Law Test 2

What may be copyright licensed

Reproduce the work Prepare and create derivative works Publicly distribute the work Publicly perform the work Publicly display the work Publicly perform a digital sound recording

Copyright notice

The words "Copyright © 2018 by Don R. Pember," for example, which indicate to a user that a work is copyrighted by the author or creator.

Intellectual Property

- Copyright- creative commons, fair use - Patents -Trademark

Free lancing and copyright

- Creator owns work until sold, parcel out rights to sell, you can sell outright or parse pieces of work, automatically have rights, just register to sue

Philosophical Justification: Copyright

- Increase creativity in the marketplace - Protect works but also why/why not some copyrighted

Philosophical Justification: Fair Use

- Increase creativity, and allow for certain individuals to use copyrighted works before they enter the marektplace

Obscenity (when a work is obscene)

- Not Protected by the first amendment -Indecency is protected by the first amendment - values some speech over others - How we regulate speech - some have a social danger - 99% of adult content is indecency - if it is so extreme it is obscenity - narrow class of unprotected speech

Indecency and broadcast

- regulated on radio and TV - FCC looks at whether material was indecent and patently offensive - safe harbor 10-6am wehre can have adult content - feeting expletives requirements- withe better tv pick up more expletives, need 3-5 second delay

Expressive Conduct Regulations

- regulating what can/can't happen at places - not prostitution, ability to require stage height ie only one stage, safe barrier, what dancers wear, not fully nude, how much coverage - touching not allowed - Mandated by local government or state - May have minimal requirements ie nudity not expressive conduct, adult dancing protected, ie wear certain clothes - content neutral- raise bar but not content based ie song they dance to

Fandom and copright

- usually decide to leave fans alone but not guarenteed - a subculture composed of fans that form a collective nework to celebrate itnerets - Fanfiction, fan art, cosplay, fanvid,

Freelancing and copyright

.All rights: The creator sells complete ownership of the story or photograph. 2.First serial rights: The buyer has the right to use the piece of writing or picture for the first time in a periodical published anywhere in the world. But the publisher can use it only once, and then the creator can sell it to someone else. 3.First North American serial rights: The rights are the same as those provided in number 2, except the publisher buys the right to publish the material first in North America, not anywhere in the world. 4.Simultaneous rights: The publisher buys the right to print the material at the same time other periodicals print the material. All the publishers, however, must be aware that simultaneous publication will occur. 5.One-time rights: The publisher purchases the right to use a piece just one time, and there is no guarantee that it has not been published elsewhere first.

What can be copyrighted?

1. Fixed in a tangible medium, not in your head, its a drawing, recording, out of head 2. Must have creative/original components and art 3. But be orginal

Three factors of infringement

1. Is the work copyrighted, did it register to belong to them 2. Access to copyrighted work? Parallel creation, could they have seen it? 3. Are the two works similar? Syntax, composition, or inspired

Obscenity Problematic (4 factors)

1. Miller obscenity test 2. Web/smarphones 3.Some feel speech under Miller deserves first amendment 4. Question of the inefficient use of scarce government resources

Four factors of Fair use

1. Purpose/character 2. Nature of work 3. Amount and portion of work 4. Effect the use has on potential market - decides fair use vs. copyright infringement

Miller test broken down

1. The average person- normal adult, not children, illegal for them to access, not extreme sides ie conservative or liberal, but an average person - Community standards- local standards, judges, jury,, no evidence needed usually a legal argument, not precise - Prurient interest- work as a whole, not violence, sexual work 2. Patently offensive- obviously offensive, based on state laws, imprecise - ie hardcore sexual material - part of the standard to obscene, hard to determine obscene v. indecency - in application not as detailed,up to the judge 3. Lack artistic, political, scientific value -not judged by the average person - could be a reasonable person ie expert testimony - take testimony from person nuanced in community social spectrum, ie reasonable person is more liberal or conservative, and access if someone cold find value in it years down the line, not if they find value - more protective of speech, broader base of people - Ie why adult films have plots or awards to give more toward indecency and legitimacy

Miller test standards

1.An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to a prurient interest in sex. 2.The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. 3.The work in question lacks serious literary, artistic, political or scientific value.

To determine fair use...

1.The purpose and character of the use 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 4.The effect of the use on the potential market for or value of the copyrighted work

Need to prove that all SOB regulations are...

1.serve a substantial government interest unrelated to the content of speech, and 2.are narrowly tailored (not substantially broader than necessary) to serve the interest.

Copyright Law

197- Governed by fed. Statue 1988- Berne Convention- an International coalition of copyright - angry selling bootlegged movies - one of the last to Join _ must register to sue- can retroactively register - Symbol not required, everything if original - Very easy to register, $20 fee, very accessible - Don't need a lawyer, can do it retroactively ie Success kid, can choose who you sue and can't - Unlike rademark- you choose who you sue

Variable obscenity

A Supreme Court doctrine that permits states to prohibit the sale, distribution or exhibition of certain kinds of non obscene matter to children, so long as these laws do not interfere with the accessibility of this material to adults. Obscene for children indecent for adults - Still concerned about effect on children - Children still protected -Legal adults- legally given to children - 18+ access to adult content - Business/person giving adult content- your violating the law - Your violating law - The reason very easy by by clicking on a button but no longer website

Fair use

A provision of the copyright law that permits a limited amount of copying of material that has been properly copyrighted.

Trademark

A trademark is any word, name, symbol, device or any combination thereof that is used by a company (or an individual) to distinguish its goods and services from those produced by other companies. We thus commonly think of marks as brand names (Nike and McDonald's), brand logos (the Nike swoosh and McDonald's golden arches) and brand slogans (Nike's "Just Do It" and McDonald's "I'm Lovin' It"). But marks can also be: (1) colors that are distinctively associated with a brand (Tiffany's blue for its jewelry boxes and bags or Owens Corning's pink color on its insulation products); (2) sounds distinctively associated with a company (television network NBC's chimes or movie company MGM's roaring lion); and (3) the distinctive design and appearance or look of a product (the appearance of the front of an iPhone), a product's packaging (Tiffany's blue boxes tied with white ribbons or the red dripping wax on the top of Maker's Mark bourbon bottles), a store (Apple has a registered trademark for the appearance of its retail stores), or a restaurant (Chipotle has a registered trademark for the appearance of its restaurants). Marks relating to such distinctive looks and appearances are known as trade dress or dress marks, while marks used to identify the source of services (rather than products) are called service marks. The key functions of all marks (trade, service or dress) are to clearly identify the source or origin of a product and service with a specific company and, in doing so, to prevent consumer confusion about whose goods and services one is buying. In other words, when you see Nike's swoosh logo—one of the most well recognized marks today—on a pair of running shorts, you know you are 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 running shorts or running shoes, you would know the product is from Adidas. Such famous marks thus serve other functions by allowing companies to tout the quality of their goods and to advertise with their marks, with the marks standing in for the goodwill and quality of the product or service. Some marks are stronger than others. The strength of a trademark is based on its distinctiveness. The more distinctive a mark is, the easier it is to register with the U.S. Patent and Trademark Office (USPTO) (addressed later in this chapter) and the stronger it will stand up as protectable in a lawsuit for trademark infringement. (When a company believes that another company is using a mark—be it a name, logo or any other type of mark—that is too similar to its own mark and is likely to cause confusion among consumers about the origins of a product, it can sue the other company for trademark infringement).

Public Domain

After copyright expires all work goes into the public domain - Pool of expired copyright - Return to public after use - After go to public - Not sustainable - courts want it to happen - Try abandoned games but hard to see how has liscnese

Free lancing rights

All rights- sell all rights- paid more than one time First serial rights (news/ad)- guarentee first use of photo First north American serial limited to north america Simultaneous rights- stock photo multiple use, simultaneously liscnese for use, not first pay less One time rights- one time use, not for ad, maybe newsletter

Copyright Licensing

Allow for authorized derivative works ie sequels or film franchises - make it ok to sell certain parts of a copyrighted work, but remain control over other parts ie creative control

Duration of copyright protection

Any work created after January 1, 1978, will be protected for the life of the creator, plus 70 years. This rule allows creators to enjoy the fruits of their labor until death and then allows the heirs to profit from the work of their fathers, mothers, sisters or brothers for an additional length of time. After 70 years, the work goes into what is called the public domain. At that point it may be copied by any person for any reason without the payment of royalty to the original owner. The copyright on a work created by two or more authors extends through the life of the last author to die plus 70 years. What is called a "work for hire" is protected for 95 years after publication. Works for hire include books written by an author for a publisher, which then holds the copyright. Also included are most motion pictures, sound recordings, television programs and so on that are created through a collaborative effort.* Works created before 1978 when the 1976 law went into effect are protected for a total of 95 years from the date of the original copyright.

Nature of copyrighted work

Ask question as orgnial not new - characteristics/nature, more/less likely fair use - how good argument can you make? 1. Is it still avaliable to by/access - derivates same ie theatre v. movie, use out of print then likely to be fine 2. is it consumable? One time use 3. Informational v. creative- nonfiction vs. fiction - Creative protected, non fiction less 4. PUblcihsed/unpublished - never unplublished work

Regulation of non obscene materials

Battles over obscenity have gone on for more than a century. But as the Supreme Court narrowed its definition of legal obscenity during the past 50 years, more and more pressure has been applied by advocacy groups and even some government agencies to stop the flow of nonobscene, adult material that would probably have been considered legally obscene half a century ago, but is protected by the First Amendment today. In fact, in many respects, this has become the primary battleground in the fight over the distribution and exhibition of adult, sexually explicit material.Magazines like Hustler and Barely Legal, rap music, homoerotic art exhibits, adult videos and sexually oriented sites on the Internet are among a wide variety of mass media targeted for control and even censorship in various parts of the nation. Although this material is certainly offensive to some people, it generally enjoys the full protection of the First Amendment because it does not qualify as obscenity under the Miller test. Here is an outline of some of these legal skirmishes.

Erotic materials in cyberspace

Beginning in 1996 Congress passed a series of three federal statutes designed to control what Americans could see on the Internet. It should be noted that the transmission of obscene material over the Internet is clearly banned by federal law. Statutes that make it a crime to transport obscene material in interstate commerce, whether in a truck or car, via the U.S. Postal Service or UPS, or by television transmission or satellite relay, also bar the movement of such material over the Internet, even through e-mail.48 Transmission of child pornography via computers is also banned under federal law. The statutes adopted by Congress focused on nonobscene, adult-oriented, sexually explicit material—material that is protected by the First Amendment. The laws included: 1996 Communications Decency Act 1998 Child Online Protection Act 2001 Children's Internet Protection Act

Attacks on popular culture

Beyond sexually explicit magazines, DVDs and Web sites, other forms of American popular culture often are challenged, both in court and by advocacy groups, for sexual content. For instance, the fast-food chains Hardee's and Carl's Jr. drew criticism for their racy advertisements featuring scantily clad women suggestively eating food. Critics compared the ads to soft-core pornography, and the ads inspired boycotts. But Andrew Puzder, the then-CEO of Carl's Jr. and Hardee's parent company CKE Restaurants, defended the ads.

Film and television

Both the film and television industries—in many cases the same companies produce products for both—face problems similar to those experienced by the recording industry. At a time when DVD sales are shrinking, network television audiences are getting smaller and theater attendance is barely holding even, the video industry is losing billions of dollars to piracy. Illegal downloading of movies has been a problem for several years.

Biological Patents

Can't just isolate human genes, can control treatments but not isoaltions

The Children's Internet Protection Act 2000

Congress made its third attempt at limiting access to the Internet in 2001 when it adopted the Children's Internet Protection Act (CIPA). The law requires public libraries to install anti-pornography filters on all their computers that provide Internet access in order to continue to receive federal funding (so-called e-rate funds) that subsidizes their Internet access. About 14 million Americans access the Web via library computers. The federal government provides about $200 million each year to pay for this access. One problem with filters is they "overblock" and screen out innocent material and important information on topics such as safe sex, rape, breast cancer and sexually transmitted diseases. Some libraries today thus maintain two sets of computers—some with filters that minors must use (a children's section), and some without filters that adults may use (an adult section). Alternatively, public libraries in Houston, Tex., have filters on all computers, but adults may request the filter be disabled before their own computer sessions.53 Other libraries choose not to filter sexually explicit online content at all, a fact exposed in 2006 in Connecticut when a registered sex offender "was caught looking at child pornography on a computer at the main branch of the Hartford Public Library." - end third try public libraries install filters for funding - contingenet an itnerent filters -require federal fudning so must vouluntary install - problems with filters, restrict too much ie reporductive, health, art/historical - US vs ALA 2003- constituioanl only because its volunteary, choices to install but otherwise want disbaled for adults

Portion or percentage

Copyring and parahrasing - copying bad - parahrasing does not mean equal fair use - protected expression beyond word choice - not enough for fair use - as little as you need to

Monkey Selfie Case

David Slader flew to Indonesia to shoot Mccaw Money - Had idea to make monkey take selfie - Popular photo then legally contested - If animal can't own rights, who does? - End up deciding slader had rights

Obscenity Standard: Roth

Draft to now, intermediary test in 1956 - pull out qualifiers instead of everything is bad ie the whole work - have indecency now and a difference between obscenity and indecency 1. dominate theme has to be sexual ie, larger part obscene 2. Material patently offense to community standards, some communities have different standards if targetted to a community it changes, what is obscene in one place isn't in another 3. Without social value ie art and culture but not obscene rather artistic in nature ie porn v. art, social value factored in -good second draft In 1957, the Supreme Court abandoned the Hicklin rule, declaring that because of this rule American adults were permitted to read or watch only what was fit for children. "Surely this is to burn the house, to roast the pig," Justice Felix Frankfurter noted.7 In abandoning the Hicklin rule, the high court was forced to fashion a new definition of obscenity, beginning with the case of Roth v. U.S.8 in 1957. Over the next nine years, in a variety of obscenity rulings, the Roth-Memoirs test was developed by the Court.9 The test had three parts. First, the dominant theme of the material taken as a whole must appeal to prurient interest in sex. Second, a court must find that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. Third, before something can be found to be obscene, it must be utterly without redeeming social value. While this entire test was far narrower than the Hicklin rule, it was the third part of the test that continually bedeviled government prosecutors. If a work had even the slightest social value, it could not be deemed to be obscene.

Miller v. California (1973)

Established that community standards be used in determining whether material is obscene in terms of appealing to prurient interest, being patently offensive, and lacking in value. Marvin Miller was convicted of violating the California Penal Code for sending five unsolicited brochures to a restaurant in Newport Beach. The brochures, which advertised four erotic books and one film, contained pictures and drawings of men and women engaging in a variety of sexual activities. The recipient of the mailing complained to police, and Miller was prosecuted by state authorities.In Miller, for the first time since 1957, a majority of the Supreme Court reached agreement on a definition of obscenity.In Miller, for the first time since 1957, a majority of the Supreme Court reached agreement on a definition of obscenity. Chief Justice Warren Burger and four other members of the high court agreed that material is obscene if the following standards are met:1.An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to a prurient interest in sex.2.The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law.3.The work in question lacks serious literary, artistic, political or scientific value.The implications and ambiguities in these three elements create the need for fuller explanation. As a result of the Miller ruling and subsequent obscenity decisions handed down by the court since 1973, some guidelines have emerged.

Copyright and facts

Facts cannot be copyrighted. This section focuses on three such areas: databases, news events and research findings. Telephone Books and Databases News Events Research Findings and History

When it comes to a mark's distinctiveness, attorneys refer to a "spectrum of the distinctiveness." Proceeding from strongest to weakest categories of marks that can be registered with the USPTO, the spectrum of distinctiveness involves the following categories:

Fanciful. These are the strongest types of marks. They consist of made-up or invented ("coined") words. Lexus is a made-up word for a car company. Exxon is a made-up word for a gasoline and oil company. Xerox is a fanciful name for a company known for copying machines. Most drug companies make up words for their products. Viagra, for example, is a made-up word. Arbitrary. This is the next strongest type of mark, second only to fanciful ones. In this category, an existing word (rather than a made-up one) is used as a mark for a good or service that is unrelated to the common or ordinary meaning of the existing word. Apple is an arbitrary mark for a computer company, as the fruit known as an apple has nothing to do with computers or iPhones. The connection, in other words, is arbitrary or random. Camel is an arbitrary mark for a cigarette company, and Pledge is an arbitrary name for a brand of furniture polish. Suggestive. Weaker than fanciful and arbitrary marks, suggestive marks suggest to consumers some attributes or qualities about the product in question, but do not clearly describe the product. In other words, consumers must do a little bit of thinking and use their imagination to understand what the product is. Coppertone is a suggestive mark for a suntan lotion, implying the shade of skin one achieves from using it. Microsoft is a suggestive mark for a company that makes computer software. Chicken of the Sea is a suggestive mark for the name of a brand of canned and packaged tuna products. (You may remember that Jessica Simpson famously had to think hard about this connection in her reality show "Newlyweds: Nick and Jessica.") Descriptive. This is the weakest type of mark. A descriptive mark directly describes features or qualities of the product in question without a consumer having to do any additional thinking. The company Arm & Hammer, for instance, makes a daily shower spray to prevent mildew and mold called "Clean Shower." That's about as descriptive as it can get. Unlike fanciful, arbitrary and suggestive marks, each of which is considered inherently distinctive, descriptive marks can only be registered with the U.S. Patent and Trademark Office after an extended period of continuous use (typically five years or more) in which they acquire a "secondary meaning" (also known as "acquired distinctiveness") 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 Arm & Hammer as the source of those goods. The name "Holiday Inn" is an example of a descriptive mark that has, indeed, acquired distinctiveness and a secondary meaning over time in the eyes of hotel users such that the name is associated with a specific brand of hotel.

Fashion and copyright

Fashion is not copyrighted Utlititarian so cannot copyright a sweater Rather, trademark certain logos, patterns, ect - doesn't destroy industry because consmer demographics vary among higher quality and lower quality brands if there are copies

File sharing

File sharing, or the ability of computer users to move files from one computer to another or a great many other computers, caused some of the most perplexing and widely publicized copyright problems during the past decade. But by late 2009 file sharing had ceased to be a primary issue in copyright litigation; not because the questions had been resolved, but because this was a problem that appeared to be intractable. Every time a legal solution was fashioned, new technology allowed file sharers to bypass the legal limits put in place. At some point, leaders of especially the recording industry concluded that there was little more they could do to stop the widespread sharing of music. As someone said, the genie was out of the bottle.

Obscenity Standard: Hicklin

First attempt is hicklin rule - obscene if it has a tendency to deprave and corrupt mind to immoral influences ie childrens minds - obscene if it corrupts children which is very broad, children are easily influenced - if it hurts children it hurts all, different to now - we didn't have indecency so there was no protected adult content - Now we differentiate adults and children - if one portion of the work is obscene the ENTIRE work is obscene, ie three seconds of nudity the entier work is bad - very reactionary to sudden concerns that the media is bad for us and we have to protect everyone ie children - now we have shifted When American courts, in the wake of the adoption of the Comstock Act in 1873, first began considering what is and what is not obscenity, they borrowed a British definition called the Hicklin rule.6 Under this rule a work is obscene if it has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it might fall. If something might influence the mind of a child, it was regarded as obscene for everyone, under this definition. In addition, if any part of the work, regardless of how small, met this definition, the entire work was regarded as obscene. This very broad and loose definition made it possible for both federal and state authorities to wage an aggressive and highly successful war against erotic materials in the first half of the 20th century.

The Roth-Memoirs Test

First, the dominant theme of the material taken as a whole must appeal to prurient interest in sex. Second, a court must find that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. Third, before something can be found to be obscene, it must be utterly without redeeming social value.

Philosophical Justification: Trademark

For the consumer, made to help them distinguish one good from another

Philosophical Justification: Patent

Gain secrets to inventions, while also giving sole ownership/monopoly to the creator however also why only lasts 20 years, then in public domain so generics can be made

What is obscenity?

Hard core pornography, adult expression not protected by first amendment no concrete words or phrases social standard about obscenity change, used to be obscene if tv showed a married couple in the same bed court doesn't give words or phrases, say the public can regulate it and leaves it open to change Justice steward " I know it when I see it" - supreme court usually struggles to define it

Damages of copyright

If you win, you will be compensated - Damages they suffer and profit the person made - Other actions: Restrain from continual works, impoundment, destruction of work

Damages

Plaintiffs in a copyright suit can ask the court to assess the defendant for any damage they have suffered, plus the profits made by the infringer from pirating the protected work. Damages can be a little bit or a lot. In each case the plaintiff must prove to the court the amount of the loss or the amount of the defendant's profit. But, rather than prove actual damage, the plaintiff can ask the court to assess what are called statutory damages, or damage amounts prescribed by the statute.

Proprietary Interest

Property interest

Copyright is...

Property right vs people righto use/consume

Fair Use

Public side, allows individuals to use copyrighted works before they go into the public domain

Online Speech Rights of Sex Offenders: The Packingham Case

In June 2017, the U.S. Supreme Court struck down a North Carolina statute that made it a crime for a registered sex offender simply to access a commercial social networking site, such as Facebook and Twitter. In Packingham v. North Carolina,56 the high court said that even assuming the law was a content-neutral restriction subject to intermediate scrutiny, it was not "narrowly tailored to serve a significant governmental interest." A more specific law—one that prohibited "a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor"—could pass muster, the Court said. But instead, Justice Anthony Kennedy wrote, the law here enacts "a prohibition unprecedented in the scope of First Amendment speech it burdens." He continued, "North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge."

Philosophical Justification: Creative Commons

Increase creativity by allowing more use of copyrighted works

Nature of the copyrighted work

Is the copyrighted work still available? Using part of a work that is out of print is more likely to be considered a fair use than using a segment of a book that can be readily purchased at the local bookstore. Is the copyrighted work what is called a consumable work? A consumable work is something that is intended to be used just once: a workbook that accompanies a text, or a book of crossword puzzles. Consumables are usually cheaply priced and are intended to be used and then discarded. 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 out the photocopies for use by the students. But it would very likely be a fair use for the same teacher to make 30 copies of an article in Science magazine for class distribution. Is the work an informational work or a creative work? 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 rather than a novel or play or poem. This doesn't mean that copying an informational work is always a fair use; just that it is more likely to be. Is the work published or unpublished? Materials like manuscripts, letters and other works that have not yet been published are sometimes accessible by the public when they are stored in libraries or other places. The author's right to be the first to publish these works is regarded as a valuable right.

Using the correct liscensing

Jonathin Coultin peremisson to do Baby got back, Glee uses his version He only had cover liscnese not dertative liscnese like Glee

Creative commons

Liscense that you use don't pay money for - Purpose is to foster creativity - Fair use defense/exception - three parts, -optional liscencing -have six rights - Not as restrictive - Legal system verified - If you still have liscnse, portected but sue ot portect - can't sue if follow liscnese _ more content out there, peple use exposure and money - Allow resuse and protect - Automatically protected copyright need permission - Six combinations

Infringement (Three criteria)

Litigating intellectual property lawsuits has become a burgeoning cottage industry in the United States as the muses 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. Is the copyright on the plaintiff's work valid? While this inquiry will look at matters such as the proper registration of the work, the heart of this examination is to determine whether the copyrighted work is an original work that can be protected by copyright. Did the defendant have access to the plaintiff's work prior to the alleged infringement? Are the two works substantially similar?

Most recent test (Miller v. California)

Marvin Miller was convicted of violating the California Penal Code for sending five unsolicited brochures to a restaurant in Newport Beach. The brochures, which advertised four erotic books and one film, contained pictures and drawings of men and women engaging in a variety of sexual activities. The recipient of the mailing complained to police, and Miller was prosecuted by state authorities. In Miller, for the first time since 1957, a majority of the Supreme Court reached agreement on a definition of obscenity.

Broadcast/Internet

Medium specific jurisprudence- the difference in regulation between mediums - where it happens changes the protections -Most protected: print and internet, cable middle, broadcast least

Municipalities also are allowed to adopt reasonable rules designed to prevent sexual conduct and contact such as lap dances between dancers and patrons. Typical efforts include:

Minimum distance requirements between dancers and patrons Stage height requirements Railing requirements around stages Rules against direct tipping Minimum levels of lighting Rules prohibiting doors and partitions on booths and VIP rooms

Every industry has its own

Music industry, artist retain copyright but master recordings are often owned by lable - recieve royalities once label cost are recouped

Obscenity and Indecency: SESTA/FOSTA

Passed in 2018 - joint-house and senate combined - don't know how impact - written to adress sex traffic - just sex trafficking, very broad - so problem section 230 - goal to stop trafficking but very braod - if website any users doing sex trafficking they are liable - ie FB liable - new itnerent - ie why craigslist shut down personals - EFF sues to make it narrow why needs to be distinction

Patent

Patent protection serves as an important element in the technological development of the nation. Without patent law, it's doubtful that this society would have enjoyed the fruits of geniuses like Thomas Edison, Alexander Graham Bell and the Wright brothers. The Constitution gives Congress the right to promote the sciences and the useful arts by protecting the rights of inventors. Hence, as author James Gleick wrote in The New York Times Magazine, the patent office is charged with the enforcement of a Faustian bargain: "Inventors give up their secrets, publishing them for all to see and absorb, and in exchange they get 20-year government-sanctioned monopolies on their technologies." Scientific discovery or invention - Inventions not cultural but scientific - Not super indepth - Bigger in business law - Protects rights of inventors -Give up secrets, register with government - File it - Unique patent - Give all information to government - Legally protected for 20 years - Why hard, once up publihed/ use

Copyright rights

Sell everything and have no control or licenese and take and leave certain aspects Rights: - Reproductive- Choice - Derivative- Choice -Distributive copies- Choice Different music song/video - Public Display - Performance -Audio/Sound

Indecency

Sexually explict content but regulated to protected content, it is content regulated BUT strict scrutiny is not applied Rather, it has time,place,manner restriction and access to content

Sexually oriented buisness

Sexually oriented businesses (SOBs)—strip clubs, adult video stores and adult theaters—are subject to two types of local laws: 1.Zoning regulations 2.Expressive conduct regulations To the extent speech products (DVDs, videos and magazines) sold in these establishments are not obscene under the Miller test,28 and to the extent that the U.S. Supreme Court has held that nude dancing "is expressive conduct that is entitled to some quantum of protection under the First Amendment,"29 the zoning of SOBs and the regulation of activities inside them raise constitutional issues of free expression. In fact, federal and state courts hear at least a dozen challenges each year to these laws, despite the fact that many municipalities hire consulting firms like Duncan Associates to help them when crafting such laws

Misappropriation/Unfair competition

Taking what belongs to someone else and using it unfairly for one's own gain; for example, attempting to pass off a novel as part of a popular series of novels written and published by someone else. It is often called unfair competition.

Copyright

That body of law that protects the works created by writers, painters, photographers, performing artists, inventors and others who create intangible property.

Roots of copyright

That is the real logic behind copyright law, the fostering of the creative spirit.

The Communications Decency Act 1996

The Communications Decency Act (CDA) was one part of a massive law that restructured telecommunication regulations. Among other things, the act made it a crime to transmit indecent material or allow indecent material to be transmitted over public computer networks to which minors have access. Fines of $250,000 and a jail sentence of five years were possible for those convicted of violating this measure. The law defined indecency as "any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs. -Crime to transmit indecent materials on a computer that minors have access to - Regulate indecency on internt - ie weird because homecomputer didn't give just use - went to supreme in 1997- unconstiutional, overly broad - Reno V. ACLU - 1997 case that supreme decides internet same as print, before was broad cast - hugely important - birth adult contenet as interent - Remained section 230 constituional same as DCMA no liability to privder, safe harbor, no civil ability, ISP , still in place - no longer in effect execpt

The portion or percentage of a work used

The amount of a work used is not as important as the relative proportion of a work used. Word counts, for example, really don't mean as much as percentages. The use of 500 words from a 450-page book is far less damaging than the use of 20 words from a 40-word poem. How much of the work, in relation to the whole, was used? Courts will consider exact copying when looking at this question; but they will also often consider paraphrasing. Pirates will find little refuge in a dictionary of synonyms.

Originality of a plantiffs work

The copyright on the plaintiff's work must be valid before a successful infringement suit can be maintained. As has been previously noted, a work that is not original cannot be protected by copyright. When a work is initially copyrighted, there is no government assessment of whether it is original and can be legitimately copyrighted. The question of originality arises only if a lawsuit ensues. A central question, then, in many infringement suits is whether the plaintiff's work is original, or if the plaintiff is attempting to bring suit on the basis of the theft of material that cannot be legally copyrighted because it lacks originality or novelty.

Community Standards (Miller test)

The definition of community standards is a key to the first part of the Miller test. Chief Justice Burger made it clear in the Miller decision that local standards were to be applied. In most jurisdictions the term "local standards" has been translated to mean "state standards." All communities within the same state share the same standards. The question of applicable community standards becomes an important factor in cases that involve the shipment of erotic material over long distances within the United States and in cases involving the importation of sexually explicit material from outside the United States.

Effect of use on market

The effect of the use on the potential market for, or value of, the copyrighted work is the fourth criterion. While a cautionary note should be sounded against assigning relative weight to the four criteria, this final one—harm to the plaintiff—is given greater weight by most courts than any of the other three.

Copying and substantial similarity

The final factor a court will consider is whether the defendant copied the plaintiff's work. In some cases evidences of such copying is irrefutable. The defendant has dubbed copies of a DVD or CD, or has reprinted a short story or a song lyric, or simply used too much of the defendant's work in his or her work

Miller test- An average person

The first element of the Miller test asks if an average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a prurient interest in sex. It is the trier of fact who makes this determination. This can be the trial judge, but more commonly it is the jury. The Supreme Court expects the trier of fact to rely on knowledge of the standards of the residents of the community to decide whether the work appeals to a prurient interest. The juror is not supposed to use his or her own standards in this decision. The Supreme Court noted in 1974

Viewpoint-based discrimination

The worst form of content-based regulation that exists when the government censors or regulates one particular viewpoint or side on a given topic or issue but does not censor or regulate another viewpoint or side on the same topic or issue. For instance, if the government censored pro-life speech on the topic of abortion but did not censor pro-choice speech on the topic of abortion, that would constitute viewpoint-based discrimination. Viewpoint-based discrimination by the government on speech is always unconstitutional.

The Child Online Protection Act 1998

The following year Congress tried again when it adopted the Child Online Protection Act (COPA). The statute prohibits commercial Web sites from knowingly transmitting to minors (people under 17 years of age) material that is harmful to minors. Harmful material was defined as material that, with respect to minors, is specifically created to appeal to prurient interests, that graphically depicts lewd or sexual behavior and that lacks serious literary, artistic or scientific value. The law requires jurors to apply "contemporary community standards" when assessing material. A fine of $50,000 and a six-month jail sentence may be imposed for each violation. But the law includes provisions that bar any prosecution of a Web site operator who has restricted access to the site to those with credit cards, debit accounts, adult access codes or adult personal ID numbers. The idea of this provision is that only adults would have access to one of these items, and therefore the site operator could honestly believe he or she is communicating with an adult, not a minor. -regulate audlt sites producing content to children - had to prove adult ie cred card or ID - Ashcroft v. ACLU 2004- too braod never in effect - today still can't transmit children, but don't have to prove - content based why rejected say adult have to prove too high of bar too high speech, why just button , internet filter less restrictive - narrow as possible, if restrict speech now cna't impact adults - unconstitutional

What can't be copyrighted

The goal is to allow for more creativity 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 copyrightable. 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 to state than to apply," notes law professor David E. Shipley. It is often difficult to separate expression from the ideas being expressed. That is because there is often only a subtle difference between an idea and the expression of that idea. additional digits that seem to go on indefinitely. 3.Facts cannot be copyrighted. "The world is round" is a fact. An author cannot claim that statement as his or her own and protect it through copyright. 4.Utilitarian goods—things that exist to produce other things—are not protected by copyright law. Thus, useful articles, such as a lamp, a chair, a dress or a uniform, cannot be copyrighted. In addition, the articles' component features or elements cannot be copyrighted either, unless they are capable of being "identified separately from, and . . . existing independently of, the utilitarian aspects of the article." 5.Methods, systems and mathematical principles, formulas and equations cannot be copyrighted. But a description, an explanation or an illustration of an idea or system can be copyrighted. In such an instance the law is

Copyright infringement and the internet

The law regulating mass media has had to adapt to changes in media technology many times in the past 200 years. When the nation's first copyright law was adopted, printed material comprised the mass media. But since then, the law has been forced to cope with photography, radio, motion pictures, sound recordings, television, audio- and videotaping, photocopying, computer programs, CD-ROM and so on. But no technology has challenged the law to the extent the Internet has. By its very nature the new medium lends itself to the theft of the work of others.

Purpose and character of use

The purpose and character of the use of a work is the initial factor to be considered. A use is more likely to be considered a fair use if it is a noncommercial or nonprofit use. But simply because material is used in a commercial venture doesn't disqualify it as a fair use. The U.S. Court of Appeals for the 2nd Circuit noted that according to committee reports compiled when the new copyright law was adopted, Congress did not intend that only nonprofit educational uses of copyrighted works would qualify as fair use. The law lists several categories of use that may be protected by fair use. These include criticism and comment, teaching, and scholarship and research.

Access

The second dimension of an infringement suit is access: The plaintiff must convince the court that the defendant had access to the copyrighted work. An opportunity to copy has to exist. If plaintiffs cannot prove that the so-called literary pirate had a chance to see and read the work, they are hard-pressed to prove piracy.

Patent Offensiveness

The second element of the Miller test says that a work is obscene if it depicts in a patently offensive way sexual conduct specifically defined by applicable state law. Patent offensiveness is also to be judged by the trier of fact, using contemporary community standards.

Strict Scrutiny

The standard of judicial review for content-based statutes, requiring the government to prove that it has a compelling interest (an interest of the highest order) in regulating the speech at issue and that the means of serving that interest are narrowly tailored such that no more speech is restricted than is necessary to serve the allegedly compelling interest.

Intermediate Scrutiny

The standard of judicial review for content-neutral laws, such as time, place and manner regulations, that requires the government to prove that the regulation is content neutral; justified by a substantial interest; not a complete ban on communication; and narrowly tailored.

How does the government regulate indecency

Thee categories of restriction - variable obscenity- content indecent if adult, obscene for children - ie 18 plus regulation - SOB- sexually oreinted buisness - Internet

Four functions of trademarks

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

Purpose/character

Three categories 1. criticism/comment 2. Teaching- educational purposes 3. Scholarship research, can quote or use small segments

Serious Value

To be obscene a work must lack serious literary, artistic, political or scientific value. While not as broad as the "utterly without redeeming social value" element in the Roth-Memoirs test, this third criterion in the Miller test nevertheless acts as a brake on judges and juries eager to convict on the basis of the first two parts of the test. The judge is supposed to play a pronounced role in deciding whether a work has serious value. The serious value element is not judged by the tastes or standards of the average person.

Argument in terms SOB...

To reduce secondary effects - SOB have special social concerns, so reduce impact they have in neighborhoods - ie lower property values, crime, lower income, - Legitimate to directly discuss - Ie unsavory element of people who visit those places - Content neutral (intermediate scrutiny) to tell where can be not they can't justified by social

Registration

Under the law, once a work is created and fixed in a tangible medium it is protected by copyright. Putting notice on the work is not required, but strongly advised. The work is then protected for the life of the author plus 70 years. However, before a copyright holder can sue for infringement under the law, the copyrighted work must be registered with the federal government. To register a work the author or owner must do three things: 1.Fill out the proper registration form. The type of form varies, depending on the kind of work being registered. The forms are available from the Information and Publications Section, Copyright Office, Library of Congress, Washington, D.C. Registration forms for some kinds of material are available at http://copyrightregistry-online-form.com. 2.The fee varies, depending upon how the work is registered, and the nature of the work. The fee for the online registration of a book, for example, is $35. Other fees are higher. 3.Deposit two complete copies of the work with the Copyright Office. (One complete copy is all that is required for unpublished works.) The statute gives an author or owner 90 days to register a work. What happens if the work is still not registered after 90 days and an infringement takes place? The owner can still register the work and bring suit. But a successful plaintiff in such a suit cannot win statutory damages

Copyright protection and infringement

Until 1989 when the provisions of the Berne Convention (see page 520) became applicable to American copyright law, a work would not be protected from infringement unless it contained a copyright notice. Failure to affix a notice meant the automatic loss of most copyright protection. Under international law, however, the affixing of a copyright notice is not required to protect a work. Once a work is created, it is protected. American law now states that a copyright notice "may" be placed on works that are publicly distributed. The U.S. Copyright office, however, still strongly urges creators to include notice on all their works. Copyright law protects the "innocent infringer" from liability for infringement. Someone who copies a work that does not contain a notice could claim an innocent infringement; that is, could argue that she did not realize the work she copied was actually protected by copyright. Although the absence of notice doesn't guarantee a finding of innocent infringement, putting notice on a work eliminates the possibility of an innocent infringement defense. Placing a proper notice on the work is simply prudent behavior.

Old Copyright law

Used to never own works ie Shakespear time, have works but no author

Type of Patents

Utility- Function Design- Functional (not artistic) Plants- Biological/Pharmeciducial- GMA under patents, other bio engineered Three different kinds of patent protections. One variety protects inventions that have utility, such as a machine or a process. A typewriter can be patented; so can a specific way of reducing the hiss or noise on a recording. Patent law also protects designs—the appearance of an article of manufacture. The design of a piece of furniture or a tire tread or a belt buckle can be patented. A variety of patents protect plants, but only those kinds that can be reproduced asexually through means other than seeds, like cuttings or grafting. Patent rights do not exist until the patent is issued by the U.S. government. Hence, the famous abbreviation on many items, "pat. pending," which means the patent has been applied for and is pending.

Other standards courts use to judge erotic material

Variable obscenity- Material that may be legally distributed and sold to adults may be banned for distribution or sale to juveniles, usually anyone under the age of 18. Child pornography- The production, distribution and possession of child pornography is not protected by the First Amendment. Federal statutes outlaw images of minors—people under age 18—engaged in "sexually explicit conduct," including sexual intercourse, bestiality and masturbation, as well as images depicting a "lascivious exhibition of the genitals or pubic area."22 Laws against child pornography are justified by both the physical and emotional harm minors incur during its creation, as well as by the fact that the images are a permanent record of participation and exploitation that could haunt the children when they grow up if discovered by others. Children as child pornographers and sexters- A new issue regarding child pornography involves minors who create their own sexual content and then post the images on online social networks or trade them via cell phones, the latter process known as "sexting." In other words, what happens when a child is a child pornographer? Obscenity and Women- Some feminist scholars assert that sexually explicit content subordinates women to men, objectifies and exploits women as sex objects for men's pleasure and leads to violence.

Obscenity Standard: Miller

Very similar to Roth but more detailed - today's standard -1973 1. Average person applying community standards finds the work appeals to purient (sexual) interests (all three of roth here) 2. Patently offensive sexual conduct 2. Lack serious literary, artistic, political, scientifc, or social value. The Supreme Court abandoned the Roth-Memoirs test and created a new test for obscenity in 1973 in a case called Miller v. California.10 Today, some 45 years later, the three-part test for obscenity adopted in Miller, which is known simply as the Miller test, provides the current standard for obscenity that all courts in the United States must apply. THE MILLER TEST Marvin Miller was convicted of violating the California Penal Code for sending five unsolicited brochures to a restaurant in Newport Beach. The brochures, which advertised four erotic books and one film, contained pictures and drawings of men and women engaging in a variety of sexual activities. The recipient of the mailing complained to police, and Miller was prosecuted by state authorities. In Miller, for the first time since 1957, a majority of the Supreme Court reached agreement on a definition of obscenity. In Miller, for the first time since 1957, a majority of the Supreme Court reached agreement on a definition of obscenity. Chief Justice Warren Burger and four other members of the high court agreed that material is obscene if the following standards are met: 1.An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to a prurient interest in sex. 2.The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. 3.The work in question lacks serious literary, artistic, political or scientific value. The implications and ambiguities in these three elements create the need for fuller explanation. As a result of the Miller ruling and subsequent obscenity decisions handed down by the court since 1973, some guidelines have emerged.

Effect on market

Weighed heaviest - demonstrate adverse economic impact or hurting copyright holder - market on the orgnial hurt - also consider derivaties - All new owrks but balanced with ability to make work - audience and market different - orignial- same market? Stop purchasing - Derviatives- same market? Stop purchasing

Fair use

What do if you want to use copyrighted? - exemption to copyright - Under copyright- only creative works - What can you do if you want to use copyrighted work? - Limited copy of work, not permission or licensing - balancing author rights with public - Flexible framework, four parts - Don't file claim, just use and claim fair use, ask a judge to rule - Very functional, no prelim checkmark, just do it - Become intimindated

Application of criteria example

When a court is faced with a defendant who claims a fair use, it must apply the four criteria to the facts in the case. Here are two cases that demonstrate how these criteria might be applied. Conservative talk-show host Michael Savage brought a copyright infringement suit against the Council on American-Islamic Relations for its use of a four-minute excerpt from a two-hour copyrighted Savage broadcast in which he made statements attacking both the council and the Islamic religion. The short segment was included in a critique of Savage comments that was posted on the council's Web site. The council argued that its use was a fair use. Purpose and character of the use: The clips were used for criticism and comment of Savage's views. It was not unusual to use the audio clips to authenticate Savage's critical statements. This factor favors the defendant. Nature of the copyrighted work: While the works appear to be more informational than creative, because the hearing was held on the defendant's motion for a summary judgment based on the pleadings, the plaintiff's allegations that the material was in fact a "creative performance" must be assumed at this point, the court said. This factor therefore favors the plaintiff. Amount and substantiality of the material used: Four minutes from a two-hour broadcast was a reasonable amount for the purposes of criticizing the plaintiff's views on the topics. This factor favors the defendant. \ Effect on the market value of the original work: If the use of the four-minute segment from the original show by the council led some potential listeners to reject Savage's subsequent programs, this might have an impact on Savage's future overall revenues. But the use of the clip in the council's critique would have no impact on the market for the original program that contained the four minutes of commentary. The plaintiff never even implied that there was any market for the copyrighted work outside its original airing. This factor favors the defendant. The use of the four minutes by the council was a fair use.

Zoning

Where you can and can't build, place by place, ie commerical, residential - so strict same aren't - can prohibit growth Two main approaches to this: 1. Clustering- all sexual places in one places Benefit- family know where not to get a house Negative- lower property values 2. Dispersing - disperse/spread out SOB so not cluster - not ban but where allow ie intermediate

Test tips and tricks

Who based off of? - Children, community, average, expert - Hicklin- children - Roff- Community - Miller- Average person How much obscene? - Hicklin- whole - Miller/Roff- just portion, larger part is judged What community? - Hicklin- No - Roth- Mentions - Miller- specificed by law community standards Does social value matter? - HIcklin- harm by children so no - Roff/Moller- not true as only paragraph to whole, liberal or conserative expert Resonable v. Average person? - Miller is the only one - Resonable is expert, average is average person

Length of copyright

Work before Jan 1, 1978- flat 95 years After 1978- life of creator plus 70 years, More than one creator? ast living creator plus 70 years Work for hire- 95 years after

Digital Millennium Copyright Act

a 1998 US law intended to update copyright law for electronic commerce and electronic content providers. It criminalizes the circumvention of electronic and digital copyright protection systems. An international group, the World Intellectual Property Organization, framed new copyright rules in two treaties in the mid-1990s that give copyright protection to the owners of digitized works. The treaties also provide for the fair use defense in cyberspace.68 The United States agreed to abide by these new rules in adopting the Digital Millennium Copyright Act (DMCA) in 1998. But this law went beyond the WIPO treaties and also prevents the circumvention of technological measures that control access to copyrighted works—so-called encryption codes—and outlaws the manufacture, importation or sale of devices used to circumvent such protections. - content and internet - Safe Harbor - Take-down system - Cancel repeat offenders - protect compnay from issues - If liable needed review, so why we have it, but limits ability - Shape understand internet - Need takedown system - Ie Pinterest cannot be sued for copyrighted material - MNC as long as they have it in user agreements and say sole owner of material - Do because everyone needs a voice but if all had to be preapproved it would limit speech - Sheilds internet providers and social media from lawsuits

Campbell v. Acuff-Rose Music (1994)

a United States Supreme Court copyright law case that established that a commercial parody can qualify as fair use. In 1992 the 6th U.S. Court of Appeals ruled that a commercial parody, whether a book or a movie or a song, could never be a fair use. Such a work was commercial and could not be regarded as artistic comment or criticism, something usually protected under the fair use doctrine.42 The ruling, if widely accepted, would have had a devastating impact on an entire range of creative work. But the Supreme Court rejected this notion two years later in one of the most colorful and significant cases ever decided. The case focused on a rap music parody of the song "Oh, Pretty Woman," a 1964 rock/country hit written by Roy Orbison (who performed the song) and William Dees. Rapper Luther Campbell, leader and founder of the group 2 Live Crew, was rebuffed 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 divergent from the original. (A quick search on Youtube should lead students to both versions of the song.) A trial court called the 2 Live Crew version a parody and rejected the suit, but the Court of Appeals reversed, ruling that a commercial parody could never be a fair use. The Supreme Court sided with the trial court and sent the case back for trial, ruling that a jury trial was needed to determine whether the parody was a fair use. "The language of the statute," wrote Justice David Souter, "makes it clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character. . . . Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding 541 of infringement, any more than the commercial character of a use bars a finding of fairness. If indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed [in the statute] . . . including news reporting, comment, criticism, teaching, scholarship and research since these activities are generally conducted for profit in this country."43 Parody, Justice Souter said, springs from its allusion to the original. "Its art lies in the tension between a known original and its parodic twin." It is true the parody 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 'heart' of the original, the heart is also what most readily conjures up the song for parody, and it is the heart at which parody takes aim. Copying does not become excessive in relation to parodic purpose merely because the portion taken was the original's heart." It was significant, Souter said, that after taking the first line, 2 Live Crew added its own lyrics. And while the bass riff was copied, other original sounds were added as well. The case is also noteworthy for giving rise to the transformative use consideration under the first fair use criterion, purpose and character of the use. The ruling in the Campbell case failed to provide precise guidelines for parodists regarding how much original material can be used in a parody that can be defined as a fair use. Maybe such precise guidelines are impossible to fashion. But without them the matter of fair use and parody continues to bedevil the judiciary. Protection for parody was further complicated when some courts made the distinction between parody and satires. Parodies can be considered "transformative" works and are thus protected by fair use. The Court explained, however, that while a parody must mimic the original work to make its point, a satire uses the work to criticize something else, and therefore requires other justification for the very act of borrowing. As a result, lower courts interpreted this as the Court favoring parody under the fair use doctrine, while devaluing satire. Based on this distinction, lower courts focused on the dichotomy between a parody and satire, finding that if a new work comments or criticizes the original work, it is a parody and thus protected. If it instead focuses on commenting and criticizing something else, it is not a satire and therefore less likely to be protected. Recently, however, at least one court has questioned this distinction. In Cariou v. Prince, the 2nd Circuit examined whether 30 works by "appropriation artist" Richard Prince that altered and incorporated various copyrighted photographs by Patrick Cariou qualified as fair use. Although the 2nd Circuit analyzed each of the Copyright Act's fair use factors, it particularly emphasized the purpose and character of Prince's use. Because Prince testified that he did not intend to transform or comment on Cariou's work, typically, this would have weighed against a finding of fair use. The 2nd Circuit, however, held that "[t]he law imposes no requirement that a work comment on the original or its author in order to be considered transformative." In addition, the court held it was not important whether the author of the new work intended to comment on or criticize the original work. Instead, the court held, the correct standard is whether the new work would be "reasonably perceived" by a "reasonable observer" to alter the original with "new expression, meaning, or message." Applying this standard, the court found 25 of the 30 works in the case were transformative because they "manifest an entirely different aesthetic from Cariou's photographs. . . . Prince's composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince's work."44 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.

Harper & Row Publishers v. Nation Enterprises (1985)

a United States Supreme Court decision in which public interest in learning about a historical figure's impressions of a historic event was held not to be sufficient to show fair use of material otherwise protected by copyright.[1] Defendant, The Nation, had summarized and quoted substantially from A Time to Heal, President Gerald Ford's forthcoming memoir of his decision to pardon former president Richard Nixon. When Harper & Row, who held the rights to A Time to Heal, brought suit, The Nation asserted that its use of the book was protected under the doctrine of fair use, because of the great public interest in a historical figure's account of a historic incident. The Court rejected this argument holding that the right of first publication was important enough to find in favor of Harper.This change puts the law back to where it was immediately after the ruling in Harper & Row Publishers v. Nation Enterprises, before appellate courts began to misinterpret it. It remains exceedingly dangerous, though not necessarily fatal, to publish or broadcast material that has never before been published. Such a use will likely be sustained only if the user can make a strong case under the other three fair use criteria.

Law of appropriation is intended to stop

a person trying to pass off his or her work as the work of someone else, and a person trying to pass off the work of someone else as his or her work.

Noncomerical/commerical

are you making money? - non- more likely fair use but still can not be

Trademark

commercial branding or logo - about commerical goods/services - Protect use of words, colors, solgans, logos to protect consumer - AD use aggressitvely - Purpose WAS protect the public so don't buy false products or knock offs - identify or distinguish goods/services -Signify source/quality - Help advertise/sell good - Differs among markets ie diamond brand can't use robin egg blue as it is from Tiffinay - Too good at what you do you can actually loose trademark ie zippers were a brand or too generic like asprin - Threatened trademarks get reaccessed like Kleenex - Fashion brands use trademarks not copyrights

Intellectual property law

copyright, along with trademark law, patent law and trade secret law, constitutes one aspect of a larger body of law known as intellectual property—intangible property that a person cannot touch, hold, or physically lock away for safekeeping.

Pornography

not a legal term, often used incorrectly, used a lot

Copyright

the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same. - Creative commons- a type of licensing that ism ore lax than copyright law - Provides protection of a creative work - Can copyright to foster creativity

Feist Publications v. Rural Telephone Service Co. (1991)

was a decision by the Supreme Court of the United States establishing that information alone without a minimum of original creativity cannot be protected by copyright The case involved a small, rural telephone company (Rural Telephone Service) that issued a standard white-pages directory of its customers' names, addresses and phone numbers, and a company (Feist Publications) that publishes regional telephone directories, which include the names, addresses and phone numbers of the customers of numerous small telephone companies. Feist asked Rural for permission to include the names of its customers in a directory, but Rural said no. Feist used the information anyway, and Rural sued for copyright infringement. Feist argued that a telephone directory contains only facts, which can't be copyrighted. Rural disagreed and argued that the phone book was a collection of facts, and that a collection of facts can be copyrighted. Rural also raised a second argument, what some call "the sweat of the brow" doctrine. This is a legal proposition previously recognized by some courts that asserts that even though facts are 526 not copyrightable, someone who invests substantial time and energy in amassing these facts deserves a reward for the hard work. Collecting the information that goes into a telephone directory takes time and energy, and copyright law should protect the results of this effort, Rural argued. In a unanimous decision the Supreme Court rejected both arguments. With regard to the latter, Justice Sandra Day O'Connor said the sweat-of-the-brow doctrine was a bogus argument. Quoting former justice William Brennan, she said, "The primary objective of copyright law is not to reward the labor of authors, but to promote the progress of science and the arts." O'Connor said that some compilations of facts can be protected by copyright. The key to determining whether protection is merited is whether there is some novelty or originality in the manner in which the facts are organized or selected or coordinated. An alphabetical listing of names—the organization of the Rural directory and indeed all white pages—is not novel enough to generate copyright protection for the directory.14

Transformative

when use of copyrighted material presents the work in a way that adds interpretation to it so that some people might see it in a new light - how transformative is new work form org. - take portion for another purpsose - adds something - reporduction least producted - look at org. purpose has that chaged ie ed now