MMC4200 Exam 3

exclusive Right

"The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the ________ to their respective Writings and Discoveries."

Writings and Discoveries

"The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclu-sive Right to their respective ________."

Authors and Inventors

"The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to ________ the exclu-sive Right to their respective Writings and Discoveries."

Science and useful Arts

"The Congress shall have Power . . . To promote the Progress of __________, by securing for limited Times to Authors and Inventors the exclu-sive Right to their respective Writings and Discoveries."

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."

Fleeting Expletives

Profanity uttered without warning on live television

Dani California; Mary Jane's Last Dance

Red Hot Chili Peppers song "_________" sounds a lot like Tom Petty's "________"; Petty says its fine

Four Areas of Intellectual Property

1. Marks 2. Copyright 3. Patent 4. Trade Secrets

facial

Brunetti made a ______ challenge in his case; attacked the terms "immoral" and "scandalous"

Charlotte Ross; NYPD Blue

ABC aired "the nude buttocks of an adult female, ___________, on an episode of _______ for approximately seven seconds and, for an even briefer moment, the side of her breast"

Federal Communications Act

An act to provide for the regulation of interstate and foreign communication by wire or radio, and for other purposes. Enacted by. the 73rd United States Congress.

violation

Bono case outcome: "material in ______ of the applicable indecency and profanity prohibitions."

Boston Marathon

Boston Red Sox slugger David Ortiz had this to say in an emotional speech delivered to fans at Fenway park shortly after the _________ terrorists were captured: "This is our f***ing city and nobody gonna dictate our freedom."

David Ortiz (aka Big Papi)

Boston Red Sox slugger _______ had this to say in an emotional speech delivered to fans at Fenway park shortly after the Boston Marathon terrorists were captured: "This is our f***ing city and nobody gonna dictate our freedom."

news; facts; titles, names, short phrases; utilitarian

CANNOT Copyright ... - "______" - the actual event - "______" - the information - "_____, ______, ______" - something with ______ function

ownership; copying (BOTH!)

Copyright Infringement Test - First, must prove ________ of valid copyright AND _______ of protected portions - Second, must have direct evidence OR access + substantial similarity

evidence; access (coupled with) similarity (OR!)

Copyright Infringement Test - First, must prove ownership of valid copyright AND copying of protected portions - Second, must have direct _______ OR access + substantial similarity

Public Domain

Creative work that's not copyrighted and therefore free for you to use whenever you want.

Disparagement Clause

Debunked in 2017 by Tam vs. Matal

No; heart

Did the FCC did not charge Ortiz or the stations who hired the speech with the expletive? --> ______. FCC chair tweeted that Ortiz's words came from the ______.

community standards

How the FCC defines indecency: 2. Second, the broadcast must be patently offensive as measured by contemporary _________ for the broadcast medium.""

patently offensive

How the FCC defines indecency: 2. Second, the broadcast must be________ as measured by contemporary com-munity standards for the broadcast medium.""

grossly offensive; nuisance

How the FCC defines profane language today? In 2014, defined profanity as language that is "so _______ to members of the public who actually hear it as to amount to a ________."

blasphemy or divine imprecation

How the FCC used to define profane language (p. 637)

identify source

How trademarking Benefits Consumers: o Easily _________ of product or service o save time o prevent confusion

time

How trademarking Benefits Consumers: o Easily identify source of product or service o save _____ o prevent confusion

confusion

How trademarking Benefits Consumers: o Easily identify source of product or service o save time o prevent ______

Consumers

How trademarking Benefits _______: o Easily identify source of product or service o save time o prevent confusion

Bundle of Rights

If you own the copyrights, then you own a "________"

incentive

Key goals of Copyright Law 1. Provide _______ for creation by giving a monopoly to creators 2. Eventually enrich public domain after copyright expires

monopoly

Key goals of Copyright Law 1. Provide incentive for creation by giving a ________ to creators 2. Eventually enrich public domain after copyright expires

enrich

Key goals of Copyright Law 1. Provide incentive for creation by giving a monopoly to creators 2. Eventually ______ public domain after copyright expires

expires

Key goals of Copyright Law 1. Provide incentive for creation by giving a monopoly to creators 2. Eventually enrich public domain after copyright _______

Bono

Leader singer of the Irish rock group, U2 who used the phrase "this is really, really f***ing brilliant" during an acceptance speech at the 2003 Golden Globe Awards

Intellectual Property Law

deals with trademark, copyright, patent law; also discusses trade secrets (not in book)

Adele

during a tribute performance to the late George Michael in 2017 during Grammy awards; stopped mid-song; said she "f***ed-up" her vocals and asked to start over

Spielberg Exception

ex: saving private Ryan

original; creative; some novelty

for a writing to be copyrighted/considered an original work, it must be _____ + _______; must have "_______"

Stephen Colbert

on the comedian's "Late Show," _____ said: ""The only thing [Trump's] mouth is good for is being Vladimir Putin's cock holster"

free riding

idea that one association creates a similar mark in order to confuse consumers and reap the benefits

judicial minimalism

judges should make decisions Narrow and Shallow (no big decisions)

Indecent

language or material, that in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities

Nuisance

right thing but the wrong location at the wrong time

obscenity

safe-harbor hours do not apply to ______; this is always an unprotected form of speech

Lanham Act

statute at issue during the Lee v. Tam case

fair notice

the Court threw out fines the FCC had imposed on both Fox and ABC for airing allegedly indecent content because the Court because the FCC failed to give Fox and ABC ______

access

the ability to copy (plaintiff must prove the defendant had the opportunity to "steal" the intellectual property)

"Seven Dirty Words"

monologue by George Carlin

WDBJ Case

news station broadcasts story about former porn star; includes a mild, non-sexual image from her previous career/screen grab image; accidentally includes indecent material in bottom corner of screen

pig in the parlor analogy

nuisance rational; analogy used in the Pacifica Foundation v. FCC case Carlin was the pig who wandered into the parlor Broadcasting was pervasive and invasive into the home; enters the privacy of a home where children and adults can be exposed to it against their will

prior policy; fleeting

Super Bowl Halftime Show Case: The 3rd Circuit struck down $500,000 the fines. Found that the FCC, in punishing CBS, had arbitrarily and capriciously departed from its longstanding ________ of exempting ______ broadcast material from the scope of actionable indecency.

Janet Jackson

Super Bowl incident; wardrobe "malfunction" with Justin Timberlake on stage

purchasing public

Surnames can be trademarked if they acquire secondary meaning among the "__________"

identify; goods; distinguish

THE FOUR MAIN FUNCTIONS OF TRADEMARKS AND SERVICE MARKS 1. They ______ one seller's _____ and ______ them from goods sold by others. 2. They signify that all goods bearing the trademark or service mark come from a single source. 3. They signify that all goods bearing the mark are of an equal level of quality. 4. They serve as a prime instrument in advertising and selling goods.

single source

THE FOUR MAIN FUNCTIONS OF TRADEMARKS AND SERVICE MARKS 1. They identify one seller's goods and distinguish them from goods sold by others. 2. They signify that all goods bearing the trademark or service mark come from a _________. 3. They signify that all goods bearing the mark are of an equal level of quality. 4. They serve as a prime instrument in advertising and selling goods.

equal level of quality

THE FOUR MAIN FUNCTIONS OF TRADEMARKS AND SERVICE MARKS 1. They identify one seller's goods and distinguish them from goods sold by others. 2. They signify that all goods bearing the trademark or service mark come from a single source. 3. They signify that all goods bearing the mark are of an _________. 4. They serve as a prime instrument in advertising and selling goods.

advertising

THE FOUR MAIN FUNCTIONS OF TRADEMARKS AND SERVICE MARKS 1. They identify one seller's goods and distinguish them from goods sold by others. 2. They signify that all goods bearing the trademark or service mark come from a single source. 3. They signify that all goods bearing the mark are of an equal level of quality. 4. They serve as a prime instrument in _______ and selling goods.

FUNCTIONS

THE FOUR MAIN _________ OF TRADEMARKS AND SERVICE MARKS 1. They identify one seller's goods and distinguish them from goods sold by others. 2. They signify that all goods bearing the trademark or service mark come from a single source. 3. They signify that all goods bearing the mark are of an equal level of quality. 4. They serve as a prime instrument in advertising and selling goods.

Copyright

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

Blurring and Tarnishment

What are the two forms of Trademark Dilution ?

Bono Case

What case changed the definition of profanity?

Genericide

When a trademark becomes so well known that it becomes the generic term for a product, and trademark rights are lost

Davidson wins over 3.5 million in damages

Who won the case of lady liberty? And how much did he receive in damages?

owned; Nationwide; registered; find

Why register a Mark? - Legal presumption mark is yours (_____) - ______ mark - Put public notice you own it; can use the _____ mark; CANNOT use if not actually registered - Others can _____ it

Literary; Musical; Dramatic; Pantomimes/choreographic; Pictoral/graphic; Motion pics/audiovisuals; Sound; Architectural

Works of authorships 1. ______ works 2. ______ works (and words) 3. ______ works (and music) 4. ______ and ______ works 5. ______ and ______ 6. ______ pics/______ 7. ______ recordings 8. ______ works

production

______ begins the moment an original work is created and fixed in tangible medium of expression

Publication

______ is NOT necessary for copyright protection

Copyright trolls are companies that

buy rights from others and aggressively pursue infringements

generic way

How A Trademark Can Be Lost : 1. Failure to use a name for as little as 3 years 2. If the owner of the mark allows others to use the mark in a _______ (ex: Super Glue vs. super glue)

3

How A Trademark Can Be Lost : 1. Failure to use a name for as little as __ years 2. If the owner of the mark allows others to use the mark in a generic way (ex: Super Glue vs. super glue)

Lost;

How A Trademark Can Be _______ : 1. Failure to use a name for as little as 3 years 2. If the owner of the mark allows others to use the mark in a generic way (ex: Super Glue vs. super glue)

sexual; excretory

How the FCC defines indecency: 1. "First, the material alleged to be indecent must fall within the subject matter scope of our indecency definition; that is, the material must describe or depict _____ or _______ organs or activities

organs; activities

How the FCC defines indecency: 1. "First, the material alleged to be indecent must fall within the subject matter scope of our indecency definition; that is, the material must describe or depict sexual or excretory ______ or ________.

Eric Brunetti

Went to SCOTUS to get his brand name "FUCT" to be trademarked after being denied by USPTO and wins

Davison vs. the United States

- Us post office wanted to make a stamp with the face of lady bliberty - They used the face of the vegas version (faces look different) - The sculptor of the vegas version sues - BUT copyright Act protects original works of art... which the REPLICA does not qualify for... - However, the court also compared the two faces which were plainly different

Mark

What A_______ Is/Can Be: brand names, logos, slogans, Colors, sounds distinctive design/appearance of a product

any tangible medium of expression

17 USC Section 102: Copyright protection subsists, in accordance with this title, in original works of authorship fixed in ____________, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

perceived, reproduced, or otherwise communicated

17 USC Section 102: Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be ___________, either directly or with the aid of a machine or device.

directly; machine

17 USC Section 102: Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either ______ or with the aid of a _______ or device.

Fox Television Stations v. FCC

2 incidents of fleeting explicates --> during Billboard Music Awards involving Cher and Nicole Richie also included ABC airing "the nude buttocks of an adult female (Charlotte Ross) on an episode of NYPD Blue for approximately seven seconds and, for an even briefer moment, the side of her breast"

bundle

A ______ of rights includes ability to: o Reproduce copies o Create Derivative works o Distribute o Publicly perform o Publicly display

copies

A bundle of rights includes ability to: o Reproduce _____ o Create Derivative works o Distribute o Publicly perform o Publicly display

perform

A bundle of rights includes ability to: o Reproduce copies o Create Derivative works o Distribute o Publicly _______ o Publicly display

display

A bundle of rights includes ability to: o Reproduce copies o Create Derivative works o Distribute o Publicly perform o Publicly ______

Distribute

A bundle of rights includes ability to: o Reproduce copies o Create Derivative works o _______ o Publicly perform o Publicly display

Derivative

A bundle of rights includes ability to: o Reproduce copies o Create ______ works o Distribute o Publicly perform o Publicly display

Seltzer vs. Green Day

CASE: - artist creates a poster and plasters it all over LA - the image is put it in a music video with a red cross over it; there are also lyrics and smudges across it - artist sues band for putting it in the video without a license - Court says: "the purpose and character of the sue was transformative because the video altered the expressive content or message of the illustration"

FCC v. Pacifica Foundation

CASE: "Supreme Court ruled in 1978 that it was not a violation of the First Amendment to bar indecency during certain times of the day from the airwaves." --> birth of the safe-harbor period

Lee v. Tam

CASE: The Disparagement Clause prohibits trademarks that disparage the members of a racial or ethnic group and violates the Free Speech Clause of the First Amendment

indecency

CBS bleeped it out some of the language from the Colbert incident, however the FCC received thousands of complaints about the joke But FCC said there was nothing actionable under the FCC's rules regulating ________ because the show aired during the safe-harbor period

7-second delay

CBS bleeped out Adele's explicative by airing the live broadcast with a _______

Yes; unrelated

Can two identical marks coexist? • ______! • But only if the goods/services are ______ • Ex: Delta (Dental, Faucets, Airlines) • Ex: Dove (chocolate; soap)

George Carlin

Comedian whose satires on vulgarities prompted rules on radio programming to shield children --> birth of the safe-harbor period

date and time

Complaints with the FCC about allegedly indecent content must include: 1. the ________ of the broadcast in question 2. the call sign and letters of the station that aired the content 3. a significant excerpt of the program."

call sign and letters

Complaints with the FCC about allegedly indecent content must include: 1. the date and time of the broadcast in question 2. the __________ of the station that aired the content 3. a significant excerpt of the program."

significant excerpt

Complaints with the FCC about allegedly indecent content must include: 1. the date and time of the broadcast in question 2. the call sign and letters of the station that aired the content 3. a ________ of the program."

17 USC Section 102

Explains the rights of copyrighter - original works of authorship fixed in any tangible medium of expression - defines what qualifies as original work of authorship

2013; 2017

FCC asked in _____ if the public thought the FCC shoud make changes to its broadcast indecency policies and if it should stand by the Bono case decision --> ______, there was no response to the publics' responses

Trade Secrets

Four Areas of Intellectual Property 1. Marks 2. Copyright 3. Patent 4. __________

Patent

Four Areas of Intellectual Property 1. Marks 2. Copyright 3. _______ 4. Trade Secrets

Copyright

Four Areas of Intellectual Property 1. Marks 2. ________ 3. Patent 4. Trade Secrets

Marks

Four Areas of Intellectual Property 1. ______ 2. Copyright 3. Patent 4. Trade Secrets

nature

Four Fair Use Facts 1. Purpose and character of the use 2. The _____ 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 upon the potential market for or the value of the (original) copyrighted work

amount; substantiality; whole

Four Fair Use Facts 1. Purpose and character of the use 2. The nature of the copyrighted work 3. The _____ AND _____ of the portion used in relation to the copyrighted work as a _____ 4. The effect of the use upon the potential market for or the value of the (original) copyrighted work

effect; value

Four Fair Use Facts 1. 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 _____ of the use upon the potential market for or the _____ of the (original) copyrighted work

Purpose; character

Four Fair Use Facts 1. _____ and _____ 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 upon the potential market for or the value of the (original) copyrighted work

Fair Use

Four _______ Facts 1. 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 upon the potential market for or the value of the (original) copyrighted work

Cher; Nicole Richie

Fox Television Stations v. FCC; 2 incidents of fleeting explicates; during Billboard Music Awards involving _____ and _______

viewpoint-based restriction

In Lee v. Tam, SCOTUS ruled that the Lanham Act created ________ on freedom of expression

immoral, deceptive, scandalous

In Tam, the court did not address the constitutionality of another clause that allows the USPTO to deny registration for marks that relate to: "_____, ______, or ______ behavior"

goals

Key ________ of Copyright Law 1. Provide incentive for creation by giving a monopoly to creators 2. Eventually enrich public domain after copyright expires

liability

In the 2004 Super Bowl Halftime Show Case, CBS avoided all ______.

broadcast medium; not

In the definition of indecency, "community" is the _______ as a whole This is _____ the same as Miller community standards!

one million

In the wake of the Fox Television Stations Case, there was a six-month period in 2012 and 2013 in which the FCC dismissed more than _______ indecency complaints

2004 (Janet Jackson) Super Bowl (incident)

Incident that increased the max amount FCC could fine for single instance of indecent/profane content by 10 fold

free; radio and TV

Indecency restrictions apply only to ____ broadcast of over the air ______

Spectrum of Distinctiveness

Indicator of strength of marks for potential registration with the USPTO

$500,000

Initial fine in the 2004 Super Bowl Halftime Show Case

yes

Is skin is a tangible medium of expression?

rights; domain

Private ____ vs. Public ______

word; fonts

Mark specifications • Standard Character mark: the _____ • Stylized mark: the _____/how they are written

Standard; Stylized

Mark specifications • _______ Character mark: the word • _______ mark: the fonts/how they are written

$325,000

Maximum amount FCC can fine today for single instance of indecent/profane content

life +70

Private rights lasts the owner/creator for ______ years; when you die, your heirs can take it

Saving Private Ryan

Movie that some complained against for language; FCC ruled in movie's favor because the language was realistic (soldiers experience) Example of Spielberg exception

secondary; 5

Names cannot be registered until the acquire a _______ meaning; typically over __ years of consecutive use (ex: Tebowing; Mariot; Hilton)

Nicole Richie

Paris Hilton and __________; "The Simple Life" show of them working an Arkansas farm; they speak at award show. She says: "I don't know why they call it the simple life. It's not so f***ing simple to scrap sh*t out of a Prada Purse"

Miller Test

Regarding obscenity, the ______ gives FCC the power to punish obscenity 24 hours a day; safe-harbor hours do not apply

transformative; message; Green Day

Seltzer vs. Green Day --> Court says: "the purpose and character of the sue was ______ because the video altered the expressive content or _______ of the illustration" ; who won? --> ______

Cher

She wins award for lifetime achievement Fleeting expletive in speech: "Critics for a long time have said I'm over the hill. Well I'm still here. F*** 'em."

Generic

SoD: CANNOT be trademarked; common name for a category of product; cannot be trademarked for the type of product (Ex: Duck Tours; Texas Toast; Urgent Care; Lite; Latte

Arbitrary

SoD: 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; ex: Apple

Fanciful

SoD: strongest types of marks; made-up or invented ("coined") words; Ex: Lexus

Suggestive

SoD: suggest to consumers some attributes or qualities about the product in question, but do not clearly describe the product; ex: Coppertone the tanning lotion; Microsoft the software

Descriptive

SoD: weakest type; directly describes features or qualities of the product in question without a consumer having to do any additional thinking; Ex: "Clean Shower" by Arm & Hammer these types must acquire distinctiveness to be registered with the USPTO

egregious

The Ortiz indecent showed that the FCC targets only the most "________" incidents

name; portrait; signature

The USPTO may deny registration for a mark that... "consists of or compromises a _______, _______, or ______ identifying a particular living individual except by his written consent..."

written consent

The USPTO may deny registration for a mark that... "consists of or compromises a name, portrait or signature identifying a particular living individual except by his ______..."

dropped

The number of complaints to the FCC about indecency has actually _______ dramatically in recent years

Trademark Dilution

The unauthorized use of a distinctive and famous mark in a way that impairs the mark's distinctiveness or harms its reputation.

Safe-harbor period

The window of time from 10 p.m. to 6 a.m. when indecent and profane material is protected from FCC regulation on over-the-air broadcast television and radio

patent offensiveness

Three factors the FCC uses to determine __________ within the indecency analysis: 1. The explicitness or graphic nature of the description 2. Whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities 3. Whether the material is used to shock, titillate or pander

explicitness; graphic

Three factors the FCC uses to determine patent offensiveness within the indecency analysis: 1. The _______ or _______ nature of the description 2. Whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities 3. Whether the material is used to shock, titillate or pander

dwells; repeats

Three factors the FCC uses to determine patent offensiveness within the indecency analysis: 1. The explicitness or graphic nature of the description 2. Whether the material ______ on or ______ at length descriptions of sexual or excretory organs or activities 3. Whether the material is used to shock, titillate or pander

shock; titillate; pander

Three factors the FCC uses to determine patent offensiveness within the indecency analysis: 1. The explicitness or graphic nature of the description 2. Whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities 3. Whether the material is used to ____, ______ or _____

Trade Dress

Total image of a product o Shape o Size o Color combos o Texture o Graphics o Packaging and labeling o Product design o Store appearances

Tarnishment

Trademark Dilution that connects a famous mark with something distasteful, negative or objectionable

Blurring

Trademark Dilution that impairs distinctiveness of the famous mark

likelihood of confusion

Trademark Infringement --> substantial ________ in the consuming public's mind

advertising; preventing; free riding

Trademarking benefits businesses through ______ and ______ "______" of other businesses/competitors

FCC defines indecency

Two step process of how the _____________: 1. SUBJECT MATTER: describes or depict sexual or excretory organs or activities 2. PATENT OFFENSIVENESS: in context AND in light of contemporary standards for the broadcast medium contemporary community standards for the broadcast medium

Infringement and Dilution

Two ways you can sue over marks

Trademark Infringement

Unauthorized use of another's mark. The holder may recover damages and other remedies from the infringer.

Harmony Rose

WDBJ Case story was on former porn star "__________" who becomes an EMT; some people were not happy about this; turns into a whole controversy involving the commissioners etc.

Complaints

___________ with the FCC about allegedly indecent content must include: 1. the date and time of the broadcast in question 2. the call sign and letters of the station that aired the content 3. a significant excerpt of the program."

Copyright Infringement

____________ Test - First, must prove ownership of valid copyright AND copying of protected portions - Second, must have direct evidence OR access + substantial similarity

Feist Publications Case

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; In the case appealed, Feist had copied information from Rural's telephone listings to include in its own, after Rural had refused to license the information. Rural sued for copyright infringement. The Court ruled that information contained in Rural's phone directory was not copyrightable and that therefore no infringement existed.

Secondary Meaning

a legal term signifying the words in question have taken on a new meaning with the public, capable of serving a source-identifying function of a mark

Acquired Distinctiveness

aka Secondary Meaning

Private Rights

allow the right of exclusive use, the right to protect and the right to transfer or sell the property

Trademark

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

utilitarian function

regarding copyright; if something has a "________" it is not possible to copyright because this is a for of intellectual property

Federal Statute for Trademarks

the term trademark includes any word, name, symbol or device, or any combination thereof; used to identify and distinguish his or her goods, including a unique product from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.

18 USC Section 1464

whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title...

"any tangible medium of expression"

work that is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration