Media law 13-16

Is it commercial speech?

"speech that does no more than propose a commercial transaction" "expression related solely to the economic interests of the speaker and its audience"

Early Obscenity Law

1815 First obscenity prosecution in the U.S. 1821 Memoirs of a Woman of Pleasure conviction 1873 Comstock Act

Basic Broadcast Regulation

1912 Radio Act 1927 Radio Act 1934 Federal Communications Act 1996 Telecommunications Act

When can you used testimonials

A celebrity or expert endorser must be a bona fide user of the product. When an organization endorses a product, there must be evidence that the endorsement represents the collective judgment of the members. An endorser cannot make any statement about a product that an advertiser cannot make. Endorsements that the claim comes from typical consumers must be made by consumers.

Zoning Regulations

A community cannot, under the guise of zoning, completely bar or even significantly reduce the number of adult bookstores, movie theaters or newsstands The ordinance must be justified by showing that it furthers a substantial state interest The ordinance must be narrowly drawn so as not to restrict more speech than is necessary

Current Rules Regulating Broadcast Ownership

A single company or individual may own television stations whose signals reach no more than 45 percent of the total national viewing audience. There is no limit on the number of radio stations any single licensee can own. Ownership of both radio and television stations in a single market is limited, based on the number of stations in the market. Cross-ownership rules - the ownership of TV and radio stations and newspapers in the same market. Guided by the number of media properties in a market.

The Hicklin Rule (pre-1957)

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

Must Carry Rules

According to "must carry rules," cable television systems must carry local television programming channels. In Turner Broadcasting System, Inc. v. FCC (1994), the U.S. Supreme Court ruled must carry rules WERE constitutional.

Rights a Publisher May Purchase From a Freelancer

All rights—ownership of the complete story or photograph First serial rights—the right to use the piece for the first time in a publication First North American rights—the right to use the piece for the first time in a North American publication Simultaneous rights—the right to print the material at the same time as other publishers One-time rights—the right to use a piece just one time

Copyright

An area of the law that deals with intangible property—property that a person cannot touch or hold or lock away for safekeeping

The Miller Test

An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law The work in question lacks serious literary, artistic, political or scientific value (so it deleted the utterly without redeeming social value)

Trademark

Any word, symbol or device (or combination of the three) that differentiates an individual's or company's goods and services from competitors The function of trademark law is to stop confusion in the marketplace Brand names, shapes, slogans, telephone numbers and colors can all be trademarked

Who and when can you used a trademark

Anyone who claims the right to a trademark can use the TM designation with the mark to alert the public It is not necessary to have a registration or pending registration to use the TM mark Under the law, it is the firs person to use the mark, not the first to register it who is protected

A Plaintiff May:

Ask the court to assess the defendant for any damage they have suffered Ask for the reimbursement of profits made by the infringer from pirating the protected work Receive statutory damages - damage amounts prescribed by the statute

File Sharing RIAA

At the end of 2008 the RIAA announced it would cease suing individual file sharers, and instead work with Internet service providers to cut abusers' access if they ignore repeated warnings

PICON

Broadcasters had responsibility of "meeting the public interest, convenience, or necessity." The acronym PICON became the code-word to justify broadcast regulation.

Candidate Access Rule

Broadcasters must allow candidates for federal office access to or the purchase of airtime.

Candidate access cases

CBS v. FCC (1981) Kennedy for President Committee v. FCC (1980)

Copyright and news events

Copyright law protects the expression of the story—the way it is told, the style and manner in which the facts are presented Copyright law DOES not protect the facts in the story; other journalists may use the facts you have gathered to write their news story

Main Functions of Trademarks and Service Marks

Distinguish one seller's goods from another's Signify all goods bearing the trademark or service mark come from a single source Signify all goods bearing the mark are of an equal quality level Serve as a prime instrument in advertising and selling

Copyright and Facts

Facts cannot be copyrighted No one can claim ownership of facts; anyone can broadcast or publish them

CAN-SPAM Act of 2003:

False/Misleading Messages - are prohibited under the law. Functioning Return Addresses and Opt-Out Mechanism - all commercial e-mail messages must contain either a functioning return e-mail address or an "opt-out" mechanism. 10-Day Prohibition Period - spam senders are barred from transmitting e-mails for 10 business days to anyone who opted out originally. Disclosure Requirements - all commercial e-mails must disclose a) it is an advertisement or solicitation, b) an opt-out mechanism, and c) a "valid physical postal address." Aggravated Violations - additional penalties may be applied to those who a) engage in e-mail "harvesting," b) use multiple e-mail accounts for commercial messages, or c) use unauthorized relays for commercial e-mail.

To register a copyrighted work with the federal government, the owner must:

Fill out the proper registration form Pay a $45 fee Deposit two complete copies of the work with the Copyright Office

Patents

Gives the inventor a monopoly on selling the product for 20 years Three kinds of patents include: Patents on inventions with utility Patents on designs Patents that protect plants

Means to Police Deceptive Advertising

Guides Voluntary Compliance Consent Agreement Litigated Orders Substantiation Corrective Advertising Injunctions Trade Regulation Rules

Scienter

Guilty knowledge; whether the defendant was knowledgeable about the contents before it was sold, published, or distributed.

Bait and switch advertising

ILLEGAL PRACTICE THAT lures consumers into a store who are in the market for an item seen at one price. The merchant then claims the product is not available at the price but another model can be purchased at a high price. This practice is illegal.

Equal Time Rules

If a broadcasting station permits one legally qualified candidate for any elective public office to use its facilities, it must afford an equal opportunity for all other legally qualified candidates for the same office. Equal time. Equal facilities. Comparable costs.

Commercial Speech Doctrine Analysis

If it is commercial speech, then is the speech false or MISleading, or does it pertain to an UNlawful product or service? If so, then it receives NO First Amendment protection and the analysis ends. If the commercial speech is true, NON-misleading, and pertains to a LAWFUL product or service, then it DOES receives First Amendment protection. It may, however, still be regulated and restricted if the government can prove: There is a substantial government interest that justifies the regulation; There is some evidence the regulation directly advances the substantial interest; and There is a reasonable fit between the state interest and the government regulation.

V-Chip Mandate

In 1996, Congress mandated that all manufacturers of television sets include a V-Chip to block out violent programming. Along with the chip, Congress imposed a program rating system.

Telemarketing

In 2003, the FTC initiated the National Do Not Call Registry that allows people to block the calls of telemarketers. Advertisers claimed the Registry violated their First Amendment rights to free speech. The 10th Circuit ruled in 2004 that the Registry did not violate First Amendment rights because the government asserted a "substantial interest" and the Registry directly advanced that interest.

Three criteria to Determine Copyright Infringement

Is the copyright on the plaintiff's work valid? Did the defendant have access to the plaintiff's work prior to the alleged infringement? Are the two works the same or substantially similar?

In determining the nature of the work, courts ask:

Is the copyrighted work still available? Is the copyrighted work a consumable work? Is the work an informational work or a creative work? Is the work published or unpublished?

FCC Sanctions

Issue a warning notice. Impose a monetary fine (a "forfeiture"; an increasingly common remedy). Place conditions on renewal of a broadcast license. Revoke a broadcaster's license entirely (very rarely used).

Misappropriation/ unfair competition

It is intended to stop: A person trying to pass his or her work off as the work of someone else A person trying to pass off the work of someone else as her or her own work

To regulate expressive content, the state must show

It serves a substantial interest unrelated to the content of speech, and Is narrowly tailored (not substantially broader than necessary) to serve the interest

FCC Definition of Indecency

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 activities or organs.

Materials that can be copyrighted include:

Literary or musical works Dramatic works, including accompanying music Pantomimes and choreographic works Pictorial, graphic and sculptural works Motion pictures Sound recordings

Cable Television Consumer Protection and Competition Act (1992)

Local governments are given the primary responsibility to regulate cable systems in their communities. Local governments may issue franchises, collect franchise fees, and renew franchises. Includes provisions to protect subscribers' right to privacy.

Communication Decency Act (1996)

Made it a crime to transmit indecent material or allow indecent material to be transmitted over public computer networks U.S. Supreme Court ruled this act unconstitutional in 1997

Film Censorship

Motion pictures were not granted First Amendment protection until 1957 Historically, there was significant censorship of motion pictures by local community censorship boards Currently local censorship of films is infrequent as adult theaters have almost disappeared

Federal Trade Commission (FTC)

Nearly 100 years old, the FTC polices unfair methods of business competition and protects consumers from deceptive advertisements.

Postal Censorship

No government agency is more diligent in policing obscenity in the U.S. than the Postal Service 1873 Comstock Act provides the basic authority for the U.S. Postal Service to regulate the flow of erotic material in the mail Today, postal patrons may request to block the delivery of solicitations for adult material or other obscene publications sent through the mail

Regulation of Children's Programming

Only 10.5 advertising minutes are permitted each hour on weekends, 12 minutes each hour or weekdays. At least three hours of "educational" children's programming must air each week. There must be a buffer between commercials and program content ("We'll be right back...). A program may not mention an item advertised in a commercial for the same show.

Originality of the Plaintiff's Work

Originality is not determined when a copyright is granted, only when a lawsuit arises Can the author claim this work is sufficiently original or novel? The plaintiff must convince the court that the defendant had access to the copyright work

Fair Use

Permits limited copying of an original creation that has been properly copyrighted and has not yet fallen into the public domain

Digital Millennium Copyright Act

Prevents the circumvention of technological measures that control access to copyrighted works—so-called encryption codes Outlaws the manufacture, importation or sale of devices used to circumvent such protections

Child Online Protection Act (1998)

Prohibits commercial Web sites from knowingly transmitting to minors material that is harmful to them Lower courts ruled this law unconstitutional as it restricted adults from legal material

Children's Internet Protection Act (2001)

Requires public libraries to install anti-pornography filters on all computers with Internet access in order to receive federal funding Lower courts ruled the statue was un-constitutional In 2003, the U.S. Supreme Court overturned this decision ruling that libraries could constitutionally restrict children's access to pornography

Food and Drug Administration (FDA)

Responsible for protecting public health and ensuring that products like cosmetics, drugs, and food are honestly and accurately represented to the public.

Satellite Radio

Satellite radio stations are exempt from FCC's rules governing indecency and profanity.

Lanham Act

Section 43(a) allows for federal civil lawsuits based upon both false advertising and false endorsements.

Indecent Material

Sexually graphic; often referred to as adult or sexually explicit material that is protected under the First Amendment. Such material may be barred in works available to children and in over-the-air radio and television broadcasts

Sexually Oriented Businesses

Sexually oriented businesses such as strip clubs, adult video stores and adult theaters are subject to two kinds of local laws: Zoning regulations Expressive conduct regulations

Expressive content regulations

Some courts have allowed cities to adopt minimal clothing requirements in adult clubs Municipalities are also allowed to adopt reasonable rules designed to prevent sexual conduct and contact

State and Local Laws

States regulation of advertising predates federal regulation. Many states have unfair and deceptive acts and practices statutes, known as "Little FTC Acts."

To establish a trademark the applicant must:

Submit a registration application to the U.S. Patent and Trademark Office Conduct a search to determine originality Pay a registration fee for the trademark

Key federal rules related to ownership:

Television/newspaper cross-ownership ban National television ownership rule National radio ownership rule Local television ownership limit Local radio ownership limit Dual network ban

Testimonials

Testimonial - an advertising message that consumers are likely to believe reflects the opinions, beliefs, findings or experience of a party other than the sponsoring advertiser. The endorsement can be communicated by a verbal message, demonstration, picture or likeness, signature or other identifying personal characteristic or the seal of an organization.

Limited Governmental Control

The FCC has thus far rejected all complaints that television news coverage was slanted or staged. The FCC has made it difficult for those who seek to prove biased coverage to receive a remedy.

Copyright and the web

The Internet has challenged copyright law because digitized information can be copied quickly, easily and cheaply, and the copy is every bit as good as the original Once the original is copied, it can easily be distributed via the Web to others who can also make copies

CBS v. National Democratic Committee

The U.S. Supreme Court gave broadcasters the right to determine whether to air specific editorial advertising.

Variable Obscenity Statutes

The U.S. Supreme Court has ruled it is constitutional to ban the sale of material to juveniles that is legally distributed to adults Laws restricting access by juveniles to indecent material on the Internet have been largely unsuccessful as courts have ruled they also limit legal access by adults to this material

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

The U.S. Supreme Court rejected the "sweat of the brow" doctrine advanced by Rural Telephone While some new compilations of facts may be protected by copyright, the Court said, there was no novelty or originality in the compilation of these materials (a telephone book) Only those databases (electronic or print) in which factual items are organized or selected or coordinated in some novel or artful manner will be protected by copyright law

Plagiarism

The act of taking ideas, thoughts or words from another and passing them off as your own Plagiarism cases arise from news stories, but also from books, motion picture and television scripts and other media Most plagiarism cases are resolved outside of the legal system

Procedures

The advertiser can agree to sign the agreement, and the commissioners vote to accept the agreement. The order is published and made final in 60 days. The advertiser can agree to sign the agreement, but the commissioners reject it. The advertiser can refuse to sign the agreement.

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 This proportion includes exact copying and paraphrased material

Qualifications For Prospective Licensees

The applicant must be a citizen of the United States or have less than 25% foreign ownership. (An exception was made for Rupert Murdoch.) The applicant must have sufficient funds to build and operate the station for at least three months without earning any advertising revenue. The applicant must either possess or be able to hire people who possess the technical qualifications to operate a broadcast station. The applicant must be honest and open in dealing with the commission and must have good character. When two or more persons seek the same license, the FCC uses an auction process to select who will receive the license.

Copyright and Research Findings and History

The courts have ruled that the finder of a fact in history does not own that fact so it may not be copyrighted

The regulation of obscenity continues to be a difficult challenge because:

The current standard for obscenity, the Miller test, leaves much flexibility for interpretation New technologies have made adult content readily available Feminists claim pornography objectifies women; conservatives feel that pornography harms family values There are questions as too how many resources government should use to prosecute content that involves adults who freely consented to take part There is the problem of dealing with sexually explicit materials that may not meet the test outlined in Miller

Roth-Memoirs Test (1957)

The dominant theme of the material taken as a whole must appeal to the prurient interest in sex The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters The material is utterly without redeeming social value

Three factors the FCC uses to determine if content is offensive:

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

An Average Person

The material is to be "judged neither on the basis of each juror's personal opinion nor by its effect on a particular sensitive or insensitive person or group."

Defenses

The primary defense for deceptive advertising is truth, that the product does what the advertiser claims, is made how it was claimed to be made and/or is beneficial in the way presented. May also argue the claim in question is not material, and therefore will not impact a purchasing decision.

Child Pornography

The production, distribution and possession of child pornography is not protected by the First Amendment Images of minors engaged in sexually explicit conduct do not need to rise to the level of obscenity under Miller in order for them to fall outside of the scope of First Amendment protection Child Pornography Prevention Act (1996) - barred the sale and distribution of any images that "appear" to depict minors performing sexually explicit acts. In 2002, the Supreme Court ruled that important segments of this law violated the First Amendment as the CPAA "prohibits speech that records no crime and creates no victims in its production." PROTECT Act of 2003 - aimed at curbing the promotion of child pornography In 2008, the U.S. Supreme Court upheld the PROTECT Act

Factors To Be Considered In Determining Fair Use

The purpose and character of the use The nature of the copyrighted work The amount and substantiality of the portion used in relation to the copyrighted work as a whole The effect of the use on the potential market for or value of the copyrighted work

Six Rights under Copyright Law

The right of reproduction of the work The right of preparation of derivative works The right of public distribution of the work The right of public performance of the work The right of public display of the work The right of public digital performance of a sound recording

Congress has instructed the FCC to renew a broadcaster's license every eight years as long as:

The station has served the public interest, convenience and necessity. The licensee has not committed any serious violations of the Communication Act or FCC rules. The licensee has not committed any other violations that, taken together, would constitute a pattern of abuse.

A copyright notice should include:

The word "copyright," the abbreviation "copr.", or the symbol © The year of publication The name of copyright holder or owner

False Advertising Defined

There must be a representation, omission or practice that is likely to mislead or to confuse the consumer. The act or practice must be considered from the perspective of a "reasonable consumer." The representation, omission, or practice must be "material" such that it is likely to influence the purchasing decision.

Copying and Substantial Similarity

There must be more than minor similarities between the works; there must be substantial similarity

Effect of Use on Market

This is often the most important of the four criteria The inability of the plaintiff to demonstrate an adverse economic impact from the copying can frequently in and of itself sustain a fair-use ruling When evaluating economic impact, the court considers not only direct impact, but also the impact on derivative works

Pornography

This term has no legal significance but is often used by laypersons and politicians to describe anything from real obscenity to material that is simply offensive to a viewer

Advertising Agency/Publisher Liability

Traditionally, advertising agencies and publishers were not held liable in cases of false or harmful advertising. Recent cases, however, have held some agencies and publishers liable in some circumstances.

Materials that CANNOT be copyrighted include:

Trivial materials such as titles or slogans Ideas Facts Utilitarian goods Methods, systems, mathematical principles, formulas and equations

Commercial Speech Doctrine

Truthful and non-misleading advertising about lawful goods and services receives an intermediate level of First Amendment protection—more protection than speech such as obscenity, which is not protected by the First Amendment, but less protection than political speech, which often is said to be at the core of the First Amendment. False or misleading advertising, as well as advertising about unlawful goods and services, receives no First Amendment protection.

Copyright Notice

Until 1989, the failure to affix a copyright notice (Copyright © 2009 by Jane Adams), meant the automatic loss of most copyright protection Today, a copyright notice is not required to protect a work Once a work is created it is protected

Defining Legally Qualified Candidate

Who publicly announces he or she is a candidate for nomination or election, and Who meets the qualifications prescribed by law for that office, and Who qualifies for a place on the ballot, and Who was duly nominated by a political party.

Duration of Copyright

Works created before January 1, 1978 are protected by copyright for 95 years Works created after 1978 are protected by copyright for the life of the author or creator plus 70 years Works created by more than one person are protected by copyright for the life of the last living creator plus 70 years Works for hire are protected by copyright for 95 years after publication After a copyright expires, a work falls into the public domain and may be copied by any person for any reason without payment of royalty to the original owner

Obscenity

a narrow class of material defined by the Supreme Court in the Miller test; material that is legally obscene is not protected by the First Amendment

FCC traditionally has traditionally identified three factors promoting "public interest."

competition, diversity, and localism.