Mass Comm Law - Exam 4

Parody

a form of social and literary criticism, it has socially significant value as free speech under 1st amendment in part target the original -- can be a fair use

Elsmere Music v NBC (1980)

"I love Sodom" song sung to music of and targeting "I love New York" PARODY

Fisher v Dees

"When Sunny Sniffs Glue" song to the music of and targeting "When Sunny Gets Blue" PARODY

Krofft Test

(1) is there substantial similarity between the general ideas in the two works, are they about the same thing, if yes then (2) substantial similarities in the manner in which the ideas were expressed

FCC 3 factors when determining patent offensiveness

1. The explicitness or graphic nature of the description 2. Whether the material dwells on or repeats at length description of sexual or excretory organs or activities 3. Whether the material is used to shock, titillate or pander

President Reagan-- marketplace model (of deregulation)

1. Based on economic theory 2. scarcity of the spectrum, limited # of frequency, but technology has broken the boundaries 3. marketplace is a better regulator than governance 4. a call for broadcasters to get full first amendment protection (bc it actually is bringing much more news and info than newspapers anymore)

copyright infringement test (all or nothing)

1. Originality -- (something recognizably his own, Feist test C+A=O) 2. Access -- did the defendant have access to the plaintiffs work prior to alleged infringement? (Miller had access because the producer brought the book and gave it to script writer) 3. Similar -- Are the two works substantially similar? Krofft: HR puff n stuff v McDonalds, Krofft test

Fair Use Test

1. Purpose -- + character of the use (how do you use it; public interest, educational, commercial, parody, transformative, critical commentary) 2. Nature -- of the copyrighted work (the work itself; available? creative v informational? consumable? published? if it has copyright, the person holding it usually wins this prong 3. Amount -- of work used (percentage / proportion; "heart of the material", prong 1 ties, implications, what the piece is and how much of it is being used 4. Effect -- of the use on originals market (direct competition/market, derivative works, right fo the first publication, darling test)

FTC definition of false or deceptive advertising

1. There must be a representation, omission or practice that is likely to mislead the consumer 2. the act or practice must be considered from the perspective of a consumer who is acting reasonably 3. The representation, omission or practice must be material.

Miller 3 prong test

1. average person -- whether the average person, by contemporary community standards would fine that the work as a whole appeals to the prurient interest 2. offensive / sexual -- whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law 3. lacks values -- whether the work, taken as a whole lacks serious literary, artistic, political or scientific values

The Trusty Ship model of broadcast regulation (1927-1980's)

1. based on social theory 2. scarcity in the spectrum, limited # of frequencies 3. self governance will do that because it is owned by the public 4. service to the public (PICON) 5. the feat that broadcasting can be harmful 6. it does need to be regulated in some way shape or form 7. title 5 (communication decency act) couldn't pass on its own so attached which was a deregulation of the industry - indecent standard

Copyrights three regulatory functions

1. protecting creativity 2. protecting distribution 3. protecting learning

What does it take to file a complaint with the FCC alleging that particular broadcast material is indecent?

1. the date and time of the broadcast in question (if in safe harbor, dismissed) 2. the calls sign and letters of the particular station that aired the content 3. A significant excerpt of the program (including context and details)

Safe Harbor for broadcasting

10pm-6am designated block of time for the broadcasting tv or radio of adult material

Morgenstein v ABC inc (1998)

ABC broadcast a news report about pothead image to sick person, using cover from Newsweek and photo fair because it was a transformative use, network had taken original and transformed into story about news coverage of a current issue

In which of the following have you been caught in a bait and switch ad scheme

C - ad for a bed $670 theyre sold out and tries to offer you a better deal for more, 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, purpose is to switch the advertised merchandise to one for a higher cost

What are the legal points in Anheizur Busch inc V Schmoke

Baltimore ordinance banned alcoholic advertisements in places where children play, the welfare and temperance of children, deals with second prong of central Hudson speech doctrine, the ban of advertising will advance the welfare and wellbeing of the place and government

Golden Globe Award program (2004)

Bono said an isolated, fleeting, non sexual F-word after winning best original song which NBC had no prior knowledge of, FCC "constituted material in violation fo the applicable indecency and profanity prohibitions", FCC said NBC should have delayed broadcast to bleep the word, anyone who says obscene, indecent or profane language shall be fined or imprisoned Step 1: alleged indecent material must fall within subject matter scope of our indecency definition Step 2: broadcast must be patently offensive as measured by contemporary community standards

Central Hudson v Public Service Commission (1980)

Central Hudson wanting to stuff bill telling people to use less energy to save energy, Supreme court said NY regulation banned promo ads by electrical utility companies

FTC v Colgate Palmolive Co (1965)

Claimed shaving product so good it could shave sandpaper, demo'ed on phony TV ad, said really could if left on long enough, real demo wouldn't have worked FTC argued ad was deceptive (3rd prong) and the claim was a misrepresentation, Supreme agreed

Legal point of 44 Liquor Mart v Rhode Island

Commercial speech doctrine / central Hudson test, mere speculation and conjecture wont cut it, you have to evidence it (the second prong)

What are the legal points in FTC v Colgate Palmolive company

FTC argued this ad was deceptive and that shaving sandpaper wasn't a material representation, likely to affect the consumers choice of the product -- but colgate argued that it would work after soaking for hours, but even back then they had one minute ads (DECEPTIVE), but the product was really used to shave sandpaper but since the colors were the same it didnt work - legal test they used, FTC definition of what false advertising is, material means relevant to your decision making

FCC v CBS, Corp. (2012)

Court rules against $550,000 FCC fine in Janet Jackson case, the FCC had not announced that it had changed its policy on "fleeting material" until after decided to fine CBS.

Chicago Lawyers Committee v Craigslist (2008)

Craigslist published discriminatory rental ads violating federal fair housing act - protected from liability by section 230 of communication decency act, they were conduits for info posted by 3rd party, not the author/speaker

Craigslist and Roommates.com

Craigslist were protected in contrast to roomates.com case because they did not solicit any content but merely provided a forum for ads

Kane v Comedy Partners (2003)

Daily show used video clip from Kane's Public access tv singing nearly naked to intro segment criticizing Kane, court said clip fair use because it was for "critical purposes" the people have to understand what you are actually criticizing

3rd prong of FTC definition of false or deceptive advertising

Fake mockup is illegal, the representation, omission or practice must be material -- a material misrepresentation or practice is one that is likely to affect a consumers choice of product

Feist Publications v Rural Telephone Service (1991)

Feist copied Rural telephone company standard white page directory, feist said it was facts, rural said it was a collection of facts (sweat of the brow argument, which turned out to be bogus) -- collections of facts can be copyrighted if there is some novelty - whitepages is not

SUNY v Fox (1989)

Fox throws Tupperware party in forms, SUNY said cannot do it on campus for commercial purposes, college promotion of educational atmosphere and said Fox exploited changed 3rd prong to reasonable fit (easier to meet)

Fox News Network LLC v Penguin Group (2003)

Fox tried to stop Al Franken from using phrase "fair and balanced" in his book title because they claimed to own the phrase and rights to it, parody (imitation)

FCC v Pacificia Foundation (1978)

George Carlin 7 dirty words, Pacifica broadcast in NY, no violation of the 1st amendment to bar indecency during certain times of the day from the airwaves, WBAI station violated law when broadcast during afternoon because a child heard -- FCC lacks the power to censor broadcasters, but he seems to be censored

Central Hudson Test / Commercial Speech Doctrine

Gov may regulate truthful advertising for legal goods and services if the following conditions are met: 1. substantial state interest justified 2. regulation directly advances state interest 3. regulation must be narrowly tailored via the "least restrictive means" SUNY changed 3rd prong 3. Regulation must be narrowly tailored showing a "reasonable fit" between state interest asserted and the regulation

Salinger v Random House (1987)

Hamilton (writer) sought to publish bio of Salinger who didn't cooperate, letters to Hamilton were published found in public library, Salinger said contents were his literary property, Hamilton reworked the letters - infringement of copyright (not a fair use). the paraphrasing was too close to Salinger's own choice of words, to his creativity, he still communicated the heart of the material, Salinger is creator and still owned words but not the physical letters

Super Bowl Halftime show (2004)

Jackson's breast was shown during Halftime show, depiction of sexual organ, FCC set forth their three factors to determine patent offensiveness

The Feist Test

Justice O'Connor: C+A=O Collection or compilation of the facts PLUS how you arrange them EQUALS originality

Miller v Universal Studios (1981)

Miller book 83 hours till dawn about kidnapping, and uncovered facts by him only reported in his book, Universal made drama without his permission, saying they were - supreme court just said it was a story and miller uncovered the facts

Prometheus Radio Project v FCC (1, 2, 3) [2004, 2011, 2016]

Ownership rules (p618) 2004 and still having decisions on particular things as of two years ago. Regulation, how much can one company own, can only have 39% of the national audience (standard) but can be changed if FCC supports their claims The FCC could never prove PICON -- trusty ship remnants still exist Sinclair was trying to cut deals agreeing to sell them to Sinclair to the point where they were they were going to own stations covering 72% of the national audience

Dr. Suess Enterprises v Penguin Books

Penguin books produced and published OJ Simpson story with basis of Dr. Suess poems

FCC v Fox Television Stations (2012)

People swore on live broadcast The wording of the law was vague, broadcaster didn't know what they could do and couldn't do, a person of reasonable intellect must be able to read the law and understand what it means. Laws which regulate persons or entitles must give fair notice of conduct that is forbidden or required Void for vagueness doctrine - broadcast indecency case

US v Coronia (2008)

Pharma sales rep Coronia found guilty of conspiracy to introduce a misbranded drug, Coronia said he was convicted for his speech in violation of right to free speech

PICON

Public Interest Convenience or Necessity

Missouri Broadcasters Association v Lacy (2017)

Responsible drinking, Missouri enacted law and 2 regulations that restricted info that could be included in advertisements but allowed generic descriptions (happy hour) and advertising within retail establishment itself Promoting responsible drinking substantial state interest, regulations don't advance interest at all

44 LiquorMart, Inc v Rhode Island (1996)

Rhode Island banned advertisement of retail liquor prices, statute violated their 1st amendment right to freedom of speech, no evidence it would lower liquor consumption commercial speech doctrine / central Hudson test, mere speculation and conjecture wont cut it, you have to evidence it (2nd prong)

San Fransisco Valley v Roommates.com

Roommates prompting of discriminatory preferences from users, matching users based on that info and publishing these preferences violated the FHA and FEHA

Lorillard Tobacco Co. v Reilly (2001)

Supreme court ruled that the Massachusetts law banning outdoor (by parks and schools) and POP ads was unconstitutional Rule not reasonable fit, not tailored narrowly enough to advance the states declared interest (in reducing use of products by youngsters) without impending protected speech as well

The original copyright clause

The Constitution 1.8 - 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

Which agency has the jurisdiction over false or misleading advertising claims made on the internet

The Federal trade commission (FTC) -- it can almost regulate all advertising including the internet

Name and explain one other sanction used by the FTC to prevent false advertising

Trade regulation rules (TRR) -- they are rules that speed up and simplify the process of, litigated order, voluntary compliance, injunctions, advisor opinions, corrective advertising, consent agreement, endorsements and testimonials c

True or false The US supreme court has given the states authority to regulate advertising for professional services such as doctors or lawyers?

True -- the bates case, saying that states can limit the advertising for doctors or lawyers, it says the court has granted the authority to do so

Legal points in SUNY v Fox

Tupperware, substantial state interest justified, the regulation directly advances this state interest, the regulation must be narrowly tailored by showing a reasomable fit between the state interest asserted and the regulation, this third prong makes it easier thus makes it easier to shut down

Bill Graham Archives v Dorling Kindersley Ltd (2006)

Use of 7 entire Grateful Dead posters in coffee-table book, fair use, bibliography

Sweat of the Brow Doctrine - Amsterdam v triangle publications (1951)

all ground work, research efforts and creation to make a book of maps, other company reproduced it without doing any of the work, uncover facts and they could reproduce it, doctrine said they were looking for originality and those efforts should be rewarded, strict facts and not the expression of facts

The regulatory interpretation of copyright

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 Defendant wants regulatory

legal points of US v Coronia

applied the test for advertising (also called Coronia test) to define advertising and commercial speech, need 3 prongs of central-hudson test to limit, coronia was pharma sales for a drug not approved by FDA, convicted for promoting the drug for other use, he said it was free speech, he did have an economic motivation for speaking, he claimed that it was political speech, and the court said that it was ADVERTISING and not political speech so they can regulate it

Bigelow and commercial speech doctrine

bigelow - first case to establish that "commercial advertising enjoys a degree of first amendment protection" First prong: regulation must be justified by a substantial state interest

Bigelow v Virginia (1975)

commercial speech doctrine overruled Valentine case which said no protection for commercial speech newspaper in Virginia, illegal to have abortion in Virginia, ad about abortions in NYC. Bigelow: advertising frequently transmits important information, free flow of commercial information is indispensable regulation must be justified by a substantial state interest

How does the FTC discover most misleading advertising

consumer themselves or competitors complaining, the FTC doesnt attempt to scrutinize every advertisement that is published or broadcast, most cases come to the attention of the agency from letters written by the consumer or competitors

Proprietary interpretation of copyright

copyright is a property issue, treating as property grants the copyright owner substantial control, even censorship over public access, impacts 1st amendment considerations

Sweet Meat Stew

copyrighted work (doll itself) copyrightable purpose + character - claiming parody which includes transformative, critical commentary, artistic expression, humor nature (Mattel won) - still available in as much full force, creative work, works more protected than informational, copyright holder will probably win this prong amount - parody: targets heart of material, can use more material for recognition factor, effect: if there is actually an effect on the market this is the big issue, the tie breaker prong

Darling test

does the use serve as a substitute for the original copyrighted work?

true or false the FTC only regulates advertisements that are carried out in national mass media

false -- interstate commerce, summary trade regulation rules that can be issued to regulate advertising throughout an entire industry

True or false when FTC staff lawyers sue an advertiser for false advertising it goes straight to a federal district court to be decided?

false -- it goes to administrative law judge

True or false 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 -- it is still in action and can be used, clearly it is still in use, there has been no rule against it

true or false under the Lanham act, an advertiser can force a medium like a newspaper to publish an advertisement

false -- lanham act has nothing to do with forcing media to run advertisements, its dealing with unfair competition

true or false in determining whether an ad is deceptive, the FTC will view that ad from a perspective of the most vulnerable consumer

false -- prong 2, the act or practice must be considered from the perspective of a consumer who is acting reasonably (the most reasonable), the second prong in the FTC definition of false misleading deceptive advertising

legal point rubin v coors brewing company

forbid brewers from listing alcohol content, saying it will make young people not pick based solely on alcohol content, a laudable goal, no evidence this rule advances that goal, irrationality of this ban will fail to achieve that end (met the first but blew the second) `

primary purpose test

if the primary purpose of the speech is purely commercial, it is not protected by the first amendment

Indecency standard of the FCC

if this is met, any comment, request, or other communication that is patently offensive indecent speech is no longer protected if it is broadcast over public airwaves

what are the legal points in mainstream macerating services inc v FTC

imposing first amendment rights to share message to masses for tele marketers, took commercial sepech doctrine thus they can limit the speech, addressing the "do not call" registry, while this dealt with a particular statute it showed the Hudson test in an unusual application

Section 43A of Lanham act can be used to _____ regarding advertising

it creates a legal cause of action for false advertising, provides that a person who generates representation of fact which in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or another persons goods, services, or commercial activities. It is liable for civil damages, prohibits unfair competition (the u haul case) bar an advertiser from competing in unfair competition

What may be copyrighted

literary, musica, dramatic, pantomimes, choreographic, pictorial graphic and sculptural, motion pictures, sound recordings 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

The proprietary interpretation of copyright

looks at copyright as a property issue, treating a copyright as property, grants the copyright owner substantial control, even censorship over public access. So, it impacts first amendment considerations Cannot fulfill copyrights three regulatory functions Has shifted from regulatory to proprietary (beneficial for those who control the images), prosecutor wants this

Coronia test

made the distinction between commercial and political purposes speech transpiring in the context of promo materials and activities, courts sometimes weigh 3 factors to help determine if its commercial 1. Whether the expression is an advertisement 2. Whether it refers to a specific product 3. Whether the speaker has an economic motivation for speaking

Stephen Colbert Copyright

moved to CBS did "the word" with same set up as his comedy central set up, comedy central said they owned the copyright to the word

Obscene v indecent speech

obscene speech defined by miller 3 prong test -- speech not protected by 1st amendment indecent speech protected by 1st amendment

How do you obtain copyright protection?

once it is created, you have copyright protection, it is protected under copyright (officially since 1976 act), you still need to prove when you created that but you don't need to register for the US copyright office -- BUT if you do register you are able to sue for infringement

US v Playboy Entertainment Group, Inc (2000)

page 684 section 505 of communications decency act required cable operators providing "primary dedicated to sexually-oriented programming" to either "fully scramble or otherwise fully block" or to broadcast during safe harbor, trying to protect from signal bleed -- district court found content-based restriction on speech violated the 1st amendment, must be narrowly tailored to promote gov interest, if a less restrictive alternative would serve the gov's purpose, must use alternative ... example: section 504 stated that cable operators had an obligation to block channels at a customers request

Bookeneers

pirated the creative works and delivering them somewhere else, allowing them all the rewards and money, have to be international accord - congress is the only one that can create copyright law, everyone has to agree

Valentine v Chrestensen (1942)

primary purpose test man places flyers all over NYC for submarine tours, got in trouble for advertising / commercial speech (not protected under 1st amend, can be court monitored), so put political anti-gov message on back of them so it would be protected political speech

The Lanham act aims at stopping unfair competition, what about consumers, what law can help protect consumers

printers' ink statute, little FTC acts, can spam act, mainstream marketing services, do not call registry, FDA food drug cosmetic act, FDCA, COOPA rule, children online privacy protection, ninth circuit alaska hawaii california oregon, lanham act deals with unfair competition between two companies, one of the things that 9th circuit says is we can apply the lanham act to consumers

Campbell v Acuff-Rose Music, inc (1994)

rap music parody by Campbell, oh pretty woman, sued by publisher bc made recording anyway, not parody

Pino v Viacom Inc (2008)

reality show (pros v joes) similar to program Pino proposed to variety of TV networks, the expression of the ideas were different even though the main idea was similar

what are the legal points in Bigelow v Virginia

referring to the first prong of the commercial speech doctrine and it says that it does have a degree of FAA regulation, its the first time it gave some protection / degree of advertising -- abortion wasn't legal in Virginia, NY ad printed in VA newspaper was relevant because people wanted to know this information

SUNY change to Central Hudson Test "The commercial speech doctrine)

regulation advances justified substantial state interest justified, regulation must be narrowly tailored by showing a reasonable fit between state interest asserted and the regulation, third prong makes it easier (thus makes it easier to shut down)

Rosemont v Random House (1966)

regulatory interpretation of copyright. A use that serves the public interest fair use Howard Hughues company bought rights to copyrighted material in a biography about him, trying to stop publisher from using material in the book. Contrary to the public interest to buy rights of anything about them, serves public interest is fair use i

What kind of test is the Fair Use Test

scorecard test

Which of the following ad campaigns would be considered false advertising by current FTC standards

sticky sweet cough syrup WILL cure the common cold, by applying the FTC standards and test, nothing can cure the common cold, the prongs say that all claims myst be substantiated so before the ad comes out there must be basis to what they are staying and advertisers must have reasonable basis for any and all express and implied product claims, you cannot claim that it can cure the common cold because there is no evidence and no basis to the claim

Why has advertising substantial proven to be an effective regulatory tool

substantiation -- the commission asks advertisers to substantiate claims made in there advertisements, FTC doesn't presume the claims are false or misleading, the advertisers are asked to prove the claims are truthful - the advertiser is simply asked to claim the claims are truthful, the burden of proof

In a consent order or consent agreement proceeding what must the advertiser agree to?

the advertiser agrees to refrain to making specific product claims in future advertising "we will not do again what we do not admit to doing in the first place"

Legal reasoning from Valentine v Chrestensen

the primary purpose test, the submarine case, flyers all over NYC for tours of submarine, got in trouble because it was advertising, so he put political messages on back of them so it would be protected, advertising commercial speech is not protected under the first amendment

Void for Vagueness doctrine

the requirement that a law imposing a criminal penalty must be invalidated if it does not fairly inform a person of what is commanded or prohibited

items that cannot be copyrighted

trivial matters (can only be trademarked), ideas, facts, utilitarian goods, methods systems and mathematical principles

true or false an endorser must have support for his or her conclusions (in other words an endorser cannot make any statement about a product that an advertiser cannot make)

true -- an endorsement is any advertisement message from anyone but the sponsoring advertiser, an endorsement and an advertiser is the same thing, they cannot make claims the other didn't make, it has to be consistent

true or false advertising agencies and the mass medium can also be help responsible for false advertisements

true -- any part of disseminator can be held accountable, if you go to work at an agency, you must understand that your agency may be help 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 -- communication decency law (craigs list and roommates case

true or false the government can regulate the advertising of a completely legal product or service

true -- commercial speech doctrine, it can still be regulated (1) whether the expression is an advertisement (2) whether it refers to a specific product (3) whether the speaker has an economic motivation for speaking

Satire

use in which no reference is made to the original work, it is merely a vehicle by which to make a comment about something else it does not target the original in any way -- cannot be a fair use, not protected

Rubin v Coors Brewing Co (1995)

wanted to reduce amount of alcohol consumed by young people so tried to remove alcohol % on bottles (because it encouraged young people to purchase liquor with highest %) valid goal, but the method was irrational and ensues that labeling ban will fail to achieve

What is the duration of a copyright?

works created after 1978 - life of teh creator plus 70 years works created before 1978 - 95 years works created by more than one person - life of the last living creator plus 70 years Works for hire - 95 years after the publication