Registration -Before a copyright holder can sue for infringement, copyrighted work must be registered with the federal government -Fill out a form -Pay a fee (e.g. $35 for registering a book) -Deposit two copies of the work with the federal Copyright Office (one copy for unpublished works) -Must register within 90 days of creation/publication. uFailure to do so means no statutory damages or attorney fees. Copyright, creation, register -Statute of limitations is 3 years Sue -Injury rule: Clock starts when infringing act occurs Owner knows -Discovery rule: Clock starts when copyright holder learns of infringement -Some jurisdictions have not explicitly adopted either rule Statute of limitations, 3 years -No statutory definition of 'infringement' (legal definition) -Anyone who violates any of the "exclusive rights" infringes Three criteria for determining infringement 1.Is the copyright on the plaintiff's work valid? -Copyrighted, registered Register Published, unpublished, register 2.Did the defendant have access to the plaintiff's work prior to the alleged infringement? Parallel thinking 3.Are the two works substantially similar? Jury or judge, judgment call! -Direct or literal copying seems easy enough to challenge -But many cases involve appropriations of the "fundamental essence or structure of the work." Substantially Similar test (infringement, nuanced) 1.Is the general idea or general theme of the works the same? 2.If yes, then how is the idea or concept expressed in the works? uNot easy to prove infringement, but many try -Most cases settled out of court. EXPENSIVE, judge or jury Substantially similar Discretion of judge and jury

Trademarks Duration -Trademarks can be ... (have no e... ...) (could last ...) But trademarks are not automatically ... a. Can be ... if not used for ... ... Example: A company that sells a product and the company then goes out of business. If this company reopens but it has been more than ... ... since it has sold that product, they will have to re-register the mark unless another company has already taken it b. Can be .... (g...) G... -The process of a once-... ... losing its ...-... status -It is the responsibility of the ..., not the ..., to protect against this from occurring (the ... has to protect itself through ... and ... and to continue doing so) Brand names like Kleenex ("Pass me a Kleenex" in lieu of a tissue), Coke (synonymous with Cola drinks) -Velcro - associate Velcro with any shoes with fastening technology - we start to call non-velcro shoes velcro shoes (common practice) Example: Velcro was once patented, hook and latch to help shoes stay on. Velcro - had patent but its ... years expired - use same technology (hook and latch) but do not call it Velcro -Xerox - synonymous with fax machine Example: the Velcro video -The ... for Velcro expired, Velcro's technology now in the open market for companies to make similar products, company has to try and protect its trademark - need to distinguish Velcro from other hook-and-loop technology -Velcro uses a video, will create a legal argument - trying to prevent this common practice (calling non-Velcro products Velcro products) -Velcro was once ..., now that it has expired, harder to protect its trademark from s... ... of ... Federal Trademark Dilution Act -Legal mechanism to ..., to protect trademark under the law from encroachment -Created by Congress in ..., amended in ... -Only applies to "..." trademarks -"..." trademarks - w... r... by general c... p... of the United States as designation of s... of the goods or services of the mark's o... -Coke, Velcro, Pepsi Considerations: -D..., e..., g... r... [national brand] -A..., v..., g... e... [only selling in one area vs. nationwide] Under this act, two ways a "..." mark can be ... 1. ... -The d... mark "impairs the ... of the ... mark" primarily by the degree of ... between marks Example: Jack in the Box (trademarked) Jack's (trademarked) -Same color, curly font, sell s... p... Though they are incredibly similar in their mark, this is not ... [have as separate marks] because they do not ...! (They do not share the same ... ... where they're selling) -Jack in the Box and Jack's - d... a... they're selling -If Jack in the Box came into Alabama or Jack's went national, then this could be ... (could cause c... ...) ... = to make confusion 2. ... -The diluting mark harms the ... of the ... ... by connecting it with something d..., n... or o... Example: If Jack in the Box was lax with its food prep and had an outbreak of Salmonella Could impact Jack's if they share the same market in the same area, people may start to associate the two, think Jack's "has the Salmonella problem" too ... = has to do with ...! Remedies -... prohibiting continued use (stop using that brand until everything is sorted out) (can ... - lead to an ... or ... d...) -... (don't have to prove ... h... [sales are down], just ... h... to trademark [do need to prove ... are ...]) Loopholes -... works Example: You're producing a play and the actors drink Coca Cola in the play -Warhol painting with Campbell's soup cans -... (as long as it does not ... ...) -Example: Chewy Vuiton - purses for dogs - no ... among ..., would not hear "Louis Vuitton is making dog toys now!" Disparaging Trademarks Trademark Act of 1946 -Prohibited ... of a mark that consisted of "..., ... or ... material, or material which may d... or f... s... a connection with persons, ... or ..., institutions, beliefs, or national symbols, or bring them into contempt or disrepute" Example: Washington Football logo - name originally included a racial slur - could not trademark (but argument: other people can ... that logo, no e... ...) Matal v. Tam (2017) [8-0] -Supreme Court held this clause was ..., a ...-... ... on ... of ... -... held the government cannot deny ... for d... remarks while allowing registration for ... or b... words Reappropriate racial slur in band name, The Slants - trying to register for trademark Supreme Court found the Trademark Act of 1946 caused a ... ...- could trademark racial slurs but given the political climate Washington football team still changed its brand name The Court sided with ... ... (harken back to our discussion on the 1A) Patents = inventions = 20 years Trademark = marketing, trying to sell things = forever unless genericide, diluted, or 3-year period of nonuse

-Duration -Can be perpetual -Can be abandoned (3 years) -Can be lost -Genericide -The process of a once-trademarked term losing its trademark-protected status -Responsibility of the company, not government, to protect against Expiration date, forever, forever -Three years (Genericide) Company, lawsuits, branding Federal Trademark Dilution Act -1996, amended in 2006 -Only applies to "famous" trademarks -"widely recognized by the general consuming public of the United States as designation of source of the goods or services of the mark's owner" -Considerations -Duration, extent, geographic reach -Amount, volume, geographic extent Two ways a "famous" mark can be diluted -Blurring -The diluting mark "impairs the distinctiveness of the famous mark" primarily by the degree of similarity between marks -Tarnishment -The diluting mark harms the reputation of the famous mark by connecting it with something distasteful, negative or objectionable Sue Similar products Blurring, compete Geographic area Different areas Blurring, consumer confusion Blurring Tarnishment = reputation Remedies -Injunction prohibiting continued use [sue, injunction or monetary damages] -Damages -Don't have to prove economic harm, just current harm to trademark [consumers are confused] -Loopholes -Expressive works -Parody [confuse consumers] Trademark Act of 1946 prohibited registration of a mark that consists of "immoral, deceptive or scandalous material, or material which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute." Create, exclusive rights Matal v. Tam (2017) -Supreme Court held this clause was unconstitutional, a viewpoint-based restriction on freedom of expression -Unanimously held that the government can't deny registration for disparaging remarks while allowing registration for positive or benign words Double standard Hate speech

FTC tools or remedies to stop false ads 2. ... ... -... agreements by advertisers to ... (stop running) a deceptive advertisement ("I will ... remove this ad from the market") -Issued for advertising campaigns that are ... or ... ... -If FTC believes a claim is deceptive, a company can ... ... to ... the advertisement and ... use the claim ... Doing so does not constitute ... of ... Agency makes no formal determination of ... (NO LIABILITY) -... used! (#3 tends to be used far more) 3. ... ... -FTC may ask advertisers to ... an ... promising to ... a deceptivr advertisement -Most ... ... remedy -Adveriser admits ... ..., and no ... (no fees or penalties if you follow it) -Merely a ... not to do something in the ... -... ... carry the ... of ... (should you sign, must follow the provisions of it) - violating one results in c... ... of up to $...! 4. ... ... -Sometimes an advertiser doesn't want to ... a ... ... (maybe an advertiser doesn't agree it's deceptive - believes it to be true or is lucrative [making a lot of money from the claim]) -FTC may order advertisers to ... a particular advertising claim, with ... for failure to ...! (you're forced to ...) -Failure to abide by provisions of a ... ... can result in a ... ... of as much as $... per day! More muscle, intensity Loophole: If an ad is making more than $.../day, may keep running it - view it as a cost for further success

Voluntary compliance Voluntary agreements by advertisers to terminate a deceptive advertisement. Issued for advertising campaigns that are over or nearly over If FTC believes a claim is deceptive, a company can voluntarily agree to terminate the advertisement and never use the claim again Doing so does not constitute admission of guilt Agency makes no formal determination of deception Infrequently used Voluntarily Consent agreement FTC may ask advertisers to sign an agreement promising to terminate a deceptive advertisement. Most commonly used remedy Advertiser admits no wrongdoing, and no liability Merely a promise not to do something in the future Consent agreements carry the force of lawu Violating one results in civil penalty of up to $16,000 Comply Litigated orders Sometimes an advertiser doesn't want to sign a consent agreement FTC may order advertisers to terminate a particular advertising claim, with penalties for failure to comply. Failure to abide by provisions of a litigated order can result in a civil penalty of as much as $10,000 per day

Digital Millennium Copyright Act (1998) -Relating to digital material [the original copyright law has crafted in analog times, as more things go online, Congress has had to revise the laws - intellectual property on the Internet) -Mid-1990s: W... I... P... O... drafted two ... to extend copyright protection to owners of ... works -1998: U.S. agrees to new rules, passing the Digital Millennium Copyright Act (DMCA) -Law goes ... WIPO ... -Prevents ... of technological measures to control ... to copyrighted works -Outlaws ..., ... or ... of devices used to ... reproduction control measures There are digital elements that prevent you from copying materials - those elements are protected more in the US than other countries Example: You used to not be able to upload songs from a CD onto your computer as MP3s and upload them. Could more difficult to copy VHS tapes, DVDS, burn CDs, etc. S... ... (LOOPHOLE) -DMCA exempts ... ... ... (...s) from copyright ... for simply ... copyrighted materials users have put on the ... -As long as the ... takes down material when n... of its ... o... that it was uploaded without ..., ... is protected from ... Example: You put a music video on YouTube without authorization of the musician. The musician can call YouTube to get it taken down, but cannot then sue YouTube. May sue you as the uploader though -Similar to Section 230 and libel law: If you libel Musk on Twitter, Musk can sue you but not Twitter (Twitter is acting as a conduit than a publisher/speaker) Example: Rogen and Franco made video reproduction of Bound 2 (West song) - YouTube did not take down the video but did take down the original song (YouTube took down the song - making sure they don't get sued by West - safe harbor loophole) File Sharing -... but w... -Wasn't a problem until the late ... (sites like Napster and Limewire popping up) -Lots of ... in early '00s (the recording industry suing against file sharing platforms like Napster, individual file transferers; recording industry and musicians losing a lot of money due to file sharing) -Litigation ... after ...: -Problem appeared ... (after more than a decade of suing individual file transferers, not getting enough profit; not promoting the goodwill among music listeners) -Rise of streaming services (YouTube, Pandora and eventually Spotify - these pay-for-play subscription services (or play for free with advertisements) Today, the music industry at large can get back into profits (at lower rates) and listeners can access music without blatantly stealing BUT all in the hands of just a few platforms Freelancing -Writer or photographer creates the work, and is the i... ... of copyright -Many outlets have contracts that require ... o... of copyright to the o... - give the ownership to us Not all contracts allow individual rights - outlets will determine what rights you have upon giving them your work -... rights: After publication, you may regain your rights as the owner of copyright -Or in ... (... rights): Publisher use and own the work forever Example: Bauer published a piece with Politico - the contract stated you wrote this thing and we are treating it as work for hire (pretending you wrote for us as an employee for our company - in other words, you get no copyright claim as an individual) -... writers/photographers often don't have much choice -BUT it's always OK to ask for future use rights, can push back - ask for a contract amendment -I...-... freelancers can negotiate to ... r... -C.. ... for publication to ... rights, and then ... rights to creator after p... (retain your right as owner for future use) Know your rights, read your contracts, treat them seriously! Damages -If the plaintiff can prove copyright infringement... -Remember if a copyright is not ... before the suit (within ... days of creation), limited in the damages you can receive OPTION A: Plaintiff must prove the the court the amount of ... or the amount of the ...'s ... (... damages) Example: I sold X amount fewer copies than I would have OR here's the ... of the other work made OPTION B: Or, plaintiff can request ... damages [built into the federal statute]: -Smallest is $... per infringement -Highest is $... per infringement The amount per infringement received depends on the ... of infringement, the ... of infringement, etc. -If plaintiff can prove infringement was ... (on purpose) and ... (despite being told not to for example), maximum damage award can be as much as $... per infringement

-Mid-1990s: World Intellectual Property Organization drafted two treaties to extend copyright protection to owners of digitized works -1998: U.S. agrees to new rules, passing the Digital Millennium Copyright Act (DMCA) -Law goes beyond WIPO treaties -Prevents circumvention of technological measures to control access to copyrighted works -Outlaws manufacture, importation or sale of devices used to circumvent reproduction control measures Safe Harbor -DMCA exempts Internet service providers (ISPs) from copyright liability for simply transmitting copyrighted materials users have put on the Internet. -As long as ISP takes down material when notified of its rightful owner that it was uploaded without permission, ISP is protected from liability. File Sharing -Illegal but widespread uWasn't a problem until the late 1990s -Lots of lawsuits in early '00s -Litigation declined after 2009 -Problem appeared intractable -Rise of streaming services -Writer or photographer creates the work, and is the initial owner of copyright -Many outlets have contracts that require transferring ownership of copyright to the outlet -Beginning writers/photographers often don't have much choice -In-demand freelancers can negotiate to retain rights -Common practice for publication to buy rights, and then reassign rights to creator after publication. -Plaintiff must prove the the court the amount of loss or the amount of the defendant's profit. [actual] -Or, plaintiff can request statutory damages -Smallest is $750 per infringement -Highest is $30,000 per infringement -If plaintiff can prove infringement was willful and repeated, maximum damage award can be as much as $150,000 per infringement Registered, 90 Profits Extent, circulation, etc. LIMITED RIGHTS In perpetuity PERPETUAL RIGHTS

Factors of Fair Use 4. Effect on Market -Most courts give this factor the ... ... when considering a fair use claim -The new work inhibits the ability for the original owner to make ... off of their original work -Plaintiff often must demonstrate an a... ... impact from the ...g! Even if a work falls out of fair use, even if you shouldn't do that - it all happens through ...! -Meaning, the person who you've ... has to find out about the ... and THEN file a ... (if you a use falls outside of fair use, it is not an ... punishment!) Example: If you're making fanfiction (derivative work against the permissible bounds of fair use), but you're just doing it on Live Journal - nobody will find out about it, so it's still fine even though it is outside of fair use! -If Rowling found you trying to publish it, may be sued for misappropriation - infringing on her ability to make derivative works (make money from her original characters, etc.) Example: Marvin Gaye's estate argued the money made from the "Blurred Lines" song by Robin Thicke and Pharrell Williams should have been going to the estate, instead people were buying the new song and not the old one (effect on market) Effect on market - could prove the songs were similar, so this was seen as an effect on market or losing value of the original work

-Most courts give this factor the most weight when considering a fair use claim. Money -Plaintiff often must demonstrate an adverse economic impact from the copying.

-For many years U.S. trademark law forbade only the use of a registered trademark or trade name on a product that was ... to the product produced by the owner of the trademark or trade name! (Example: A competitor to Apple couldn't call its tablet an iPad, but the manufacturer of exercise equipment could call its treadmill an iPad) -But in 1996 Congress, following the lead of 27 state legislatures, added more muscle to the trademark protection when it adopted the... ... ... ... ACT -Later amended by the Trademark Dilution Revision Act of 2006 -These statutes only apply to and protect "..." trademarks, including names, slogans and logos -Specifically ... marks are protected by dilution statutes from having their v... w... (diluted) by other marks regardless of whether or not the other marks are for ... products and regardless of whether consumers are actually ... as to who is producing the products! While proving a likelihood of ... among ... between similar or rival products is required generally in a trademark infringement lawsuit, it is not in a trademark dilution lawsuit! Owners of a ... mark are lucky in that they can sue the owners of offending marks not only for trademark infringement but also for trademark dilution! Two questions: What is a ... mark? How is a ... mark diluted? 1. A ... mark, according to federal statute (15 U.S.C. 1125) is a mark "...y recognized by the general consuming public of the U.S. as a designation of a ... of the goods or services of the mark's ..." -Among factors considered in this determination of ...ness are the "d..., ex..., and g... r... of a... and p... of the mark" as well as the "a..., v..., and g... ex... of s... of goods or services offered under the mark" Example: Federal court in TX found the phrase "America's Team" was a ... mark controlled by the owners of the Dallas Cowboys team -The Trademark Trial and Appeal Board (TTAB), the branch of the USPTO that hears and decides certain kinds of trademark cases, concluded "ROLEX" was a ... mark for a watchmaker and was protected from dilution against a company that wanted to use the mark "ROLL-X" for X-ray tables for medical and dental use -The TTAB also found "Just Do It" is a ... mark for Nike -Luxury-clothing brand Burberry sued J.C. Penney for trademark dilution, with Burberry claiming its ubiquitous check pattern found on coats, purses, scarves and umbrellas constitutes a ... mark. Burberry accused JCP of producing clothes that used this check pattern Determining whether a mark is ... is a rather ...e determination and is not always easy to make! 2. A ... mark may be diluted in one of two ways under the federal statute a. Dilution by ... -The diluting mark "impairs the d... of a ... mark" primarily by the degree of s... between the diluting mark and the ... mark and by whether the user of the diluting mark intended to create an a... with the ... mark! "The gradual whittling away or dispersion of the id... and h... upon the public's mind of the ... mark or name" The ... mark's p... is slowly weakened by other's ... of it, even though the other's ... is not on c...g or s... grounds! b. Dilution by ... -The diluting mark ... (tarnishes) the ... of the ... mark by connecting the ... mark with something d..., n..., or o...e (think about connecting a ... mark with illegal drugs or something sexually sordid) Example: Makers of Ben & Jerry's ice cream sued Rodax Distributors and Caballero Videos for dilution by ... based on a series of sexually explicit adult videos called "Ben & Cherry's" The parties settled the case, with Rodax and Caballero agreeing to discontinue the "Ben & Cherry's" series and the use of movie titles that play off of real Ben & Jerry's flavors The remedies for the owner of a ... mark that proves its case for trademark dilution are an ... (eq... remedy) prohibiting the use of the diluting mark, as well as ... d...! The Federal Trademark Dilution laws provide a defense for "...ing, c...ing, or c...ing upon the ... mark owner or the goods and services of the ... mark owner" (think Chewy Vuiton) and "all forms of ... r...ing and ... c...y" The "Ben & Cherry's" adult video example likely wouldn't count under the ... exception because the adult movies in question weren't c...ing on or c...ing B&J's products, but were simply using the name similar to those of B&J's products to garner attention for the movies Example: Victor Moseley opened Victor's Little Secret, a small shop in a strip mall that sold sex toys, lingerie, novelty items. Subsequently the owners of Victoria's Secret, the catalog and retail seller of lingerie and women's clothing, sued under the Federal Trademark Dilution Act, claiming the store's name was causing dilution of the d... q...y of their ... brand -The Supreme Court ruled in 2003 that Victoria's Secret didn't have to prove actual ... h... from the appropriation of its name in its lawsuit, but the company must show some kind of c... h... (as opposed to f... h...), such as a loss of its d... id... or a b... of its image -But the court didn't specifically outline what factors might be considered in proving such a case. The court said it wouldn't be enough to show a m... a...n between the two trademarks, that consumers t... of one when they see the other. It would have to show consumers had a different im... of the Victoria's Secret trademark because of the competitor's branding. The case was sent back down to the lower court for resolution. -6th Circuit ruled Moseley's couldn't use the names "Victor's Secret" or "Victor's Little Secret" on their adult novelty and lingerie shop. The court said the use of those names cast an u...g shadow on the Victoria's Secret chain and could potentially hurt its business Example: If a company licenses a trademark for use on a product but fails to p... the r..., the company can be liable for a much larger sum than the o... r...! -9th Circuit ordered Jammin Java Corporation to pay $2.4 million in damages to two companies connected to late artist Marley for continuing to sell Marley-branded coffee after a trademark license agreement between the two companies was t...! The two companies sued Jammin Java after the coffee company allegedly failed to p... r... on the long-term license for Marley-branded coffee but continued to use the Marley trademark after a separate short-term license e...! The two Marley family companies asked for $2.4 million - Jammin Java's entire gross revenue since July 2016. Two companies also awarded $371k in unpaid r... To register a trademark the applicant must submit a registration application to the ... and ... ... in D.C. Before submitting the application, a ... should first be undertaken to determine whether someone else has already ... the ...! -This search can be done at the Patent and Trademark Library in Arlington, VA or at 60 regional sites (libraries) around the nation, or through the U.S. Trademark Electronic Search Systems on the Internet -It is also wise to hire an intellectual property ... to help with this process! -A registration fee $275-375 must accompany the application Though it isn't mandatory to precede the application with a ..., it is advisable! -If the examiner discovers in their ... the mark or a very similar mark has been previously ..., the application fee is ...! -Anyone who claims r... to a ... can use a ™ designation with the mark to alert the public to the claim! It isn't necessary to have a ... or even a pending ... to use this designation! Under the law, it is the person who first ... a mark, not the person who first ... the mark, who holds the right to the symbol or word or phrase. However, just because a product ...s a mark and consumers might associate the mark with a product, doesn't automatically mean the mark can be ...! Example: TTAB ruled General Mills could not ... the famous Cheerio's box as a trademark because of the widespread use of the color on other cereals. Though consumers might associate the color with Cheerios, the board ruled, many consumers also associate the color with many other brands of cereal

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Advertising Agency/Publisher Liability -If you go to work at an ad agency, your agency may be held ... if it is an a... p... in preparing a d... ad or if it k... or should k... an ad is either f... or lacks s...! -FTC makes clear an agency has a "duty to ascertain the existence of s... for the c... which it makes" -Example: Marketing Architects Inc., an ad agency that c... and d... allegedly d... radio ads for weight-loss products sold by a company called Direct Alternatives, agreed to settle a f... advertising complaint by paying $2 million to the FTC and ME attorney general's office. The judgment was among the largest ever obtained by the FTC against an a... ...! FTC's complaint said Marketing Architects had a history of c... s... c... for other weight-loss marketers (In this case Marketing Architects Inc., was an a... p... in preparing a d... ad!) A timely issue is the potential l... for ... s... such as Craigslist and Roommates.com for posting ads by other individuals who make statements that v... ... or ... ...! -Example: 7th Circuit held that Craigslist was protected from ... by S... ... of the C... D... A... after it posted rental ads with d... statements such as "no m..." and "no c..." that violate the ... F... H... Act. The F... H... Act is regularly enforced against print newspapers that run such d... ads -The 7th Circuit however held that Craigslist was protected by S... ... of the ..., which generally shields o... ... ... from ... when they are mere c... (rather than p... or s...) for information posted by t... p...! -The appellate court reasoned that Craigslist "is not the a... of the ads and could not be treated as the "s..." of the posters' words" BUT... -Example: Another 2008 opinion, this one before the 9th Circuit and involving Roommates.com reached the o... c...! -It held the online roommate-matching service was not i... to ... under S... ... of the ... for posting information by others that violated the F... H... Act and California h... d... laws! The problem for Roommates.com was that is s... sp... c... from users and f... them to use pull-down menus with questions featuring specific answer options in which they could express i... and d... views -Roommate both e... the allegedly i... content and makes a... use of it in c...g its b...! Roommate does not merely provide a f... that could be utilized for p... or i... p...; rather, Roommate's work in de... the d... questions, d... answers and d... search mechanism is directly related to the alleged i... of the site Therefore... Rooomates.com was more akin to a p... or s... rather than a mere c... for the information that it posts. Craigslist, in contrast, did not s... any content but merely pr... a f... for ads! Another major issue affecting o... a... over the past decade involve ... s... that host a... for i... s... s...! -The issue largely focused on Backpage.com. It hosted a... that critics believed were p... and involved s... t... of m... -Backpage had successfully fought off most attempts at ... under S... ... of the ... because it did not c... the ads! In 2018, however, Congress adopted new legislation known as ... that amended S... ... -The amendment holds ... s... and i... c... s... that operate "with the i... to p... or f... the p... of another person" are not shielded by S... ... Backpage, plagued by other problems, was seized and closed by the federal government Summing things up... -Complaints against advertisers are prepared by FTC s... and approved by a ... of the c... -A... l... ... can hold h..., which are somewhat like t..., to determine whether FTC charges were v... -A U.S. ... of ... can review all c... o...! Advertisers need to take special care when dealing with t.../e... and n... a... -The law o... b...-and-s... a..., in which customers are lured to a store with promises of l... p... but then are pushed to buy more e... p... Ad agencies and publishers can be held ... in cases of f... or h... a...!

...

Advertising, as a form of expression subject to l... r... and potential ... ... protection, is a dominant cultural icon of our time. Also a huge business! -A 30-second TV commercial on the Super Bowl cost more than $5 million. 2020, more than $200 billion was spent on advertising in the U.S. Ad dollars make possible most of the media content we consume. Advertising is a very important form of speech Advertising messages are r... by the ...; advertising is probably the most h... r... form of modern speech and press! Laws at e... l... (..., ..., and ...) control what businesses and institutions may claim about their products and services. Thousands of such laws regulate advertising Advertising and the 1A -For many years, advertising ... protected by the ... ...! -It was not until 1975 Bigelow v. Virginia (1975) -The U.S. Supreme Court first explicitly held "c... a... enjoys a degree of ... ... protection," "the relationship of speech to the m... of p... or of s... does not make it valueless in the m... of ...!" Yet the court was also clear in Bigelow that advertising is "subject to r... ..." -Since then, courts have developed a c... s... ... articulating h... m... ... ... protection advertising receives and the criteria the government must satisfy to permissibly ... it! -This doctrine evolved in a series of five cases in the five years after Bigelow a. 1976, Supreme Court ruled a VA statute that forbade advertising the price of prescription drugs ... the ... ...! b. 1977, Supreme Court i... a township ordinance in NJ that banned the placement of "for sale" and "sold" signs on front lawns. Township authorities said the law was needed because such signs contributed to panic selling by white homeowners who feared property values would decline because the township was being populated by Black families. The Supreme Court ... the argument and ruled the placement of such signs was ... by the ... ... c. Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) -Known as Central Hudson today - the Supreme Court held ... a NY regulation that completely banned promotional ads by electric utility companies Commercial Speech Doctrine -The ... ... does not protect either ...e or ...g ads or ads for ...l goods or services! Government may regulate ... advertising for ... goods and services if the following conditions are met: a. There is ... state ... to justify the ... b. There is evidence that the ... directly ...s the ... c. There is a ... ... between the state ... and the government ... Though ... advertising for ... goods or services receives SOME ... ... protection, the ex... of that protection is more ...d when compared with political speech! -While political speech is at the ... of a ... ... hierarchy of expression and while speech that fits the Supreme Court's definition of obscenity falls completely without any ... ... protection, ... speech lies somewhere i... b...! Determining what constitutes ... speech is not easy! Courts wrestle with this threshold issue, often defining an expression that either a. Is related solely to ... i...s of the speaker and its audience, or b. Proposes a ... t... In some cases it is not easy to distinguish between political speech and ... speech, as courts recently have observed! But the difference is critical because it is much ... for the government to justify a law regulating ... speech than it is to regulate political speech under the ... s... standard -In cases involving speech occurring in the context of p...l materials and activities (a doctor, for instance, giving a talk or seminar about a new drug), courts sometimes weigh three factors to determine if it is ...: 1) Whether the expression is an ... 2) Whether it refers to a s... p..., and 3) Whether the speaker has an ... m... for speaking Example: Courts ... enforcement of Maryland law targeting political ads -Federal judge ruled in favor of ... o... in their lawsuit to ... enforcement of a MD law called the Online Electioneering Transparency and Accountability Act -Aiming to combat foreign interferences in elections, the law required social media platforms as well as ... ... s... and other organizations that host online campaign and issue ads to publish information about the political ads as they run. The law said the sites must compile information about ... bought the ads and the amount that was ... for them, and that the info must be posted within 48 hours of the ad sale "in a cl... id... location on the online platform's website" The law also required sites make r... about the ads available for s... in... -In his opinion in favor of the ... o..., Judge Grimm said the law "regulates e...g communications - indisputably a form of ... speech" The law wasn't targeting ...g that solely proposed a ... t...! -It pertained to campaign and issue ads in the context of e...! And ... speech, Grimm noted, "is entitled to the ... degree of c... protection" -He ruled the law was subject to ... s... judicial review, which it would fail because it was not ... t...! Grimm thus granted a preliminary injunction stopping MD from enforcing the law against the ... o... that challenged it -4th Circuit affirmed Judge Grimm's ruling against the law, concluded the law violated the ... ... right of the n... not to be compelled by the government to s...! Just as the ... ... protects the right to ..., it also encompasses a right ... to s... MD's law compelled the newspapers to ... by making them post facts on their Web sites about the buyers and cost of political ads Whereas ... speech typically receives ... ... ... protection, two types of ... speech receive NO protection: 1. The government may ban advertising that is ..., ... or d... 2. The government may ban advertising to ... goods and services This broad exception to the protection of the ... ... was established primarily to permit the government to bar d... e... advertising! -It is illegal for an e... to d... on the basis of r..., r..., a..., g... when hiring e...! J... ads that offer e... to "men only" for example are illegal! -Advertisements for p... (an ... service) are also not protected by the ... ...! Even ... advertising for ... goods and services can be regulated, provided the government can satisfy three requirements These requirements make up the... Central Hudson Test (comes from the Supreme Court decision bearing the same name) 1. The government must assert a ... state ... to justify the ...! -States that seek to limit advertising by doctors and lawyers, for example, will argue the public is not sophisticated enough to evaluate many claims that might be made by these professionals, and even perfectly ... claims could be d...! Protecting the public from such d... is a ... state ... -The Supreme Court has granted states fairly ex... a... to regulate advertising for p... s... by individuals like doctors, lawyers, dentists and others -Example: 8th Circuit ruled promoting responsible drinking was a ... state ... supporting a r... under a Central Hudson analysis 2. Next, the government must demonstrate that the ...n on advertising it has instituted will d... ... the ...! -Think of the ... as a kind of goal the state is seeking to reach. Will the ... on advertising help the state reach this goal? -M... s... and c...e that a law d... ... the government's ... and alleviates the a...d h... in a material way won't cut it! Rather, one one federal appellate court wrote, "we independently evaluate the government's assertion that the advertising restrictions ... the state's ..., and we rely on the valid sources of h..., c..., and c... s..." Example: A Baltimore ordinance that banned outdoor advertising for alcoholic beverages in areas in which children walk to school or neighborhoods in which children play was ruled permissible because it d... and m... ... the city's ... in promoting the welfare and temperance of minors 3. Finally, the state must show that there is a "... ..." between the state ... being asserted and the government's ...! -A ... ... means the regulation must be n... ... to achieve the desired objective, but it doesn't have to be the ...t r... means available! -Example: A federal appellate court held a MO law banning, within one mile of highways, billboard ads for SOBs (regardless of the words or images on the billboards) wasn't n... ... to meet the state's ... ... in eliminating the secondary effects of adult businesses (failed requirement 3) -MO believed by eliminating billboard ads, fewer people would visit SOBs, thus forcing closure due to lack of customers. Although the court found evidence the law would d... ... this ... ..., it held the law was not n... ... because it "threatens criminal prosecution for mere inclusion of the name or address of an affected business" and thus bans "an intolerable amount of truthful speech about lawful conduct" -The court added MO failed to show that "a more l... speech r... would not have adequately served the state's ..." (not n... ...) -Example: A judge entered a preliminary injunction that stopped KS from enforcing a similar law targeting ads and billboards for SOBs along the state's highways. In ruling against the statute, U.S. District Judge Robinson wrote "it b... sweeps up any speech that is 'for' a SOB, whether or not that speech is obscene or relates to the sale of constitutionally protected products such as books and magazines" (not n... ...!) -Also that year a judge in SC in issued a permanent injunction against a similar ordinance in that state that prohibited billboards for SOBs within one mile of public roads. This lawsuit, like the one in KS, was filed by the owner of a Lion's Den Adult Superstore that had several highway billboards. In striking down the South Carolina statute, U.S. District Judge McGowan noted how it was not n... ... because it prohibited a... and a... billboards advertising adult businesses, regardless of the billboard's content or the legality of the business advertised Example: CA ban on handgun ads at gun stores fails Central Hudson -Federal court struck down a state ban on handgun ads at gun stores. The law provided "No handgun or imitation handgun, or placard advertising the sale and other transfer thereof, shall be displayed in any part of the premises where it can readily be seen from the outside" Several gun-sale businesses were cited for violating the law -When the CA Department of Justice Bureau of Firearms inspected Tracy Rifle and Pistol (a gun-sale business), the store's exterior windows were covered with large vinyl decals depicting four firearms - three handguns and a rifle. The state agency cited the owners for violating the law and ordered them to take down the decals. TR&P and other gun stores sued, claiming the law prevented them from displaying ...l, non-m..., on-site advertising visible from the outside of their stores -In Tracy Rifle and Pistol LLC v. Harris, the federal district judge ruled the law failed the Central Hudson test for commercial speech regulations. The government a... two ... in support of the law: reducing handgun suicide and reducing handgun crime. The judge agreed those ... were ... (Central Hudson Test requirement 1 PASSED) But he ruled the law failed the remaining prongs of the Central Hudson test! -CA argued the law d... ... its ... in reducing handgun suicides because the law "inhibits handgun purchases by people with impulsive personality traits" It used similar logic to defend its position that the law d... ... its interest in reducing handgun crime - the ads restricted by the law "tend to induce purchase by people with impulsive personality traits, and impulsive people are more likely to engage in crime" -The judge said the ... ... forbids such a paternalistic approach to limiting speech! "The Government may not restrict speech that persuades adults, who are neither c... nor suffer from m... ..., from purchasing a ... and c... p... product, merely because it distrusts their personality trait and the decisions that personality trait may lead them to make later down the road" (Central Hudson Test requirement 2 FAILED) -The judge also ruled the law was fatally u... - it was too s... and too i...! -As he interpreted the law, it would allow a store to display a large neon sign reading "GUNS GUNS GUNS" or a depiction of a modern sporting rifle (because the law applied only to handguns). And stores could advertise through any other channels of communication (because the law applied only to on-site ads). "The u... of this law gravely diminishes the credibility of the Government's rationale" He also found CA had not demonstrated the law actually would have any effect on handgun suicide or crime. He said, the state was relying on "m... s... and c..." (Central Hudson Test requirement 2 FAILED) The judge ruled the law failed the last prong of the Central Hudson test because the law was more ex... than necessary to further the state's ... -He said CA has "an array of policies at its disposal to combat handgun suicide and crime" -Those policies include a 10-day waiting period before a buyer can receive a gun, a law that limits buyers to one handgun purchase within a 30-day period and a requirement that handgun buyers complete a firearm safety certificate program. Enforcing those laws furthers the state's ... without r... speech! The judge also suggested CA "could run an educational campaign focused on the dangers of handguns or the consequences of impulsive decision making" What CA cannot do is "accomplish its goals by violating the ... ..." Ruled the law was unconstitutional! (Central Hudson Test requirement 3 FAILED) -Example: The U.S. Supreme Court struck down a federal law in 1995 that forbade brewers from listing alcohol content on labels attached to bottles and cans of beer and malt liquor. The government justified the rule by arguing it sought to discourage young drinkers from buying a particular beer or malt liquor simply because it had the highest alcohol content -The government's ... in reducing the amount of alcohol consumed by young people is a laudable g..., a unanimous Supreme Court said, but added there is really no evidence this rule ... that g... -There was no government ban on the disclosure of the alcohol content in advertising for these brews, Justice Thomas said. Nor were there limits on the words a brewer could use to describe these products. "The Government's ... in combating strength wars is a valid g..., But the irrationality of this unique and puzzling framework ensures the labeling ban will fail to achieve that end" (Central Hudson test requirement 1 passed; 2 failed) -Example: Then in 2001, Supreme Court ruled a MA law that banned both outdoor ads and point-of-sale ads for smokeless tobacco products and cigars within 1,000 feet of public playgrounds and schools was unconstitutional. The Supreme Court acknowledged the state had a ... ... in reducing the use of such products by youngsters. A majority also agreed there was s... e... that tobacco sellers had boosted the sale of these products by targeting young males in their advertising. But the rule went too ...; it was not a ... ...! -Coupled with pre-existing zoning laws in the state, the rule constituted a complete ban on the communication of ...l information about smokeless tobacco products and cigars to adult consumers, Justice O'Connor wrote. The law also failed to distinguish among the types of signs with respect to their appeal to children as opposed to adults, or even their size. The law was simply not n... ... enough to ... the state's declared ... without impeding protected speech as well (Central Hudson test requirements 1 and 2 passed; 3 failed) One more dimension of the relationship between the ... ... and advertising needs to be discussed: Is it a violation of the ... ... for a n..., m..., b... s..., or o... s... to ... to carry an ad? ...! The long-standing legal doctrine is the ... ... is not even implicated! Such a situation is one ... entity, the m... m..., ...g to do business with another ... entity! Can the government, in the name of protecting against c... d..., c... companies to include certain facts in ads they might not otherwise want to disclose? ...! As long as the d...e r...s are r... related to the government's ... in preventing d... of c...! (C... d...e of factual information) Example: Federal appellate court upheld a Department of Transportation rule affecting the price of tickets advertised by airlines. -The rule requires the most prominent ticket price displayed on print ads and on Web sites be the TOTAL PRICE including taxes. Under this rule, airlines are free to provide an itemized breakdown, but they may not display such individualized price components "prominently" or "in the same or larger size of the total price" Several airlines challenged the rule on 1A grounds in Spirit Airlines v. U.S. Dep't of Transportation -The U.S. Court of Appeals for the D.C. ... the rule, reasoning "the rule aims to prevent c... c... about the total price they have to pay, and it goes without saying requiring the total price to be the most prominent number is r... related to that interest" The court added the rule imposes "no burden on speech other than requiring airlines to d... the total price consumers will have to pay. This the ... ... plainly permits"

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Compelled Advertising Subsidies (Funding) and Government Speech "Beef. It's what's for dinner." and "Got Milk?" were trademarked slogans featured in well-known TV ads. The first phrase played a pivotal role in a case decided by the Supreme Court. The case did not involve the commercial speech test from Central Hudson, but addressed "whether a f... p... that f...s g... a... to promote an agricultural product violates the ... ..." Johanns v. Livestock Marketing Association [6-3] (2005) -Centered on a federal statute and related order from the 1980s, under which the U.S. secretary of agriculture (Johanns) imposes a $1-per-head assessment (c...), on all sales of ... in the U.S. Though $1 per sale seems small, the program has collected more than $1 billion since 1988. A large portion of that money, under the B... P... and R... Act, has gone to finance g... ... for the b... ..., including the "Beef. It's What's for Dinner" campaign -Though the slogan may seem to benefit the entire b... ..., a number of ... producers objected it because "the advertising promotes ... as a g... c..., which they contended impedes their efforts to promote the superiority [inter alia] of American ..., grain-fed ..., or certified ... or Hereford ..." -In other words, the Livestock Marketing Association and the other plaintiff objected to the fact they were ... to s... s... - the g... b... ad campaign - to which they o...! -They would rather spend their own money on the d... advertising for a particular niche or premium variety of b... -The plaintiffs thus alleged a violation of their ... ... not to be ... to f... s... with which they d...! (An unenumerated right to r... s...) A ... ... right not to be ... by the government to ... has been recognized by the Supreme Court in some situations! -The seminal 1943 opinion in West Virginia Board of Education v. Barnette, the court held children in public schools could not be forced or ... to recite the Pledge of Allegiance or salute the American flag. The students had a right to not ...! The majority of the court (6-3) d... that case and others like it on the ground the b... situation was a c...-s... case - not a true c...-s... case - and more important, the ad campaign itself represented "... s..." not s... by a ... p... against their wishes Justice Scalia wrote, "the message set out in the b... promotions is from beginning to end the message established by the F... ..." and the secretary of agriculture "exercises final approval authority over every word used in every promotional campaign" The majority concluded while "citizens may challenge c... support of ... s..." they "have no ... ... right not to f... ... s..." Scalia noted a person may not o... o... of paying income taxes just because they do not agree with how the ... is spending the money The majority of the court concluded the beef advertising is the ...'s own speech and does not raise ... ... problems. The court ruled in favor of the federal beef promotion program and its c... s... of advertising to which some cattle ranchers and farmers o...! Summing things up... -American advertising is regulated by laws adopted by ... levels of government -Since the mid-1970s ... advertising has been given the ... p... of the ... ... because much advertising contains information valuable to c...! Under the ... ... d... and the ... ... test, the government may prohibit advertising that: 1. Promotes an ... activity or 2. Is m... or u... It may also regulate ... advertising for ... activities and goods if it can prove that 1. There is a ... state ... to justify the ... 2. Such regulation d... ... this ... and 3. There is ... ... between the ... asserted and the government ... Advertising by p... (a... and p...) may be regulated in a more r... fashion!

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Copyright Copyright protection was unneeded until the development of m... p...g! -The time and effort it took to ...-copy a manuscript made the theft of such work tedious and unprofitable. But the p... ... gave thieves the ability to reproduce multiple copies of a work quickly and cheaply, and this capability changed things dramatically Each subsequent t... d... has put new stress/strain on copyright law! (motion pictures + broadcast media -> recorded music -> audio- and then video-tape -> photocopying -> interactive computer-mediated communication) -Each t... d... requires modifications or new interpretations in the law as the government has sought to protect the right to l...y p...y History of Copyright Law -... copyright law was applied in the colonies until American ...e -American copyright law derives directly from the ... ...! (1789) Article I, Section 8, Clause 8 of the ... lies the basic authority for modern U.S. copyright law: "The ... shall have Power... to promote the Progress of ... and ... ..., by securing for ...d Times to Authors and Inventors the e... ... to their respective Writings and Discoveries" This provision gives ... the power to legislate on both ... and ...! -1790: ... did just that, adopting a statute similar to British law -The law gave authors who were U.S. ... the right to protect their b..., m... and c... for a total of ... years (a ...-year original grant + a ...-year renewal if the author is still ... and wished to extend the copyright) -In practical use because little work was still economically p... after ... years, few authors renewed their copyright -1831: Period of protection was expanded by ... years (original grant became ... years with a ...-year renewal) -Now expands protection to m... c... Protection for p..., works of f... a... and t... added later in 19th century -1909: MAJOR REVISION of the law! -1976: OUR CURRENT LAW was adopted -The 1976 federal law p...-e... virtually all ... laws regarding the protection of w..., m... and works of a...! -Copyright law is essentially a ... law and is governed by ... statute and by ... d... interpreting this statute -1988: Congress finally approved U.S. participation in the ... C... (102 years old at that time), the world's p...-e... in... copyright t...! -The U.S. had been hesitant in the past to join the t... because of significant d... between the U.S. and in... law, but after the 1976 revision of U.S. copyright law, the d... were minimal! American media companies, eager to expand their in... business, sought to improve trade relations and strengthen U.S. influence on matters relating to in... copyright law put pressure on the government to join the convention What May be Copyrighted The law of copyright gives the a..., or ... of the copyright, the s... and e... ... to ... the copyrighted work in any f... for any r...; actually six e... ... under the law, including the right to: 1. ... the work (as mentioned) 2. Prepare and create d... works 3. Publicly d... the work 4. Publicly p... the work (think theatrical works) 5. Publicly d... the work (think fine arts works) 6. Publicly p... a d... s... ... These rights are fairly clear with regard to t... mass media If Bogus Publishing ... 1,000 copies of a copyrighted Stephen King novel and d... them to bookstores, this is a violation of King's e... d... ... under the law But the rights are less clear when it comes to c... and the ... a. Is storing a copyrighted document on a ...'s h...-d... or f...-... a violation of the e... ... to r... a copyrighted item...? b. Does transmitting a copyrighted work via the ... constitute a public p... of the work ...? c. What about embedding a video on your ... s...? Courts disagree! -Several lower courts have ruled it can be an infringement of copyright to download material off the ... for u... use or upload copyrighted material onto a ... s... without the ... of the copyright owner! Example: Federal court in TX ruled an o... s... p... that provided subscribers u... copies of copyrighted images infringed on the copyright holder's right of r..., d... and d... and was liable for direct copyright infringement -The provider argued it was merely a ... between the subscription service that scanned the photos into the system and the subscribers who downloaded them. The defendant said all it sold was access to the subscription service, not images. The court disagreed, ruling "Webbworld didn't sell access - it sold images" However, under a federal statute adopted in 1998, an ... ... ... that acts merely as a c... during the infringement of copyrighted works will not be held ... for the illegal act in MOST instances! (DMCA) Example: U.S. District Court in NV ruled scanning a copyrighted photo into a c... for graphic manipulation and insertion into a new work constitutes a copyright infringement. The court said d... any copyrighted material may support an infringement finding - even if it has only the b... e... in a c...'s memory! Who owns the copyright in LeBron James' tattoos? - Any work "f... in a t... m..." is eligible for copyright protection; that includes tattoos displayed on someone's skin -The tattoo ... who ... the work owns the copyright, not the tattoo's ... (the individual with the tattoo). Though this isn't an issue in most situations, it can be a problem involving the re-creation of a tattoo -Most legal experts agree when James appears in public, including TV broadcasts, there is an im... l... from the artist. It is another situation when tattoos are digitally recreated on avatars in sports games Electronic Arts recreates more than 100 tattoos in its FIFA and UFC Games (quite common in an industry that emphasizes realism) -Company called Solid Oak Sketches obtained the copyright for five tattoos on three players including James. The company sued Take-Two Interactive Software, Inc. over the use of tattoos on avatars in NBA game. Federal court ruled in favor of...? 1. The court ruled the use of the tattoos was de minimis or so s... it was im... to prove digital tattoos were s... ...r to the original 2. The court ruled there was an im... l... to use the tattoos in the video games 3. The court ruled the use of the tattoos was protected under the f... ... d... Players' unions and sports agents are beginning to advise professional athletes to get l... a... with the artists before getting tattooed Before a copyrighted work may be printed, broadcast, dramatized or r... on the Internet, the ... of the copyright ... must first be obtained! -The law grants this individual e... m... over the use of that material! Copyright extends to "...l works of authorship f... in any t... ... of e..." -"F... in a t... ..." = work that is sufficiently p... or s... to permit it to be perceived, r... or otherwise communicated for a period of more than a t...y d.... -Under these standards, items like n... stories or entire n..., m... articles, a... and almost anything created for the m... ... can be copyrighted! Material that is created in ...l form and stored or transmitted e... can also be protected by copyright -Ex... p... and s... and im... s... are examples of material NOT f... in a t... ... and aren't protected by federal copyright statute. But this lack of protection doesn't mean that someone can film or record a performer's act without that performer's ...! This action is forbidden by other laws, such as the right to p... and ...-l... copyright! The Federal Copyright Act lists multiple items that CAN be copyrighted, but this list is only illustrative: 1. L... works (including c... s...) 2. M... works, including any accompanying w... 3. D... works, including any accompanying m... 4. P... and c... works 5. P..., g... and s... works (fine art) 6. M... ... and other a...l works 7. S... ...s Copyright Law is equally specific in what CANNOT be copyrighted! 1. T... m... cannot be copyrighted! -T..., s..., and minor variations on works in the p... d... aren't protected by the law of l... property -A s... such as Nike's "Just Do It" cannot be copyrighted but can be ...! 2. I... aren't copyrightable! -The law protects the l... or d... expression of an i..., like a script, but doesn't protect the i... itself! -Easier to state than apply - It is often difficult to separate the e... from the i... being e...! That is because there is often only a s...e d... between an i... and the e... of that i...! Example: 9th Circuit rejected a case that claimed Nike infringed on an existing photograph of Michael Jordan when it created the company's "Jumpman" logo. Rentmeester sued the sportswear company, claiming the company's logo was a replication of a famous photo he took of Jordan in 1984. Nike didn't use the photo for the logo. The company used its own photo of Jordan, which replicated the moment Rentmeester captured on camera. The 9th Circuit ruled that shared elements of the two photos were merely "g... c..." (i...) that weren't covered by copyright law 3. F... can't be copyrighted! -"The world is round" is a f... -Tom Brady won his 10th Super Bowl in 2021 is a f... -An author can't claim that statement as their own and protect it through copyright 4. U... g... - things that exist to p... other things - aren't protected by copyright law! -U... articles like a lamp, chair, dress, uniform cannot be copyrighted! The articles' c...t features or elements cannot be copyrighted either, unless they are capable of being id... s... from and existing in... of the u... aspect of the article! Example: A design for a Tiffany lamp could be copyrighted because the unique aspects of that specific lamp have nothing to do with the u... purpose of producing light. The design elements are purely d...! Example: U.S. Supreme Court asked to determine when clothing designs can be copyrighted -Varsity received copyright protection for designs on its cheerleader uniforms for graphical elements such as stripes, chevrons, zigzags, and color blocks. Star Athletica advertised cheerleading uniforms that were strikingly similar in appearance to Varsity's designs. The Court ruled these designs could achieve copyright protection if (1) the design can be perceived as a 2- or 3-dimensional work of a... s... from the u...l article and (2) the design would qualify as a protectable p..., g... or s... work on its own 5. M..., s..., and m... p..., f... and e... can't be copyrighted! But a d..., an e... or an i... of an i... or s... can be copyrighted! -The law is protecting the particular l... or p... form in which an author chooses to e... themselves, not the i... or p... or m... itself! Example: Individual writes and publishes a ... in which she outlines a new m... f... Although the ... itself may be protected by copyright, the f... can't be, and others may use it freely! In other words, the copyright on an a... or a ... doesn't preclude the public from making use of what the ... teaches! Can ALL books and other c... w... be copyrighted...? -The law specifically says only "...l" works can be copyrighted! What is an ...l work? -Interpreting this term in the 1909 law, courts ruled the word "...l" means the work must owe its o... to the a...! To be copyrightable, a work must be created in...! It cannot be c... from a... w...! Example: Organization called Production Contractors Inc. tried to block Chicago TV station WGN from televising a Christmas parade on Thanksgiving Sunday. PCI, which put on the parade, sold the e... ... to televise it to another station, WLS. The plaintiff claimed the parade was copyrighted, and WGN would be in violation of the law by televising it. A federal district court disagreed and ruled a Christmas parade isn't something that can be copyrighted; it is a C... I..., not an event of ...l authorship! The work must be ...l! It doesn't have to be n... (or n...), u..., or even good! -Even c... and m... works are copyrightable! Courts have consistently ruled it isn't the function of the legal system to act as l... or a... c... when applying copyright law! -Justice Wendell Holmes in Bleistein v. Donaldson Lithographing Co. (1903), "It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the w... of pictorial illustrations, outside of the n... and most o... l...!" Even the least pretentious picture can be ...l, Holmes noted in reference to the posters in the case -Even b... or (ugly) s... you take are copyrightable! Example: 9th Circuit echoed this statement when it ruled r..., un... video footage of news events was sufficiently ...l to be protected by copyright! Case involved LA News Service and Audio Video Reporting Service. LANS records live news events on videos and then sells the un... but copyrighted footage to TV stations. The stations take the r... footage, edit it any way they want and use it in newscasts. Audio Video Reporting Services videotapes newscasts and then sells clips of the newscasts to interested parties. A businesswoman who has been interviewed for a news story may want to buy a copy from Audio Video. Or the parents of children featured in a news story on a school project might want to have a copy of that story -LANS sued Audio Video, claiming in selling these video clips, which were taken from the copyrighted r... footage LANS had provided to local TV stations, Audio Video was infringing on the copyright LANS held on the videotape -Audio Video attempted to defend the suit on several bases, including the argument that r..., un... videotape was not sufficiently ...l to be protected by copyright; all the photographer did was switch on the camera and point it at the news event. No c... or in... in... was required! -The Court of Appeals ..., noting there were several c... decisions involved in producing a photograph: The photographer must select the subject, the background, the perspective, consider lighting and the action, etc. The "requisite level of c... to qualify as an ...l work is extremely ...!; even a s... amount might suffice," 9th Circuit. -N... isn't important to copyright: The author doesn't have to be the f... p... to say something in order to copyright it! -All that is needed to satisfy both the Constitution and the statute is the "author" contributed something more than a merely t...l v..., something recognizably his o...! Example: Federal judge overturned a copyright infringement judgment against Perry for her song "Dark Horse." The judge in the case vacated the jury's verdict, finding the short musical phrase at issue wasn't ...l enough to warrant copyright protection. The jury found Perry's song included an eight-note "ostinato" stolen from "Joyful Noise," a song by Flame, awarding $2.8 million in damages -The judge in the case ruled the eight notes weren't ...l enough to warrant copyright protection as a matter of law. "It is undisputed in this case that the signature elements of the 8-note ostinato in "Joyful Noise" isn't a particularly u... or r... c...," judge said Example: In a long-running dispute finally settled in 2019, 9th Circuit ruled Led Zeppelin's song "Stairway to Heaven" didn't infringe on "Taurus," by the band Spirit. 2016, a jury found Page and Plant of LZ, the song's credited writers, didn't infringe on the copyright of the song "Taurus." LZ's lawyers argued that what little the two songs had in common - a chord progression and a descending chromatic scale - were musical elements too b... to be copyright protected. A musicologist testified that s... p... have been used in music for over 300 years. 9th Circuit ordered a new trial in 2018, the jury hadn't received proper instructions. 2019, however, 9th Circuit changed course and decided to rehear the case "en banc" or before a full panel of 11 judges. Sitting en banc, 9th Circuit rejected the argument there was improper jury instructions and ruled in favor of LZ

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Copyright and Facts Facts ... be copyrighted! "The Denver Broncos won the 2016 Super Bowl", "JFK was killed in November 1963", "George Washington was the nation's first president" are all FACTS; ... can publish or broadcast them! But this simple concept can get more complicated when someone works d...y to collect a set of facts and then seeks to copyright their work, are three such areas... 1. Telephone Books and Databases -Before the birth of the computer, most homes contained sophisticated databases - telephone directories - listing of phone company customers' n..., a... and t... ... Feist Publications, Inc. v. Rural Telephone Service Company, Inc. [do not need to know name] -Supreme Court decided a seemingly in... (h...) case in 1991 involving copyright protection for a white-pages telephone book - by any measure a collection of thousands of facts! -But the ruling would have a profound impact on other kinds of d... and generate problems that haven't yet been completely r...! -A small, rural telephone company (Rural Telephone Service) issued a standard white-pages directory of its customers' n..., a..., p... ... VS. a company (Feist Publications) that publishes regional telephone directories, which include the n..., a... and p... ... of the customers of numerous small telephone companies. Feist asked Rural for permission to include the n... of its ... in a directory, but Rural said no! Feist used the information anyway, and Rural sued for copyright infringement -Feist argued a telephone directory contains only facts, which ... be copyrighted. Rural disagreed and argued the phone book was a c... of facts, and that a c... of facts ... be copyrighted. Rural also raised a second argument, what some call "the s... of the ..." d... - a legal proposition previously recognized by some courts that asserts even though facts ... copyrightable, someone who invests s... t... and e... in amassing these facts deserves a r... for the h... w...! Collecting the info that goes into a telephone directory takes t... and e..., and copyright law should ... the results of this e..., Rural argued! In a ... decision, the Supreme Court ... both arguments (by Rural). With regard to the "s... of the ..." d..., Justice O'Connor said the argument was bogus. O'Connor said some c... of facts ... be protected by copyright, the key to determining whether protection is merited is whether there is some n... or ...y in the manner in which the facts are o... or s... or co...! -An alphabetical listing of names - the organization of the Rural directory and indeed all white pages - isn't n... enough to generate copyright ... for the directory! The primary objective of copyright law isn't to r... the l... of authors, but to promote the p... of s... and the ...! -In a pre-digital era, this ruling would have ... impact. But in the computer age, the creation of alphabetically ordered lists of facts, which are also called d..., is one of the f... and most p... uses for computer software and interactive Web sites! -Because of the Feist ruling, only those d... in which factual items are selected or arranged in some n... or a... manner will be protected by copyright law. Even a massive alphabetical listing of all the certified accountants in NY or the names of all the massage parlors in CA fails to meet the test laid down by the high court Many states have m...n laws that may be used to bar database p...! -Congress, under pressure from owners of large, commercial d..., has tried several times to pass l... to protect these c... of facts! But in every case the legislators have run into roadblocks! Organizations outside the d... industry, notably l... and some tech companies, have opposed such l..., claiming such laws would allow some companies to m... facts and this would hamper research projects! -Of course there is also the c... issue! The Supreme Court ruled the so-called s... of the ... d... was c... invalid in 1991, and this d... is at the heart of such l...! No resolution to this issue 2. News Events -When the news is reported correctly, it is basically an account of facts! Can a news account be copyrighted? Can one journalist claim the e... ... to report on a story? Example: Suppose a TV reporter gets an e... interview with a reclusive public figure and then broadcasts the copyrighted interview on the evening news Does the law of copyright prevent other journalists from relating the substance of what was revealed in that interview? The answer is...! Other stations cannot r... the same interview (newspapers cannot publish a t... of the interview either). BUT both broadcast and print journalists can t... their viewers or readers what the public figure said in the interview! -Copyright law does not even require competitors to give ... to the TV journalist for the interview! Failing to give proper ... to the journalist who got the interview is grossly un... but happens all too often Copyright law protects the E... of the story-the w... it is told, the s... and m... in which the facts are presented-but not the ... in the story! -For many writers his concept is a difficult to understand and accept. If one reporter works hard to uncover a story, shouldn't they have the e... ... to tell the story? This argument reflects the s...-of-the-... d... that has been ... by the Supreme Court! Shouldn't hard work be r...? In this case the law is clear: Hard work must be its own r...! Copyright protects only the w... a story is told, not the ... in the story. The use of selective p... or d... q... of a news story might be protected under the f... ... ... 3. Research Findings and History -Example: Miller, Pulitzer Prize-winning reporter for the Miami Herald, wrote a book 83 Hours Till Dawn, account of the widely publicized kidnapping of Mackle. Miller said he spent more than 2,500 hours on the book, and many aspects of the kidnapping case were uncovered by the journalist and reported only in his book -Universal Studios wanted to film a dramatization of the incident but was unable to come to terms with Miller on payment for the rights. The studio produced the docudrama anyway and Miller sued for infringement of copyright. The similarities between Miller's book and the Universal script were striking, included the errors Miller made in preparing the book -But Universal argued it was simply telling a story of a n... e...t, and as such the r... Miller had done in digging out the facts regarding the story wasn't protected by copyright law. A U.S. District Court agreed with Miller's contention. "The court views the l... and ex... of the r... involved in the obtaining of those un-copyrightable facts to be intellectually distinct from those facts, and more similar to the e... of ... than the ... themselves." But the 5th Circuit ... the lower-court ruling: "The valuable distinction in copyright law between ... and the e... of ... cannot be maintained if r... is held to be copyrightable! There is no rational basis for distinguishing between ... and the r... involved in obtaining the ..." -To hold r... copyrightable, the court said, is no more or less than to hold the ... discovered as a result of r... are entitled to copyright protection "A ... doesn't originate with the author of a book describing the ... Neither does it originate with the one who 'discovers' the ... The discoverer merely finds and records. He may not claim the ... are 'original' with him, though there may be originality and hence the authorship in the m... of reporting, i.e., the 'e...' of the ... The dichotomy between historical fact and fiction that is fundamental to American copyright law would have doomed any lawsuit filed in the U.S. by authors of Holy Blood, Holy Grail against Brown and Random House, the author and publisher of The Da Vinci Code -Baigent and Leigh said they spent 10 years doing r... before they published their book that argues Jesus was married, Mary was his wife, they had children and the descendants of the children are still around. B and L also asserted factions within the Roman Catholic Church have attempted to cover these historical facts -Along came Brown, who wrote a fictional thriller that suggests the same story. Brown admitted he owed a debt to the Baigent/Leigh book, but he denied he infringed upon its copyright. The plaintiffs filed their infringement lawsuit in the UK, where the .../... d...n isn't as widely accepted. "What makes this interesting is there is little clarity [in Great Britain] over the extent to which an author can use another person's r... for either background or a direct influence in their book" B and L argued Brown had stolen the central theme of their historical account, but lost the case when a London court ruled they failed to prove this point because they couldn't accurately state what the central theme was Misappropriation -An ancillary area of copyright law that guards against the theft of intangible property too! -Also known as ... c..., sometimes invoked as an additional legal remedy in suits for copyright Infringement! -Unlike copyright, which springs largely from f... s..., misappropriation is largely a creature of ... l...! AP v. INS (1919) (7-1) One of the most important media-oriented misappropriation cases was decided by the Supreme Court more than 80 years ago and stemmed from a dispute between the AP and International News Service, rival press association owned by Hearst -AP charged INS pirated its news, saying INS officials bribed AP employees to gain access to news before it was sent to AP member newspapers. The press agency also charged the Hearst wire service copied news from bulletin boards and early editions of newspapers that carried AP dispatches. Sometimes INS editors rewrote the news, and other times they sent the news out on the wire just as it had been written by AP reporters -... wasn't the question, because AP didn't ... its material. The agency said it couldn't ... all its dispatches because there were too many and they had to be transmitted too fast. INS argued because the material wasn't ..., it was in the p... ... and could be used by anyone! -Justice Pitney wrote the opinion, 7-1 decision. He said there can be no p... r... in the ... itself (the events, the happenings, which are publici juris, the common property of all, the history of the day) However, the jurist went on to say... "Although we may and do assume neither party has any remaining p... interest as against the public in un-copyrighted matter after the moment of its first publication, it by no means follows there is no remaining p... interest in it as between themselves" The law of appropriation is intended to stop: a. A person trying to pass his or her work as the work of ... ..., AND b. A person trying to pass off the work of ... ... as his or her work Example: If Brown published a magazine called Vanity Fare with a cover design that mirrors that of Vanity Fair in an attempt to c... readers, this is an example of her trying to pass off her work as that of ... ...! -If during its news broadcasts a radio station announcer simply reads stories from the local newspaper, pretending they were ...l, this is an example of trying to pass off the work of ... ... as its own. In either case a misappropriation action would succeed! The critical legal issue in a misappropriation or ... c... suit is whether there is the l... that an appreciable number of o... pr... p... will be m... or simply c... as to the ... of the material! In the wake of the AP v. INS ruling, misappropriation cases involving the media were relatively ...! But with the coming of the ... and the easy access to so much material, litigation in this area has ...d! -Example: AP brought suit for misappropriation against All Headline News Corp. The defendant employed people to search the Internet for news stories it could republish, sometimes after rewriting the text, more often using the entire story without editing. AP stories were a prime target for All Headline. The lawsuit was settled after the defendant admitted to improperly using AP's content and agreed to pay damages. -Individuals and companies that do this are called "a..." because they a... or bring together the work of others for their own use. And these third-party repackagers, especially of news, are becoming more ...! Some of this repackaging is defensible under the f... ... d... in copyright law! -Example: A federal court in NV ruled when a real estate company posted material on its blog it had taken from an article in the Las Vegas-Review Journal, it was a f... ... But more and more lawsuits are founded on claims of misappropriation and something called the "h... n... d..." which was inherent in the AP. v. INS ruling -This doctrine provides for a legal claim that can be used by n... g... to prevent competitors from free riding on their efforts by redistributing their b... n... But while the law clearly protects a n... g... like AP when someone else republishes a s... portion of an article, the courts still trying to determine how far the redistribution can legally go in merely reporting the b...c s... of a report! -Example: A group of banks sued a small Web site operator called the-fly-on-the-wall that was posting reports online about advice on the future performance of stocks (banks equity research recommendations). The banks argued TFOTW was publishing these recommendations even before their own customers had a chance to consider them - a violation of the h... ... ...! -A U.S. District Court agreed with the banks the website was free riding on the work the banks had done. But the 2nd District reversed the ruling. It is said while traditional copyright law still protects the work done by banks - TFOTW couldn't legally r... the bank's analysts' reports - the redistributors could legally r... on the analysts' f.... -That's NEWS, Judge Stack wrote. The court said the viability of the h... ... ... remained intact, but the banks' case didn't fall within this law! This ruling only affects cases in the ... Circuit (NY, CT, VT), but cases in this circuit are regarded as influential nationally and Judge Sack (of this case) is considered a leading expert on copyright law! -Example: If Google or CNN published online the New York Times is reporting the U.S. Attorney General was going to resign, this is OK and not against the h... ... ... -It is only if Google or CNN directly republished the NYT's reporting and using it as their own, then it would be against the h... ... ... As many newspapers, magazines, and others in the mass media face growing economic pressure because of the growth of the Internet, these issues will be litigated more often! -Established news organizations fear emerging online services who ride free can decrease the demand for their often expensive news-gathering efforts. An incredible amount of time and money goes into creating news stories, they argue -The h...-n... m... d... is a creature of ... law, but efforts were made to encourage the enactment of ... legislation; however, the call by news organizations for a ... h... n... legislation has been unsuccessful! -Any such legislation would have to be limited to avoid a ... ... challenge!

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Copyright and related issues of intellectual property are important for many reasons: 1. Intellectual property law allows those who engage in ... work (videos, music, books, news articles, or other ... work) to ... from these works! 2. Knowing intellectual property law allows creators to know when they can ... ...' work! Intellectual Property Law -Copyright law -Trademark law -Patent law -Trade secret law Constitute the body of law known as intellectual property - ... property that a person cannot ..., ..., or ... ... away for s...! This is a confusing concept - how can the law protect something you can't ... or ...? Example: new paperback novel purchased from the bookstore -You own that book; you can do with it what you wish (sell it, donate it, give it to a friend, tear out the pages and use them for a fire) But you don't own the ... of the ... in that book; whoever holds the ..., the book publisher/author, owns that part of the book! -You can't ... the book or ... long sections of it without ...! So... the book consists of two pieces of property: the physical/material book, and the ... and ... p... on the pages Intellectual property seems obscure and a dull, but as mass-mediated entertainment has grown as part of our culture and commerce, issues relating to intellectual property rights have become far more complicated and interesting to those outside the legal system! Example: Who owns sports coverage? -Do ..., ..., b... ..., b... who ... anything/everything about professional athletes and their teams own the rights to this coverage? -What about the ... themselves? Do they own the rights to their images and accomplishments? -Or the ... ... o..., do they control the rights to the pictures and stories about their businesses and employees? Look at a mythical MLB team for more insight... a. The Knights have assigned the rights to broadcast their games to a radio or TV station or cable channel. So broadcasters own some rights, and the Knights don't want to jeopardize these profitable contracts by giving free coverage rights to others b. Have their own Web site, and MLB has its own Internet arm, which generates revenues each year. Those are revenue sources that might be diminished if the team and baseball generally cannot limit to some extent the content in the mainstream mass media! c. Reporters who cover the team expect to have access to players; when the Knights limit interviews or photo coverage so they can have exclusive reports on their Web site, the members of the press raise freedom of press issues. The Knights are willing to work with the reporters from established newspapers, magazines or b-cast stations, but the teams expect these journalists to be disciplined and follow rules established for their behavior, both in the clubhouse and elsewhere (whom the reporters can talk to and what they can talk about) d. A large influx of bloggers have emerged, individuals who also want access to players and the clubhouse, cybernet journalists who may/not be willing to play by the established rules What is the team to do? Who owns the rights to the players and the games? Questions involve elements of intellectual property law. Also, because of issues related to how easy digital tech makes it to ... and ... images and text, individuals who work in the media must be careful they are following the law! Just because tech makes it possible to ... something ... don't mean it is ... to ... it! Remember the four facets/aspects of intellectual property law: 1. ... law 2. ... law 3. ... law 4. ... ... Patents Patent protection serves as an important element in the technological development of the nation! Without patent law it is doubtful society would have enjoyed the fruits of geniuses like Edison, Bell, Wright brothers. The ... gives ... the right to promote the ... and the u... ... by protecting the rights of ...! "... give up their secrets, ... them for all to see and absorb, and in exchange they get a ...-y... ...-sanctioned m... on their technologies!" (exclusive right) Three kinds of patent protections (at least): 1. Patents that protect ... that have ...! Such as a machine or process Example: A typewriter, a specific way of reducing the hiss or noise of a recording 2. Patents that protect ... - the a... of an article of manufacture Example: The ... of a piece of furniture, tire tread, belt buckle 3. Patents that protect ..., but only those r... a... through means other than s..., like cuttings or grafting Patent rights don't exist until the patent is issued by the...? Famous abbreviation of many items, "pat. pending", means the patent has been applied for but is pending

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Copyright and the Internet -The law regulating mass media has had to ... to changes in the media tech many times in the past 200 years. When the nation's first copyright law was adopted, ... media comprised the mass media. But since then, the law has been forced to c... with p...y -> r... -> m... ... -> s... ... -> T... -> a... and then v...t... -> p...g -> c... p... -> C...-R..., etc. But no technology has challenged the law to the extent the ... has! By its very nature the new medium lends itself to the t... of the work of ...! -D...d information can be c... quickly, easily and cheaply, and the c... is every bit as good as the ...l! Once the information is c..., it can be easily d... via the ... to receivers who can make their own c... of the material and further d... it; an almost endless chain! Copyright issues involving c...-g... c... are ... today! -Stories on lawsuits appear almost daily in the press. And the owner of the copyright can be l... o... completely! Example: Publishers and authors sued Google in 2009 after it announced a plan to scan all the books in the world; those in the p... ... and those ...d by ...! The online giant settled the lawsuit by promising to c... customers who read the books and share the r... with the c... ...! The c... ... would also get a flat ... for the initial scanning, or could o... ... of the scanning system -But in 2011, a federal court rejected the s..., saying the terms go too far in giving Google an advantage over competitive and copyright holders. In 2012, Google and the major book publishers worked out a s..., but that didn't completely s... the matter The ease of c... and d... is only one problem. Many Internet users apparently don't ... that other people's works should enjoy ... p...! Example: Cartoonist Gary Larson pleaded with Web users to stop duplicating his "The Far Side" cartoons on the Internet. A substantial number of users replied they ... c... the practice. "All this copyright infringement enforcing ticks me off," one user responded. "What is the Net for if we can't view a Far Side cartoon, or listen to a sound file from the Simpsons," the user asked rhetorically -There have always been people who disdained the notion that a writer or photographer should be able to ... their own work. But until the Internet, all that most of these people could do was s... it for ...: illegally dub a CD or a movie, photocopy a series of short stories -Now it is possible for an individual not only to make the i... c.., but to d... it to 100,000 of their close friends in a matter of seconds The courts have been applying t... copyright ... to these new problems with some success -And some jurists say the application of e... l... is all that is required to solving the problems. "New technologies (from TV to video cassette recorders to digitized transmissions) have all been made to f... within the overall scheme of copyright law and to serve the ends to which copyright was intended to promote," U.S. District Judge. "The Internet is no ...!" Other observers believe new laws aren't ...d! Copyrighted material (visual images, videos, or other content) does not become p... ... simply because the content is available via ... ... or on other ... s...! Example: Professional photographer sued wire service Agence France-Passe, Getty Images, CBS and CNN when the media organizations used photos of the Haitian earthquake the photographer uploaded to ...! The judge r... to ... the infringement suit, noting any license agreement extended only to ... and its partners, not the t... p... involved in the lawsuit -The photographer was eventually awarded $1.2 million in damages after a jury determined the news organizations willfully infringed his copyrights by distributing eight of his images Example: A Manhattan federal judge ruled designer Elie Tahari Ltd. liable for copyright infringement for posting a photographer's image to ... ..., rejecting the defense that sharing images online has become so "c..." that it was l... -U.S. District Judge sided with the photographer who sued ET for reposting a copyrighted photo of a model wearing the company's clothing to various ... ... sites -The judge ruled the posts were not a legal fair use of the image or a t... infringement, even if digital photos are frequently used without ... on the Internet. "There is nothing '...' about a business utilizing a professional photographer's work to p... its p..." the judge wrote. Iantosca, Brooklyn-based photographer, filed the lawsuit after ET's ... ... accounts posted an image he had snapped of model Linh Niller wearing the company's apparel -Media professionals must avoid the temptation to "r... c... and s..." i... they find on the Internet! This might be convenient but it's not ...! For a number of years, however, l... to visual images or e... video content on a ... p... was not considered infringement under the so-called S... T... -Today, the most common method for displaying a visual image or video on a site is "i... l..." -I... l... allows a video to be played or an image to be viewed on a Web site without actually ...g the video/image to the new Web site. The file remains on the o... s... Example: Perfect 10 v. Amazon.com -Google was sued for copyright infringement over its i... s... e..., which displayed i... matching a search term entered by a user. Google, however, used i... l... so the a... i... returned by the search query remained on the i...' o... s...! -9th Circuit held that because Google's server didn't house an a... c... of the i... and merely l... to the content on the o... s..., there was no infringement of the copyright owner's rights. Though it might appear to the user Google was h... the material, it was only h... a l... to the material that the user's browser interpreted should appear in a certain way In addition, the 9th Circuit found the secondary use of th...l d... i... was a ...e fair use! The court held even e... c... of p... could be "highly ...e" if they were used for a d... p...! (Kelly v. Arriba Soft Corp.; Perfect 10, Inc. v. Amazon.com) In a notable ruling (2018), however, a federal district court held a news organization violated the d... rights of a c... ... when it caused an e... T... of Tom Brady to appear on its Web site -During summer 2016, Justin Goldman took a photograph of Brady while in East Hampton. Brady was recruiting basketball star Durant to play for the Celtics. Goldman uploaded the photo to his Snapchat story. Shortly afterward the photo went viral and was shared on ... -The media organization e... some of the t..., which contained the photo, in articles they published concerning the Celtic's efforts to recruit Durant. The court rejected the s... t..., noting the news organization "d..." the photo (even if the organization was not in p... of the photo) because it "actively took steps to 'd...' the image." (The defendant took steps to insert code into its Web site's HTML code such that users would see the photo when they visited the defendant's Web site) -The court wrote even if it were to adopt the s... t..., the case was ... enough from Perfect 10 that the s... t... would not apply. The court wrote asking a search engine to return i... results was d... than a Web site presenting an infringing image to its users regardless of whether the user did a s... for the i... -Search engines merely a... a user to n... the Internet, the court wrote. This was "manifestly not the s... as opening up a favorite blog or website to find a full color image awaiting the user, whether they a... for it, l... for it, c... on it, or not!" Digital Millennium Copyright Act (1998) -An international group, the W... I... P... O..., framed new copyright rules in two t... in the mid-1990s that give: a. Copyright protection to the owners of d... works b. Also provide for the ... ... d... in cyberspace! The U.S. agreed to abide by these new rules in adopting the Digital Millennium Copyright Act (DMCA) in 1998 -This law went ... the WIPO t... and also prevents the c... of t...l m... that control ... to copyrighted works - so-called e... c... - and outlaws the m..., im... or s... of devices used to c... such protection! -2001, Russian cryptographer Dmitry Sklyarov was arrested in Las Vegas after giving a presentation to a convention of computer hackers on ways to d... the s... used to protect electronic books. Six months later the government agreed to defer the p... of Sklyarov in return for his promise to t... against his e... (Elcomsoft), a Russian s... company -A basic question in this case and others that spring from this section of the 1998 act is this: Can the government make it a ... to m... and s... a device that can be used to c... copyright ... if that device can be used for other, l... purposes as well? -In 1984, the Supreme Court was asked that question about another tech invention, the videocassette recorder. Hollywood TV production companies sought to stop the s... of the new device in the U.S. because it could be used to make c... of the ...d programs broadcast on television -At that time the Supreme Court ruled even though some people may use the device ...y, there were numerous l... purposes for the VCR as well. The manufacturer of the machine could not be held ... for those who used the device ...y! But times have changed, people in the entertainment industry argued! ...g protected material has become too ...y and can be done too ...y for the rights holders to catch up with the ...l users! It is time to ... the devices! This is a basic legal issue in any case to determine whether s... or h... violates the DMCA! Does the machine or the program that permits ...l activity have functions that are clearly ...l as well? Federal court have ... the c... of the DMCA! Example: 2nd Circuit agreed c... c... is protected by the ... ... but said a ...y drawn statute (like the DMCA) wouldn't violate the ...! But the issue is far from resolved, as more litigation enters the halls of justice The law carries c... ..., a possible $... fine, and a ...-year jail sentence -Imposes a c... l... and r... scheme for the transmission of music on the Internet similar to the scheme used to collect r... for music broadcast on radio or TV -Exempts ... ... p... from copyright ...y for simply t... copyrighted material users have put on the Internet! - This is referred to as a "... h..." This last provision got a serious court test because of YouTube, the video-sharing Web site owned by Google (the "... h...") -The site carries hundreds of thousands of video clips, many of them copyrighted material -In 2007, Viacom (parent company of MTV and Comedy Central) demanded YouTube remove >100k clips of video the company says it owns. Viacom also demanded that YouTube begin automatically filtering out material that is obviously copyrighted. After making that demand, Viacom filed a $1 billion copyright infringement suit against Google YouTube began ...g the material owned by Viacom while it evaluated the merits of the lawsuit -Other companies like NBC Universal, the Walt Disney Company and News Corporation were also negotiating with the site, asking that YouTube either remove copyrighted material or begin paying a licensing fee for the use of the material YouTube contends that as long as it ... copyrighted material when ... to, it is i... from legal ...y because of the DMCA -A federal court ... with YouTube, saying the company was shielded from Viacom's copyright claims by the ... h... provisions of the DMCA. As long as YouTube t... d... the material when n... by its rightful owner it was uploaded without permission, the operator of the site is protected from ...y! -Judge Stanton said while the company certainly ... that copyrighted material had been uploaded to its site, it didn't know ... clips had been uploaded with permission and which had not! Forcing companies to police ...y video uploaded to their sites "would contravene the structure and operation of the DMCA." -But in 2012, a federal appeals court ... the lower court ruling -2nd Circuit ruled "a r... ... could conclude YouTube had k... or a..." of the copyright infringement, "at least with respect to a ...l of ...c clips" -In 2013, Judge Stanton issued another order granting ... ...t in favor of YouTube The judge ruled YouTube had no a... ... of any ...c instance infringement of Viacom's works Before another appeal could be heard by the 2nd Circuit, the two companies reached a s...!

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Disparaging and Scandalous Trademarks Matal v. Tam (2017) [8-0] -Simon Tam tried to register "The Slants" as a trademark for his rock band. By choosing the Slants as its name, the band was following the tradition of reappropriation (members of minority groups reclaims slurs and turn insults into badges of pride) -USPTO denied the Slants ... under a section of trademark law that denied ... to "disparaging remarks" -Tam brought suit in federal court. The case garnered widespread attention because it was sure to have r... for other owners of c... trademarks! Section 2(a) of the ... Act barred ... of a mark that "consists of or compromises im..., de..., or sc... matter; or matter which may di... of falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute" -Rules led to puzzling results (in...y)! Example of in... results!: -USPTO denied the mark HAVE YOU HEARD SATAN IS A REPUBLICAN because it d... the Republican Party, but didn't find the mark THE DEVIL IS A DEMOCRAT d...! -The office rejected ... for F__: FOREVER A GENIUS! and MARRIAGE IS FOR F___, but accepted the mark F*__*___ FABULOUS AND GAY -USPTO has ... "hundreds if not thousands" of racist, misogynistic, vulgar or otherwise offensive marks In defending the decision to not grant trademark protection to the Slants, the government argued denying trademark p... isn't equivalent to denying someone the ... to s...! The government was not stopping Tam from c...g his band "The Slants." The government was simply refusing to ... it as a trademark, which would give Tam the right to stop others from using the term for ... purposes! The U.S. Supreme Court held section 1052(a) was a ...-b... d... on ... of ...! The Court unanimously held the government could not deny ... for marks that d... persons, institutions, beliefs or symbols, while allowing ... for positive or benign words Iancu v. Brunetti (2019) -Supreme Court also struck down portion of the ... Act that applied to im... or sc... material -Brunetti, owner of clothing brand "FUCT" filed an intent to use the mark for various items of apparel. The attorney determined the mark was a past tense of the verb "f---" and refused to ... it! -As it found in Tam, the Court ruled the prohibition of "im..." or "sc..." trademarks was a ...-b... r... that violated Brunetti's ... ... rights THERE IS A LONGSTANDING PRECEDENT: YOU CANNOT BE ... FOR THE USE OF A TRADEMARK IN AN ... WORK (TV shows for example) -Example: 9th Circuit held Fox Television couldn't be ... over its hit show about a record company called Empire by a real-life record company that used the same name. The court held the use of trademarks in ... ... and the promotion of those works was almost always protected -A federal district court ruled the use of the military vehicles colloquially known as Humvees in the video game "Call of Duty" wasn't a violation of trademark law either. AMG, which manufactures the vehicles and owns the trademark to them, has granted licenses to other companies to use the Humvee trademark for a variety of products Ruling the use of the Humvees had a... v... in the games, the court ruled their use was protected by the ... ...

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Duration of Copyright Protection The length of time a copyright will protect a given work depends on ... the work was created! The major revision of the copyright law in 1976 included a significant extension of the duration of copyright protection! -In 1998, Congress adopted the Sonny Bono Copyright Extension Act, adding ... more years to the production of a copyrighted work: Any work created after January 1, 1978 will be protected for the ... of the ... + ... years! -This rule allows creators to enjoy the fruits of their labor until their ... and then allows ... to profit from the work of their relatives for an additional length of time -After ... years, this work goes into the p... ...; consists of body of works to which no e... ... apply! The rights may have e..., been f... or the work may have been created ... to modern copyright law! -Example: Work of Shakespeare are in the p... ... -A work in the p... ... may be ... by any person for any reason without the payment of r... to the original owner! The copyright on a work created by ... or more a... extends throughout the life of the last a... to ... plus ... years! What is called a work for hire is protected ... years after publication: include works created by an e... for their e... within the scope of e... -Books written by an author for a ..., which then holds the copyright (like our textbook) are also works for hire -Most motion pictures, sound recordings, TV programs created through a c... effort! Works created before 1978 when the '75 law went into effect are protected for ... years from the date of the original copyright How long does copyright protection last? a. Works created after Jan. 1, 1978 = ... of the ... + ... years b. Works created by more than ... ... = the ... of the last l... ... + ... years c. Works for hire = ... years d. Works created before Jan. 1, 1978 = ... years A number of individuals and organizations were upset by the Copyright Term Extension Act (CTEA) (1998) -The law affected both ... and e... works, making it a ... extension of copyright terms! Meaning both a number of works wouldn't enter the p... ... as they would have under the Copyright Law of 1976 and material already published in the p... ... was returned to p... o...! A challenge to the law was heard by the Supreme Court in 2002 Eldred v. Ashcroft (2002) [7-2] -Lawyers for the plaintiff, Internet publisher Eldred, argued the act violated the Constitution's copyright clause by allowing ... extensions of copyright terms. Congress could in practice guarantee an un... period of copyright protection, thus thwarting the intent of the clause. They also argued the law inherently conflicted with the ... ... -Supreme Court ruled the CTEA was ...! The majority opinion relied heavily on the previous copyright acts that had granted ... extensions -a. The majority ruled the Constitution only specified ... set "l... terms" for copyrights, the length of which was left up to the d... of ...! As long as the term limit was not ..., ... has the power to make the term longer! -b. The Court also ruled the ... ... and copyright law were compatible because both sought to promote the d...n of k...! c. Lastly, the Court wrote f... ... allows some uses of otherwise protected expression! The contemporary basis for the protection of intangible property is contained in the ... ..., and since 1789 the nation has had numerous copyright ...! -Current law - adopted 1976, gives author s... and ... r... to r... the copyrighted work in any ... for any ...! Also protects all ...l works ... in any t... m...! -N... ... be copyrighted, but stories or broadcasts that describe or explain these events ... be copyrighted! -Similarly, f... ... be copyrighted but works that relate these f... ... be protected as expression!

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FTC's tools or remedies to stop false advertising... 4. L... o... -Sometimes an advertiser does not want to s... a c... a...! It may believe the ad claim is t... or may simply want to hold off any FTC b... on certain k... of p... c... -The commission can issue an o..., usually called a l... o..., to s... the particular advertising c...! Process of issuing such l... o...: 1. Staff a... at FTC will issue a c... agains the advertiser, and a h... will be held before an a... l... ... 2. The ... can u... the c... or r... it 3. In either case, the losing side can ... to the f... t... c... for a f... r... 4. If the advertiser loses this f... a... before the c..., they can ... the l... o... in f... c... Failure to abide by the provisions of a l... o... can result in the advertiser facing a s... c... p..., as much as $... per day! -Example: In the 11-year Geritol case, the commission issued an o... in 1965 prohibiting the J.B. Williams Company from implying in its advertising for Geritol that its product could be helpful to people who complained they were tired and run-down. The commission contended m... e... demonstrated Geritol helps only a small percentage of people who are tired and that in most people tiredness is a symptom of ailments for which Geritol has no therapeutic value. The commission alleged J.B. Williams Co., violated the c... and d... o... and in 1973 was f... more than $800k. A court of appeals threw out the f... in 1974 and sent the case back to district court for a jury trial, which the advertisers had been denied the first time around. The jury was to decide whether the Geritol ads did in fact violate the c... and d... o... At a second hearing in 1976, FTC won a $280k judgment against the patent medicine manufacturer Sometimes filing a ... is the only effective way for the FTC to put pressure on some companies! -Example: FTC filed a c... in ... c... against Alcoholism Cure Corporation alleging it touted a phony "Permanent Cure" program for alcoholism and tricked hundreds of problem drinkers into spending thousands of dollars for a service prescribing ineffective concoctions of natural supplements, and then threatened to reveal their alcohol problems if they canceled their memberships. According to the FTC, the ads falsely boasted the company had a "team of doctors" with expertise in addictive diseases and the doctors would create customized cures for members. FTC's c... sought a p... ... ordering the company to s... making such c... 5. S... -Advertising s... has been an important FTC regulatory scheme since 1972 The basis of the program is simple: The commission asks advertisers to s... c... made in their ads! -FTC does not p... the c... are f... or m...! The advertiser is simply asked to p... the c... are t...! The s... process today involves a p... of e... who scrutinize ads and target for d... those c... that seem most s...! -The most recent commission policy statement on s... was in 1984: Under this policy, ex... s... c... such as "doctors recommended" and "specific tests prove" require the l... of p... a...! Otherwise, advertisers will be expected to have at least a "r... b..." for c... in their advertising The degree of s... that will be deemed r... varies with the... a. Type of c... b. The p... c. The c... of a f... c... d. The b... of a t... c... e. The c... of developing s..., and f. The amount of s... e... in the field believe is p... (the policy statement read) Claims for h...-related products like d... s... and w...-l... p... require s... before claims are made, by what the FTC calls "co... and r... s... ev..." 6. C... a... -C... a... is a highly c... scheme based on the premise that to merely s... an ad is in some instances in...! If the ad campaign is s... and l... r..., a residue of m... information remains in the mind of the ... after the o... ads have been r...! -Under the c... a... scheme, FTC forces the advertiser to i... the p... that in the p... it has not been h... or has been m...! -The scheme was first used by the FTC in 1971 and was applied f... during the heady c... p... years of the 1970s! The agency has never outlined a h...-and-f... p... regarding when c... a... will be used -In response to a request from the Institute for Public Representation for such a p... statement, FTC said c... a... may be applied: "If a d... ad has played a s... role in c... or r... in the ...'s mind a f... and ma... b... which l... on a... the f... advertising c..., there is c... and c... i... to c..., and to the consuming p... as c... continue to make p... d... based on the f... b..." Since the early ..., the c... a... scheme has been used s... by the agency; but it still exists as a policy choice! -Example: FTC (1999) ordered a giant pharmaceutical company, Novartis A.G., to run advertising c... e... s... that called its Doan's back-pain relievers superior to other analgesics. The agency said the company had to spend $8 million on advertising messages that include the words, "Although Doan's is an effective pain reliever, there is no evidence that Doan's is m... e... than other pain relievers for back pain" The company had to make similar disclosures on its packaging for one year 7. I... -When Congress passed the Tr...-A... P... Au... Act (1973) -Attached to that piece of legislation was a bill that authorized the FTC to seek an i... to s... advertisements that it believed v... the ...! Attorneys for the FTC can seek these r... o... in ... c...! -An i... is a clearly drastic remedy and one the agency said it will not u... o... -Spokespersons for the FTC have said the agency will use the power only in instances in which the (1) advertising can cause ..., (2) in those cases that contain a c... l... v... and (3) in those cases in which there is no pr... the advertising practice will e... s...! AMG Capital Management v. FTC (2021) -Supreme Court in 2021 restricted FTC's ability to proceed d... to ... c..., rather than pursuing in-... a... p... first, when seeking m... ... through i...! -Congress responded the same year by considering legislation that would effectively ... the Court's decision. Legislation has yet to become a law -Example: In 2004, FTC reached a massive settlement, including a p... ..., in ... c... with Kevin Trudeau, a marketer who either appeared in or produced hundreds of infomercials. The settlement e... Trudeau from appearing in, producing or disseminating future infomercials that advertise any type of product, service or program to the public, except for t... infomercials for in... p...! Trudeau agreed to these prohibitions and to pay the FTC $2 million to settle charges he f... c... in nationally televised infomercials that a coral calcium product can cure cancer and other serious diseases and a purported analgesic can permanently cure or relieve severe pain -A federal judge in 2007 found Trudeau in c... for v... the 2004 p... i... by m..., during yet more i..., the content of his book The Weight Loss Cure They Don't Want You to Know About. Trudeau repeatedly c... that his diet was "easy". In fact, as U.S. District Judge Gettleman pointed out in an opinion, the diet's regimen was very complex and difficult -In 2008, Gettleman rejected T's motion for reconsideration of the 2007 c... filing, once again determining the infomercials violated the terms of the 2004 i...! As punishment for violating the 2004 i..., the judge ultimately found against T in the amount of $37.6 million - the approximate amount consumers paid in response to T's d... infomercials. Judge Gettleman also banned T for three years from producing, broadcasting or participating in the production or broadcast of a... infomercials for products, including books, in which T has a... interest -In 2011, 7th Circuit in Federal Trade Commission v. Trudeau ... Gettleman's fine. In addition, the appellate court ... a $2 million p... b... imposed on T by Judge Gettleman. A p... b... is a sum of money that T must f... p... with the ... before he is allowed to participate in any f... i... promoting books or other i... p... about the benefits or performance of any product, program or service referenced in any such publication. Other courts have also upheld the imposition of such p... b... as an acceptable method of deterring additional instances of unlawful commercial speech -Judge Gettleman held T in c... c... and jailed him for a year after he f... to p... any of the $37.6 million fine - even though he continued to live lavishly. A court-appointed receiver was able to find millions of dollars T had hidden, allowing the FTC to send partial refunds to hundreds of thousands of consumers who had bought T's book. Then in 2013, a federal jury found T guilty of c... c... for violating the 2004 i...! In 2014, U.S. District Judge Guzman sentenced T to ... years in ... for the c... c... charge. Judge Guzman said T head treated federal court orders "as if they were m... s... or imp... to be sidestepped, outmaneuvered or just ignored" Writing about T in 2016, an FTC attorney said: "What's the one truth advertisers should take from the T story? In most cases, people and companies under o... implement in-house changes to p... a r... performance. But for those who don't, the FTC will take the steps necessary to p... c... from re...!" 8. T... R... r... -In January 1975, President Gerald Ford signed the Mag...-Mo... Wa...-F... T... C... Im... Act -The most significant piece of t... r... legislation since the W...-L... A...t in 1938! The new law did many things, but it basically e... both the p... and j... of the FTC -Until the bill was signed, the FTC was limited to dealing with u... and d... practices "i... c..." The new law ex... the j... to practices "a... c..." The change of a single word gave the FTC b... new area to r... -The law also gave the agency new p...! Three sections of the act ex... the r... the FTC can use against d... advertising: 1. The agency was given the power to issue t... r... r... defining and outlawing u... and d... a... or p...! -In the past the agency had to pursue d... ads ... at a ...! Example: Imagine four or five different cereals all advertise they are good for children because they contain nine times the recommended daily allowance of vitamins and minerals. Medical experts argue that any vitamins in excess of 100% of the recommended daily allowance are useless; therefore, these ads are probably d... and m...! -In the past the FTC would have had to issue a c... against e... advertiser and in e... case prove the statement was a v... of the ... -Under the new rules, the agency can issue a t... r... r... - as it had done for nutritional claims - that declares that c... of product s... based on excessive doses of vitamins and minerals are f... and m...; if advertisers make such c... they are in v... of the ...! -All the commission must prove now is the advertiser had a... k... of the t... r... r..., or "k... fairly im... from the objective circumstances" The advantages of t... r... r... (TRRs) are numerous! 1. They s... ...p and s... the process of e... Advertisers still litigate the question, challenge the t... r... r..., seek an ... in court and so forth. In most cases they will probably not go to that expense 2. T... r... r... have had a great d... e..., as they comprehensively delimit what constitutes an i... practice -In the past after the commission issued a c... and d... o..., businesses frequently attempted to undertake practices that fell just ... the n... b... of the o...! The TRRs are much b... and make it h... for advertisers to skirt the limitations! 3. Via TRRs the FTC is able to deal with problems more e... An entire i... can be treated s..., and just one or two businesses are not just picked out for complaint! 2. The second aspect of the law that improved FTC r... allowed the FTC to seek c... p... against anyone who k... v... the provisions of a l... o..., even if that person was not originally the s... of the o...! -Example: Chemical company A sells a spray paint that is toxic if used in a closed area, but the product is advertised as being completely harmless! FTC moves against the company and issues a c... and d... o... stating that in the f... the firm must not advertise the product as completely harmless Chemical company B also sells a spray paint that has the same toxicity and is being advertised the same way! If it can be shown that Company B was a... of the p... of the o... against Company A and c... to advertise its product as being completely safe, B can be f... up to $.../day for v... the o..., even though the o... isn't directed against B! 3. The third aspect of the law that improved FTC r... gave FTC the right to s... in ... c... on behalf of c... v... by practices in violation of a c... and d... o... or by practices that are in violation of a t... r... r..., a right the agency has been r... to use! Summing things up... -The FTC has power to regulate v... a... advertising that is d... or m...! To be d... an ad must 1. Contain a r..., o..., or p... that is likely to m... the c... 2. The ad or practice must be considered from the perspective of a r... c... 3. And the r..., o..., or p... must be m...! -FTC has many r... to regulate d... or u... advertising: 1. G... or ad... op... that attempt to outline in ... what advertisers may s... about a p... 2. V... a... by advertisers to t... a d... advertisement 3. C... a... or c... o... signed by advertisers promising to t... a deceptive ad 4. L... o... to advertisers to t... a particular advertising c..., failure to c... with which can result in s... p... 5. S... of ads, in which the advertiser must p... all c... made in an advertisement! 6. C... a..., in which an advertiser must admit in f... ads that p... ads have been i...! 7. I... power to im... ha... campaigns that could cause h... to c... 8. T... r... r... that can be issued to regulate advertising throughout an en... i...

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Fair Use Owners of a copyright are granted ALMOST e... m... over the ...e of their creations! The word 'almost' must be used, for there really are FOUR LIMITATIONS on this m...! 1. The work must be something that ... be copyrighted! -There can be no legal m... on the use of something that ... be protected by the law! 2. The m... protects only ...l authorship or creation! -If the creation is not ...l, it cannot be protected! 3. Copyright protection doesn't last ...! -At some point the protection c... and the work falls in the p... ... 4. Broader than the other three limitations on e... m..., is certainly more controversial and is concerned with l...d ...g of copyrighted material! This is the doctrine of ... ...! "A rule of reason to balance the ...'s right to c... for his work, on the one hand, against the ...'s interest in the widest possible d... of ideas and information on the other!" This doctrine permits l...d ...g of an ...l creation that is copyrighted and has not yet fallen into the p... ...! But in many instances describing the ... ... d... is far easier than applying to a particular case. As courts and many scholars have commented, ... ... is the most difficult issue in copyright law! It is mixed inquiry of f... and l..., which oftentimes can lead to d... o... on how the factors should weigh out! More than 130 years ago all ...g of a copyrighted work was ... the ...! -This a... prohibition on ...g constituted a hardship for scholars, critics, teachers seeking to use small parts of copyrighted materials in their work! A j... r... for the problem was sought. It was argued since the purpose of the original copyright statute was to promote ... and ..., the copyright law shouldn't be administered in such a way as to frustrate ... and ... who wish to publish scholarly materials! Baker v. Selden (1879) "The very object of publishing a book on ... or the u... ... is to communicate with the world the useful knowledge which it contains. But this object would be frustrated if the useful knowledge could not be used without incurring the guilty of p... of the book!" The doctrine of ... ... emerged from the courts, and under this judicial doctrine ... amounts of ...g were permitted so long as the publication of the material advanced ..., the ...s, c..., and so forth! 1976, Congress included the doctrine of ... ... in the revision of the copyright law Section ..., "The ... ... of a copyrighted work for purposes such as c..., c..., ... r...g, t...g (including multiple copies for classroom use), s..., or r... isn't an infringement of copyright!" In determining whether the use of a particular work is ... ..., the statute says the courts should consider the following factors... 1. The p... and c... of the u... 2. The n... of the copyrighted work 3. The a... and s...y of the portion used in relation to the copyrighted work as a ... 4. The effect of the u... on the p...l m... for or v... of the copyrighted work The fair use criteria included in the statute are very close to the criteria ... used under the old ...-l... fair use doctrine! -This similarity was no accident! In a report issued by committees in the House and Senate on Section ..., legislators said the new law "endorses the p... and general s... of the j... doctrine of fair use" but didn't intend the law be f... as it existed in 1976. "The courts must be free to a... the doctrine to particular situations on a ...-by-... basis. Section 107 is intended to restate the present j... doctrine of fair use, not to change, narrow, or enlarge it in any way!" Fair Use Factors... 1. The Purpose and Character of Use -The purpose and character of use is the ...l factor to be considered! -A use is more likely to be considered fair use if it is a N... or N... use; but just because material is used in a ...l venture doesn't disqualify it as a fair use! Likewise, just because a use is a n... use doesn't mean it will automatically be protected as fair use! Example: 2nd Circuit, according to committee reports compiled when the new copyright law was adopted, Congress didn't intend that only n... educational uses of copyrighted works would qualify as fair use. The reports are "an express recognition that the c... or n... character of an activity, while not conclusive with respect to fair use, can and should be weighed along other factors in fair use decisions!" The law lists several categories of use that may be protected by fair use... a. C... and c... b. T... c. S... and r... Just because a use falls into one of these categories doesn't mean a fair use defense will ...y be successful! At the same time, uses that fall outside of these categories may still qualify as fair use! C... and c... Example A: "The Daily Show" used a video clip from a public access TV show, "The Sandra Kane Blew Comedy Show" to introduce a segment called Public Excess. The segment features examples of public access TV. Kane, a comedienne and former stripper, sings, dances and tells jokes on her show while wearing little/no clothing. She sued for copyright infringement, but the federal court said the use of the clip by Stewart on "The Daily Show" was a fair use because it was used for C... PURPOSES. The defendant sought to c... examine the quality of plaintiff's public access TV show Example B: But a federal court in CA rejected a fair use argument made by the operator of an Internet bulletin board who posted c... copyrighted articles from the LA Times and the Washington Post on the side so people could c... on the news and c... the manner in which the stories were reported! The court noted adding ...y to a v... c... of a copyrighted work doesn't automatically protect it as fair use! -The court issued an injunction barring future postings and $1 million in damages against the defendant How do you explain the seemingly opposite rulings? -Surely the concepts "c..." and "c..." are elusive and subject to in...! But a more obvious explanation involves the a... of copyrighted material used in these instances -In the CA case, the defendants used m... copyrighted articles from the two newspapers. In addition, the defendants used e... articles. If they had used ... portions of articles and linked back to the original material, the case might have been decided differently! -Significantly ... amounts of copyrighted material were used in the other case. The ... and ... element is more aptly applied to republishing ... segments of a work! T... (...l purposes) Copyright law has traditionally regarded the ...d use of copyrighted material for ...l purposes as fair use! -A teacher makes copies of a short article from Newsweek and distributes them to class members is normally considered an ... in...! But more ...l copying may not receive the same protection, especially when ...l in... are involved! Example: 1990s when photocopy businesses worked with college/university faculty members to prepare so-called coursepaks. A faculty member could provide the copy center with a list of articles and book chapters for use in a class. The centers would then make photocopies of the material, loosely bind them and then sell these ad hoc anthologies to the students enrolled in the course for use as a text. Publishers who held the copyright on the material that was ... brought suit for infringement -Copy centers argued these materials were being ... for ...l purposes, an acceptable use under the law. The federal courts agreed while the materials were ultimately being used for ...l purposes, the copy centers were making the coursepaks for ...l reasons - something that didn't qualify as a fair use! N... reporting Use of ... amounts of copyrighted material in a ... article or b... is usually regarded as a fair use. But this kind of use has become more problematic in recent years with the growth of content on the ...! Example: AP (news cooperative owned by 1,500 daily newspapers, provides written articles and broadcast materials to thousands of news organizations) announced it would use legal remedies to stop Web sites, bloggers and search engines like Google and Yahoo! from using its works without first getting ..., and then sharing r... earned by using the AP material. The news a... and search companies argued such a use was a fair use. AP officials said it is more appropriate for the bloggers to use s... s... of the articles than d... q... from the stories. In 07/2009, AP announced it would henceforth attach software called metatags to its articles. The tags would explain what copyright rules apply to the r... of the material, and alert the AP if and how the article is being revised! Journalists cannot just take someone else's ... and put them in a ... s... and think they are protected as a fair use because it is a "... u..." Example: A federal district court ruled against ABC when it used a picture of Markle without the copyright owner's consent. Dlugolecki photographed Markle while she was a high school student. The photos were published in her school's yearbook. After the announcement of Markle's engagement to Prince Harry, ABC used several of D's photographs during ABC's c... of the engagement. ABC displayed 5 photographs for a total of 49 seconds during eight hours of combined broadcast time. The photographs were also shown in p...s and s... m... p... for the b... ABC moved for summary judgment, arguing its use of the photographs was fair use. The court wrote although "... r..." is mentioned in the preamble of S... ... of the ... Act, this doesn't mean ANY un... use of a work in a ... r... is given a s... "l... u..." While the court found ABC's use of the photographs in TV news was somewhat t... because the photographs were created for the purpose of appearing in a ..., it was not "considerably, or overwhelmingly" t...! The court ruled in favor of the photographer On at least two occasions federal courts have ruled a use that serves the ... i... could qualify as a fair use! -One case involved the use of copyrighted material in a biography of the reclusive multimillionaire Howard Hughes. A company owned by Hughes bought the rights to the copyrighted material when it ...d it was to be ...d in the biography, and then attempted to ... the publisher from using the material in the book! The 2nd Circuit ruled it would be contrary to the ... i... to permit individuals to buy the rights of anything ...d about them to ... authors from using the material! -In another case, a federal court ruled it was in the ... i... to permit the author of a book on the assassination of JFK to use copyrighted frames of 8 mm motion picture film to ...e his ...y on the murder of the president. The film was shot by a spectator at the scene and was purchased by Time, Inc., which owned the copyright Today, many judges talk about "... u..." when they consider claims of fair use: Under the purpose and character factor, if an individual takes a portion of a copyrighted work and uses it for ... p..., or ... it, then it is much more likely to be regarded as a fair use! Example: When ABC broadcast a TV news report about how the advocates of the legalization of marijuana have changed the image of the typical user from the long-haired pothead to a seriously ill medical patient, it used the cover from a recent issue of Newsweek and a photo from the story in the issue to ...e its video story. The magazine story had focused on the medical use of marijuana. The federal court said the use of the cover and the photo was fair use because it was a ... use The network had taken the ... copyrighted a... and ... it into a story about the n... c... of a c... i... A transformative use is also impacted by the fourth factor: If a work is truly ..., there is most likely ... chance it will ...l the ... of the ...l work! Example: A court ruled the recreation of three scenes from the pornographic film "Deep Throat" was a fair use when used for a biographical film about actress Linda Lovelace. The biographic film, "Lovelace," was documented Lovelace's marriage to her husband Traynor. The film presented a critical ...-the-... look at Traynor's abuse of Lovelace and the way he coerced her to participate in "Deep Throat." Unlike Deep Throat, Lovelace contains NO ... scenes or ...y The court said the use illustrated has a strong ... purpose and the copyright owner of Deep Throat would be unlikely to lose ...e from this non-... use Example: 2nd Circuit ruled a service called TVEyes was a ... use but wasn't protected under fair use because it deprived a copyright holder of ...e! The service allowed users to search and watch 10-minute clips of broadcast TV shows. In Fox News v. TVEyes, the 2nd Circuit concluded TVEyes' service was ... because it provided individuals a more ...t way to view content of ...t to them. The use wasn't a fair use, however, because it made available virtually all of Fox's copyrighted content and deprived Fox of ...e Example: Questions regarding ... use were an issue in a copyright lawsuit between AP and street artist Shepard Fairey. Freelance photographer Garcia (working for the AP) took a picture of then Sen. Obama at the National Press Club. Using the photo as a starting point, Fairey created the now famous HOPE poster that became popular during the presidential campaign. Hundreds of thousands of posters and stickers containing the poster image were ...; signed copies of the poster have been ... on eBay; and a stenciled collage version of the work has been added to the permanent collection of the National Portrait Gallery in D.C. -In 2009, the AP claimed copyright infringement and said the use of the photo by Fairey required its ...! The news cooperative said it wanted ...t and ...n. Attorneys for Fairey admitted the artist used the photo as a ...e, but argued the artist ... it "into an abstracted, idealized visual image that created a powerful ... ...g that conveys a radically ...t ...e" from the photo taken by Garcia -The ... issues were never played out in court because parties settled the case The 2nd Circuit considered whether a ... of a p...-... ...k could itself qualify for ... p...! -An individual created a ... of the classic Keanu Reeves surfer-thriller flick "Point Break." The court found the work to be sufficiently ... to justify ... u... of the movie materials. At focus in this case, however, was the more novel issue of whether the resulting ... could itself be ... under ... 2nd Circuit held if an author of an u... work provides enough ...l material and the resulting new work is protected under ... ... rules, then the resulting new work is eligible for ... p...! ...g something to a copyrighted work can be considered a ... use, but least one court has ruled that ...g something from such a work isn't...! Example: Clean Flicks of CO was in the business of buying copies of films released on DVD, and then editing them, ...g o... what the firm regarded as offensive content. These would then be sold to buyers who wanted a s...d version of the film. A coalition of motion picture studios and film directors sued for copyright infringement. The company called its editing merely a ... use; the court disagreed, ruling ... means ...g something. Here the infringers ...d ...g, but merely ...d material from the original! -Clean Flicks also argued it wasn't harming the filmmakers; it was simply exploiting a new ...t, a market not being served in Hollywood. After all, the company bought each DVD it altered before resale. But the court said the film studios have the right not to enter a ...t! Example: A federal district court ruled a work could be transformative even if it contained no ... ...l at all! -Akilah Hughes, content creator who runs the YouTube channel "Akilah Obviously" sued Carl Benjamin. Benjamin published a video comprised entirely of clips from a video Hughes had posted to YouTube. The video posted by Benjamin titled "SJW Levels of Awareness" contained no ...y or ...l v...! -The court wrote "A new work may be ... even where it consists entirely of portions of the ...l work, or indeed even where it is an '...t r...' of the ...l work" By giving the video a title that was clearly meant to b... Hughes and posting it within the broader context of his own channel, the court ruled Benjamin was ...g and ...g on Hughes's own video, a use that was clearly ...! In addition, the court ruled there was no chance of ... usurpation due to the different t... a... of the two channels 2. The Nature of the Copyrighted Work Courts look at several considerations applying this criterion of fair use: 1. Is the copyrighted work still ...? -Using part of a work that is ...t of ...t is ... likely to be considered a fair use than using a segment of a book that can be ...y ...d at the local bookstore! 2. Is the copyrighted work a ...e work? A ... work is something intended to be used just ...! -A workbook that accompanies a text, or a book of crossword puzzles. ...s are usually cheaply priced and intended to be used and then ...d -It would not be a fair use for a teacher to purchase a single copy of a biology workbook, make 30 photocopies of each page and then pass those copies for use by the students. But it would very likely be a fair use for the same teacher to make 30 copies of a Science magazine article for class distribution 3. Is the work an ...l work or a ...e work? -It is ... likely to be a fair use if the copying involves a work like a newspaper or newsmagazine article or an item in an encyclopedia than a novel, play or poem! -This doesn't mean copying an ... work is always a fair use; just that it is more likely to be! 4. Is the work ...d or ...d? -Materials like manuscripts, letters and other works that have not yet been ... are sometimes accessible by the public when they are stored in libraries or other places -The author's right to be the ... to ... these works is regarded a valuable right Harper & Row Publishers v. Nation Enterprises (1985) [6-3] -The question of the right of ... ...n came to the forefront when The Nation magazine p...-... the publication of the late President Ford's memoirs by publishing a 2,250-word article that contained paraphrases and quotes from the ... manuscript. Only about 300 words in the article were legitimately protected by copyright, but these focused on the ...t of the memoir - Ford's discussion of why he chose to pardon Nixon, who resigned in the face of impeachment proceedings. When Ford's publisher sued for copyright infringement, The Nation claimed its use of the 300 words was a fair use The U.S. Supreme Court ..., ... the fair use claim and ... the lower appellate court ruling "In using generous ...m excerpts of Mr. Ford's ... manuscript to lend authenticity to its account of the forthcoming memoirs, The Nation effectively [claimed] the right of ...t ...n, an important marketable subsidiary right," Justice O'Connor wrote The 1976 Copyright Act clearly recognizes the right of ...t ...n for an author, O'Connor said. The scope of fair use is ... where ...d works are concerned! Justice O'Connor concluded "the ...d nature of a work is ...y, though not necessarily d..., factor, tending to ...e a defense of fair use" When lower courts interpreted O'Connor's opinion in the Nation decision, they read the sentence "We conclude that the ...d nature of a work is ...y, though not necessarily d... factor, tending to ...e a defense of fair use!" and ignored the italicized phrase In a series of increasingly r... rulings, judges on the 2nd Circuit, a court with considerable ...l ...y, ruled the copying of an ...d work can NEVER be a fair use! Congress resolved this issue in 1992 when it amended the federal copyright statute: -The law now states "The fact that a work is ...d shall not itself ...r a finding of ... ..." if such a finding is justified based on the application of all four ... ... criteria! -This change puts the law back to where it was immediately after the ruling in Nation Enterprises, before appellate courts began to m... it! -It remains exceedingly ..., though not necessarily ...l, to publish/broadcast material that has never before been ...! Such a use will likely be sustained only if the user can make a strong cause under the other three ... ... criteria!

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Fair Use Factors... 3. The Portion or Percentage of a Work Used -The ... of work used is not as important as the relative ...n of a work used! Word counts, for example, really do not mean as much as ...s! -Example: The use of 500 words from a 450-page book is far less damaging than the use of 20 words in a 40-word poem! How much of the work, in relation to the ..., was used? Courts will consider exact ...g when looking at this question; but they also consider ...g! Pirates will find little refuge in a dictionary of s...! Example: In the mid-80s writer Ian Hamilton sought to publish a biography of reclusive novelist J.D. Salinger. Lacking Salinger's cooperation in the endeavor, Hamilton sought to prepare the biography by using portions of numerous letters the novelist had written to friends/acquaintances. The letters had never been ...! Salinger sued for copyright infringement, claiming the contents of the letters were his literary property. To avoid the lawsuit Hamilton r... the manuscript, deleting most phrases and sentences ...d ...y from the letters -But he extensively ...d the contents of the correspondence in place of using Salinger's ...l words. The 2nd Circuit ruled this use was an infringement of copyright, not a fair use! ...g Salinger's words didn't protect Hamilton -The ...g was too close to Salinger's own choice of words, to his c...! The biographer had taken the "...t of the material" from the letters! Hamilton abandoned his initial effort and instead wrote In Search of J.D. Salinger, a book about Salinger's literary life (without the material from the letters) and his unsuccessful efforts to publish a biography of the reclusive author How ... of the original work can be used sometimes depends on what material is t...! Example: A law firm representing Las Vegas Review-Journal sued a realty company for using eight sentences from a 30-sentence article published in the paper -The defendant argued it was a fair use. The federal court ..., noting the part of the article republished on a blog was simply f... ... about a new federal housing program. The court said the use of even eight sentences, about a quarter of the article, wasn't enough in this case to negate the defense of fair use. Because the blogger had copied only eight sentences and NOT the "v..." section of the original article, the ...y of the ...l ..., the court ruled it was a fair use! The court also noted the copying wouldn't affect the ...t for the original article (fourth factor) However, a Web site that takes an ... story is unlikely to be protected by fair use! Even using a ... portion of a work can be copyright infringement if it is the ... of the work! -Mraz sued Coors Light over an ad posted to Instagram that featured a clip of the singer performing at a CA music festival. The company didn't seek permission to include the 13-second snippet of him singing hit "I'm Yours." The clip in question included the ... of "I'm Yours" that part of the song ... remembers. The parties settled the lawsuit before it went to court P... One of the toughest tasks facing a judge is measuring fair use when someone presents a ... of a copyrighted work! ... = a ...l and usually ... effort to l... a creation. But in order to be a successful ..., the work must reflect the ...t of the original book, movie, song and not simply the s... and p... of the original creation! Example: The question of ... was at the heart of a legal action when the Fox News Network tried to stop author Al Franken from calling his book, a ...l evaluation of the conservative press in America, "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right." Fox claimed it owned the rights to the phrase "fair and balanced" a slogan it uses to identify its newscasts -Franken said the book was a ...l ...y on the network and others, and the use of the phrase was a ...; A federal court ..., saying the lawsuit was wholly without merit, both factually and legally. "... is a form of artistic expression protected by the ... ... The keystone to ... is imitation. Whether you agree with him or not in using the mark [fair and balanced], Mr. Franken is clearly mocking Fox," wrote the judge Campell v. Acuff-Rose Music, Inc. (1994) -6th Circuit ruled (1992) a ...l ..., whether a book, movie, or song, could never be a fair use. Such a work was ...l and could not be regarded as artistic c... or c..., something usually protected under the fair use doctrine. The ruling, if widely accepted, would have had a devastating impact on an entire range of creative work! -But the Supreme Court ... this notion two years later... -The case focused on a rap music ... of the song "Oh, Pretty Woman" by Roy Orbison (who performed the song) and William Dees. Rapper Luther Campbell, leader of group 2 Live Crew, was rejected when he sought permission from the publisher of the song, Acuff-Rose Music, to record his version of "Oh, Pretty Woman." -Campbell was sued by Acuff-Rose when he made the recording anyway with lyrics wildly d... from the original. A trial court called the 2 Live Crew version a ... and rejected the suit, but the Court of Appeals ..., ruling a ...l ... could never be a fair use -The Supreme Court sided with the trial court and sent the case back for trial, ruling a jury trial was needed to determine whether the ... was a fair use "The language of the statute," wrote Justice Souter, "makes it clear the ...l or n... e... purpose of a work is only one element of the first factor enquiry into its purpose and character. The mere fact that a use is ...l and not for p... doesn't insulate it from a finding of infringement, any more than the ...l character of a use b... a finding of fairness! If indeed, c... carried presumptive force against a finding of fairness, the presumption would swallow neatly all of the illustrative uses listed in the statute including n... r..., c..., c..., t..., s... and r... since these activities are generally conducted for ... in this country!" -..., Souter said, springs from its allusion to the original. It is true the ... here took the opening lines and the musical signature. "But if quotation of the opening riff and the first line may be said to go to the ...t of the original, the ...t is also what most readily conjures up the song for ..., and it is the ...t at which ... takes aim. ...g doesn't become excessive in relation to ... purpose merely because the portion taken was the original's ...t!" It was significant, Souter said, that after taking the first line, 2 Live Crew added its ... lyrics! And while the bass riff was copied, other ... sounds were added as well The case is also noteworthy for giving rise to the ... use consideration under the first fair use criterion, purpose and character of the use! The ruling in the Campbell case failed to provide p... g... for p... regarding how ... ...l material may be used in a ... that can be defined as a fair use! -Maybe such p... g... are impossible to fashion! But without them the matter of fair use and ... continues to bedevil the judiciary Protection for ... was further complicated when some courts made the distinction between ... and s... -P... can be considered "..." works and protected by fair use. The Court explained while a ... must mimic the ...l work to make its point, a s... uses the work to criticize s... e..., and therefore requires other justification for the very act of borrowing! -As a result, lower courts interpreted this as the Court favoring ... under the fair use doctrine, while devaluing ...! Based on this distinction, lower courts focused on the dichotomy between a p... and s..., finding if a new work comments or criticizes the ...l work, it is a ... and thus protected. If it instead focuses on commenting and criticizing s... e..., it is not a ... and therefore less likely to be protected! However, copyright law does not ... a work to comment on the ... to be protected by fair use! Cariou v. Prince, 2nd Circuit -2nd Circuit examined whether works by "appropriation artist" Prince that altered and incorporated various copyrighted photographs by Cariou qualified as fair use. Though the 2nd Circuit analyzed each of the Copyright Act's fair use factors, it particularly emphasized the ... and ... of Prince's use -Because Prince testified he didn't intend to ... or c... on C's work, typically, this would have weighed against a finding of fair use. The 2nd Circuit, however, held "the law imposes no ... that a work ... on the ... or its author in order to be considered ...!" The court held it was not important whether the author of the new work intended to ... on or ... the ... work -Instead, the court held, the correct standard is whether the new work would be "r... p..." by a "r... o..." to a... the ... with "new e..., m...g, or m...e" Applying this standard, the court found 25 of the 30 works in the case were ... because they "manifest an entirely d... a... from Cariou's photographs. Prince's composition, presentation, scale, color palette, and media are fundamentally d... and n... compared to the photographs, as is the e...e nature of Prince's work." How this ruling affects future cases remains to be seen! For now, courts continue to struggle with the ambiguous nature of fair use, especially as the doctrine applies to new and emerging art forms 4. The Effect of Use on Market -The effect of the use on the potential market, or ... of, the copyrighted work is the fourth criterion. This final criterion - h... to the ... - is given g... ... by most courts than any of the other three! -In Nation Enterprises, Justice O'Connor noted "this last factor is undoubtedly the single most ... element of fair use" More important, she wrote, "to ...e fair use one need only show that if the challenged use should become widespread, it would a... a... the p... m... for the copyrighted work" The inability of the plaintiff to demonstrate an a... ... im... from copying can frequently in and of itself sustain a ... ... ruling! -Example: Warner Books published a book by Gerald Celente titled "Trends 2000: How to Prepare for and Profit from the Changes of the 21st Century" In a chapter on power generation the author criticized the nuclear power industry and used a photo that was previously included in an ad published by the U.S. Council for Energy Awareness. The photo was a picture of a dairy farmer and a cow standing in a field of clover against a blue sky. A print message accompanying the photo in the ad described the harmonious relationship between the farming family and a nuclear power plant located only a mile away. The book author b... the message in the ad and c... the industry -When a copyright action was brought against Warner Books for using the photo without permission, the publisher argued fair use -The use was for ..., and the ... picture was used, the court noted, but ruled the black-and-white reprint of the color photo was unlikely to have a ... i... on the ... for the original! "The idea that a thriving ... for photographs of Ihlenfeldt and the cow (however dramatically portrayed) actually exists is [doubtful] to say the least" the court ruled -A federal judge in WA threw out a jury award to author Wade Cook after a trial where Cook asserted the motivational writer and speaker Tony Robbins had copied two phrases originated by Cook. The jury decided Robbins had used the two phrases, "meter drop" and "rolling stocks" as many as 12 times in a workbook Robbins distributed at financial seminars. But Judge said there wasn't a [trace] of evidence that the use of these phrases caused any ... at all to plaintiff Cook -A federal court in NY ruled when Web site operator Susan Pitt created a "Dungeon Doll" based on an altered head of a Barbie doll for a story about sexual slavery and torture, the use of Barbie was a fair use chiefly because the erotic dolls were unlikely to affect the ... for the ... Barbies! -And the 2nd Circuit rejected the claim of n... ... i... made by a company that argued when the defendant used some of the plaintiff's copyrighted materials to support his c... of the company, which conducted executive training seminars, this would seriously r... the d... for the company's service. "If c... on the defendants' Web site kills the ... for the plaintiff's services, that is the price that under the ... ... must be paid in the o... m... of i..." the court said If the defendant had used the plaintiff's materials to operate c... training seminars, the case would have ended differently! In evaluating e... i... the court considers not only d... ..., but also the ... using the copyrighted material might have on some d... creation! -When a company published a book of trivia questions about the events and characters of the popular Seinfeld TV series, a court ruled this wasn't protected by fair use. The book included questions based upon events and characters in 84 episodes and used actual dialogue from the show in 41 of the book's questions The court ruled the book affected the ability of the c... ... to make future ... Seinfeld trivia books THE FACTORS TO BE CONSIDERED IN DETERMINING FAIR USE... 1. The ... and ... of the use 2. The ... of the copyrighted work 3. The ... and ... of the ... used in relation to the copyrighted work as a ... 4. The effect of the use on the ... ... for or ... of the copyrighted work Application of the Fair Use Criteria -When a court is faced with a defendant who claims fair use, it must apply the four criteria to the facts in the case! Example A: District Court for the Southern District of NY found the owner of a celebrity gossip and entertainment Web site ... upon copyrights in photographs and ... the Web site owner's fair use defense. The plaintiff licenses entertainment and news-related photojournalism, including celebrity images. The defendant owns and operates ad-supported Web sites that publish celebrity gossip. The defendant displayed several photographs on its Web site owned by the plaintiff 1. The ... and ... of the use: The court held the first factor cut strongly ... fair use because the defendant displayed the images in the s... m... and for the s... p... as ...y intended: paparazzi photographs documenting celebrities to accompany articles about celebrity gossip! -The image merely depicted celebrities and were not used for ...t, ...m, or to ...t ... about the images themselves! -The use was also ...! Though the defendant argued the use wasn't ... because the Web sites lost ..., the court ruled this wasn't the meaning of the word "..." 2. ... of the copyrighted work: The court wrote the ... of the work slightly ... the defendant - the images were "essentially ...l in nature" and were thus "further from the core of copyrighted protection than c... or ...l works" -But the court noted the second factor was typically not of much help in a fair use analysis 3. ... and ... of the material used: The court ruled the defendant use ... or m... of each image. This factor weighed strongly ... the defendant 4. Effect on the ... ... of the original work: The court determined the defendants had "usurped" the function of the original works. The photos were used precisely for the s... p... as the originals. In addition, the court noted "if gossip and entertainment Web sites could use such images for ..., there would be little or no reason to ... for the images" After weighing all the criteria, the court concluded the use was not a fair use! Example B: Gawker Media posted 21 pages of Sarah Palin's book "America by Heart" online, days ... the book's release. Media outlets often publish r... about the contents of ...d books, but usually p... the contents and use ... q... sparingly! Publisher HarperCollins brought suit and asked for a court order to force Gawker to remove the excerpts. Before it could issue the order, the court had to evaluate whether HC was likely to prevail in an infringement action, or whether the posting was a fair use 1. ... and ... of the use: The court ruled this was a purely ... use; there was no ...m or ...y regarding the book posted on the Web site. This favored the ... 2. ... of the copyrighted work: This was an ...d work, this favored the ...! 3. ... and ... of the material used: Gawker had taken 21 pages from the ...d book. This was a ...l amount, this favored the ...! 4. Effect on the ... ... of the original work: The court said it could only s... on the effect the posting might have on the original work -But it did note the posting came during the home stretch of a carefully orchestrated promotional campaign for "America by Heart" and could mean a c... a... the publisher might have had was lost! Still, factor favored neither side! These findings suggested Gawker would ... an infringement case on the merits, and a court order was issued, ordering the blogger to remove the excerpts from its site! Days after the decision there were reports HC and Gawker settled the matter Summing up Fair Use... -While the copyrighted statute gives the owner of a copyrighted work an e... m... over the ... of that work, the law recognizes some instances where people ought to be able to ... portions of a protected work. No ... will attach to such ...g if the use is what the law calls a fair use! A court will consider four factors when determining whether a specific use is a fair use 1. What is the purpose and character of the use? ... was the material copied? Was it a ... use or for ... e... purposes? Was the use intended to further the ... i... in some way? Is the original purpose and character ... with a new meaning or a new purpose by the new use? Did the new use add to the value of the old use? 2. What is the nature of the copyrighted work? Is it a c... item such as a workbook, or is it a work more likely to be b... from, such a newspaper or magazine article? Is the copyrighted work in print and a... for s...? Has the work been previously ...d or is it ...d? 3. How much of the copyrighted work was used in relation to the entire copyrighted work? Was it a ... amount of a ... work? Or was it a ... portion of a ... work? 4. What impact does the use have on the potential market or value of the copyrighted work? Has the use of the material diminished the chances for ...e of the original work? Or is the use unrelated to the ...e or ...e of the copyrighted material? Though a court considers each of these items closely, most courts tend to give extra ... to item ...! In a close ruling the impact on the ...t or ... of copyrighted work often becomes the most crucial question

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Federal Trade Commission (FTC) One of the FTC's most important responsibilities is to ensure Americans are not v... by u..., m... or d... advertising! Through custom and practice, the agency has defined advertising as the following: Advertising - any a..., m...d or d... intended to draw the ... of the p... to me..., to s..., to pe... and to o...! -Includes the more common categories of product and service advertising but also c..., f..., p..., even p... l...! -At times a business has challenged the FTC by arguing its particular exposition is not an ... but an essay or a founding of business philosophy. ... have these challenges been ...! Normally, what the FTC says is an ... is considered to be an ... for purposes of r...! Does the FTC regulate ALL advertising? -Legally, ...! But practically it ... regulate almost ... advertising! -Because the agency was created under the authority of ... to regulate i... c..., products or services must be sold in i... c... or the advertising medium must be somehow affected by i... c... before the FTC can intervene! -Though most products and services are sold ...y only, nearly every conceivable advertising medium is somehow affected by or affects i... c...! All broadcasting stations are considered to affect i... c...; most newspapers ship at least a few copies across state lines; and importantly today, the FTC's prohibition against u... or d... advertising and f... marketing in any medium includes the ..., allowing the FTC to crack down on m... o... advertising! In a nutshell, the FTC's rules against d... advertising break down into two critical components: 1. Advertising must be ... and not m..., with m... ads sweeping up those in which r... i... is o..., those that simply i... something that is not ..., and those in which any d... or d... are not clear and not prominent enough for r... c... to see, hear, and understand them Ads must tell the ..., not m... (either by sins of o... or sins of e... or im... m...) 2. All c... made in advertisements must be s... such that before disseminating an ad, advertisers must have a r... basis for a... and a... e... and/or i... product c..., with c... relating to h... and s... coming under even closer FTC s... that typically requires proof by competent and reliable s... e... Ads must be backed up with p... s... [supporting evidence] In the actual implementation of the two critical components of the FTC's rules against d... advertising, three key considerations emerge: 1. There must be a r..., o..., or p... that is likely to m... the c... 2. The act of practice must be considered from the perspective of a ... who is acting r... 3. The r..., o..., or p... must be m... False Advertising The court must look to the ad's o..., n... im...! 1. There must be a r..., o..., or p... that is likely to m... the c... -The commission considers the ... ad as well as all other elements of a t... when making this determination! -"When assessing the meaning and representations conveyed by an ad, the court must look to the ad's o..., n... im... rather than the l...l ... or f... of the w... in the ad" -"An ad's meaning may be resolved by the t... of the ad itself or by evidence of what c... in... the ad to convey" -Important to remember an ad may m... because it o... m... information! 2. The act of practice must be considered from the perspective of a ... who is acting r... -The test is whether the c...'s in... or r... is r...! -When ads or sales practices are targeted to a s... a... (e.g., children, people who are elderly, people who are terminally ill), they will be viewed from the perspective of a r... member of that group! Advertising aimed at a s... v... group (e.g., physicians) will be evaluated from the perspective of a r... member of that group. A well-educated physician might be better able to understand a complicated pharmaceutical ad than the average individual can The advertiser is not responsible for e... i... or behavior by the c...! The law is not designed to protect the f... or "f... m...!" -"Some people, because of ig... or in..., may be misled by even a [very carefully] honest claim" a commissioner noted. "Perhaps a few m... souls believe that all Danish pastry is made in Denmark. Is it an actionable d... to advertise Danish pastry when it is made in this country? Of course not!" But when an ad conveys more than one meaning to a r... c..., one of which is ..., the seller IS liable for the m... in...! The commission evaluates the ... ad when examining it for m...! Accurate information in the text ... remedy a f... h..., because a r... c... may only glance at the h...! -Example: If a TV announcer proclaims that a watch is 100% waterproof, the advertiser cannot qualify this claim in a long printed message in small type that crawls across the bottom of the TV screen while the announcer tries to sell the product! -Example: Nissan Motor Corporation agreed to stop its "Nissan Challenge" promotional ad campaign. On its face the advertising said Nissan would give consumers $100 if they bought a Honda Accord or Toyota Camry after test-driving a Nissan Stanza. But in order to get the $100 consumers had to meet s...l c..., which were not p... noted in the ad! Consumers had to buy a Honda or Toyota, take delivery of it and submit proof of purchase to Nissan within seven days of the test drive - but not on the same day as the test drive Similarly, an advertiser cannot correct a m... in an advertisement with p...-of-s... information! -Example: A seller cannot advertise a vacuum cleaner as having a 100% money-back guarantee and then expect to qualify that claim in a tag that is attached to the product as it is displayed for sale in a store Q...g d... must be L... and U..., the FTC ruled The commission generally will not bring advertising cases based on s... c... (taste, feel, smell, appearance). The agency believes the typical r... c... does not take such claims s... and thus they are unlikely to be d...! These claims are referred to as p..., and include r... that a store sells "the most fashionable shoes in town" or a drink is "the most refreshing drink around" The commission has stated when c... can e... evaluate the product or service, when it is in... and when it is f...y p..., the commission scrutinizes the ad or representation in a l... c... manner! "There is little i... for sellers to m... in these circumstances since they normally would seek to encourage r... purchases," a 1983 statement proclaims 3. The r..., o..., or p... must be m... -A m... m... or practice is one that is likely to affect a ...'s c... of a p...! "It is information that is i... to the c...!" (FTC policy statement) The FTC considers certain categories of information to be more i... than others when deciding whether a claim is m...: a. E... claims as to the attributes of a product are ... considered m... b. Advertising claims that significantly involve h... and s... are u... p... to be m... c. Information pertaining to "ce... c... of the product or service" is ... considered to be m... d. Information has also been found to be m... when it concerns the pu..., e..., or c... of the product or service e. Claims about d..., p..., w... or q... have also been considered m... D... or m...-ups often become the subject of FTC inquiries, and the question of m... is often raised! -Example: For years a shaving cream manufacturer claimed its product was so good it could be used to shave sandpaper (a m... r...). In a TV d..., Rapid Shave was spread on sandpaper and then the sand was shaved off. The d... was phony! What the d... shaved wasn't sandpaper but sand sprinkled on glass. The FTC argued this ad was d... and the claim that Rapid Shave could be used to shave sandpaper was a m... r...! The U.S. Supreme Court agreed, despite the plea from Colgate-Palmolive the product really could shave sandpaper if it was left on the paper long enough, but because the sand and the paper were the same color, a TV d... didn't work. Hence the company had to use sand on glass -Example: The FTC also found two d... used to advertise an immersion-style kitchen mixer in an infomercial called "Amazing Discoveries: Magic Wand" were phony and hence m...! The advertiser used a pineapple with the center core removed and pre-crushed to create the impression that Magic Wand could crush a whole fresh pineapple (a m... r...). The marketers also claimed Magic Wand would whip up skim milk, but they actually used a commercial dairy topping in their demonstration, FTC said (a m... r...) -Example: FTC announced it had settled charges with a NY-based company and its CEO. FTC alleged the company "sold hundreds of thousands of antennas and amplifiers to consumers using d... c... the products would let users cancel their cable service and still receive their favorite channels for free" -Wellco, Inc. marketed and sold indoor TV antennas and signal amplifiers to customers online under brand names TV Scout, SkyWire, SkyLink and Tilt TV. The company sold more than 800k antennas and more than 272k amplifiers -FTC contended Wellco used a variety of d... c... in promoting the products The company's Web sites for instance f... claimed (1) a substantial portion of the antennas' users received more than 100 premium TV channels in HD [a m... r...] and (2) the antennas were the #1 rated indoor HDTV antennas in America [m... r...]. The company also fabricated testimonials endorsing the products and falsely claimed a NASA scientist created the antennas [m... r...]! -The settlement imposed an almost $32 million judgment against the defendants - although because the defendants proved they could not pay the full amount, FTC said it would suspend the judgment after receiving $650k The settlement also prohibited Wellco and its CEO from making any m... c... going forward about a product's p..., e... or ce... c... "unless the claims are t... and s...!" -Example: Companies BASF SE and DIEM Labs agreed to pay more than $416k to settle FTC charges they marketed two dietary fish oil supplements as clinically proven to treat liver disease-without the s... e... needed to back up such claims (considerations 1 and 3)! -FTC alleged the companies made a range of f... and u... claims in ads for the fish oil supplements. Chiefly, the companies promoted the supplements were clinically proven to reduce liver fat in adults and children with non-alcoholic fatty liver disease (NAFLD) (a m... r...). A clinical trial sponsored by BASF SE showed Hepaxa performed no better than a placebo cutting liver fat in people with NAFLD! "BASF and DIEM couldn't back up serious claims about how Hepaxa capsules would help adults and kids with liver diseases Companies can't c...-pick d... and need to be up front about the s... behind - or not behind - their products" (critical component 2) -FTC said the settlement payment from the companies would allow it to provide refunds to consumers who bought the supplements. The settlement also required the companies going forward "to have competent s... e... to support any h... c... for supplements and other products" [All claims made must be s..., advertisers must have a r... basis for any and all e... and/or im... product c..., with c... relating to h... and s... coming under even closer FTC s... that typically requires proof by competent and reliable s... e...]

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File Sharing M... -File sharing, or the ability of ... users to ... files from one ... to another or a great many other ..., caused some of the most perplexing + widely publicized copyright problems during the past decade -But by late 2009, file sharing had ... to be a p... ...e in copyright litigation; not because the questions had been ... but because this problem appeared in...! -Every time a legal solution was fashioned, new tech allowed file sharers to b... the l... l... put in place! At some point, leaders of especially the ... i... concluded there was ... more they could do to stop the widespread sharing of ...! The theft of r... ... via the Internet wasn't a serious problem until the late 1990s because it took so long to download a ...! But the development of in... d... c... tech solved the problem, and the introduction of ... p... [which brought this tech within reach of ... lovers] resulted in the dramatic growth of i... ... file sharing! -The ... i... tried to block the m... and s... of ... p..., but the courts ruled they were simply "sp... sh..." and not ... r... d...! -"The p... merely makes c... in order to render portable files that a... r... in a user's hard drive!" 9th Circuit, comparing the new device to a home video recorder, which the Supreme Court ruled was ...! File-sharing devices like Napster, StreamCast Networks, Grokster and others began to spring up, facilitating the free t... of copyrighted ..., giving ... fans access to r... ... without having to purchase a ... -One by one these services were sued for a... copyright ..., and for the most part, the courts ...d the ... i... in its attempts to stop the piracy -But this litigation was c..., t...-... and didn't ... the problems generated by file sharing, as new slightly different services sprang up The industry then began to attack the f...-s... themselves, individuals who used the ...-to-... ... sharing systems -From 2003-8, the ... I... Association of America, trade group representing the r... ..., sued about 35k ... for swapping ... online! Judgments or settlements averaged about $3500 in these cases, hardly worth the cost of a l... While this was happening, ... introduced the ... and later the ..., two new devices for downloading ... -Coupled with ... and other Web sites where music could ...y be purchased, access to ...l downloads became relatively c...! The ... companies made deals with ... (and other device makers like Microsoft, which introduced the Zune) to provide access to their r... ... and w... their digital ... for a small per-song ...! -... generally cost 99 cents, with the label getting 70 cents and ... getting the rest -By 2009, ... was the nation's largest marketer of r... ... -Today most ... fans are either downloading ... or more commonly using music streaming sites like Spotify, Pandora and YouTube The file-sharing dilemma is a scenario that is ... playing out! -And the law of copyright is rife with other problems related to the ... as well -The u..., d... and d... of copyrighted ... is a serious matter - especially from publications like Playboy where the ... entice most people to buy the magazine! -The question of whether ... ... ... are l... for infringement when they act as a passive c... for ... posted by their customers is an emerging issue, with at least one court ruling ... ... ... weren't l... under the federal copyright law! F... and ...n -Both the ... and ... industries (many cases same companies product products for both) face problems similar to those experienced by the r... industry. At a time when DVD sales are shrinking, network TV audiences are getting smaller and theater attendance barely holds even, the video industry is losing billions of dollars to ...y! I... ...g of ... has been a problem for several years Example: Comedian joked during the previous weekend 1 million people had watched the movie "X-Men Origins: Wolverine" "The film doesn't open until May 1." There were even some published reviews of the ...d film. "Avatar" was downloaded 500k times in the first two days of its release Even e-... face ...y problems! -Amazon.com sold more ...l copies for its Kindle e-...r of Dan Brown's "The Last Symbol" in its first few days than ... copies. But within days, the e-... had been i... ...d more than 100k times The problem has gotten so serious for mass media industries the U.S. Senate considered legislation in 2010 to combat illegal file sharing and counterfeiting. Under the legislation, which failed to get a vote in the Senate, the Justice Department would have been authorized to file civil actions against Web sites that facilitated the ...y While ...g was the ...y method of choice, more recently the industry has had to face a new threat - s... t... that makes T... ... and f...s in... a...! There are several l... sources for individuals to get in... ... to m... and T... ...; but rarely are these just released f... or new programs Illegal sites offer access to ...d copies The video industry is trying to control this ...g with ...s! Example: 2011, federal court ordered a company called Ivi to stop ...g Web broadcasts of programming copyrighted by the ... networks! The networks said Ivi was capturing broadcast signals in four large cities and charging consumers a subscription fee for ...g the programming to over the ... without authorization. Subscribers needed a media player to download the programming to their computers and paid Ivi $4.99/month. The TV stations argued by diverting customers from the ...-the-... and c... b..., Ivi compromised their ability to earn r... from advertisers The use of ... in theaters accounts for most ...y, but many video products are s... or c... during the p... process! -To combat this problem, many studios are releasing both older and new T... ... for ... viewing ...; And contrary to previous practice, many major feature ... are being released on the ... ... w..., not on st... d...! The industry believes most people would rather ... to see a high-quality copy, so long as they can see it as soon as it is ...d for c... d... Copyright and Music -Copyright protects c... works of ...n f... in t... media. When it comes to music, two types of c... works exist: m... works and s... ...! 1. "M... works" - the underlying s..., including both the m... and the l... -One way to think about it is that a m... work is what one sees on sheet music. The copyright owner of a m... work thus might be the c... or the l... (or both), but not necessarily the s... of the song! 2. "S... ..." - the specific r... of m... works or the p... of them by artists Example: When Weezer plays "Africa," the song originally ... by Toto, Weezer owns the copyright in its p... of the song but not in the ... itself! When you buy a song from iTunes, money from the sale goes to the owners of ... copyrights, who might/not be the ... individuals! The same d... p... happens with on-demand streaming, online music providers and satellite radio (Pandora, SiriusXM). For music played on ... r..., however, the station doesn't pay the ...-r... copyright holders, only the ... works' copyright holders are compensated! Music is perhaps the ... r... and l... of all c... work! Musical copyright disputes are ...!!! Example: Thicke and Williams were sued by the family of Gaye over their song "Blurred Lines" Gaye's family accused them of copying the "f..." and "s..." of Gaye's "Got to Give it Up" -Although there was much debate about the appropriateness of applying copyright law to the "f..." of a song, a jury awarded Gaye's family $7.4 million in damages. 9th Circuit upheld the award -Example: 9th Circuit also ruled a long-running legal battle between Led Zeppelin and former Spirit guitarist California would continue (2018). In 2014, California sued, alleging the Zeppelin "Stairway to Heaven" copies a riff from Spirit's "Taurus." Although Zeppelin originally won the case in trial court, the appeals court ruled the judge gave erroneous instructions to the jury about the nature of copyright law and music. Then in 2019, 9th Circuit ruled instead of sending back to the trial court, the Circuit court would rehear the case en-banc. 9th Circuit sitting in banc finally ruled in favor of LZ, apparantely settling the case once and for all -Example: Radiohead sued Lana Del Rey. The suit stemmed from Del Rey's "Get Free" Radiohead alleged it was substantially similar to "Creep" Radiohead sued for all profits from "Get Free" and refused to settle for anything else Sometimes, however, these cases get settled without a ...! Example: Singer Sam Smith agreed to give cowriting credit for "Stay With Me" to Tom Petty and Jeff Lynne, whose song "I Won't Back Down" shared a similar chorus. Though Smith said the similarity was unintentional, after listening to the two tracks he agreed they were similar and gave cowriting credits -Other times, artists recognize those who have influenced them ... the fact! Olivia Rodrigo gave song writer credits to Hayley William and Josh Farro for her song "Good 4 U" due to the inspiration she got from listening to Paramore's "Misery Business" In most cases, the main issue is who ... the song ...! Technically, the issues of a... and s... ... must be resolved in the copyright owner's favor to win an ... lawsuit. In most cases, this will boil down to who ... the song ...! Sometimes ...g a song too closely can happen s...! -Most famous example of this involved Harrison's "My Sweet Lord" In 1971 -Sued by Bright Tunes, the copyright owner of the late Mack song "He's So Fine" recorded by the Chiffons. A court found Harrison s... ...d the earlier song because he admitted to having been aware of the Chiffons song. Though he later admitted the songs were extremely similar, Harrison swore he thought his song was original. Bright Tunes was awarded three-quarters of all revenue raised in North America from "My Sweet Lord" Hip-hop and rap music have brought the legality of music ...g to the courts! ...g is the d... ...g of part of another copyrighted song. ...g can involve several seconds of a song or only a small riff or sequence of notes or words Example: Chance the Rapper was sued for a s... on "Windows": features a prominent s... of Lonnie Liston Smith's "Bridge Through Time" -Some artists who use ... in their music obtain w... ... or a ...e to ... the song from the copyright owner of the ...d song That is the G... L... R...: Obtain a ...e before you ...! -In many cases, however, ... isn't obtained! Artists whose songs are being ...d without ... generally condemn the practice, whereas artists who ... music without ... defend the practice Example: In 2005, the first court opinion was published about ...g -N.W.A.'s "100 Miles and Running" sampled a two-second guitar chord from Funkadelic's "Get Off Your A— and Jam" N.W.A. lowered the pitch and looped the sample five times. The court's analysis is somewhat complex, but the federal court concluded that no ...g can be made without a l... or ...!!! Licenses for Music -You do not need a license to play music in your ... or ... for your own ... e... as long as only you and a few family members or friends are enjoying the music! You can play a ... s... in your ... or at ... without a license too! ... s... have "b..." licenses to broadcast music for free -To ...y play music, however, a license IS needed! Generally, venues that host m... p... or a... e... have licenses to play music or for musicians to play ... songs! -This can include a license to play music at p... r..., even if the artist doesn't want their music associated with a particular ...! Example: Numerous musicians like Neil Young, GNR, Tom Petty and Rihanna asked President Trump to stop using their music at his p... ... Musicians obviously own copyrights to their songs, but c... that ...y perform them have typically secured ... p... to do so via the broad "b..." licenses issued by organizations like ASCAP and BMI ... songs also require a license, though in some cases ... songs don't require p...: a. C... license: Lets a musician ... and s... a new version of a previously recorded song by paying r... to the original artist -Under some conditions, using a c... license allows the new artist to release the song even without the copyright holders' ...! This is a ... ex... to intellectual property law - under a c... license, however, you cannot r... the ... m... or s... c... a song -In effect, it allows you to r... a ... version of the song without ch...! b. S... license (s... license) is needed when you are going to p... music with some form of ... m... (film, YouTube video, TV commercial, Internet ad, video PR communications) c. M... license is similar to a s... license. A m... license allows one to use a p...-r... version of a song, to c... or e... a song d. P... ... license is the most ... license! It applies to any ...t of an artist's work, including by any businesses that play music, by s... v... and by c... h...! This is the type of license a venue must have before your a capella group performs today's top hits e. T... license is required when a copyrighted work is performed o... in front of an ... Example: You need this license before you put on a high school play of Disney's "The Little Mermaid" f. P... license allows you to ... or r... s... m...! g. M... license allows for any p... reproduction of an artist's work Summing things up... -To protect the copyright of a work, the author/owner should give proper ... and ... the work with the government! The proper ... will include: The word "..." and the symbol "...", the ... of p..., the ... of the copyright ... [use symbol circle P for phonorecords] Copyright © 2022 by Josh LeBerte -... must be placed where it can be v... p...! To gain the full benefits of the ..., a work must be ... with the ... O... in the L... of C... too. The proper ... form along with ... complete copies of the work and proper ...e must be sent to the Register of Copyrights When a plaintiff sues for copyright infringement, the court will consider three criteria 1. Is the plaintiff's work ...? -If the plaintiff has attempted to copyright material that legitimately belongs in the p... ..., the plaintiff ... sue for infringement of copyright! 2. Did the defendant have ... to the plaintiff's work? -There must be some evidence the defendant ... or ... the copyrighted work ... the alleged infringement took place! 3. Is there evidence the defendant actually ... the plaintiff's work? If no such evidence exists, are the two works ... s...? -The court seeks to determine whether the ... in the two works are ... -If the g... ... of the two works is ..., is the ...n of these ...s ... as well? -Problems of copyright infringement via the Internet are just beginning to be litigated, with both traditional copyright law and new statutes being applied by the courts Litigation on the breadth and meaning of the ... ... ... A... is just beginning, while the ... i...'s battle with peer-to-peer ... s... appears to be coming to an end. The ... and ... i... are facing new challenges with v... pirates

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Freelancing and Copyright -What rights does a freelance journalist, author or photographer hold with regard to stories or pictures sold to ...? -The writer/photographer is the creator of the work; they ... the story or photograph! Consequently, as many rights as such freelancers c... to r... can be s...d or g...n to a ...! ... writers and photographers often do not have much choice but to follow the ...y of the book or magazine ...; Authors whose works are in ..., however, can r... most rights to the material for their f... b... -Most ... have established ... on exactly what ... they p... when they decide to buy a story or photograph or drawing It is common practice for ... to buy ... the r... to a story/photograph but to agree to r...n the r... to the creator ...r p...! -In such cases the burden of initiating the r...t rests with the ... or ..., who must request r...t i... following ...n! -The ... signs a transfer of rights to the creator, and the creator should ...d this transfer of rights with the Copyright Office within ... or ... weeks! When this transaction has taken place, the creator can then r... the material The annual edition of The Writer's Market is the best reference guide to the freelancer; Some of the ... ... might buy... a. ... rights: The creator sells c... o... of the story or photograph b. F... s... rights: The buyer has the right to use the piece of writing or picture for the ... t... in a periodical published ... in the ...! But the publisher can use it only ..., and then the creator can sell it to s... e... c. F... N... A... s... rights: The buyer has the right to use the piece of writing or picture for the ... t... in a periodical published in N... A..., not ... in the ...! But the publisher can use it only ..., and then the creator can sell it to s... e... d. S... rights: The publisher buys the rights to print the material at the s... t... other ... p... the material! All the ..., however, must be aware that simultaneous publication will occur e. O...-t... rights: The publisher purchases the right to use a piece just ... time, and there is no guarantee that is has not been published e... f...! Damages Plaintiffs in a copyright suit can ask the court to assess the defendant for any damages they have suffered, plus the ... made by the infringer from ...g the protected work! Damages can be a little or a lot! In each case the ... must prove to the court the amount of the ... or the amount of the ...'s ...! But rather than prove ... d... the plaintiff can ask the court to assess what are called ... D..., or damage amounts p... by the ...! -The smallest ... award is $.../per infringement, though in the case of an i... i..., the court may use its discretion and lower the damage amount -The highest ... award is $.../per infringement -However, if a plaintiff can prove the infringement was committed w... and r..., the maximum damage can be as much as $.../infringement! In addition, the courts have other powers in a copyright suit! -A judge can r... a defendant from c... i..., can i... [s...] the material that contains the infringement and can order the d... of these works! A defendant can also be charged with a ... o... in a copyright infringement case! If the defendant infringed on a copyright "w... and for purposes of c... a... or p... f... g..." they could be ...d and ...d for no more than ... year! The law of copyright is not difficult to understand and should not be a threat to most creative people in the mass media! The law just says to do your o... w... and do not s... the works of ...! Some authorities argue that copyright is an infringement on ... of the ... - in a small way it probably is. Nevertheless, most writers, authors, reporters - people who most often take advantage of ... of the ... - support copyright laws that protect their rights to p... they c... This is an apparent contradiction - but we are adept at concealing from ourselves the fact we maintain and support beliefs which are inherently incompatible The courts have recognized the needs of s... as well as the needs of a... and have hence allowed considerable latitude for ...g material that serves SOME p... f...! Because of this attitude, copyright usually has little, or should have little, impact on the information-oriented mass media!

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Means to Police Deceptive Advertising In dealing with false advertising, the FTC's greatest enemy is the ... needed to bring an action against an advertiser! Since ad campaigns are e..., the FTC often has difficulty in c... u... with the advertiser before the s...-l... campaign has been replaced with something else! But if ... is the greatest enemy, p... is the strongest ally for the FTC! Advertisers do not like the p... that accompanies a charge of false advertising! Bad p... can cost a company millions of dollars; in addition c... r... to the charges often result in a loss of sales as well In addition to the in... s... of p..., the FTC has a wide range of remedies to deal with advertising! FTC's tools or remedies to stop false advertising... 1. G... and the C...'s O... P... P... A... (COPPA) -FTC issues in... g... for a variety of products, services, and marketing practices! These g... are p...y s... that alert businesses to what the agency believes are p... ad c... or practices! Example: FTC amended its Jewelry G... to help prevent deception in jewelry marketing. These particular g... explain how to a... making d... c... and when d... should be made to a... unfair or deceptive trade practices for certain products! -Hundreds of g... have been issued, including a g... on when the word "free" can/not be used in advertising, and g... for advertising private vocational schools, home study courses and environmental claims The FTC's g... do not have the force of ..., a business that violates a provision of a g... is not automatically ... of f... advertising! -FTC usually requires an advertiser to s... claims that go beyond those permitted by the g... or might even bring a f... advertising a... against the business -The g... are of great benefit to honest advertisers who seek to stay within boundaries of what is allowable under the law C...'s O... P... P... A... (1998) -In 1997, FTC issued a statement that laid down principles by which it would evaluate propriety [c...y to conventional standards] of information c... and e... practices on ... s... used for c...! -The statement said for example, it is deceptive for a ... s... o... to represent the p... id... information it collects from a c... will be used for o... p... if the information is really used for a... p...! The g... also said it is improper for ... s... o... to c... p... id... information about c... and se.../di... this information to t... p... without the c... of the p...! In 1998, these g... were transformed into ... after ... passed the C...'s ... ... ... ... (COPPA), which the FTC now actively enforces as the "COPPA Rule" to protect the p... of c... o...! -COPPA applies to ... s... or o... s... directed at c... and that c... p... information from them! -COPPA imposes requirements on operators of ... s... or o... s... that are aimed at c... under ... years of age or that k... c... p... information from c... under ...! Among other things, COPPA... a. Requires o... operators notify p... and get their p... before c..., u..., or d... p... information from c...! b. Also mandates operators keep the information they c... from c... s..., and c. Prohibits them from requiring c... to turn over any more p... information than is r... n... to participate in the a... on their ... s... -Much has changed since COPPA was adopted in 1998 in the way digital tech can capture p... information from c... under ... years of age In 2012, FTC adopted amendments to its COPPA rules to bring them up to date with mo... a... that c... "p... information" from m... on s... and i... (took effect in 2013) a. FTC updated its definition of "p... information" to go beyond t... items (n..., h... a..., sc... n..., t... n..., SSN) -P... information now also includes p..., v... and ... f... that contain a c...'s i... or v..., as well as certain types of "p... id..." -P... id... include things like ... ... ad... and customer numbers held in c... that (1) can be deployed by a ... s... operator or o... s... to recognize a user either o... t... or across d... ... s... and o... s...; and (2) are used for functions other than or in addition to supporting i... op... of the ... s... or o... s... (valid i... op... for which p... id... may permissibly be used include things like authenticating users and protecting their security) b. FTC also expanded the definition of an "op..." subject to COPPA to include a "c...-directed s... or s... that integrates o... s... such as p...-i... or a...g n..., that collect p... information from its visitors" c. The amendments also updated the definition of a "... s... or o... s... directed to c..." to encompass p...-i... or a... n... that have ac... k... they are collecting p... information through a c...-directed ... s... or o... s...! d. "Verifiable p... c..." to collect a m...'s p... information can now be obtained using: -E... scans of signed p... c... forms -V...-c... -G...-issued id... -Answering a series of ch... q... -Combining ph... ve... with f... r... through W... or m... s... -And alternative p... s... like debit cards and e... p... s... that meet certain criteria The FTC also issued a report (2012) called "Mobile Apps for Kids: Current Privacy Disclosures are Disappointing" -The report was based on a survey that focused on the largest app stores, the Apple App Store and the Android Market. It evaluated the t... of apps offered to c..., the d... provided to users, in... features such as c...y with s... m... and the ratings and p... c... offered for such apps -FTC was not impressed by what it found! While the survey revealed a d... pool of apps for children that were created by hundreds of different developers, there was almost no information about the d... c... and sh... on the Apple App store promotion pages and little information beyond g... p... s... on the Android Market promotion pages! The report called on all members of the "k... app ecosystem" - stores, developers and third parties providing services - to play an active role in providing key information to p...! -FTC conducted a new survey in 2015 and found app developers were doing a somewhat ... job, with more than 45% including a direct link to their p... p... on their app store page (only 20% in 2012). Nonetheless, the FTC concluded for many k...' apps "p... still don't have an easy way to learn about their d... c... and u... practices!" The FTC actively enforces COPPA! -Example: Electronic toymaker Vtech agreed to pay $650k and implement a comprehensive d... s... program, subject to in... audits for 20 years, to settle FTC charges alleging the company violated ... by "collecting p... information from c... without providing d... n... and obtaining their p...' c..., and failing to take reasonable steps to s... the d... it c..." -FTC's first case involving ...-connected toys, said the Kid Connect app used with some of the company's electronic toys c..., without c..., the p... information of thousands of c..., including their n..., a... and p... Then the company failed to use appropriate d... s... measures to p... the information it c...! -Example: FTC announced the operators of the social networking app Musical.ly (TikTok) agreed to pay $5.7 million to settle FTC allegations the company illegally c... p... information from c... -Example: Google agreed to pay a record $170 million to settle allegations that YouTube (Google owns) violated ...! The FTC and the NY attorney general contended YouTube illegally c... p... information - in the form of p... id..., or c..., used to track users ... the ... - from viewers of YouTube channels directed at c... without notifying p... and getting their c...! YouTube then earned millions of dollars by using those c... to deliver targeted ads to the c... who viewed those channels! -The settlement made clear ... applies not only to those who c... content but also to the p... that h... it. "YouTube touted its popularity with c... to prospective corporate clients," said FTC Chairman Simons. "Yet when it came to complying with ..., the company refused to acknowledge that portions of its platform were clearly directed to k...! There's no excuse for YouTube's violations of the law" -In addition to the $170 million penalty, FTC also said the settlement required YouTube and Google to "develop, implement, and maintain a system that permits channel owners to identify their c...-directed content on the YouTube platform so that YouTube can ensure it is complying with ..." 2. V... c... -I... g... apply only to pr... ad campaigns, events that have ... y... o...! This remedy is used for ad campaigns that are ... or nearly ...! Example: Imagine a company is nearing the ... of an ad campaign in which it has advertised its mouthwash can prevent a customer from getting a common cold The FTC believes the claim is d...! If the advertiser has a g... r... in the p... and if the o... is not too great, the company can ...y a... to t... the advertisement and never use the c... again! In doing this, the advertiser makes no a... and the agency no d... the claim is d...! There is just an agreement not to r... that particular c... in f... ad campaigns Such an a... saves the advertiser considerable l... hassle, p... and m..., all especially desirable since the ad campaign is ... or almost ...! This remedy is i... u...! 3. C... a... -The most ... u... FTC remedy, also known as c... o... or c... d... -This is a w... a... between the FTC and the advertiser in which the advertiser agrees to r... from making s... p... c... in f... advertising! -The advertiser admits no w... by s... such an order, so there is no l... involved! -The c... a... is merely a p... not to do something in the f...! Sometimes the m... statements are m... e...; but other times they represent a m... attempt at d...! Example: Kellogg entered into a c... a... with the FTC to settle charges that ads touting breakfast cereal Frosted Mini-Wheats as "clinically shown to improve kids' attentiveness by nearly 20%" were f... and violated ... law! The settlement bars d... or m... cognitive health c... for Kellogg's breakfast foods and snack foods and prohibits it from m... any t... or s...! -FTC expanded the c... a... with Kellogg to prohibit the company from making c... about any health benefit of any food unless the c... are backed by s... e... and not m...! Around the same time Kellogg agreed to stop making f... c... for Frosted Mini-Wheats, it began a new ad campaign promoting the purported health benefits of Rice Krispies. On product packaging, Kellogg claimed Rice Krispies cereal "now helps support your child's immunity" with "25% Daily Value of Antioxidants and Nutrients - Vitamins A, B, C and E" The back of the cereal box stated that "Kellogg's Rice Krispies has been improved to include antioxidants and nutrients your family needs to help them say healthy" FTC Chairman Leibowitz remarked "we expect more from a great American company than making dubious c... - not once, but twice - that its cereals improve children's health. Next time, Kellogg needs to stop and think twice about the c... it's making before rolling out a new ad campaign, so parents can make the best choices for their children" Considerable pressure is placed on the ... to a... to a c... o...! -R... to s... the a... will result in l... and p... The p... can do more harm to the advertiser than a m... ...! Also, the time factor works in the advertiser's favor - typically, the ad campaign is already o...! What happens to an advertiser who s... a c... d..., and then v... the provisions of the d...? -When the FTC issues a c... o... on a f... basis, it carries the force of ... with respect to fu... a...! Each v... of such an o... may result in a c... p...!

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Telemarketing National Do Not Call Registry (2003) -The FTC initiated in 2003 one of its more popular and well-used programs -Allows people to ... the calls of telemarketers -The registry would prove controversial, several telemarketing agencies filed ... in 2003 against the FTC, alleging it was beyond the scope of FTC's ... to adopt the National Do Not Call Registry and claimed the registry violated the ... ... right of ... ... of a... who use telemarketing -In 2004, the 10th Circuit ... the registry, Mainstream Marketing Services, Inc. v. Federal Trade Commission -Concluded the registry ... violate the ... ... ... ... rights of telemarketers, the appellate court applied the ... ... d... and ... ... t... -In a unanimous decision, the appellate court wrote: "The government has asserted ... ... (CHT #1) to be served by the do-not-call registry (p... and c... p...), the do-not-call registry will d... ... those ... (CHT #2) by ...g a s... amount of u...d telemarketing calls, and the regulation is n... ... (CHT #3) because its opt-in feature ensures it does not restrict any speech directed at a w... l...r! The registry bears a r... ... (CHT #3) with the purposes the government sought to a... Therefore, it is consistent with the limits the ... ... imposes on laws restricting commercial speech" -FTC contended the registry, which is a list containing the personal t... ... of t... s... who have v... indicated they do not wish to receive u... c... from commercial telemarketers, was necessary to reduce both i... upon c... p... in the ... and the risk of f... or a...e s...s from telemarketers! -The government had specifically ... the r... of the registry, which already had more than 50 million p... ... by the time the appellate court issued its opinion in 2004, only to telemarketing calls made by or on behalf of s... of g... and s.., and not to c... or p... f...-r... calls! -Telemarketers argued the exemptions for p... and c... calls made the statute "u..." - that to effectively serve the ... of protecting p... and preventing f..., the registry should also apply to p... and c... solicitations, not just to c... s... calls! -The appellate courts ... the u... argument, writing "... ... challenges based on u...s face an uphill battle in the c... speech context. As a general rule, the ... ... does not require the government regulate ... aspects of a p... before it can make progress on a... front" -The government could focus its attention with the registry on the problems caused by c... s... calls without having to sweep up and control problems caused by p... and c... calls! The decision marked a victory for p... advocates but can be see as a blow to the ... ... rights of telemarketers! U.S. Supreme Court turned back a challenge to the appellate court's ruling -In addition to the ... registry, courts have upheld ... do-not-call registries, paying favorable attention to the v... "o... in" nature of the ... laws (the registries apply only to individuals who s... u... for them, than a... applying them to e...!) In 2008, legislation was signed under which numbers placed on the list remain on it ...y, unless consumers specifically r... a number's r...! -The law originally required consumers to r...-r... their numbers every ... years to remain on the registry -By December 2020, more than 240 million active phone numbers on the registry (including landline and wireless phones) -FY 2020, FTC received about 4 million complaints on alleged ... of the registry, a drop from the 5.4 million received in 2019 There is an "e... b... r..." (EBR) exception to the do-not-call provision! -The EBR exception allows a company to call a consumer with whom it has such a r..., even if the consumer's number is on the ...! An EBR exists when a consumer has p..., r..., or l... the company's ... or ... within ... months preceding a telemarketing call! Under FTC rules, telemarketers cannot call a person between the hours 9 p.m. and 8 a.m. unless the person have given p... c... to such late-night, early-morning calls -The FTC with the help of the ..., actively enforces the do-not-call rules. Businesses that violate the do-not-call regulations are subject to c... p... of up to $... per individual violation! -By late 2021, FTC said it brought up more than 150 cases alleging do-not-call violations, with the agency cumulatively recording over $180 million in c... p... and $112 million in r...n or d..t! Robocalls -In 2009, the FTC ... robocalls unless the telemarketing company has obtained w... ... from a c... to receive such calls! Sellers and telemarketers that transmit such messages to c... who haven't granted p... to accept them face penalties of up to $... per call! -Robocalls are p...-r... c... telemarketing calls to c... -Robocalls are ...l even if the number dialed is not on the ... ... ... R...! -The only lawful sales robocalls are ones where c... have stated in w... they want to receive them from the company in question. P... robocalls and those from c... seeking ... are permissible! Even with the ...n in place, robocalls persist -In testimony before a U.S. Senate committee in 2018, Greisman (Division of Marketing Practices at the FTC's Bureau of Consumer Protection) said "...l robocalls remain a significant consumer protection problem because they repeatedly disturb c...' p... and frequently use f... and d... to pitch goods and services, leading to significant e... h...! ...l robocalls are also frequently used by c... impostors posing as trusted officials or companies" Said the perpetrators behind the calls often take steps to avoid d..., including "s...g" their caller ID information - making the calls appear to be coming from a l... a... c... - and hiding o... -She said the FTC was using "every tool at its disposal to fight these ...l calls" with many recent enforcement actions involving collaboration with the DOJ, FCC and state partners -Example: FTC (2021) working with 46 agencies from 38 states stopped a massive t... (or phone f...) operation that blasted almost 70 million c... with 1.3 billion d...e c...e f... calls. Most of the calls were ...l robocalls. The t... operation - run by the Associated Community Services and sister companies - duped c... into d... m... to c... that failed to provide the services they promised. The defendants collected more than $110 million using these deceptive f... calls, keeping as much as 90 cents of every d... dollar. As part of the settlement with the FTC, the defendants faced m... penalties, and they were each "permanently prohibited from conducting or consulting on any f... activities and from conducting telemarketing of any kind to sell goods or services" In a statement, the FTC said, "d... f... can be big business for scammers, especially when they use ...l robocalls. The FTC and our state partners are prepared to hold fraudsters accountable when they target generous c... with lies" -The FTC has offered wise but simple advice to anyone receiving a robocall: "Hang up the phone. Don't press 1 to speak to a live operator and don't press any other number to get your number off the list. If you r... by p... any number, it will probably just lead to ... robocalls!" Regulating Junk Email and Spam -Almost everyone who uses email has received un... c... advertising known as "..." -Without a filter or other form of protection on one's computer or email system, ... can clutter an online mailbox. What's more, ... can take the form of sexually explicit ads that may be both unwanted and offensive to recipients On the other hand, to the extent ... pertains to a l... product and is neither f... nor d..., it constitutes c... speech protected by the ... ...! -... also represents an e... efficient and in... way of m... one's product or service CAN-SPAM Act (2003) -To address the negative aspects of spam, Congress passed and President W. Bush signed into law -Bill is officially called the "Controlling the Assault of N...-... P... and M... Act of 2003" -It applies to "c... e... m... messages" that have as their "p... purpose" the "c... a... or p... of a c... product or service" Five specific components of the law... 1. F.../M... M... -C... e... messages that include "materially f... or m..." h... information or d... s... lines are prohibited! 2. Functioning R... A... and O...-... Mechanism -All c... e... messages must contain either a functioning r... a... or an internet-based reply o...-... mechanism for at least ... days after transmission of a message 3. ...-Day Pr... Period -Spam senders are barred from transmitting c... e... messages to ANY recipient after ... business days following the exercise by the recipient of their right to o... ... of future c... e... messages 4. D... Requirements -All c... e... messages must d... three specific items of content: a. A clear and conspicuous i... of the message as an "a... or s..." b. A notice of the "o...-..." mechanism c. A "valid p... p... a..." All c... e... messages that "includes s... oriented material" must also include a w... l... on the s... line! -To implement this provision, the FTC in 2004 adopted a rule requiring spammers who send s... oriented material to include the w... "S...-EXPLICIT" in the e... s... line or face f... for violations of federal law! In addition, the matter in the spam e... message that is in... v... when it is opened cannot include any s... oriented material 5. Ag... V... -The act (also) forbids "a... v..." warranting additional c... and c... p...: a. E... "h...g" or the knowing use of h... addresses b. The a... creation of m... e... accounts used for c... e... c. The use of un... r... for c... e... messages -In 2008, the FTC clarified the "valid p... p... a..." that must be disclosed by the sender of c... e... messages can either be a registered p... o... b... or a p... m... established under U.S. Postal Service regulations -The FTC made it clear the "o...-..." mechanism used by a c... sender cannot require a recipient to take any steps other than sending a r... e... message or visiting a s... Internet w... p... to o... ... of receiving f... e... from that sender! The CAN-SPAM Act does not provide for a p... l... c... of a... or remedy for spam r...! -Instead, the FTC enforces the law with the help from the ... and ... -Example: Operators of what the FTC called a get-rich-quick scheme agreed to a $7 million judgment and a permanent ban on marketing or selling money-making software as part of settlements with the FTC. The commission alleged Montano, Kim, Schranz and their related companies d... c... by f... claiming they could earn money while working online using the defendants' Mobile Money Code products. The FTC said M, K and S contacted consumers primarily with d... s... e... that violated the CAN-SPAM Act -"Consumers who then went to the defendants' websites were met with more d... claims, including online videos that featured individuals who f... claimed they made hundreds to thousands of dollars per day using the defendants' products" The FTC said M, K and S then did not honor their listed "60-day hassle-free money-back guarantee" and instead made it nearly impossible for c... to get a r...! The emails violated the CAN-SPAM Act, the FTC alleged, because they included m...g s... l... (component 1 of CAN-SPAM), they failed to i... themselves as ... (component 4), they did not include a valid p... a... of the sender (component 4) and they did not offer recipients a way to o... ... of ... messages! (component 2) Though CAN-SPAM does not provide a c... r... for those of US who receive spam, a p... of I... a... service that is adversely affected by spamming activities on its service may bring a c... ... against the spammer in any ... c... in the U.S. seeking both a p... ... to ... the spamming and m... ... for harm caused by the spam! -Example: Facebook was granted a p... ... and more than $711 million against Sanford Wallace, who allegedly engaged in a spamming scheme that compromised the accounts of a substantial number of Facebook users Under the terms of the CAN-SPAM Act, each separate e... in violation of the law is subject to penalties of up to $..., and more than ... p... may be held responsible for violations! That can add up very fast! In addition to the ... CAN-SPAM Act, some ... have their own statutes targeting such emails! -BUT... Example: Virginia's law restricting u... b... e... was declared ... by Virginia's highest court, allowing a notorious spammer Jeremy Jaynes who was convicted to go free -The VA Supreme Court concluded the law was "u...y o... because it prohibits the anonymous transmission of A... u... b... e... including those containing p..., r..., or other speech protected by the ... ... to the U.S. Constitution" The problem with VA's law was that it was not limited in scope to only c... or fr... e...! In describing the importance of protecting a... n...-c... e... with p... content, the VA Supreme Court cited as precedent the Supreme Court ruling in McIntyre v. Ohio Elections Commission. VA decision does not impact the ... CAN-SPAM Act In addition to tackling the problem of spam, the ... government takes on what was once another form of advertising - u... c... f... messages Junk Fax Prevention Act of 2005 -Bans u... a... faxes unless there is an "e... b... r..." between the sender and recipient, known as the EBR exemption -If an EBR exists, then express c... of the fax recipient ... needed before a c... fax may be sent, provided the fax number was v... given by the recipient! -In 2008, the FCC clarified that f... numbers compiled on behalf of a fax sender are p... to be v... available for p... d... if they are obtained from the recipient's own d..., a... or I.. s... -The Junk Fax Prevention Act of 2005 also imposes an o...-... provision requirement somewhat akin to the CAN-SPAM Act -In particular, the first page or cover sheet of all u... fax a... must include a c...-free, o...-... provision allowing the recipient to be removed from the d... list -In 2015, FCC clarified the law also applies to an ...-..., a document sent as a conventional fax and then c... and delivered to a consumer as an e... m... a...t -Example: FCC imposed a fine of more than $1.8 million against Scott Malcolm, DSM Supply and Somaticare - which the FCC collectively referred to as "the DSM Parties" - for sending 115 u... a... to the ... m... of 26 consumers. The FCC said the junk faxes were directed primarily to healthcare practitioners, many of whom "r... attempted to s... the relentless barrage of u... and u... a... for chiropractic products" the company was sending. The FCC imposed a maximum fine of $... per junk fax for each of the 115 violations, resulting in a total fine of close to $2 million Summing things up... -Self-regulation by the ad industry has increased in recent years especially with the growth of c... ... -The ... ... ... (NAD) and the ... ... ... ... (CARU), divisions of the ... ... ..., are the p... a... for this self-regulation. Such regulation is geared toward satisfying the interests of a... than the c..., however! -Rapid increase in lawsuits brought by advertisers against o... a... under Section ...(...) of the ... Act! An advertiser seeking redress under this federal law can seek to ... the misleading practice and/or win ... d...! -This law also provides little relief for ...! Laws banning f... ... exist at both the ... and ... levels too, but the ... remains the nation's most p... w... against f... or m... advertising

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The Regulation of Advertising Federal Regulation A variety of federal ... are empowered to enforce c... p... laws! The ... is the p...y a... of the government, but clearly not the only a...! -Beginning in the 1990s, the ... began an aggressive campaign against a variety of companies to force them to change their labeling and promotional practices Example: ... and ... jointly issued 13 warning letters to manufacturers, distributors and retailers for selling e-liquids used in e-cigarettes with labeling and/or advertising that resembled kid-friendly products such as juice boxes, candy or cookies. The e-liquid products were sold through multiple online retailers -"No child should be using any tobacco product, and no tobacco products should be marketed in a way that endangers kids - especially by using im... that m... them into thinking the products are things they'd ... or ..." FDA Commissioner said -The warning letters from the ... and ... directed the manufacturers, distributors and retailers to respond within 15 business days. The warning letters also stated failure to correct violations might result in further action. In 08/2018, the ... announced all of the companies it warned in May had stopped selling the products with the misleading labeling and adverting The Federal Trade Commission -The FTC was created in 1914 by ... to police u... methods of b... c... -More than a century later, the FTC is the only ... a... with jurisdiction to protect c... and maintain c... in broad sectors of the e...! -It enforces the laws that prohibits b... practices that are a...c..., d... or u... to c..., and it seeks to do so without impeding l... b... activity -More than 1,000 full-time employees, budge of $350 million -... commissioners, each of whom is nominated by the ... to serve a ...-year term, head the FTC. One commissioner is chosen by the ... to be the c... of the FTC -No more than ... of the ... commissioners can be from the same p... ... In 2020, FTC filed more than 50 actions in ... c... and obtained more than 60 orders for r..., d... of p..., and p... i... against individuals and businesses. Also obtained 10 c... p... in 2020 The FTC made sure in 2020 almost 2 million c... received m... redress totaling more than $480 million Example: The case that resulted in the most money r... to c... was a multi-agency settlement with Western Union, a company engaged in the telegraph and money transfer business -As a result of actions brought against WU by the FTC, the DOJ and the Postal Inspection Service, about 142k c... received their money back, totaling almost $300 million. The FTC alleged for years WU was aware fraudsters around the world used the company's money transfer system to scam c..., promising prizes, loans or other financial rewards in exchange for money up front. The FTC also contended some of WU's own agents were complicit in the fraud -R... money to c... ripped off by fraudsters exploiting the WU system, "we will not tolerate WU or other payment companies facilitating fraud" In addition to such l... a..., FTC also e... c... and b... to encourage in... c... choices, c... with the law and public understanding of the c... p... AMG Capital Management v. FTC (2021) -U.S. Supreme Court restricted FTC's ability to proceed directly to ... c..., rather than pursuing ...-h... a... p... first, when seeking ... p... through i... -But Congress responded the same year by considering legislation that would b... FTC's ability to go to ... -Legislation has not yet become law Wheeler-Lea Amendment, T... C... A... (1938) -Congress adopted in 1938, which gave FTC the power to proceed against all u... and d... a... or p... in c..., regardless of whether they affect ...! -Since that time, the commission has developed into one of the nation's largest i... r... a... -In addition to policing ... advertising, FTC is charged with enforcing the nation's a... l... and several federal statutes like the T... in L... L... and the F... C... R... A... -Though the agency is located in D.C., has eight regional offices throughout the nation The history of the agency reveals it has often been swept by the p... w... of t...! -For years it was known as the "L... G... L... on Pennsylvania Avenue" because of its t... performance -During the late ... and ..., in an era of c... c...n, FTC showed new muscle and attacked some of the nation's largest advertisers, such as Coca-Cola and ITT Continental Baking -In the ..., FTC reflected the spirit of d... that ran throughout D.C., as Reagan entered the WH -In the ..., agency renewed its a... efforts, instituting ... advertising actions against several national advertisers (Kraft General Foods) and bringing charges against a group of companies that were using program-length TV ads called ... to sell a variety of goods and services (including diet plans and treatments for cellulite buildup and baldness) -The agency also brought a complaint against the ... industry that ultimately ended the career of Joe Camel and other c... advertising designed to appeal to ...! A... On the a... front, the FTC has been very active in r... y...! Example: FTC challenged Procter & Gamble's proposed purchase of Billie Inc., a subscription-based brand that sells women's razors and body care products. FTC alleged the proposed acquisition would have allowed P&G, already the market-leading supplier of women's and men's wet shave razors, to buy Billie, a newer company with expanding sales, and thus eliminate growing c... that benefits c...! -The companies agreed to abandon the m... after the FTC filed its administrative complaint. "P&G's abandonment of the acquisition of Billie is good news for c... who value low prices, quality and innovation" Billie is a direct-to-consumer company whose advertising targets customers tired of paying more for comparable razors The FTC voted to challenge this m... because it would have eliminated dynamic c... from Billie As of early 2022, FTC was pursuing an a... case against Facebook (Meta), arguing the social media company wields "durable m... power in personal social networking services" FTC alleged Facebook entrenched its d... with its previous purchases of Instagram and WhatsApp. In 01/2022, a federal judge allowed the FTC's a... case to move forward, r... Facebook's request to ... the case S... m... platforms, o... s... e..., and ... s... -Example: FTC finalized a settlement with Zoom over s... failings at that company. FTC alleged that Zoom d... u... about the level of e... it utilizes to s... their communications. FTC also contended Zoom secretly installed software that circumvented a browser s... safeguard -Those actions, FTC argued, gave u... a ... s... of s... As part of the settlement, Zoom agreed to enhance its d... s... practices, and the company is prohibited from making m... about its p... and s... safeguards going forward. Zoom's user base skyrocketed during the pandemic, from 10 million in 2019 to 300 million in 04/2020 "During the pandemic, practically everyone is using videoconferencing to communicate, making the s... of these platforms more critical than ever. Zoom's s... practices didn't line up with its promises, and this action will help to make sure Zoom meetings and data about Zoom users are protected" S... ... p..., o... ... ..., and ... s... increasingly find themselves caught in the crosshairs of FTC's efforts to protect o... p..., particularly when they make ... p...! -Example: Snapchat settled FTC charges the service d... c... (1) with p... about the disappearing nature of messages sent through the service and (2) over the amount of p... data it collected and the s... measures taken to protect the data from misuse and unauthorized disclosure (p... of ...!). In an official statement, FTC said the settlement with Snapchat "is part of the FTC's ongoing effort to ensure companies market their apps t... and keep their p... p... to c..." -Example: FTC accepted a final settlement with Facebook (2012) that centered on allegations the social network d... u... by telling them their ... on Facebook could be kept p..., yet Facebook repeatedly allowed it to be shared and made public! -Among other charges, FTC alleged Facebook (1) p... u... it would not share p... ... with ..., when in fact it did share such ...; (2) claimed that when u... deactivated or deleted their accounts, their photos and videos would be ... when in fact Facebook allowed a... to the content; (3) represented the third-party apps that users installed would have a... only to u... ... they needed to operate when in fact apps could access nearly all of users' p... d... including d... apps did not need to know; (4) made important, retroactive changes to its p... practices without obtaining u...' c... -The final agreement and c... order between the FTC and Facebook required Facebook (1) provide c... with clear and prominent n... and obtain their express c... before sharing their information beyond their p... settings, (2) maintain a comprehensive p... program to protect c...' information, (3) have biennial privacy audits conducted of its practices by an in... t... p... for 20 years with those reports being provided to the FTC. The c... order prohibited Facebook from misrepresenting in any manner the extent to which it maintains the p... or security of any ... it collects from/about c... Troubles continue for Facebook... -News broke in 03/2018 an app developer sold d... of as many as 87 million Facebook ... - without those ...' c... - to Cambridge Analytica, a d...-mining firm. Later that month, FTC announced it was opening an investigation into Facebook to determine if the company had been following the t... laid out in the 2012 s... -Other p... concerns regarding Facebook also emerged in 2018. 04/2018, p... groups filed a complaint with the FTC saying Facebook had turned on new face-matching services without obtaining p... from u...; 06/2018, Facebook said a software bug made public the p... of up to 14 million u... who thought the p... were p...; 12/2018, NYT reported Facebook had shared u... d... with companies such as Amazon, Microsoft and Yahoo without u...' k... or c... -In the wake of these and other revelations, critics urged the FTC to do more to police not just Facebook but other tech giants that have access to so much of our p... d... 07/2019, Facebook agreed to pay a record $5 billion fine and to create a board-level committee charged with overseeing p... efforts to resolve the FTC's investigation -In 2020, a federal judge approved the settlement. The judge wrote some of the allegations against Facebook "represent discrete and poorly considered decisions" by the company, while others "appear to reflect Facebook's willingness to d... its u... outright"

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The Regulation of Advertising The regulation of d... or u... advertising is a large and difficult task policed by the ... ... itself, the ... m... and various ... a...! What is the current process of regulation? Self-Regulation -N..., m..., b... ..., o... ... ... and other m... ... all have rules that more or less regulate the k... of ... they will carry! These guidelines spring from a variety of concerns: a. Sometimes the owner of the medium thinks the ... being advertised is o..., like adult movies or condoms b. Other times the ... themselves might be regarded as t..., like an ad for clothing in which the models are scantily dressed or posed erotically c. It is not uncommon that an ad is rejected because of e... ...! A TV station won't advertise a sporting event that will be telecast on a ... channel d. Ads that promote ... goods or services; That contain claims that appear to be d... or are not s..., or; That unfairly t... a ...'s products might also be rejected! Remember, a m... ... is permitted to reject any content it chooses, with or without a ...! -There are two key divisions of the B... ... ...'s ... S...-R... C... (ASRC), which was known until 2012 as the National Advertising Review Council, that provide both a... and o...-of-... methods for r... d... about ads! 1. N... A... D... (NAD) -A s...-r... forum for the ... i..., reviews ... a... for t...s and a..., and it provides a form of alternative d... r... for companies cheaper than l...! Example: NAD recommended Charter Communications, Inc. discontinue or modify comparative speed claims it made about AT&T in TV commercials promoting its Spectrum internet service -In the challenge filed with NAD, AT&T claimed Charter's commercials implied (1) AT&T's internet service was too slow for certain activities including streaming and (2) AT&T did not offer internet speeds that exceed 200 Mbps -NAD agreed with AT&T that "r... c... would take away a message that the o... s... for AT&T internet customers who wish to stream is to switch to Spectrum's internet service" NAD said any such claims in ads that d...e a c... product or service "must be t..., a..., and n... d...!" -NAD concluded Charter didn't meet that s... as it did not provide a r... b... for its claims. NAD thus recommended Charter discontinue or modify the claims in its commercials, and Charter agreed to comply 2. C... A... R... U... (CARU) -The c...'s arm of the a... i...'s s...-r... program, and it evaluates c...-directed advertising and promotional material in all media to advance t...s, a... and c...y with its "S...-R... Guidelines for ...'s Advertising" and relevant laws Example: CARU recommended IMC Toys USA Inc. modify its TV commercial promoting the Cry Babies Magic Tears Tutti Frutti doll to make sure it included a clear and conspicuous disclosure that children should not consume a jell-like substance produced by the doll. The commercial featured several Tutti Frutti dolls dressed to look and smell like fruit; when squeezed, the dolls produced colorful jelly-like tears. In the commercial, a child sniffed a doll while small watermelons floated around it, and the doll's tears were frequently referred to as "jelly." A small disclosure in the ad stated, "fun to squeeze, not to eat" -But CARU noted such a small, fleeting disclosure at the bottom of the screen was not prominent enough and likely couldn't be understood by young viewers who often cannot read well enough to understand such messages. CARU thus concluded the commercial could reasonably convey to children that the tears were edible. IMC Toys agreed to comply with CARU's recommendations and chose to stop running the commercial -In 2022, CARU revised its s...-r... guidelines to "more specifically address digital media, video, influencer marketing, apps, in-game advertising and purchase options in games, social media, and other interactive media in the children's space If an advertiser ... with a NAD or CARU decision, it could ... to the N... A... R... B... (NARB)! Lawsuits by Competitors and Consumers Lawsuits for ... advertising claims were relatively ... until the last quarter of the 20th century. With the rapid growth of c... ... (in which the advertised product is c... to a ...'s product), more and more advertisers have taken competitors to court over what they claim is d... and ... advertising! -Example: Yogurt-maker Chobani found itself in a legal dispute over its ads. Chobani's campaign highlighted the use of "bad stuff" in the yogurts of rivals Dannon and General Mills and suggested Chobani's product - Simply 100 Percent Greek yogurt - was a natural, healthier choice. The ad campaign included TV, print and online ads -Print ad featured pictures of Dannon Light and Fit Greek yogurt and Yoplait Greek 100 (made by General Mills) and opened with the question: "Did you know not all yogurts are equally good for you? You think you are doing something good for yourself and your family by buying yogurt instead of bad stuff and then you find that the bad stuff is in your yogurt!" Next to a picture of Dannon Light and Fit Greek yogurt, the ad said: "There's sucralose used as a sweetener in Dannon Light and Fit Greek! Sucralose? Why? That stuff has chlorine added to it" Next to a picture of Yoplait Greek 100, the ad said: "Look, there's potassium sorbate as a preservative in Yoplait Greek 100. Potassium sorbate? Really? That stuff is used to kill bugs" -Dannon and GM contended Chobani's ads made ... and m... claims about their products in violation of the f... ... Act -They also moved for a preliminary injunction to stop Chobani from continuing the Simply 100 campaign -A federal judge in NY ... the injunction. The judge said potassium sorbate is a widely used preservative considered safe for use in foods by the FDA. "It has been found to be nontoxic even in large quantities" And he said sucralose is a popular artificial sweetener the FDA has determined is safe to consume, and the chlorine used to make sucralose "is distinct both chemically and practically" from the chlorine used in swimming pools -The judge ruled Chobani is "free to continue to spread its message about the value of selecting natural ingredients. It is not free to disseminate the ... message that sucralose renders Dannon's products u... to c... or that potassium sorbate renders Yoplait Greek 100 u... to c..." ... Act (1946) -Federal statute adopted more than 70 years ago by ... to stop u... ... in the m...! -Section ...(...) creates a l... c... of ... for ... advertising! -The statute set forth at 15 U.S.C. 1125 provides, a person who generates any f... d... of o..., f... or m... d... of ..., or f... or m... r... of ..., which in commercial advertising or promotion, misrepresents the n..., c..., q..., or g... o... of ... or a... ...'s goods, services, or commercial activities" is liable for ... d...! -As originally written, the law prevented only one advertiser from making ... statements about their ... goods -Example: The new Escalade will get 60 miles to the gallon in city driving But ... amended the act in 1989 and now the law prohibits an advertiser from making ... claims about a ...'s products as well -Example: The new Escalade will get 21 miles per gallon in city driving, while the Lincoln Navigator gets only 5 miles to the gallon This provision of the Lanham Act was ... used by advertisers until the ...! -Between 1946-68 the courts heard less than 30 ... advertising cases Several developments propelled the growth of Lanham Act ... advertising activity: 1. C... ..., in which an advertiser not only promotes their ... goods but also tends to d... the product made by a ..., became more ...! -TV networks had arbitrarily refused to air such commercials until urged to do so by the ... ... ..., which suggested such advertising would enhance the c... n... of the m... 2. A..., as a part of the marketing mix for all products, took on more ... in the past 50 years -Sellers invested huge sums in building product images and establishing product claims. Attempts by ... to u... or d... these images or claims were regarded more s...y than in the past! 3. It became somewhat ... for plaintiffs to ... Lanham Act ... advertising suits! -The test of ... advertising, for years a c... configuration of criteria, was reduced to three parts: 1. What ..., either e... or ..., does the ad convey? 2. Is this ... ... or m...? 3. Does this ... i... the plaintiff? 4. The size of ... a... skyrocketed! -Plaintiffs in Lanham Act cases had traditionally sought only to ... the ...'s advertising claims. It was easier to b... a ...'s claims than to win ..., because to gain a m... a... the plaintiff had to show s... m... l..., something often difficult to do given the nebulous nature of ad claims and the forces that motivate a consumer to buy a specific brand of a product -But courts began to ... this standard at about the same time they began to increase the ... of ... a...! Not only is it possible for plaintiffs to win a... ... and c... c... from the defendant, but they can also tap into any ... made by the competitor through the use of a bogus ad campaign. On top of this, the judge can ... or t... the ... a... in cases of especially f... f...! In summary, c...-versus-c... l... are MORE ...! Example: Jury ordered SharkNinja to pay Dyson $16 million for allegedly ... vacuum cleaner ads. SN advertised its vacuum cleaned carpets better than Dyson's, which was Dyson's best-performing vacuum cleaner at the time. The ads said the claims were based on independent lab testing. SN's ads ran nationwide from 08-12/2014 on the Internet and in TV commercials, infomercials and print. Dyson filed suit, accusing SN of violating the ... ...! Dyson alleged SN rigged its tests by directing the testing company how to test the machines. Dyson instead maintained when the two vacuums were tested under industry-accepted methods, Dyson's model proved superior -The jury found SN i... m...d c... by advertising results from unsound tests. The $16 million verdict against SN was roughly equal to the company's ... from selling its vacuum during the time the ads ran. 2019, federal judge increased the amount to $18 million after he found the jury's verdict was reasonable and Dyson was entitled to $2 million in i...! ..., as opposed to competitors, have a much more ... time in maintaining action for ... advertising! -Part of the reason for this is the ... ...'s rules against ... advertising, which are designed to remedy u... c..., generally allow only e... c... to s...! -It is very difficult for n... to gain standing for ... advertising under the ... ... Who counts as a competitor in the Lanham Act? -Lanham Act claims need to be filed by a ..., but who counts as one? -The U.S. Supreme Court wrestled with who has standing (who is a ...) to bring a ... advertising claim under the Lanham Act in a 2014 case: Lexmark International, Inc. v. Static Control Components, the Court held standing is determined by two factors: 1. Courts should apply a "z...-of-..." t..., ensuring the law protects only those who fall within the "... of ..." the law was in... to protect! -The test in this context requires a plaintiff to allege a b... or c... in..., more specifically an "in... to a c... interest in r... or s..." 2. Plaintiffs must show the in... is "p...y c..." by the defendant's ... statements -This means a plaintiff suing under the Lanham Act "must show e... or r... in... flowing directly from the d... wrought by the defendant's advertising" There is no ...-l... t... for d... advertising! -Historically, ...-l... courts have not been receptive to p...g c...! "During the most formative period of ... l..., only a few goods in the marketplace were manufactured products so the buyer was in excellent position to j... for ... goods offered to him" (Rosden's) The basic slogan in those days was c... e..., or buyer beware! Recently, some c...-a... ... have netted huge settlements! Example: A federal judge approved a $15 million c...-... s... in a case involving Post Foods' cereals. In their ..., plaintiffs alleged PF violated a number of state consumer protection laws by d... marketing high-sugar cereals with health and wellness claims such as "less processed nutrition you can see" and "Our Post Promise: No High Fructose Corn Syrup" Plaintiffs referenced similar claims in more than 50 PF cereals. The ... alleged PF took a... of c... by claiming its cereals were healthy even though they contained high amounts of sugar -As part of the s..., PF agreed to stop making certain claims - including "no high fructose corn syrup" "less processed" "wholesale" "smart" and "nutritious" on cereal products where 10% or more of the calories come from sugar. Customers who purchased the cereal products were also eligible to submit a claim and receive a payment State and Local Laws State regulation of advertising p... ... regulation by several ...! -This fact isn't surprising when you consider at the time the public became interested in advertising regulation-around the early 1900s-the ... government was a minuscule creature relative to its present size! -Henry Nims, NY lawyer, drafted a m... l... called the P...' I... s... (P...' I... magazine urged the passage of the law) in 1911 -Most states today have such laws -In addition, many states have u... and d... a... and p... s..., which give c... the right to seek a ... r... in ... advertising claims -These acts are often called "L... ... Acts" and the guidelines developed by the ... in applying ... advertising law are used by the state courts in administering these state regulations -Finally, many ... governments have c... p... l... that broadly apply to ... advertising Example: State laws were at the center of a c...-a... ... in 2010, alleging the Coca-Cola company engaged in d... p... [u... and d... a... and p... s...] in describing the dietary benefits of Vitamin Water on the label of the product -Plaintiffs filed claims under CA, NY and NJ c... p... s... that broadly prohibit the m...g of f... in language that is largely identical to that found in the ... F..., D... and C... A.. (FDCA). The FDCA empowers the ... to protect public health by ensuring "f... are safe, wholesome, sanitary, and properly labeled" and deems a f... as "m...d" if its labeling "is f... or m... in any particular." There is however no right to a p... c... of a... under the FDCA, as the ... is charged with enforcing it -The plaintiffs in Ackerman v. Coca-Cola Company turned to state laws of CA, NY and NJ to challenge claims for Vitamin Water such as the phrase "vitamins + water = all you need" on the product label and the statement "specially formulated to support optimal metabolic function with antioxidants that may reduce the risk of chronic diseases, and vitamins necessary for the generation and utilization of energy from food" on the label of VW's "Rescue" flavor. U.S. District Judge r... to ... the majority of the plaintiff's allegations, thus handing a victory to the Center for Science in the Public Interest, which organized the lawsuit. Coca-Cola settled the lawsuit in 2016, agreeing to stop making health claims about the drink and to advertise on the labels that VW contains sweeteners

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The Regulatory Process To understand the importance of the regulatory process, need to understand: 1. The p... in a d... advertising case 2. The k... of ... that can be considered d... 3. The d... to a charge of d... advertising 1. Procedures -The FTC does not attempt to scrutinize ... ad that is published or broadcast! Most cases come to the attention of the agency from l... w... either by c... or c...! -Today, an individual can file a c... o... from the FTC's ... s... 1. When a c... is received, FTC s... a... examine it to see if it has m... -If they can find no m..., the case ends! If the staff members believe there is a pr... v..., then a proposed c..., a proposed c... a... and a m...m are prepared for the c...! 2. The c... then v... on whether to issue a c... -If the c... agree the ad is in v... of the ..., the advertiser is notified and given opportunity to either sign the c... a... that has been drafted or n... with the agency for a more f... o... At this point one of three things can happen: a. The ... can agree to s... the a..., and the ... vote to accept this a... (If this happens the o... is published and made final in ... days) b. The ... can agree to s... the a..., but the ... reject it! c. The ... can r... to s... the a... 3. If either of the two latter events occur (b and c), a c... is issued against the advertiser, and a h... is scheduled before an a... l... ...! -The ... works within the FTC and officiates at these h...; the h... is a lot like t..., only more informal -If the ... believes there is s... e... the ad v... the ..., they will issue an o... telling the advertiser to s... this i... practice (l... o...) -The ... also has the authority to d... the case! -At this point either side can ... to the c... to o... the ruling of the ...! 4. If the ... agree the ad is not m...g or d..., the case ends. BUT if the ... support an a... l... ...'s ruling against an advertiser, the o... becomes ... after it is finalized by an a... ...! 5. The advertiser may appeal this decision in a ... ...! -IT IS DIFFICULT FOR ... TO ... AN FTC RULING! THERE ARE ONLY A HANDFUL OF REASONS A JUDGE CAN USE TO ... THE COMMISSION DECISION: The case goes to an appeals court, and there is no new finding of ...; What the FTC says is f..., is f... Instances in which a c... can o... an FTC ruling... a. "C...g e..." the agency made an e... in the proceedings b. No e... to s... the commission's findings c. V... of the ... - for example, the agency did not provide d... p... of the ... d. The action goes b... the agency's p... e. Facts relied on in making the ruling are not s... by s... e... f. A... or ca... acts by the commission An appeal of an adverse ruling by a c... c... can be taken to the ... ..., but only if c... is granted! 2. Special Cases of Deceptive Advertising a. T... -All TV viewers have seen f... c... and a..., as well as e... and o... c..., on commercials making claims about products they supposedly u... or in which they otherwise b... -Example: The issue of t... and d... in such ads gained both public and congressional attention when Pfizer, Inc. canceled commercials for its Lipitor cholesterol pill that featured Jarvik, an artificial heart pioneer -LA Times, "the ads conveyed the im... that J was imparting m... a..., although in reality he's not l... to practice m...! They also used a body double to depict J rowing across a lake" -USA Today, "J graduated from m... school, [but] he's not l... to practice m... or to write p...! He doesn't see patients. He was a consultant to Lipitor-maker Pfizer, under contract for $1.35 million. And he didn't start taking Lipitor until a month ... he started doing the ..." Congress held hearings on the matter The FTC enforces rules regarding e... of products and services by c..., c..., e... and o... -E... = any advertising message [including things like v... s..., d... and depictions of the n... of an individual or the n.../s... of an organization] that consumers are likely to believe r... the o..., b..., fi..., or e... of a party other than the sp... a...! Under FTC's rules, several points emerge that must be understood: 1. E... must reflect the h... o..., f..., b... or e... of the e... and may not contain any representations that would be d... or could not be s... if made directly by the advertiser 2. An advertiser may use an e... of an e... or c... only as long as it has good reason to believe the e... continues to s... to the v... presented 3. If an ad represents that an e... u... the product, then the e... must have been a b... f... u... of it at the time the e... was g..., and in addition, the advertiser may continue to r... the ad only so long as it has good reason to believe the e... r... a u... of the product 4. Ads presenting e... by individuals who are represented either d... or by im..., to be "a... c..." must use a... c..., in both the audio and video, or else they must c... and co... d... that the people in such ads are not a... c... of the advertised product 5. If an ad represents, either d... or by im..., the e... is an e..., then the e...'s q... must in fact give them the e... they are represented as possessing with respect to the e... -In 2007, the FTC requested p... c... on its Guides Concerning the Use of E... and T... in Advertising, also referred to as FTC's E... Guides, which had not been revised since 1980 -The FTC (in response to feedback), added several minor r... to its guides in 2009, including clarification that when determining whether statements in an ad constitute an e..., it does not matter whether statements made by an e... are i... to or d... from those made by the sp... a...! -One significant change by the FTC was to amend its guides to make ex...: "Two principles that the Commission's l... e... activities have already made clear. The first advertisers are subject to l... for f... or u... statements made through e..., or for failing to d... m... c... between themselves and their e... The second is that e... may also be subject to l... for their statements!" -The most controversial change, primarily affecting companies that advertise products, pills and diets designed to "r... w..." relates to commercials in which a r... p... (an e...) claims to have l... a huge sum of w... ("I lost 40 pounds in just two weeks!") and the advertiser runs a d... of ty... at the bottom of the commercial stating "Individual Results May Vary" or "Results Not Ty..." -Under the new guides, such d... indicating the results of the e... are un... or out of the o... would not be ... to protect the advertiser from p... l...! -Instead, the FTC's revised guides say t... that do not detect ty... c... e... should be accompanied by a c... and c... d... of the results c... can generally e... to achieve from the advertised product or program! Commercials should make clear what the ty... r... were (and have pr... s... for such claims); merely stating the r... of the e... are not ty... will not cut it! -FTC emphasizes its E... G... apply to a... m..., including b... and s... m...! -After the FTC revised its E... G... in 2009, it followed up with FTC's E... G...: What People Are Asking, an in... staff p... meant to answer questions advertisers might have about the g... FTC revised the What People Are Asking publication in 2015 and again in 2017. The 2017 revision contained more than 20 additional entries addressing questions s... m... i... and marketers might have about when and how to d... m... c... in their posts, including information about the t... in p... and about I... and S... d... -In 2019, FTC issued a guide titled Disclosures 101 for S... M... I...! The guide discusses "w... to d..., ... to d... and what else i... need to know" -FTC's revised E... G...; What People Are Asking p...; and Disclosures 101 for S... M... I... make it clear b... or s... m... i... who receive c... or other i...-k... p... (free products, discounts, etc.) to review or promote a product or service MUST d... the m... c... they share with the seller of a product or service -When there is a r... between a b.../s... m... i... and an advertiser that would affect the c... of the r... in the eyes of c..., the r... should be clearly d...! And the FTC will act if it is not Example: Two well-known s... m... i... in the online gaming community settled FTC charges they d... e... the online gambling Web site CSGO Lotto while failing to d... they jointly owned the company. The two, Martin and Cassell, also allegedly p... other p... i... thousands of dollars to promote the site on YouTube, Twitter and Facebook without requiring them to d... the p... in their s... m... p...! -FTC's order settling the charges required Martin and Cassell to c... and c... d... any m... c... with an e... or between an e... and any promoted product and service "Consumers need to know when s... m... i... are being p... or have any other m... c... to the brands e... in their posts," said FTC Acting Chair -Example: FTC settled a case with Teami LLC, a company that sells teas and skincare products. FTC alleged the company promoted its products using d... h... claims along with e... by well-known c... and i... who failed to c... d... they were being p... for their posts -Followers who read the Instagram posts from c... and i... couldn't see the e... were p... for unless they clicked the "more" option - thus making it unlikely that many followers saw the d...! In addition to taking action against Teami, the FTC also sent warning letters to the c... and i..., cautioning them they could also be held personally l... for failing to c... and c... d... their c... to the company! b. N... A... -In 2015, FTC issued an enforcement policy pertaining to n... a... - o... a... made to look like s... n...-a... c...! -Examples include ads or s... material that bear a s... to the n... a... or p... r... or v... c... that s... them! -FTC's concern is that consumers might not be able to d... the ... from o... c...; The FTC's Enforcement Policy Statement on D... F... A... explains "in digital media, a publisher or an authorized third party, can e... and in... f... an ad so it matches the s... and l... of the c... into which it is int... in ways not previously available in traditional media" -FTC's policy emphasizes that an ad is d... if it ma... m... consumers about the c... n... of the ad. Advertising should not m... as i... c...! -An ad cannot suggest that it comes from a party other than a s... a...! -To combat the potential for d..., the FTC urges a c... and p... d... that the material is an a...! "The FTC's policy applies time-tested truth-in-advertising principles to modern media," FTC's Bureau of Consumer Protection "People browsing the ..., using s... m..., or watching v... have a right to know if they're seeing e... c... or an ...!" The FTC also released N... A...: A Guide for Businesses as a s... to its policy. The Guide for Businesses offers advice from FTC staff to help companies apply the e... p...; Among other things, it includes examples to demonstrate how e... di... can help p... d...! c. B...-and-S... A... -FTC p... b...-and-s... a..., an alluring but insincere offer to s... a p... or s... which the advertiser in t... does not i... or w... to s...; its purpose is to "s..." consumers from buying the a... m..., in order to s... s... e..., usually at a h... p... or on a basis more a... to the advertiser! FTC's rules state: 1. No ad containing an o... to s... a product should be published if the offer is not a b... f... e... to s... that product! 2. Advertisers cannot engage in practices that d... p... of a... merchandise as part of a b... scheme to s... o... merchandise, such as refusing to show or s... the product offered in accordance with the terms of the offer Example: FTC went after a high-tech form of b...-and-s... a... when it settled charges that Ticketmaster and affiliates used d... b...-and-s... tactics to sell concert tickets to consumers. The FTC alleged when tickets went on sale for Springsteen concerts, Ticketmaster displayed a "No Tickets Found" message on its Web page to consumers to indicate no tickets were available at that moment to fulfill their request. The FTC charged Ticketmaster used this Web page to steer u... c... to TicketsNow, where tickets were offered at much h... p... - in some cases d..., t... or q... the face value! To settle the issue, Ticketmaster agreed to pay refunds to consumers who bought tickets for 14 Springsteen concerts through its ticket resale Web site TicketsNow, and to be clear about the costs and risks of buying through its reseller sites 3. Defenses -The basic defense against any f... advertising complaint is ... - proving that a product does what the advertiser ... it does, that it is made where the advertiser ... it is made, or that it is as beneficial as it is a... to be! -Though the burden is on the ... to disprove the advertiser's claim, it is always helpful for an advertiser to offer p... to s... ad copy! -Another angle advertisers can pursue is to a... a d... a... of the ...'s case than try to prove the statement t...! -Example: An advertiser can argue the d... statement is not m... to the ad as a w... (it will not influence the p... d...) or that the ad does not i... what the ... thinks it i... (To say as Dry Ban did that a deodorant "goes on dry" does not mean that it is dry when applied, merely that its application is drier than of other antiperspirants)

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Trademarks Any w..., n..., s..., d... or any combination thereof that is used by a company (or an individual) to ... its goods and services from those produced by other companies! -... ... (Nike, McDonald's) -... ... (the Nike swoosh, McDonald's golden arches) -... ... (Nike's "Just Do It" and McDonald's "I'm Lovin' It") In addition... trademarks can be a. ... distinctively associated with a brand (Tiffany's ... for its jewelry boxes; Owens Corning's ... ... on its insulation products or John Deere tractors' ... and ... ... scheme) b. ... distinctively associated with a company (NBC chime, Netflix ... played at the beginning of a show on the streaming platform) c. The distinctive d... and a... of a look or product -Tiffany's blue boxes tied with white ribbons -Red dripping wax on Maker's Mark bourbon bottles d. A ... -Apple's appearance of its retail stores -The interior of Victoria's Secret e. A ... -Chipotle has a registered trademark for the appearance of its ... These marks relating to distinctive looks and appearances are known as t... ... or ... marks! Marks used to identify the source of a ... (rather than a product) are called ... marks f. Can even get a trademark in a ... business name! Example: 5th Circuit ruled Viacom, creator of SpongeBob SquarePants, held the trademark to the name Krusty Krab (TX company cannot open real-life versions of the ... restaurants using the name) [ruled specific elements from within a ... work can receive trademark protection] -Daily Planet (Superman) -General Lee (Dukes of Hazard) The key functions of all marks (trade, service, or dress) are to clearly identify the s... or ... of a product or service with a specific company and in doing so to prevent ... c... about whose goods and services one is buying! Example: When you see Nike's swoosh logo -one of the most well-recognized marks today- on a pair of shorts, you know you're buying a genuine Nike product without even needing to see the word Nike on the shorts. If, in contrast, you saw three parallel stripes on a pair of shorts, you'd know the product is from Adidas Such famous marks serve other functions by allowing companies to tout the ...y of their goods and to a... with their marks, with the marks standing in for the g... and ...y of the product or service The Four Main Functions of Trademarks and Service Marks 1. They ... one seller's goods and ... them from goods sold by others 2. They signify that all goods bearing the trademark or service mark come from a s... ... 3. They signify that all goods bearing the mark are of an ... l... of ...y 4. They serve as a prime instrument in ... and s... goods Some marks are stronger than others! The strength of a trademark is based on its d... The more d... it is, the easier it is to register with the U.S. Patent and Trademark Office (USPTO) and the stronger it will stand up as protectable in a l... for ... in...! ... in...: when a company believes another is using a mark-be it a name, logo, or any type of mark-that is too similar to its own mark and likely to cause ... among ... about the ... of a product; this allows the first company to sue the other for ... in...!) Going from the strongest to weakest categories of marks that can be registered with USPTO, the spectrum of d... is the following categories: 1. ... - the strongest types of marks; consist of ...-u... or in... ('coined') words -Lexus (...-u... word for a car company) -Exxon (...-u... word for a gasoline company) -Xerox (...-u... word for a company known for copying machines) -Most drug companies ... u... words for their products (Viagra) 2. ... - the next strongest type of mark, second to ... ones (first blank)! An ... word (than a ...-u... one) is used as a mark for a good or service that is unrelated to the ... or o... meaning of the ... word! -Apple - ... mark for a computer company, as the fruit known as an apple has ... to do with computers or phones (making the connection ... or random!) -Camel - ... mark for a cigarette company -Pledge - ... mark for a brand of furniture polish 3. ... - weaker than ... (first) and ... (second) marks, suggest to consumers some a... or q... about the product in question, but do not clearly d... the product! Consumers must do a little bit of thinking and use their imagination to understand what the product is -Coppertone - ... mark for suntan lotion, implying the shade of skin one achieves from using it -Microsoft - ... mark for a company that makes computer software -Chicken of the Sea - ... mark for the brand of canned and packaged tuna products 4. ... - the WEAKEST type of mark! D... d... features or qualities of the product in question without a consumer having to do any additional thinking! -Arm & Hammer makes a daily shower spray to prevent mildew and mold called "Clean Shower" -Unlike the first three kinds of marks, each of which is considered in... d..., ... marks can only be registered with USPTO after an extended period of continuous use (typically 5 years or more) in which they acquire a "s... m..." ("a... d...") such that they become associated exclusively with a particular company among members of the public that consume the product or use the service in question -In other words, consumers must come to directly associate the mark "Clean Shower" with A&H as the ... of those goods -Holiday Inn - an example of a ... mark that has a... d... and a s... meaning over time in the eyes of hotel users such that the name is associated with a specific brand of hotel It is not always easy to determine whether a mark is ... or ...! But the difference is critical. It is much easier to register with USPTO a ... mark, as there is no need to prove a ... mark has acquired a s... meaning (same is true for fanciful or arbitrary marks) -Versus ... marks that REQUIRE a company demonstrate the mark has obtained a s... meaning in the minds of the consuming public Attorneys sometimes think of this as the difference between marks that are in... d... (the first three categories of marks) and those that must acquire d... before they may be registered with USPTO (... marks) A... d... is also necessary for a s... to be trademarked! (Hilton, Hyatt) [The last name of the late hotel mogul Hilton has a... a d... meaning among hotel consumers such that they associate Hilton with a particular brand of hotel] 5. This fifth category of words and names are consider ...!!! ... words and terms describe b... categories or classes of products or services [not a s... company's product] and cannot be trademarked! -6th Circuit, "Texas Toast" couldn't be trademarked because it is a ... term for a type of oversized bread product -1st Circuit, "Duck Tours" was a ... term and couldn't be trademarked because it described a class of sightseeing tours that use amphibious vehicles that can function as both trucks and boats -Phrases like "pizza parlor" and "shoe store" are other examples of ... that can't be trademarked -Apple is a ... word for a type of fruit and can't be trademarked, unless used in an arbitrary way like a brand of computer company Can you trademark a smell? You ... trademark an odor or scent if it isn't a ... aspect of the product! -Verizon, scent for its larger marquee stores - distinguish its stores from other communications and consumer electronics retailers - scent ... be protected because it is considered a d... mark that identifies the ... of the product! BUT "..." scents inherent in the product itself, such as a perfume smell, ... accepted for trademark protection -Anything considered a ... aspect of the product ... subject to trademark protection; however, the ... aspect of a product can be patented, provided they are distinct/unique enough While ownership of a trademark may exist ... (c...), the ownership of a trademark or trade name can also be ...! Example: Ford Motor Company wanted to name one of its automobiles "Futura", name it had used from 1959-62 and in the late 70s/80s. But when it s... ...g the name, Pep Boys registered the name as a trademark. When the automaker tried to use "Futura" again, Pep Boys went to court to block Ford, and a federal court ruled the company a... its trademark when it s... ...g the name 20 years earlier Failure to ... a name for as little as ... years can constitute a...! It is also possible trademark protection can be ... if the owner of the mark allows others to ... the mark in a ... way! Example: If the makers of Super Glue (trade name) adhesive failed to try to stop other adhesive makers from ... to ... products as super glues, the trademark protection could be ...! -These ... words - nylon, dry ice, escalator, toasted corn flakes, raisin bran, aspirin, lanolin, mimeograph, cellophane, linoleum, shredded wheat, zipper, yo-yo, brassiere - were all at one time ... ... that slipped away from owners who failed to ... these names! This process of a once-... term ... its ...-p... status is known as "..." The trademark comes to represent an E... C... of G... and no longer a s... brand within that c...! And as trade names become more commonly used, there is a tendency for them to slip into a ... term! Example: The owners of Google were thrilled to note "google" was included in Webster's Collegiate Dictionary, the term going from a nonentity to common usage in under 8 years. But they were less thrilled to note a great many people were using the term as a verb, without the capital letter G. What they want people to write instead of "John googled 'car dealers' to find a used Honda" is "John used the Google search engine to find a Honda at a car dealer." -9th Circuit heard a case involving the issue! Two plaintiffs claimed Google had become a ... verb to describe the act of searching the Internet that couldn't be protected by trademark law 9th Circuit ruled a claim of "..." must relate to a p... t... of ... or ..., not simply the ... itself! The court held it didn't matter if "google" had become a ... term for the act of using a search engine, but instead whether "google" had become a ... term for search engines Plaintiffs appealed the decision to the Supreme Court, but the high court declined to hear the case Stern letters, threats of ..., even l... a... must be in... to stop others from illegally using a phrase or mark! Velcro Cos. released a music video with the message "Don't say Velcro" The video featured actors portraying trademark attorneys pleading with the public to respect the company's brand and refer to similar products as "hook and loop" fasteners. This responsibility falls on the o... of the ...; no ... a... polices such misbehavior! The U.S. Supreme Court considered whether d... names, including a top-level d... name (TLD) such as ".com" may be protected as a registered trademark U.S. Patent and Trademark Office v. Booking.com B.V. -Booking.com challenged USPTO decision that the mark "Booking.com" was ... and un-registrable -The Court held because Booking.com wasn't ... to consumers, it wasn't ... and could be registered. Whether a term is ... or protectable must be determined by c... p... Evidence showed c... p...d Booking.com as a brand name, not a ... term -The Court refused to adopt the PTO's argument there should be a per se rule that combining a ... term with a "... top-level domain like .com" should result in a ... combination -The Court wrote any ... term could be combined with ".com" and that combination could receive trademark protection if it acts as a source identifier Example: 9th Circuit ruled in favor of the organizers of the San Diego Comic-Con in a long-running trademark battle against "Salt Lake Comic Con." The court rejected the arguments that "Comic-Con" was a ... term. The ruling came nearly six years after the SD Comic Convention filed suit against a company called Dan Farr Productions over the company's use of "Comic Con" with its comics and popular arts convention. The court agreed with the SD Comic Convention that it had exclusive trademark rights to the mark "Comic-Con" which it has been using in connection with its comics and popular arts convention since 1970 Trademark law is designed to reduce the likelihood of ... in the marketplace! But courts have ruled a ... of a trademarked item isn't necessarily an infringement because it wouldn't generate such ...! When Haute Diggity Dog's toys marketed its "Chewy Vuiton" dog toys, it didn't infringe on the trademark of designer Louis Vuitton. "The furry little 'Chewy Vuiton' im..., as something to be chewed by a dog, pokes fun at the elegance and expensiveness of a LOUIS VUITTON handbag, which must not be chewed by a dog" 4th Circuit ruled

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Copyright History -1789 — U.S. ... gives ... power to "promote the ... of ... and ... ... by securing for ... times to ... and ... the ... ... to their respective w... and d..." -The ... was ratified, ... basis for both copyright and patent law! -1790 — ... passes first copyright ..., allowing protection of ..., ... and ... for up to ... years -For ... years, an ... ... to ... after which no more (in the public domain) -1831 — Protection period expanded by ... years (... + ... = ... years) -..., ..., ... - the e... ... to ... -1976 — ... law was adopted, p...-... all remaining ... laws -Before 1976, was a ... copyright law with variations among the ... - get the minimum ... years at the ... level but in our state we may be protected for ... years (different ... had different ... of protection) -Think of the 1st Amendment - ... Constitution and ... constitutions (can give more but not less 1A protection than the ... Constitution), no ... s... law but ... s... laws -1976 to now, all ... share the same copyright law (no distinctions!) -1998 — S... B... Copyright T... E... Act set ... copyright d... Copyright Copyright extends to, "... works of authorship fixed in any ... ... of ..." -...: "some ... or ... in the manner in which the facts are ... or s... or c..." [cannot take ... ...'s ideas!] -...: "sufficiently ... or s... to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a t... d..." Example: You give a speech on the university quad extemporaneously, cannot copyright unless it is ... or ...; because copyright hinges on your ability to ...! -Purpose is not to ... the ... of a..., but to ... the ... of ... and the ... -Designed to ..., protection not meant to be ..., make more creative processes! Six ... ... recognized under law: (What only we can do with what is copyrighted) 1. ... the work -You are the only one who can ... it/choose who ... it 2. Prepare and create ... works -Example: Fanfiction of Harry Potter characters, J.K. Rowling (author of Harry Potter books) - if you wanted to write that Harry Potter is doing something else, could do this for personal edification but if you wished to publish it, would be violating the copyright author's exclusive right to prepare and create ... works; BUT once the text is out of copyright and into the public domain, can publish the fanfiction as is Example: Pride and Prejudice, now in the public domain. See ... (same blank) works like Pride, Prejudice and Zombies - selling at book stores because the original work is out of copyright and in the public domain! -Same characters but new plot, conflict, character relationships! 3. Publicly ... the work -Can make money for reproducing but how it is ... (which countries, format it will be sold as) 4. Publicly ... the work -If you are producing a play for your high school, but the play is under copyright (need to buy the rights) 5. Publicly ... the work -Where and how an artwork or other visual work gets ... 6. Publicly ... a d... ... ... -Bryant-Denny Stadium have to pay rights from musical artists -Walk up music for baseball games, fair use if just a little snippet of the song -Radio stations Examples of what can be copyrighted -... works - including c... ... -... works - including any accompanying words (...) -... works - including any accompanying ... (plays, films) -P... and c... works - dances -P..., g... and s... works - fine arts -M... ... and other ... works -... r... NOT designed to sell a product (marketing/distinguish works) - that is trademark Copyright IS about creative works

1789 — U.S. Constitution gives Congress 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" Constitution, constitutional 1790 — Congress passes first copyright law, allowing protection of books, maps and charts for up to 28 years 28, exclusive right, reproduce 1831 — Protection period expanded by 14 years (28 + 14 = 42 years) Books, maps, charts - exclusive right to reproduce 1976 — Current law was adopted, pre-empted all remaining state laws Federal, states - 42, federal, 100, states, durations Federal, state, federal, federal shield law but state shield laws States 1998 — Sonny Bono Copyright Term Extension Act set current copyright durations -Copyright extends to, "original works of authorship fixed in any tangible medium of expression." -Original: "some novelty or originality in the manner in which the facts are organized or selected or coordinated" [someone else's] -Tangible: "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration" Recorded, documented Reproduce -Purpose is not to reward the labor of authors, but to promote the progress of sciences and the arts. Incentivize, forever Six exclusive rights recognized under law: 1.Reproduce the work 2.Prepare and create derivative works 3.Publicly distribute the work 4.Publicly perform the work 5.Publicly display the work 6.Publicly perform a digital sound recording -Literary works - computer software -Musical works - lyrics -Dramatic works - music -Pantomimes and choreographic works -Pictorial, graphic and sculptural works -Motion pictures and other audiovisual works -Sound recordings

Advertising Regulation ... Law (law created by a government ...) 3. Federal Trade Commission (FTC) -The FTC holds our bases for most federal regulation of advertising -Defines ... as any ..., ... or ... intended to draw the ... of the public to ..., to ..., to ... and to ... A very ... definition! Can only regulate "... ..." BUT... -Nearly every advertising medium is somehow affected by or affects ... ...! Example: a local business from Tuscaloosa, only purchasing materials from farms or farming in local products. No advertising online or over broadcast, just print ads. FTC would not be able to regulate! But if this business has a Web site or Facebook page, that relates to ... ... - FTC has purview. FTC purview has expanded as advertising has expanded Most forms of advertising covered by the FTC FTC rules against deceptive advertising 1. Advertising must be ... and not ...! Includes... -You cannot ... ... information - leaving out a ... detail of a product (cannot withhold this from consumers) -You cannot ... something that is not ... - not just false explicit facts can include implications or insinuations -.../... must be clear and prominent If there is a drawback, must ...! Pharmaceutical ads with a list of symptoms (...) 2. All ... made in advertisements must be ... You need receipts or facts for every ... before publishing/broadcasting said ... Example: "Product A makes you healthier" need results of a medical study proving this! "4 out of 5 dentists recommend" need a focus group showing four of the five dentists recommended the product Before disseminating an ad, must have ... ... for any and all ... or ... product ...! Need this ... ... for most claims, but ... and ... claims have higher standards for substantiation (products like fire extinguishers, medicines, etc.) Greater scrutiny for ... and ... claims, proof of ... and ... ... ... FTC definition of... ... ... 1. There must be a ..., ... or ... that is likely to ... the ...! -FTC considers the ... ... as well as all other elements of a transaction when making this determination -If the ... ... rings true and the insinuation is light in comparison, may not be ... ... to the FTC Remember an ad can mislead if it ... ... information! Does not have to be a false/misleading fact itself 2. The act or practice must be considered from the perspective of a ... who is acting ...! -Do not want ... ..., individuals who are h...-... -The test is whether the consumer's interpretation or reaction is ...! a. When ads are targeted to a s... a..., such as children, people who are elderly or terminally ill, they will be viewed from the perspective of a ... member of that group! Example: Ad to children, looking for how a ... child would respond not an ...! Ad geared to people with terminal illnesses, how would someone with such an illness respond? b. The advertiser is not responsible for ... interpretation or behavior by a consumer! Only the ... response -The law is not designed to protect the f.../f...-... (meant for the average person) c. Qualifying disclosures must be ... and ...! -Example: If a TV announcer proclaims that a watch is 100% waterproof, the advertiser cannot qualify this claim in a long printed message in small type that crawls across the bottom of the TV screen while the announcer tries to sell the product! d. ... - subjective claims that make a brand seem great ("Our store sells the most fashionable shoes in town" "the most refreshing drink around") - cannot be proven true/false but the ... consumer is not likely to take these messages seriously - overstatements no one will take literally -Allowed in ads for adults, not in children's advertisement! "This drink KILLS your throat" the ... consumer would not take a drink as literally killing you/your thirst 3. The ..., ... or ... must be ...! -... means a misrepresentation or practice likely to affect a consumer's ... of ...! May include... a. C... ... of a product or service (what it is or what it does) b. P..., e..., or c... of a product or service c. D..., p..., q... of a product or service These materials may be material - must be substantiated! If tangential, may be OK if not about the product itself

Administrative, agency Defines advertising as any action, method or device intended to draw the attention of the public to merchandise, to services, to people and to organizations. Can only regulate "interstate commerce" Nearly every advertising medium is somehow affected by or affects interstate commerce. Broad Interstate commerce Advertising must be truthful and not misleading Can't omit relevant information, bad Can't imply something that's not true Disclaimers/disclosures must be clear and prominent, disclose, disclosure All claims made in advertisements must be substantiated Before disseminating an ad, must have reasonable basis for any and all express or implied product claims Greater scrutiny for health and safety claims, proof of competent and reliable scientific evidence Claim, claim Reasonable basis, health and safety claims FTC definition of deceptive advertising 1. There must be a representation, omission or practice that is likely to mislead the consumer Entire ad Whole ad, deceptive advertising Omits key/essential info 2. The act or practice must be considered from the perspective of a consumer who is acting reasonably Eggshell defendants Reasonable Specific audience, reasonable Reasonable, adult Every Reasonable Foolish/feebleminded Legible and understandable Puffery Reasonable 3. The representation, omission or practice must be material Information pertaining to "central characteristics of the product or service" is USUALLY CONSIDERED to be material Information has also been found to be material where it concerns the purpose, efficacy or cost of the product or service Claims about durability, performance, warranties or quality have also been considered material

Review Commercial Speech Doctrine -Also known as the ... ... ... (after the Supreme Court case bearing the same name) -The ... ... does not protect either ... or ... ads or ads for ... .../... Think of it like obscenity: certain categories of speech are just not protected (like obscenity) Government may regulate ... advertising for ... goods and services if the following conditions are met: For advertising of ... goods/services and ... information, may be regulated but only under certain circumstances 1. There is ... ... ... to justify the regulation -The rationale is stated up front, why the government is doing this. Cannot be arbitrary, needs to be compelling 2. There is evidence that the ... ... ... this ... 3. There is a ... ... between the state ... and the government ... -Narrow regulation to serve a very particular purpose! Functions in similar way to obscenity law Advertising Regulation Advertising is one of the most regulated forms of speech -Remember commercial speech was not recognized as ... protected at all until 1975 (Bigelow v. Virgnia), certain forms of rights to companies and businesses now! ... ... of law! 1. Self-Regulation -Non-governmental entities set up by the ... ... itself to self-police (e.g., do things ethically and not engage in false advertising) - idea is to disincline the ... to regulate, get the ... regulators off our back ... ... ...'s ... ...-... ... (ASRC) -Formerly known as the ... ... ... ... (NARC) Two divisions of ASRC: 1. ... ... ... (NAD) -...-... forum for the advertising industry, reviews national advertising for truthfulness and accuracy, and it provides a form of alternative d... r... for companies that is cheaper than ...! -Reviews ads before they go out and make sure they are not false 2. ... ... ... ... (CARU) -Aimed at ...-directed advertising and promotional material to advance truthfulness, accuracy and consistency across all media -Making sure ads pass muster and will not meet criteria for government regulation -So, no h..., f... or ... (claims that are not provable but positive - "These shoes make you the best runner ever" - allowed in adult advertising as long as it isn't fact based BUT not allowed for ...'s advertising - ... cannot recognize ... - why CARU is a separate entity from NAD) Both NAD and CARU serve as a ...-... for means of regulation Moving into ... law... (passed by the ...) 2a. ... Act (1946) -Creates a tort - cause for redress in ... law - means for you to file a ... to recover damages -Adopted to stop u... ... in the ... -Any person who generates "any ... designation of ..., ... or ... ... of fact, or ... or ... ... of fact which in commercial advertising or promotion, misrepresents the n..., c..., q... or ... ... of his or another person's goods, services, or commercial activities" is liable for ... ... 1989: Congress amended the act to prohibit advertisers from making ... ... about ...s' products This act stops u... ... -> stops companies from unscrupulously use ... ... to either promote their own product or disparage the product of others ... Act: Increased Activity: Why? 1. The rise of ... ... - ads in which advertisers not only promote their own good or service but tend to disparage another's good/service as well Example: Not only is Coke best, but it's better than Pepsi! -Modern example may be Wendy's disparaging of other companies on Twitter 2. More ... than ever - phones are walking ... machines (constantly bombarded by ...) -So, with more ... it is more possible for mistatement or false claims 3. Easier for plaintiffs to ... ... Act suits For most of the 20th century, proving false or misleading advertising involved complex criteria -But this would be later reduced to a three part test for false advertising: 1. What ..., either ... or ..., does the ad convey? -Doesn't need to be a false statement of fact - can be an insinuation causing a ... ... 2. Is the ... ... or ...? 3. Does the ... ... the ...? This becomes a problem for individual ..., who are not recognized under the ... Act! Must involve ... harm to a competitor or their own company (... Act facilitates ...) 4. Size of ... ... skyrocketed ... Act growing in significance for advertisers, more higher-dollar verdicts Standing under the ... Act: Who can sue/who has standing to file a lawsuit? There is no ... law tort for ... ..., only the ... Act! (No recognized cost for redress for ... ... (same blank) - why the ... Act was created and it is the only tort related to ... ...) Difficult for ... to achieve standing to file false advertising lawsuits The law is designed to prevent ... ..., so inclined toward direct ... ... If a ... is hurt, no legal mechanism to achieve standing under the ... Act - not a cause of redress for ... Who counts as a competitor? Two means to file suit under the ... Act 1. "...-of-... test" - the law protects only those who fall within the ... of ... for enforcement -The test requires a plaintiff to allege a ... or ... injury, more specifically an injury to a ... interest in ... or ... "This false advertising hurt my business: either in my ... [relevant to comparative advertising] or in my bottom line (X amount of ... in my company vs. their company)" Must be a direct ... ... not an adjacent ... either! (within the same ...) Example: Monster Energy suing against Bang Energy for false claims that injured the company's reputation In this case the claim skewed the industry in a non-competitive means 2. ... c... - this means a plaintiff suing under the ... Act must show ... or ... injury flowing directly from the ... wrought by the defendant's advertising In this case a company did something to directly impact the sales of a company for example

Also known as Central Hudson test First amendment does not protect either false or misleading ads or ads for unlawful goods/services Government may regulate truthful advertising for legal goods and services if the following conditions are met: There is substantial state interest to justify the regulation. There is evidence that the regulation directly advances this interest. There is a reasonable fit between the state interest and the government regulation. Constitutionally Multiple sources of law Ad industry Government, government Better Business Bureau's Advertising Self-Regulatory Council (ASRC)Formerly known as National Advertising Review Council (NARC) Two divisionsuNational Advertising Division (NAD) Child Advertising Review Unit (CARU) Self-regulatory, dispute resolution, litigation Child Hyperbole, fantasy, puffery Pre-step -Statutory (legislature) -Civil, lawsuit -Adopted to stop unfair competition in the marketplace -Any person who generates "any false designation of origin, false or misleading description of fact, or false or misleading representation of fact which ... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or another person's goods, services, or commercial activities" is liable for civil damages. -1989: Congress amended the act to prohibit advertisers from making false claims about competitors' products. Unfair competition, false claims Comparative advertising More advertising than ever Easier for plaintiffs to win Lanham Act suits Three part test for false advertising: What message, either explicitly or implicitly, does the ad convey? Is the message false or misleading? Does the message injure the plaintiff? Size of damage awards skyrocketed False impression Consumers, economic (competition) 1. Courts should apply a "zone-of-interests test", ensuring the law protects only those who fall within the "zone of interests" the law was intended to protect. The test in this context requires a plaintiff to allege a business or commercial injury, more specifically "an injury to a commercial interest in reputation or sales" 2. Plaintiffs must show the injury is "proximately caused" by the defendant's (the competitor's) false statements. This means a plaintiff suing under the Lanham Act "must show economic or reputational injury flowing directly from the deception wrought by the defendant's advertising There is no common law tort for deceptive advertising, only the Lanham Act Difficult for consumers to achieve standing to file false advertising lawsuit Law is designed to prevent unfair competition, so inclined toward direct economic competitors What counts as a competitor? "Zone-of-interests test" "Proximate cause" Reputation or sales Economic competitor, company

Factors of Fair Use 2. Nature of the Copyrighted Work Considerations: 1. Is the copyrighted work still ...? If the copyrighted work is ... of ..., more likely to be fair use : -Publishing it means you had to track it down and would have been difficult (is difficult) for people to access and have to reproduce (not circulating) -Not hurting the author ..., still can't ... the ... work (just ...) but more likely to be able to vs. if the work was on the ... still! 2. Is the work what is called a "..." work? -Something meant to be used just ... - intended to be used and then discarded Example: Work books, quiz books - not fair use - designed for ... use - if you copy or reproduce it, you're invalidating the ... of it! Expected to use and then defile (sudoku or crossword puzzle books) 3. Is the work ... or ...? -If it is ... - more likely to NOT be a fair use -If it is ... - more like to BE fair use Remember ... itself cannot be copyrighted, but you cannot copy and paste the article in which the ... comes from. BUT ... and ... are OK to reproduce It is more likely to be a fair use if the copying involves a work like a ... or ... article or an item in an .... than a ..., ..., or ... 4. Is the work ... or ...? -The right of ... ... (the authors' right to be the ... to ... is a valuable right) -Difficult to determine as fair use if from an ... work (need the permission of the original owner - or the archive/library/estate/publisher from which it came)

Considerations -Is the copyrighted work still available? Out of print Financially, reproduce, whole, pieces Market -Is work what is called a "consumable" work? Once One, Purpose -Is the work informational or creative? Creative Informational Information Information Ideas, information -Is the work published or unpublished? It is more likely to be a fair use if the copying involves a work like a newspaper or newsmagazine article or an item in an encyclopedia than a novel, play, or poem First publicity First, publish Unpublished

Copyright Limitations Four limitations on the ... of use granted by copyright protection: 1. Work must be something that can be ... 2. ... protects only ... ... or creation [no borrowing, appropriation] 3. Copyright protection does not last ... [has a d...] 4. ... ... exception! [This is how we can use quotations - taking bits and ieces of work and then sharing it - debates on infringement - when and if it gets to the level of infringement] These are loopholes to the ... ... through copyright law Fair Use You can use elements of copyrighted material even if you're not the ... of the copyright! -Balances an ...'s right to ... for their work, with the ...'s interest in the w... p... ... of ideas and information -Permits l... ... of an ...l creation that is copyrighted and has not yet fallen into the ... ... -You could use a quote from a story or an excerpt from a song for instance -Easy to d..., difficult to ...! History of Fair Use 1790-1879: All ... of a copyrighted work was against the ... Example: You could not quote what another author said if the other book was copyrighted. This becomes a problematic element: ... are meant to be ... upon! 1879: Baker v. Selden -Supreme Court ruled that the purpose of ... a book is to communicate u... ..., an end that would be frustrated if it couldn't be used without g... of ... [without fear of being ...] -Courts started allowing copying if ... in extent and designed to advance ..., ..., ..., etc. [if it was without an ... or ... purpose, even if a small portion, things could still get iffy] Up until 1976, fair use was only case or court law... 1976: Fair Use Doctrine added to ... l...: Copyright Law of 1976, Section ... "The fair use of a copyrighted work... for purposes such as ..., ..., ... r...g, ... (including ... copies for classroom use), s... or ... is not an infringement of copyright!" Example: PDF readings for this class, professor doesn't own the copyright - reproducing for free and have not consulted the authors - but these are classroom copies for multiple use (OK - the fair use of a copyrighted work for purpose of ... - not an infringement of copyright) Just a chapter is OK, but the textbook is not fair use (why we have to buy it) Fair Use Factors -Factors to be considered in determining fair use: 1. The ... and ... of the use -Reasons for use that may be protected/fair usable: c... and ..., ... r..., s..., r... -If the ... (first blank) doesn't fit - communication may be more of a problem! 2. The ... of the copyrighted work -Tweets vs. book -Use of 5 words - reproduce the whole Tweet vs. 5 words of the book 3. The ... and ... of the portion used in relation to the copyrighted work as a ... -The ... matters! Is no fixed ... (will vary, but use as little as possible! The more you use, the more you're at risk!) 4. The effect of the use on the ... ... for or ... of the copyrighted work -Making sure the author gets ... for what they have done -If fair use impeded on their ability to make ..., may infringe on their copyright (misappropriation)! Example: You take one poem out of a 200-page book of poems. This is a very small ..., but the book is expensive and rare to find -You reproduce this one poem and put it in a cheaper book -More people purchase your book, impeding the original author's ability to make ... - even if it is just one poem, could ... for ...!

Four limitations on the monopoly of use granted by copyright protection 1.Work must be something that can be copyrighted. 2.Monopoly protects only original authorship or creation. 3.Copyright protection does not last forever. [duration] 4.Fair use. Exclusive monopoly Fair Use: -Balances an author's right to compensation for their work, with the public's interest in the widest possible dissemination of ideas and information. -Permits limited copying of an original creation that is copyrighted and has not yet fallen into the public domain. -Easy to describe, difficult to apply. 1790-1879: All copying of a copyrighted work was against the law. - Ideas, built 1879: Baker v. Selden -Supreme Court ruled that the purpose of publishing a book is to communicate useful knowledge, an end that would be frustrated if it couldn't be used without guilt of piracy. [sued] -Courts started allowing copying if small in extent and designed to advance science, arts, criticism, etc. [artistic or scientific] 1976: Fair Use doctrine added to statutory law Copyright Law of 1976, Section 107 "The fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research is not an infringement of copyright." Teaching Factors to be considered in determining fair use: 1.The purpose and character of the use. Criticism, commentary, news reporting, scholarship, research Purpose 2.The nature of the copyrighted work. 3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Percentage, percentage 4.The effect of the use on the potential market for or value of the copyrighted work. Money Money Percentage Money Sued for misappropriation

FTC tools or remedies to stop false ads We start with kick laws, not about punishing advertisers (AT FIRST) 1a. ... -... or a... ... attempt to outline in ... what advertisers may say about a product -Akin to b... ..., help prevent deception -Apply to p... advertising, campaigns which have not y... .... (preemptive) -Don't have the ... of ... if you violate it (but if you follow them, unlikely you will have a problem with the FTC) -Exception: ...'s ... ... ... ... (...) The first step to make sure you're in compliance with the law Not ..., just ...! If you work for a particular industry, look and see if FTC covers that industry. If the industry is covered, use as basis for how you will advertise 1b. ...'s ... ... ... ... (...) -DOES have the ... of ... (exception) -Started as an FTC ... in 1997, but Congress created it as law -Imposes requirements on operations of ... .. or ... ... that are aimed at ... under age ... (engage in advertising targeting them) or younger or that k... c... ... from ... younger than ... -Requires p... .... and p..., ... data management These are guidelines required (exception to guides) so could face penalties under law New rules in 2012 (initially Web browsers and Web services) -Extended to ... ... -Updated "personal information" to include ..., ..., ... files Example: Facebook hosting users under ... - required to comply with ... (sharing these kinds of files) -Expanded definition of "operator" to include ...-... or ... n... (tags a user to to follow around and target movements for hyper-targeted advertising) Example: Toy store has a ... ... -If the ... ... gathers data from ... under ... need ... ... and ... to protect that data! Not just guideline, carries force of law

Guide Guides or advisory opinions attempt to outline in advance what advertisers may say about a product. Akin to best practices, help prevent deception Apply to prospective advertising, campaigns which have not yet occurred Don't have the force of law Exception: Children's Online Privacy Protection Act (COPPA) Mandatory, recommended COPPA Force of law Children's Online Privacy and Protection Act (1998) Started as an FTC guide in 1997 Imposes requirements on operations of Web sites or online services that are aimed at children age 13 or younger or that knowingly collect information from children younger than 13 Requires parental notification and permission, secure data management New rules in 2012 Extended to mobile appsu Updated "personal information" to include photos, videos, audio files Expanded definition of "operator" to include plug-ins or advertising networks Web site Web site, children 13, parental permission and security

Intellectual Property Law -Wide and sprawling area of law Intellectual property is i... property cannot be ..., ... or ... l... away for s... ... (makes it harder to protect) Intellectual property law means to protect this property Example: You purchase a book at the bookstore. You ... the ... ..., you can do whatever you want with it -BUT the ... of the ... you do not own! You are not allowed to make ... of this book for example (this right belongs to the author of copyright) Example: Social media - can and do violate Intellectual property law - a... content without ... 4 areas 1. ... - ownership of content 2. ... - has to do more with advertising law 3. ... - way to assert Intellectual property over what you have ... 4. ... ... Patents -Designed to ... and i... i... -I...s have the right to r... what they i... -I...s give the d... and s... of their i... to the ..., who then publishes them ("Look what I did" - here's how I i... it [a conceptual framework]) -I...s get a ...-year ...-sanctioned ... (e... r...) Three types: a. I...s that have ... (m... or p...) - chair for example Chipotle example: They have a p... for putting a burrito together with four or five different people (could be patented) b. D... (a... of an a... of m...) Example: iPhones have an a.../d... elements Samsung has a smartphone screen that wraps around the phone; Apple could not duplicate this c. P... (only those that can be r... a...) I...s of these will receive a ...-year right -> BUT do not keep the e... r... ...! In... you to make MORE stuff Patents - only dealing with ..., d..., p... (hybrids) -If it were content of a novel or film, could not be ...! We're dealing now with creative productions which belongs to ...! -Patents are not about ... either! - It's about how you p... a product not how you sell it Trademarks -Any w..., n..., s..., d... or any combination thereof that is used by a c... (or ...) to d... its goods and services from those p... by o... c... You're ... what you i... from s... p...! Four Main Functions of trademarks 1. ... one s...'s goods and d... them from goods sold by ... -Example: Chair - how will consumers know they are buying ... chair and not ... ...'s? 2. Signify that all goods bearing the trademark or ... mark come from a s... ... -Example: You want to purchase a chair but only a chair from Apple 3. Signify that all goods bearing the mark are of an e... l... of ... -Example: Coca Cola can be sold in a bottle or it can be served in a can, but you know the flavor and ... will be the ...! 4. Serve as a p... i... in a... and s... goods -Example: There is a d... between trademark names -Ask how many people are Coke people and how many are Pepsi people The following may be trademarked... -B... ... -Example: Coca Cola, Nike, Macy's, McDonald's, Tiffany's, Apple -B... ... -Example: Nike's swoosh, McDonald's golden arches, Apple's apple with a piece out - these aren't ... but they still evoke a product -B... ... -Example: Nike's "Just Do It," Burger King's "Have It Your Way" - if McDonald's tried using this phrase in their ads, they would not be able to - would be sued by Burger King T... ... (or ... marks) These are d... elements, include... -C... - Tiffany's specific blue used on all its packaging -S... - NBC's chime, Sports Center's theme song, jingles or tunes -D... - Maker's Mark Bourbon - the red wax on the bottle -Apple Store design - dealing with aesthetics -Chipotle and McDonald's restaurant interior aesthetics The purpose of t... .../... marks is to prevent ... companies from using and m... the brand! -The goal is to make sure customers are not ... into buying a ... product, they are not the same! -... m... Vs. trade marks - dealing with items for ... [... something!] -We're dealing with ... - work similarly as trade marks Example: GreatClips, Massage Envy Marks (be it trade, dress, service) are designed to clearly ... the ... or ... of a product/service with a s... ... -Preventing ... c... - to know you will not get the product you are looking for The ... of a mark is based on its ...! -The more ..., the easier to ... -Violations of ... trademarks can be remedied through t... ... ... Example: If McDonald's used Burger King's "Have It Your Way" brand slogan OR if Burger King used McDonald's "I'm Lovin' It" -Both brand slogans are registered, if either brand used the other's slogan, could be sued Spectrum of ... (going from strongest to weakest) 1. ... - strongest form of trademark. Brand names are ...-... or ... words -Lots of drug names to sell a particular product -Exxon, Lexus 2. ... - ... words for a product or service unrelated to the word's ... ... -Apple - can eat an apple (an ... word) but computers have nothing to do with fruit - the word "apple" is not typically associated with computers -Example: Camel, Ford - strong and easy to ...! 3. ... - brand name suggests some ... or ... about the product or service in question -Example: Great Cuts - you can expect to get a great cut [haircut] -Microsoft - getting tiny software -Coppertone - getting a nice tan from Coppertone (the color of your skin after using) 4. ... - a brand name that ... the thing itself - not much effort by the consumer to ... what the name is referring to (directly describes features or qualities of the product in question without a consumer having to do any additional thinking) -Weakest kind of mark -An outright ... of what the service is going to do -Can trademark but is hard to do -Example: Holiday Inn -Arm & Hammer's "Clean Shower" The more the name is ... ... to the product or service, the stronger the trademark is 5. ... - cannot trademark! Example: Have a pizzaria and name it "Pizzaria" Have a shoe store and name it "Shoe Store" Texas Toast - thick toasted bread - lots of people use this term for thick-cut bread But if you owned a computer store and named it "Shoe Store" (a...)

Intangible property -Can't be touched, held or physically locked away for safe keeping -Four areas Copyright Trademark Patent [invented] Trade law Own the physical book Content of the book, copies Appropriating, permission Patents: -Designed to protect and incentivize invention Reproduce, invented -Inventors give the details and secrets of their invention to the government, who publishes them -Inventors get 20-year government-sanctioned monopoly [exclusive right] -Three types uInventions that have utility (machine or process) -Design (appearance of an article of manufacture) -Plants (only those that can be reproduced asexually) Aesthetic/design elements 20, exclusive right forever, incentivize Inventions, designs, plants Patented, copyright Marketing, produce Trademarks -Any word, name, symbol, device or any combination thereof that is used by a company (or individual) to distinguish its goods and services from those produced by other companies Distinguishing, invented, similar products Four main functions: 1.Identify one seller's goods and distinguish them from goods sold by others. My, someone else's 2.Signify that all goods bearing the trademark or service mark come from a single source. 3.Signify that all goods bearing the mark are of an equal level of quality. Quality, same 4.Serve as a prime instrument in advertisement and selling goods. Distinction -Brand names -Brand logos - aren't words -Brand slogans -Trade dress (or dress marks) - design -Colors -Sounds -Design -Service Marks -Marks are designed to clearly identify the source or origin of a product or service with a specific company -Aim is to prevent consumer confusion -Strength of a mark is based on its distinctiveness -The more distinctive, the easier to register -Violations of registered trademarks can be remedied through trademark infringement lawsuits Trade dress, dress marks Similar companies, muddying Tricked, similar Trade marks - items for sale, selling Services Identify, source, origin, specific company Consumer confusion Strength, distinctiveness Distinct, easier, register Registered trademarks, trademark infringement lawsuits Distinctiveness Fanciful Made-up or invented Arbitrary, existing, conventional meaning Existing, register Suggestive Attributes, qualities Descriptive Describes, understand Description Less connected Generic Arbitrary

Factors of Fair Use 1. Purpose and Character of Use -More likely to be considered "fair use" if it is a n... or ... use! (Like use for education, research) Categories of use that may be protected (not automatic) include: -... and c... -...g -... and r... ... Use -If an individual takes a portion of a copyrighted work and uses it for another ... (... it), it is much more likely to be regarded as a fair use -There is little chance the use will ... the a... of the original! Example: Jay-Z track (hip-hop artist) sampled a Max Romeo song "Chase the Devil" (a reggae song) -This is a rap song, different song has been ...! -No direct competition affected, different audiences for either song Music sample - use a little piece and it does not conflict with the original performance - therefore protected by fair use! Example: AP photo taken by Mannie Garcia (... for ..., so this is ...'s copyright!), photo of Obama (2006) Vs. Shepard Fairey - HOPE Poster - highly used during the Obama presidential campaign AP claims this is copyright infringement - just a colorful reproduction of the original image Fairey admits the inspiration taken from the AP photo Courts never had the chance to weigh in, settled outside of court - decided to both share the copyright (we don't know what the courts would have decided, don't know if this really is a fair use or not) This is an example that shows the nuances of fair use and the complexities of copyright law Is it a ... use? -Must be ... enough - courts must wrestle with this, gets complicated!

More likely to be considered 'fair use' if it is a nonprofit or noncommercial use. -Categories of use that may be protected include: criticism and comment, teaching, scholarship and research. Transformative use -If an individual takes a portion of a copyrighted work and uses it for another purpose, transforms it, it is much more likely to be regarded as a fair use. -Little chance that the use will steal the audience of the original. Transformed! Work for hire, AP's Transformative Transformative

Examples: Compelled disclosures - ... outside of advertising law - ... cannot require you to say the Pledge of Allegiance for example but the ... can ... advertisers to include things in advertisements if it meets the Central Hudson test Airplane Tickets -Federal appellate court upheld a Department of Transportation rule (2012) requiring the most prominent ticket price displayed on print ads and on Web sites be the ... PRICE, including ... -Under this rule, airlines are free to provide an itemized breakdown, but they may not display such individualized price components "prominently" or "in the same or larger size of the ... price" -Several airlines challenged the rule on 1A grounds in Spirit Airlines v. U.S. Dep't of Transportation -The U.S. Court of Appeals for the D.C. upheld the rule, reasoning "the rule aims to prevent ... ... about the total price they have to pay" The Department of Transportation REQUIRED ... Political Ads -Always hear "I'm ... and I approve this message" - this is not random! Required to do so by the Federal Elections Commission -Must identify the ... of the ad -Bottom text may see "supported by" or "sponsored by" a political action committee Prevents confusion among the viewing public: Before this requirement, could make a nasty ad of the opponent that looks like the opponent's own ad (if you did not have to ... who approved the ad, would cause confusion) The Federal Elections Commission REQUIRED ... Compelled Advertising Subsidies "Beef. It's What's For Dinner" ad campaign - produced by the Beef Industry Council and Beef Board Johanns v. Livestock Marketing Association (2005) (6-3) -In the 1980s, tax on cattle which would go on to finance generic ad campaign surrounding the beef industry -Federal government taxed producers to fund this campaign - pay the government to advertise their products The cattle producers sued - the ad campaign is selling beef as a ... ... - lumping producers with inferior products lowers their brand (of fancy beef products), and benefits competitors (of lower quality beef products) -By selling beef as a ... ... (same blanks), there is now no ... among the products - fancy beef looks as the same quality as bad beef The plaintiffs thus alleged a violation of their ... ... right not to be ... to ... ... - an unenumerated right to remain ... - with which they disagreed (Beef makers: we're compelled to advertise beef against our will) Court ruled against the ..., while citizens may challenge ... support of ... speech, citizens cannot challenge funding of ... speech! Courts cannot compel ... speech but if you ... the ..., you have no ability to determine what the ... does with that ... for ... speech! Example: You cannot opt out of the federal income tax just because you disagree with how the ... is spending the money! So ... can compel companies to pay ... that promote their industry and the ... can do whatever it wants with that money - and produce ads even if those subject to taxes do not like

Rare, government, government, require Government, require TOTAL, taxes Total Consumer confusion Disclosure Source Disclose Disclosure Generic commodity Differentiation First Amendment, compelled, fund speech Producers, compelled, private, government Individual, pay, government, government, money for government speech Government, taxes, government

FTC tools or remedies to stop false ads 5. ... [Happens all the time!] -FTC may require an advertiser to ... all ... made in an advertisement -Does not presume the facts are ... or ... -... of ... scrutinize advertisements and target for documentation claims that seem most ... -... ... claims ("doctors recommend" "studies show") require the level of ... advertised! Example: "Dentists recommend our toothpaste" Need documentation of dentists who do (the ads themselves do not have to contain this) -Otherwise, advertisers must show "... ..." for claims (if you're not making a ... claim, using a ... claim) HIGHER EXPECTATION FOR ... AND ... CLAIMS -...-related products must show "... and ... ... ..." 6. ... ... -FTC may require an advertiser to admit in ... ... that ... ... have been ...! -Controversial (... compels speech - remember ... cannot compel speech for individuals, but can against companies in some circumstances when it pertains to commercial speech) -Used ... -For l...-... or ... campaigns where a "residue of misleading information" remains after the offending ads have been ... In addition to a litigated order for example -Purdue Pharma - 10+ years of oxycodone ads - contributed to opioid epidemic due to false claims 7. ... -FTC may ... ... advertising campaigns that could cause ... to consumers! -Drastic, used ... a. When advertising can cause ... b. When advertising contains a ... ... ... c. When there is no ... that the advertising practice with ... ... (if just refusing to stop running the ads) 8. ... ... ... -FTC can issue rules to regulate advertising throughout an ... ...! -...-... ...-... ... ... ... Act of 1975 -Enlarged the power and jurisdiction of the FTC 1. The FTC was given power to issue ... ... ... (...s) 2. FTC allowed to seek ... ... against anyone who knowingly violates provisions of a ... ... 3. FTC given right to ... in ... ... on behalf of consumers victimized by practices in violation of a ... and ... ... or are in violation of a ... This bolstered the FTC - legal basis for a lot of its remedies - the administrative law of FTC double-boosted by statutory law!

Substantiation FTC may require an advertiser to prove all claims made in an advertisement. Does not presume the facts are false or misleading Panels of experts scrutinize advertisements and target for documentation claims that seem most suspect Express substantiation claims ("doctors recommend," "studies show") require the level of proof advertised Otherwise, advertisers must show "reasonable basis" for claims Health-related products must show "competent and reliable scientific evidence" Specific, general Health and safety claims Corrective advertising FTC may require an advertiser to admit in future advertisements that past advertisements have been incorrect. Controversial (state compels speech) Used sparingly For long-running or successful campaigns where a "residue of misleading information" remains after the offending ads have been removed Trade regulation rules FTC can issue rules to regulate advertising throughout an entire industry. Magnuson-Moss Warranty-Federal Trade Commission Improvement Act of 1975 Enlarged power and jurisdiction of the FTC FTC was given power to issue trade regulation rules (TRR) FTC allowed to seek civil penalties against anyone who knowingly violates provisions of a litigated order FTC given right to sue in federal court on behalf of consumers victimized by practices in violation of a cease and desist order or are in violation of a TRR

Continuing with Statutory Law (signed by the legislature) T... 2b. N... D... N... C... Registry (2003) -Allows people to block the calls of ... (requires people to sign up, not automatic) -235 million numbers on the list by 2018 - 5 million or more complaints per year (still getting calls with my number on the registry, file complaint with the FTC) Upheld by the 10th U.S. Circuit Court of Appeals in 2004 Victory for ... ..., blow for ... -Privacy in own home, should not have people soliciting to you ... ... ... (...) exemption Example: You go to J. Crew and buy a sweater. The company may ask if you would like your phone number to be added to their promotions list - J. Crew allowed to t... even if your number is on the registry (doing business with before the t... call) -When a consumer has purchased, rented or leased the company's goods or services within 18 months preceding a t... call Damages: for violations, if someone files a complaint to the FTC and the FTC finds a company did violate the registry, $... per individual violation -Serves as a disincentive for callers, individuals do not receive this money! 2009 FTC ban on ... -Includes numbers not on the ... ... ... list (not on the registry) Exemptions: ... (get out and vote!), ... (Police Benevolent Association asking for donations, other philanthropic causes) -$... per individual violation, serves as a disincentive for callers, individuals do not receive this money! Loopholes: Technology to mask numbers, difficult to track - still file a complaint but unscrupulous t... find ways around - reputable t... companies must apply though 2c. ...-... Act (2003) -C... the ... of ...-... ... and ... Act of 2003 -Prohibits false/misleading ... ... -... ...-... must contain a functioning ... ... or an Internet-based reply ...-... ... (this is required - another form of compelled speech by the government) -... senders are barred from transmitting commercial ... messages Disclosure requirements: a. A clear and conspicuous identification of the message as an "... or ..." b. A notice of the "...-..." mechanism c. A "valid ... ... ..." (allows for transparency) d. Label any ... ... material (letting users know before they open, ahead of time) -A... v... incur additional civil and commercial penalties (doing repeatedly) Include: a. Email harvesting (collect email under one project and use for marketing) b. Automated creation of multiple email accounts used for commercial email c. Use of unauthorized relays for commercial email messages (replies going to different servers in different countries) -Does not provide for a ... ... c... of ..., enforced by the FTC (you reach out to the FTC to file a complaint, but you get no money - this money is backended to the FTC as a disincentive to companies)

Telemarketing National Do Not Call Registry (2003) Allows people to block the calls of telemarketersu Upheld by 10th Circuit U.S. Circuit Court of Appeals in 2004 Victory for privacy advocates, blow for telemarketersu Established Business Relationship (EBR) exemption 2009 FTC ban on robocallsu Includes numbers not on Do Not Call list Exemptions: Politics, charity T = telemarketer, telemarketing $16,000 (for both) Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 Prohibits false/misleading commercial messagesu Commercial e-mails must contain a functioning return address or an Internet-based reply opt-out mechanism Spam senders are barred from transmitting commercial e-mail messages Disclosure requirements Aggravated violations incur additional civil and commercial penalties Does not provide for a private legal cause of action, enforced by FTC a. A clear and conspicuous identification of the message as an "advertisement or solicitation" b. A notice of the "opt-out" mechanism c. A "valid physical postal address"

Special Cases 1. ... (...) -... definition: Any advertising message (including things such as ... s..., ..., and d... of the name of an ... or the name or seal of an ...) that consumers are likely to believe reflects the ..., ..., ... or ... of a party other than the sponsoring advertiser" Rules 1. ... must reflect the ... ..., ..., ... or ... of the endorser 2. Advertiser may use an ... only if it has good reason to believe the endorser continues to ... to the ... presented Example: If LeBron James liked your brand of nachos the first time and agreed to endorse them but you change the recipe of the nachos, you can't assume James will like these new recipe nachos. Must ask James again: if he likes them, do another ...; if he does not, cannot use the ... anymore 3. If the ad represents that an endorser ... the product, the endorser must be a ... ... ... 4. Ads presenting ... by "a... ..." must actually be so, or it must be ... otherwise Why you see "This is a paid actor, not a doctor" - have to include this text if an actor (compelled disclosure by the government) 5. "..." ... must hold the appropriate ... for that expertise If someone endorsing in an ad says, "I'm a dentist" they must be a dentist! Have consent of the person and make sure they are actually an ... in that field 2. ... Advertising -... ads made to look like ... non-... content Rules: 1. An ad is deceptive if it m... ... ... about the ... nature of the ad 2. ... ... should have clear and prominent ... that the material is an ... 3. ...-and...-... Advertising -An alluring but insincere offer to ... a product or service which the advertiser in truth ...'t ... or ... to ... Rules: 1. No ad containing an offer to ... a product should be published if the offer is not a ... ... ... to ... that product 2. Advertisers cannot engage in practices that ... purchase of ... merchandise as part of a ... scheme to ... other merchandise

Testimonials Endorsement definition: Any advertising message (including things such as verbal statements, demonstrations and depictions of the name of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings or experiences of a party other than the sponsoring advertiser. Rules Endorsements must reflect the honest opinions, findings, beliefs or experiences of the endorser Advertiser may use an endorsement only if it has good reason to believe endorser continues to subscribe to the view presented If the ad represents that an endorser uses the product, the endorser must be a bona fide user Ads presenting endorsements by "actual consumers" must actually be so, or it must be disclosed otherwise "Expert" endorsements must hold the appropriate credentials for that expertise Native Advertising Definition Online ads made to look like surrounding non-advertising content Rules An ad is deceptive if it materially misleads consumers about the commercial nature of the ad Native ads should have clear and prominent disclosure that the material is an ad Bait-and-Switch Advertising Definition An alluring but insincere offer to sell a product or service which the advertiser in truth does not intend or want to sell Rules No ad containing an offer to sell a product should be published if the offer is not a bona fide effort to sell that product Advertisers cannot engage in practices that discourage purchase of advertised merchandise as part of a bait scheme to sell other merchandise

The Regulatory Process -FTC does not scrutinize ... ... published or broadcast -Most cases come from ... ..., written by ... or ... 1. When a complaint is received, FTC ... ... determines if it has ... (Is this actually a violation?) a. If no ..., case ends b. If provable violation, ..., ... ... and ... are prepared for ... 2. If ... agree the advertisement violates the law, advertiser is notified and given a choice: a. Advertiser can ... to sign a ... ..., in which case the ... will vote to ...; if this happens order will be published and final within ... days (the consent agreement will carry force of law) b. Advertiser can ... to sign ..., but ... can ... it c. Advertiser can ... to sign the ... If ... or ... happen, a complaint is issued against the advertiser, and a ... is scheduled before an ... ...! 3. A complaint is issued against the advertiser, and a ... is scheduled before an ... ... a. If the ... believes there is substantiated evidence of law violation, they will issue a ... ... telling the advertiser to stop! b. ... can also dismiss the case 4. Either side can ... to the ... to overturn the ...'s ruling a. If ... agree the ad isn't deceptive, case ends b. If ... support the ...'s ruling against an advertiser, the ... becomes law after being finalized by an appellate court 5. Advertiser may appeal FTC final decision in a ... ... -BUT is difficult for ... to reverse an FTC ruling When a ... can overturn an FTC ruling 1. "C... ..." the agency made an ... in the proceedings 2. No ... to ... the commission's findings 3. Violation of the ... (e.g., no ... ...) 4. Action goes beyond the agency's ... 5. ... relied on in making the rulings are not supported by ... ... 6. ... or ... acts by the commission Liability -FTC makes clear that ... ... have "a duty to ascertain the existence of ... for the claims which it makes" -... may be held liable if they are ... ... in preparing a ... ... or if they ... or should ... that an ad is either ... or lacks ... Defenses -Basic defense against any false advertising complaint is ...! -Burden is on the ... to disprove the advertiser's claim, but helpful to have and offer ... to substantiate ad copy -Indirect defenses: a. Argue the deceptive statement is not ... to the ad as a whole b. Argue the ad does not ... what the ... thinks it ...

The Regulatory Process FTC does not scrutinize every advertisement published or broadcast Most cases come from complaint letters, written by consumers or competitors When a complaint is received, FTC staff attorney determines if it has merit If no merit, case ends If provable violation, complaint, consent agreement and memo are prepared for commissioners If commissioners agree the advertisement violates the law, advertisers is notified and given a choice: a) Advertiser can agree to sign a consent agreement, in which case the commissioners will vote to accept. If this happens order will be published and final within 60 days. b) Advertiser can agree to sign agreement, but commissioners can reject it. c) Advertiser can refuse to sign the agreement. u If b) or c) happen, a complaint is issued against the advertiser, and a hearing is scheduled before an administrative judge A complaint is issued against the advertiser, and a hearing is scheduled before an administrative judge If judge believes there is substantial evidence of law violation, they will issue a litigation order telling the advertiser to stop Judge can also dismiss the caseu Either side can appeal to the commissioners to overturn the judge's ruling If commissioners agree the ad isn't deceptive, the case ends If commissioners support the judge's ruling against an advertiser, the order becomes law after being finalized by an appellate court Advertiser may appeal FTC final decision in a federal court u Difficult for courts to reverse an FTC ruling "Convincing evidence" that the agency made an error in the proceedings No evidence to support the commission's findings Violation of Constitution (e.g., no due process) Action goes beyond the agency's powers Facts relied on in making the rulings are not supported by sufficient evidence Arbitrary or capricious acts by the commission Liability FTC makes clear that ad agencies have "a duty to ascertain the existence of substantiation for the claims which it makes" Agencies may be held liable if they are active participants in preparing a deceptive advertisement or if they know or should know that an ad is either false or lacks substantiation. Defenses Basic defense against any false advertising complaint is truth Burden is on the government to disprove the advertiser's claim, but helpful to have and offer proof to substantiate ad copy Indirect defensesu Argue the deceptive statement is not material to the advertisement as a whole Argue that the advertisement does not imply what they government thinks it implies

Copyright What Can't Be Copyrighted: 1. ... ... - t..., s..., m... v... of works in the public domain Example: Have a book titled "Get Well Soon", someone else titles their book "Get Well Soon" -The title of this book is not copyrightable, but the different content within the book is 2. ... - the law protects the l... or d... ... of an ... (e.g., script) but not the ... itself! -... can be protected, what is laid out in a book or article Example: B makes an article on the History of Conservative Media - idea that "Company X" was one of the first conservative grassroots movements -This is HIS ..., but you can make your own work surrounding that ... - what you can't do is ... the exact same ... without ... him! 3. ... Example: Say there's breaking news, "The mayor of Tuscaloosa plans to resign" - you could be the first one out with that, but soon other stories will follow your lead (taking your ...), but they can do this (only a ...) but they cannot just copy your story -Databases: information that cannot be copyrighted ("Need all the public records for this person") 4. ... ... - can ... but not copyright! -Chair, lamp, etc. 5. ..., ... and m... ..., ... and ... -Similar to ..., others can use - but if you have a special description and illustration of that, this could be copyrighted Copyright Duration -When copyright ..., work enters the "... ..." - meaning the ... can use the work however they want [can print and reproduce it without permission because all the rights are held in p... t...!] Works created after Jan. 1, 1978 = the ... of the ... + ... years (Your entire ... hold copyright and when you ..., ... or ... can benefit for ... years) Works created by more than one person = the ... of the last ... ... plus ... years (Let's say there is a work made by two people - copyright-protected until the last of the two ..., this is when the copyright period starts (have ... years remaining) Works for hire = ... years after publication Example: You're an employee working for Disney - you're hired to make works for your company (employed for a company) -Work you create on behalf of your .../... -How long you ... doesn't matter! Works created before Jan. 1, 1978 = ... years from the date of ... copyright Trend of ... durations! - beneficial to authors and their ... -This is not always the case, it used to be much ... - longer now due to agitation of companies like Disney (still profiting off work when the copyright would have expired, keep extending it!) M... -Also called "... ..." -Helps journalists in pursuit of a story - you cannot copyright ..., but this can help if you're the first to get the news! -Based in ... law -Intended to STOP: 1. A person from trying to pass of ... work as the work of ... ... OR 2. A person trying to pass off the work of ... ... as ... work "... ..." Doctrine -Legal claim that can be used by ... ... to prevent competitors from ... ... on their efforts by r...g ... ... Example: Associated Press has breaking news - non-subscribers must pay AP or investigate the story themselves Example: You're a reporter who has exclusive information (an exclusive story) - the mayor will resign -Say you have a source who has not talked to anyone else -Other news organizations will have to cite your story or get their own source - "As first reported by..." -This is especially important for ... ... (like ...) - if you could just print their work, would bankrupt ... ... like ... [if you could just copy for free] But with the "... ..." ... - could sue if someone steals the work, "taking my story and running it"

Trivial matters Titles, slogans, minor variations Ideas Literary or dramatic expression of an idea, but not the idea itself Expression Idea Idea Reprint, argument, citing Facts Fact Fact Utilitarian goods Patent Methods, systems and mathematical principles, formulas, equations Ideas When copyright expires, work enters the "public domain" Public, public trust Works created after Jan. 1, 1978 -Life of the creator plus 70 years Life, die, descendants or estate, 70 Works created by more than one person -Life of last living creator plus 70 years Dies, 70 Works for hire -95 years after publication Company/employer Live Works created before Jan. 1, 1978 -95 years from date of original copyright Long Descendants Shorter Misappropriation -Also called "unfair competition" Facts -Based in common law Intended to stop: -A person from trying to pass off their work as the work of someone else -A person trying to pass off the work of someone else has their work "Hot News" doctrine -Legal claim that can be used by news gatherers to prevent competitors from free riding on their efforts by redistributing breaking news Wire services (AP) Wire services like AP Hot news doctrine

Copyright Protection and Infringement Until 1989, when the provisions of the ... C... became applicable to American copyright law, a work would not be protected from infringement unless it contained a c... ... - failure to affix a ... meant the automatic l... of most c... ...! Under international law though the affixing of a c... ... is not required to protect a work! Once a work is ...d, it is ...d! -American law now states a c... ... "may" be placed on works that are publicly distributed. The U.S. Copyright Office, however, still strongly urges creators to include ... on all their works! Copyright law protects the "... in..." from ...y for in...! Someone who copies a work that doesn't contain a ... could claim an ... in...; that is, the person could argue they didn't r... the work copied was actually ...d by copyright! Though the absence of ... doesn't guarantee a finding of ... in..., putting ... on a work eliminates the possibility of an ... in... defense! Placing a proper ... on the work is simply prudent behavior Copyright Notice -a. A copyright notice should contain the word "...," the ...n "...," or the s... ... -b. The ... of publication must also be included in the notice. For periodicals the date supplied is the date of ...n; for books the date is the ... in which the book is first offered for ...e (e.g., a book printed in Nov. or Dec. 2021 to go on ...e for 01/22 should carry a 2022 copyright) c. The notice must also contain the ... of the copyright holder or owner Most authorities recommend both the ... "..." and the s... "..." be used, since the use of the s... is required to meet the standards of the in... copyright agreements! The s... "..." protects the work from piracy in most f... c... Your notice should look like this: Copyright © 2022 by Josh LeBerte -Includes the w... "..." and the s... "..." -The ... of publication -The name of the copyright owner The copyright notice can be placed anywhere it "can be v... p...d" on all p... d... copies! -Rules are different for sound recordings, which by nature cannot be v... p...d! -The Copyright Office of the Library of Congress has issued rules that implement the statutory description that the notice be v... p...e Example: The rules list eight different places where a copyright notice might be put in a book, including the title page, the page immediately following the title page, either side of the front cover and so forth. For photographs, a copyright notice label can be affixed to the back or front of a picture or on any mounting or framing to which the photographs are PERMANENTLY attached Registration -Under the law, once a work is ...d and ...d in a ... m..., it is ...d by copyright! Putting notice on the work isn't ..., but strongly a...! However, before a copyright holder can ... for an in... under the law, the copyrighted work must be registered with the ... g...! To register a work the author or owner must do three things: 1. Fill out the proper r... ...m! -The type of ...m varies, depending on the k... of ...k being registered! Forms are available from the Copyright Office of the Library of Congress (physically) in D.C. Registration forms for some kinds of material are available at online at copyrightregistry-online-form.com 2. The ...e varies, depending upon how the work is ...d, and the n... of the work! -Example: The ... for the registration of a book is $35; other ... are higher! 3. Deposit ... complete c... of the work with the Copyright Office -... complete c... is all that is required for ...d work! The statute gives an author or owner ... days to register a work! What happens if the work is still not registered after ... days and an in... takes place? -The owner can still register the work and bring ..., but a successful plaintiff in such a ... cannot win ... d... OR win compensation for ...' ...s! -It is best to get in the habit of registering a work as soon as it is ...d or b...! Courts were of two minds regarding when a work is ...y ...d! -Some courts said a work isn't ...d-prohibiting a court from exercising jurisdiction in a case-until a c... of ...n is actually issued by the ... O...! -Other courts ruled official ...n begins once the ...n a... has been mailed to the ... O...! Fourth Estate Public Benefit Corp. v. Wallstreet.com (2019) -Supreme Court settled the issue. Fourth Estate argued the textual evidence in the statute proved that registration occurs as soon as the copyright claimant ...s an a...! The Supreme Court ruled a copyright in... ... must wait until the copyright is successfully registered by the ... ... O...! Copyright also has a s... of ...! Section 570(b) of the Copyright Act states: "No c... a... shall be maintained under the provisions of this title unless it is [started] within ... years after the claim accrued [resulted] When does a claim "accrue" under copyright law? -Some courts have ruled the s... of ... begins to run when the in... act occurs, whether the c... ... k... about it or not [called the ... rule!] -Other courts have ruled the ... years start when the c... ... l... (or should have l...) about the in... [called the ... rule!] -To further complicate matters, some jurisdictions haven't explicitly a... either rule! Infringement -Litigating intellectual property lawsuits has become a growing cottage industry in the U.S. as the muses/inspirations of the creators of books, films, songs, articles, and photos are seemingly unable to keep up with the insatiable appetite of the mass media for new products. A careful newspaper reader will routinely see references to new infringement actions. Most of these lawsuits don't amount to much, but they all play havoc with film producers, book publishers, etc. People who believe their e... r... to c... the u... of a copyrighted work has been violated will sue for infringement! The federal copyright statute doesn't actually ... infringement! The law simply states anyone who violates any of the "e... r..." of the copyright holder is guilty of an infringement of copyright Courts that litigate copyright seem to focus most often on three criteria to determine whether a particular use is infringement! 1. Is the ... on the plaintiff's work v...? -While this inquiry will look at matters like proper r... of the work, the ...t of this examination is to determine whether the copyrighted work is an ...l work that can be ...d by copyright! 2. Did the defendant have ... to the plaintiff's work p... to the alleged infringement? 3. Are the two works ... s...? Infringement Criteria... 1. Originality of the Plaintiff's Work The ... on the plaintiff's work must be v... before a successful infringement suit can be maintained! A work that is NOT ...l cannot be ...d by copyright! When a work is i... c..., there is no government a... of whether is is ...l and can be l...y c...! -The question arises only if a l... ensues! A central question in many infringement suits is whether the plaintiff's work is ...l, or if the plaintiff is attempting to bring suit on the basis of the theft of material that cannot be l...y c... because it lacks ...y or n...y! H... exists for ... to use in a book or story! -Example: Margaret Alexander brought an infringement suit against Alex Haley, claiming he had copied portions of her novel "Jubilee" and her pamphlet "How I Wrote Jubilee" when he wrote and published his successful novel "Roots." But the court noted most of what A claimed H had stolen was ...- the story of the slave culture in the U.S.-or material in the p... ..., such as folktales about early American black culture. "Where c... s... exist for the alleged s..., or the material that is similar is not ...l with the plaintiff, there is no infringement!" Courts have also ruled "scènes à faire" are also un-copyrightable! These are s... and in... in a story that flow n... from the basic p... p... -Example: Movies about spies frequently include elements like spy gadgets, hidden in watches or shoes. These ideas or expressions are s... or c... in spy films, and thus can't be copyrighted! 2. Access -The second dimension of an infringement suit: The plaintiff must convince the court the defendant had access to the copyrighted work! An o... to c... has to exist! -If plaintiffs cannot prove the literary pirate had a chance to s... and r... the work, they are hard-pressed to prove piracy! "If by some magic a man who had never known it were to compose anew Keats's "Ode on a Grecian Urn" he would be an 'author' and if he copyrighted it, others might not copy the poem, though they might of course copy Keats's" (Learned Hand) Example scenario: A woman, who has lived all her life on a deserted island, with no e... to o... in..., manages to write and then publish an exact duplicate of Crais' novel "Suspect." Crais would be hard-pressed to win a copyright infringement case because he would be unable to show that the young writer had ... to his work! Such a scenario is unlikely to occur. But it makes the point! The plaintiff must prove not simply that the two works are the s..., but that the defendant S... his work. To do that there must be proof the defendant had ... to the s... work! Example: Clay sued James Cameron for copyright infringement claiming he had stolen elements of her book "Zollocco" when he made the movie "Avatar." There were similarities between the two works, but Clay's case failed because she couldn't prove Cameron ever had ... to "Zollocco." Clay said she sent her book to publishers and agents, but that wasn't sufficient to prove Cameron had s... it There must be proof there was a r... p...y that the defendant had ... to the work, proof beyond the plaintiff's s... the director had s... the story, the U.S. District Court ruled 3. Copying and Substantial Similarity -The final factor a court will consider is whether the defendant ...d the plaintiff's work! In some cases evidences of such ...g is irrefutable! The defendant has dubbed ...s of a DVD or CD, or has r... a story or song lyric, or simply used too ... of the defendant's work in their work! Example of an irrefutable case of ...g -Author J.K. Rowling sued the publisher of "The Harry Potter Lexicon" for copyright infringement. The lexicon stemmed from a Web site of the same name, the creation of a librarian and Harry Potter books fan Stephen Jan Vander Ark. There are scores of Web sites and chat rooms devoted to the book series, and Rowling has supported most of them. But when RDR books announced plans to ... the lexicon-a kind of guidebook to the Potter stories-Rowling brought suit against the publisher -The plaintiffs in this case argued the lexicon merely "c... and re... Rowling's fictional facts derived w...s... from the Harry Potter works without adding any new c..., in..., or c..." -RDR argued the book provide a significant amount of o... a... and c...y concerning everything (characters, relationships among them, meaning of literary allusions) -The U.S. District Court in NY ... with Rowling, ruling the works were s... ...! There was too ... of Rowling's work in the lexicon! -Initially RDR announced it would appeal the ruling, but dropped the appeal. RDR published a second Potter book, "The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials" which contained far more c...y on the Potter books, and far less material from the series In other instances, evidences of such ...g is more complicated! A photo looks a lot like a copyrighted picture, for example. In these cases judges must often take on the role of the a... c... to flesh out differences between two seemingly id... works! Example: Random House commissioned Jack Leigh to photograph the Bird Girl statue in Savannah, GA to use on the cover of a novel it was publishing. The book was successful and the photo became famous. When Warner Brothers made the book into a film, it wanted to use a similar photo in its advertising for the motion picture. But the owner of the statue, which had become famous because of the Leigh photo, had removed the object from the cemetery. With the statue owner's permission, the film studio had a replica crafted, took it to the cemetery and had it photographed for promotion of the movie -When the movie came out, Leigh sued for copyright infringement. WB hadn't used Leigh's picture, but it had generated a photo that was remarkably ... to the original. Judges at the 11th Circuit had to analyze the similarities and differences between the two: There was a difference in the contrast of the lighting; the statue was smaller and more distant in the WB photo; the movie poster picture had a green/orange tint; and there was a Celtic cross on the new statue. But both photos were taken from the same low angle; hanging Spanish moss bordered both photos; the statue was in the center of both picture; the light source is from above in both shots; and the remainder of the cemetery is obscured. In this case the court ruled there were ... s... to preclude a summary judgment for WB and sent the case back for a jury trial More often than not, however, d... or l... ...g isn't an issue! In these cases the defendant isn't accused of t... a particular line or segment of a work, but of a... "the f... e... or s... of the work". There must be more than m... s... between the two works; they must be s... ...! -This is another instance in which it is easier to s... a rule than to ... it! How can you determine whether two works are ... s...? -Courts use a variety of tests to determine ... s..., but virtually all tests focus on two aspects of the work: 1. Is the g... i... or ... of the work the same? If the g... i... of the two works is not similar, there is no infringement and the courts usually insist the similarities must be apparent to an a..., l... ..., not an ...! Example: Daryl Murphy filmed a documentary about tenants living in Chicago Housing Authority Projects. The motion picture included interviews with people who lived/had lived in the projects, and video of scenery, buildings, family gatherings. Months later, the TV cartoon series "PJs" aired. It was also set in an urban housing project. Murphy sued the producers of the program for infringement of copyright -The federal district court ruled the two creations weren't ... s...! The plaintiff's film is a d... about the lives of r... people living in the projects. "PJs" is a c... c... The d... consists of d...d series of interviews with r... people. The c... is f... and has a p... l...e in each episode. The look and feel of the two are entirely different! 2. If the g... i... of the works is ... s..., the court must then take a second step: How is the i... or c... expressed in the works? How is the ... carried out? Example: Tommy Pino sued Viacom Inc. for infringement because he said the defendant's realty TV show, "Pros vs. Joes" was similar to a screenplay he submitted to a variety of agents and TV networks-including CBS, owned by Viacom. Both the program and Pino's proposal focused on a sports reality show featuring contests between professional athletes and amateurs -The federal court acknowledged the s..., but the m... in which the program and the proposal developed the i... was substantially different! The p... were different, the d... was different, the m...d was different and the s... and p...e were different. Outside of a few stock elements and the g... i..., the two weren't ... s...! Example: A federal court in CA reached the same conclusion when E.W. Scripps Co., which owned the Food Network, was sued for infringement by an individual who claimed the Rachel Ray program, "Inside Dish" infringed on his proposal for a celebrity cooking show called "Showbiz Chef" -The c... behind the two shows, a talk show that features celebrity chefs as guests, was similar, but these elements cannot be protected by copyright. There was no similarity in the way the basic elements were c...d o...! The p... were different (the plaintiff's program had no discernible p...), the d... wasn't the same, the m... and s... were dissimilar ("Showbiz Chef" was to be telecast from a celebrity's home, whereas the Rachel Ray show was taped at a studio), the s.... of e... in the shows was not the same. No reasonable jury could conclude the shows were ... s... Example: Gwen O'Donnell sued Time Warner Entertainment for infringement, claiming the HBO series "Six Feet Under" was a copy of a story she had drafted in called "The Funk Parlor." O'Donnell's story traces the lives of people who run a small, family-owned funeral parlor in CT. The HBO series is also set in a funeral parlor, but in LA. Both O'D's screenplay and "Six Feet Under" commence with the death of a father and the return of a prodigal son. But the 9th Circuit ruled that was about the only similarity between the two. The death of the father in "The Funk Parlor" sets the stage for a series of additional murders. The c..., m..., t..., p...e, d... and m...y, is driven by a series of murders, which catalyze the salvation of the business. The use of death in "Six Feet Under" is quite different; there, death provides the focal point for exploring relationships and existential meaning, the court said. The works were not ... s...! It is not easy to prove infringement of copyright; yet surprisingly a large number of suits are s... each year in favor of ...! -Most of these cases are ... out of ...; in such instances the obvious t... of the material would generally appall an honest person -An individual who works to be c... in fashioning a story or a play or piece of art usually has little to fear -The best and simplest way to avoid a suit for infringement is simply to DO YOUR O... ..., BE ...L!

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