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The Equal Opportunity Rule (Section 315)
"If a broadcasting station permits one legally qualified candidate for any elective public office to use its facilities, it must afford an equal opportunity for all others legally qualified candidates of the same office. -Must be equal times, costs, and facilities. -Only applies if the station chooses to first permit access to one candidate . -other candidates only have one week to file/ respond to requests Excludes: 1.) Bona fide newscasts 2.) Bona fide news interviews 3.) Spot news coverage 4.) Incidental appearance in news documentary
How does the FTC discover most misleading advertising?
"Most cases come to the attention of the agency from letters written by either consumers or competitors"
Bait- and- switch advertising scheme
"an alluring but insincere offer to sell a product or service which the advertiser in truth does not intend or want to sell. Its purpose is to switch consumers from buying the advertised merchandise, in order to sell something else, usually at a higher price or on a basis more advantageous to the advertiser."
S.U.N.Y. v. Fox
- Changed the central hidden test print 3
Distinction between regulatory interpretation of copyright versus proprietary interpretation of copyright.
-"regulatory copy right allows for expanded use of a work to meet the demand for unrestrained access to information. in other words, the free flow of information is a priority. In other words the public interest is to be served." "Views copy right as a property issue. Treating a copy right as property grants the copy right owner substantial control even censorship over public access so it impacts first amendment considerations." "Proprietary copy right cannot fulfill copyrights three regulatory functions 1.) Protecting creativity 2.) Protecting distribution 3.) Protecting learning." -Defined in Rosemont v. random house
FTC Test for false or deceptive advertising
-3 prong test 1.) Misleading- There must be a representation, omission, or practice that is likely to mislead the consumer. 2.)Perspective- The act or practice must be considered from the perspective of a consumer who is acting responsibly. 3.) Material- The representation, omission or practice must be material.
Missouri Broadcasters Assoc. v. Lacy (2017)
-8th circuit court of appeals held that promoting responsible drinking was substantial sate interest under the Hudson test
Chicago Lawyers Committee v. Craigslist (2008)
-Allows craigsllist to no tbe in violation of CDA because it does not post/ draft the ads -Compare to roommates.com which is in violation of CDA
The FTC only regulates advertising that is carried in the national mass media?
-Anything that crosses state borders means that it is not a state issue anymore - aka advertising is everywhere. - Interstate Commerce
Mainstream Marketing v. FTC?
-Case about he constitutionality of a do not call registry list -Used central husdon test and commercial speech doctrine -Upheld that is is constitutional
Bigelow v. Virginia (1975)
-Case that established "commercial adverting enjoys a degree of first amendment protection" -"the relationship of speech to the marketplace of products or of the services does not make it valueless int he marketplace of ideas" -"subject to reasonable regulation" -Case that helped develop commercial speech doctrine (fulfills first prong).
FTC v. Colgate-Palmolive Co. (1965)
-Colgate mis-advertised what their shaver could do --Fulfills third prong of FTC test "The representation, omission or practice must be material."
FTC rules that govern expert/celebrity endorsements.
-Endorsements must reflect the honest opinions of endorsers -May use celebrity as long as they have good reason to believe they subscribe to views represented -May continue to runt eh ad if they have good reason o believe the endorser hold same opinion -Must represent as "actual consumers"
U.S. v. Caronia (2008)
-Established 3rd prong in commercial speech doctrine "Whether the speaker has an economic motivation for speaking"
Litigated orders
-FTC Adverting sanction -a litigated order, to stop the particular advertising claim. Staff attorneys at the FTC will issue a complaint against the advertiser, and a hearing will be held before an administrative law judge.
Kane v. Comedy Partners (2003)
-Fair use test case -Impact of copyrighted work
The US Supreme Court has ruled that corrective advertising is both punitive and unfair and may not be used in the future to regulate misleading advertising?
-False -"FTC forces the advertiser to inform the public that in the past it has not been honest or has been misleading."
When the FTC staff lawyers sue an advertiser for false advertising, it goes straight to a federal district court to be decided? - T or F
-False, it goes to an administrative law judge -The FTC creates its own regulations but it is also its own arbitrar of its regulations. - Any agency that gets a complaint, it first goes to the administrative law judge, if they disagree you can appeal and it goes to the commissioners of who created the regulation and if they disagree THEN it goes into the regular court of appeals
Rubin v. Coors Brewing Co. (1995)
-First Amendment right to disclose the alcohol content of beer on the label -Previously Federal Law and ATF policies prohibited this.
Feist Publications v. Rural Telephone Service (1991)
-Fulfills first prong of copy right infrigment test (opposite application) -Company that created info for phonebooks -SC decided that facts cannot be copy righted but the organization of can be "The job of copy right is not to reward the work done, but to progress science and arts within the society" -Feist test: C+A=O (Compilation + Arraignment= Originality)
FTC tools or remedies to stop false advertising
-Guides and the child online privacy protection act -Voluntary compliance -Consent agreement -Litigated orders -Substantiation -Corrective advertising -Injunctions -Trade regulation rules
Central Hudson v. Public Service Commission (1980)
-Helped define husdon test (commercial speech doctrine)
Morgenstein v. ABC, Inc. (1998)
-Helped to establish informative use under fair use copy right law
The regulation of political programming. and Sec. 307
-If air time is given to a candidate then their competitors are eligible for the same air time (only for candidates of federal office Sec. 307: Govts. mandate that broadcasters operate their stations in public interest may very well include similar standards for the treatments by broadcasters requests for access to air time form state and local candidates
Campbell v. Acuff-Rose Music, Inc. (1994)
-Made a parody album that featured the song pretty woman -6th circuit court said no because it had a commercial purpose (no fair use in commercial ever) -Supreme court did not agree
Define and understand the "safe harbor" concept. Do you agree or disagree with the "'safe harbor" concept? Why? Explain/support your legal argument.
-Pacifica case -Hours between 10pm-6am is safe to run adult oriented programming -Indecent material aired during this time gains FCC protection
Laws that help protect consumers
-Printers ink statute -Can Spam act -Fair Housing act -Food Drug Cosmetic Act -" The FDCA empowers the Food and Drug Administration (FDA) to protect the public health by ensuring that "foods are safe, wholesome, sanitary, and properly labeled" and deems a food as "misbranded" if its labeling "is false or misleading in any particular." There is, however, no right to a private cause of action under the FDCA, as the FDA is charged with enforcing it. "
Salinger v. Random House (1987)
-Salinger's personal letters were asked published in a documentary -Salinger said no to request, but paraphrased the quotes. -Didn't protect Hamilton because he still communicated the "heart of the material" -Lost case because the letters were unpublished and contained main points of material "The heart of the material"
Pino v. Viacom, Inc. (2008)
-Sued for copy right infringement for a TV show pitch being similar -Substantial similarity between the general ideas between the two works Krofft test: 1.) Is there substantial similarity between the general ideas in the two works 2.) Is their substantial similarity in the manor in which the ideas are expressed in the two work
The US supreme court has given the states authority to regulate advertising for professional services, such as doctors and lawyers? - T or F
-TRUE - Bates v. Arizona -"even perfectly truthful claims can be deceptive. Protecting the public from such deception is a substantial state interest."
Define the reason copyright's "Fair Use" Doctrine exists.
-To balance the authors right to compensation for his work, on the one hand, against the public's interest in the widest possible dissemination of ideas and information on the other
1The purpose of intellectual property law
-To protect intangible property that a person cannot touch, hold, or physically lock away. -copyright protects "all works of authorship fixed in a tangible medium of expression."
An endorser must have support for their conclusions? An endorser cannot make any statement that an advertiser cannot make. T or F
-True -Endorsements must reflect the honest opinions, findings, beliefs or experiences of the endorser and may not contain any representations that would be deceptive or could not be substantiated if made directly by the advertiser. -Supreme Court in 2006 upheld the Florida Bar's reprimand of two attorneys who used a pit bull logo and the number 1-800-PIT-BULL in their firm's advertisements.5 But even attorneys, reviled as they are by many, still possess a right to advertise some things.
Advertising agencies and the mass media can also be held responsible for false advertisements? T or F
-True -Exemption: Craigslist -"If you go to work at an advertising agency, you must understand that your agency may be held liable if it is an active participant in preparing a deceptive advertisement or if it knows or should know that an ad is either false or lacks substantiation."
FTC Power
-has the jurisdiction over false and misleading advertising claims ON THE INTERNET -Craigslist case -Can Spam act -Interstate commerce
Trade Regulation Rules. Advantages of TRRs over other FTC remedies.
-speed up and simplify process of enforcement. -Advertisers can still litigate the questions, challenge the TRR, seek an appeal in court and so forth.
What may be copyrighted? Why?
1.) Literary works 2.) Musical works 3.) Dramatic works 4.) Pantomimes and choreographic works 5.) Pictorial, graphics, and sculptural works 6.) Motion pictures and other audio visual works 7.) Sound records -Anything "fixed in a tangible medium of expression"
Three-part test for copyright infringement
1.) Originality: Is the copyright on the plaintiff work valid? While this inquiry will look at matters such as the proper registration of the work, the heart is an original work is an original work that can be protected by the copyright -Feist v. rural telephone service -"The job of copy right is not to reward the work done, but to progress science and arts within the society" Feist test: C+A=O (Compilation + Arraignment= Originality) 2.) Access: Did the defendant have access to the plaintiffs work prior to the alleged infringement? -Bae v. Home office (plaintiff could not show) Clay v cameron (Could not show) -Miller case would prove this prong 3.)Similarity: Are the two works substantially similar? -Pino Krofft test: 1.) Is there substantial similarity between the general ideas in the two works 2.) Is their substantial similarity in the manor in which the ideas are expressed in the two work -H.R. Puf-n-Stuf and McDonald's for substantial similarity, both explained in class. The Pino case applies the Krofft test. -Miller v. Universal Studios.
1. Understand the three-prong First Amendment Commercial Speech Doctrine legal test and how to apply it. Understand its evolution:
1.) Substantial state interest justified -There is substantial state interest to justify the regulation. -Bigelow v. Virginia 2.) The regulation directly advances this state interest -Missori -Anhieser-busch -44LiquorMart v. Rhode Island 3.) Must be narrowly tailored via "least restrictive" means (Central Hudson) -SUNY v. Fox -The third prong SUNY modification makes it easier to meet the test. THUS, this presents commercial speech doctrine test is less protective of commercial speech than the original version. -"Whether the speaker had economic motivation for speaking" -United states v. Caronia -Old third prong
What cannot be copyrighted? Why not?
1.) Trivial materials cannot be copyrighted. Such things as titles, slogans and minor variations on works in the public domain are not protected by the law of literary property. A slogan such as Nike's "just do it" cannot be copyrighted, but it can be trademarked. 2.) Ideas are not copyright able. The law protects the literary or dramatic expression of an idea, such as a script, but does not protect the idea itself. :this long established principle is easier t state than to apply". It is often difficult to separate expression from the ideas being expressed. This is often because there is a subtle the expression of an idea and idea.
Lanham Act false advertising test.
1.) What message, either explicitly or implicitly, does the ad convey? 2.) Is the message false or misleading? 3.)Does the message injure the plaintiff?
Know the six rights guaranteed by copyright protection
6 exclusive rights to your creative piece: 1.) Reproduce 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
Fox News Network LLC v. Penguin Group (2003)
Al Franken wrote book called "Lies and Lying liars who tell them a fair and balanced look at the right" used Fox's slogan and Fox sued. Franken said was a parody and court said it was a parody -"Take aim at"
The Candidate Access Rule (Section 312)
Broadcasters license can be revoked for failure to comply -"allow reasonable access to or to permit the purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for federal office"
Lorillard Tobacco Co. v. Reilly (2001)
Court ruled that the regulation of cigarettes is a Federal matter under the Federal Cigarette Labeling and Advertising Act -Generally accepted that advertising of "harmful products" are protected by the First Amendment. -
Dr. Suess Enterprises v. Penguin Books
Defined parody v. satire Parody: is a form of literary criticism". if has socially significant value as free speech under the first amendment" Satire: cannot be fair use "no reference to original work"
Krofft test:
Krofft test: 1.) Is there substantial similarity between the general ideas in the two works 2.) Is their substantial similarity in the manor in which the ideas are expressed in the two work -Pino v. Viacom:
Primary purpose test
Primary purpose test: If the primary purpose of speech is purely commercial, it is not protected by the First Amendment submarine story
44LiquorMart v. Rhode Island
Prong 2 of Commercial Speech Doctrine ."Must have factual evidence" -Mere speculation and conjecture is not enough
In a consent order/agreement proceeding, what must the advertiser consent/agree to?
Refrain from making specific claims in future advertising
Four-part test for fair use.
Score card test 1.) The purpose and character of the USE -What is the person doing who is using the copyrighted work? -Public interest, educational, commercial, parody, transformative, critical commentary -Paradoy v satire 2.) The nature of the copyright WORK -Available? Creative v. Informal? Consumable? Published? 3.) The amount of work used. (Percentage/ proportion) -Heart of the material -Prong 1 ties implications 4.) The effect of the use on originals market (tie is decided by fourth prong) -What is the market? Does it effect that market? -Heart of the material -Direct competition/ market -Derivative works -Right of first publications -Dorling test: Does the use serve as a substitutes for the original copywriter work?
Lanham Act, Section (43). Clarify its purpose. Clarify what a plaintiff tries to obtain from suing under the act.
Section (43) -Creates a legal cause of action for false advertising -Designed to stop unfair competition in the marketplace -Aimed to protect competition -Sue for civil damaged False advertising test: 1.) What message, either explicitly or implicitly, does the ad convey? 2.) Is the message false or misleading? 3.)Does the message injure the plaintiff?
The government can regulate the advertising of a completely legal product or service?
True -IF you meet the Central Hudson/S.U.N.Y. test
What is the duration of copyright?
life of author plus 70 years
Miller v. Universal Studios (1981)
ruled that facts/research/news are not copyrightable. Universal was not required to have Gene Miller's permission to use facts from his book in a docudrama. Copyright only protects the way a story is told, not the story itself -- the expression of the facts, not the facts. -Poor gene miller
Why has advertising substantiation proven to be an effective regulatory tool?
the burden is on the advertisers to prove what they say is true
Rosemont v. Random House (1966)
• Facts: Howard Hughes (Spruce Goose); Look Magazine ran a series of articles on Hughes life, Hughes formed company (Rosemont) to buy up copyrights to stop publication; Random House preparing biography, published book with direct quotes • Precedent: in this case of public figures- fair use extends to commercial work and scholarly work
