Media law 3
City of Renton v. Playtime Theaters Inc. (1986):
(Zoning Law) Prohibited adult movie theaters within a thousand feet or residence, church park or school
Common carriers
(telephone and telegraph) transmit messages of anyone who pays for the service, without interfering with content. The gov. grants them a monopoly and a guaranteed profit in exchange for the provision of the service to everyone, even people living in hard to serve geographical areas.
Why is registration of copyright important?
* First person who registers the work has the strongest claim to copyright. * Authors may register manuscripts and other unpublished works, just must be fixed in a tangible medium. * An American author may not sue for infringement unless the work is registered. * The owner of the properly registered copyright may sue for statutory damages, awards of up to $150,000 for willful infringement. These awards may be claimed without proving the infringement damaged them financially, just that the infringer acted willfully and repeatedly. Awarded simply because the copyright was infringed.
What cannot be copyrighted?
* Ideas. But their expression may be copyrightable. The idea for a screenplay is not copyrightable by the screenplay is. * Facts. These are not original so no one can own them. Ex. Supreme Court has said that telephone directory cannot be copyrighted because it is just an unoriginal compilation of facts. Ex. The facts in a news story are not copyrightable but the style and manner in which the story is written or broadcast is copyrightable. * Utilitarian goods — things that exist to produce other things. You can't copyright the basic design of a pencil but if you embellish it with drawings etc. you might be able to copyright it. * procedures, processes, systems, methods of operation, concepts, principles, formulas. They are all too unoriginal. Ex. layout has too few possibilities on a page to allow one person control. * Extemporaneous performances or speeches, improv because they are not fixed in a tangible medium Only original works can be copyrighted: * the work must owe its origin to the author * if something is a common idea, it is not copyrightable.
Definition of commercial speech:
* ads proposing a commercial transaction * must promote legal products and services i.e. ads for explosives, obscene materials, criminal activities, and discriminatory job opportunities are outside constitutional consideration. i.e. must not be an unlawful use of a lawful products. i.e. promoting cigarette papers for pot. * ads must be true and not misleading, i.e. they can't make important false statements or leave the wrong impression.
In Trademark Infringement cases, the Court looks at:
* strength of the marks * similarity of appearance of products * the meaning of marks * the kinds of goods in question * the intention of the defendant using the mark Plaintiff sues to stop the infringement and to collect illegal profits, damages, attorney's fees and court costs.
When educational use is fair use:
* when it is brief, under 1000 words * when it is spontaneous, no time to get permission * when it doesn't occur more than 9 times in a semester * when it carries a copyright notice * when it is not a substitute for purchase of the original work
Things covered by copywright
1. Literary works (including computer software) 2. Musical works and accompanying words 3. Dramatic works and any music 4. Pantomimes and choreography 5. Pictorial, graphic, and sculptural works 6. Motion pictures and audiovisual works 7. Sound recordings
Rights given under copyrighted law:
1. Right of reproduction of the work 2. Right of prep of derivative works. Derivative work: a transformation or adaptation of an existing work. Created when copyright owners or licensees recast, transform, or adapt a work. Ex. The Simpsons TV show is copyrighted and a Bart Simpson doll is a derivative work that is also copyrighted. Movie adaptations would also be derivative works and have a separate copyright from the book upon which they are based. 3. Right of public distribution of the work 4. Right of public performance of the work 5. Right of public display of the work 6. Right of public digital performance of a sound recording
1988 Child Protection and Obscenity Enforcement Act, 1966 amendments & 2002 Supreme Court decision:
1988 - Profits selling minors for sexually explicit conduct 1966 - Barred the sale and distribution of any images that appear to depict minors performing sexually explicit acts 2002 - The United States Supreme Court struck 1966 amendment down because it does not depict real children or minors
Playboy cases
1993 and 1995. The courts sided with the magazine twice. 1. When a company distributed a CD-ROM of images owned by playboy and told those who bought the disk to post the pictures on the Internet. Playboy won $1.1 million. 2. Playboy won against George Frena who was distributing Playboy photos via his subscription computer bulletin board service. For a fee his customers could download the playboy images.
Miller v. California
A 1973 Supreme Court decision that avoided defining obscenity by holding that community standards be used to determine whether material is obscene in terms of appealing to a "prurient interest" and being "patently offensive" and lacking in value.
Who is an average person?
A normal adult • Not the highly sensitive/the puritanical prude • Not the over educated and not the under educated • Not a person of strange and perverted taste
The Miller test
A. Whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest B. Whether the word depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law C. Whether the work taken as a whole lacks serious literary artistic politician or scientific value
Trade Regulation Rules
Allows the FTC to issue TRRs defining and outlawing unfair and deceptive acts or practices. This way the FTC can be very clear and specific with advertisers about what is considered deceptive. Ex: FTC says if a cereal touts its excellence because it has more that the RDA of a vitamin, it is considered deceptive because medical experts say that vitamins in excess of 100% RDA are useless.
Substantiation:
An advertiser is asked to substantiate claims made in the ads, i.e. with scientific data, opinion polls, etc.
Trademarks
Any word, name, symbol or device used by a manufacturer or merchant to identify and distinguish his good from those sold by others and to indicate the source of goods.
How long does copywrite last?
Any work created after 1978 has a copyright that lasts for the life of the author + 70 years. The benefit of copyright can be willed to heirs for use during the 70 years. After that the work goes into the public domain. Works for hire are protected for 95 years after publication; these are copyrights held by publishing houses, movie studios, etc. Works copyrighted before 1978 retain their copyright for up to 95 years. But there is a renewal process that needs to take place in certain cases to retain the copyright; it's not automatic.
What is prurient interest?
Appeals to the lascivious shameful or morbid interest in sex Not just revolting or disgusting. Must have sexual appeal
to perform and display the work publically
Authors can bar public performances or demand royalties for public performance or display of work. A public performance can be live, projected from film or tape, or broadcast to an audience.
What are the Rights of the Copyright Owner?
Authors control the commercial use of their work
authorization of adaptions
Authors may authorize separate copyrights on any number of derivative works while retaining the copyright of the underlying work
Self regulation in the Ad world
Big manufacturers want consumers to have faith in advertising. They fear that any deceptive ads damage the credibility of all ads. This is the "rotten apple theory." So early in the 20th century advertisers and manufacturers began policing themselves. By 1912 most states had laws that made it a misdemeanor to disseminate misleading advertising.
Central Hudson Test ( short Answer)
Central Hudson test: 1. Substantial state interest to stop what is being communicated? 2. Does ban of ads directly advance state interests? 3. Is the expression protected by the first amend? (truthful expression about a legal activity)? 4. Does the regulation exceed the need to protect state interests or is it too broad? Is there a reasonable fit between the state interest and the gov reg?
Postal regulations
Comstack Act still in place,can't send obscenity through the mail)
Basic Books v. Kinko's graphics
Ct. said Kinko's copying for professor's packets was not fair use because it had a commercial purpose and it could substantially hurt the publishers' market for the books anthologized.
Corrective Advertising
FTC can order alterations in the ads to make them accurate. They require that ads contain statements to correct misrepresentations created by a long-term, misleading ad campaign. Usually they require corrective ads to be 25% of their advertising
Nike v. Kasky (2002)
Facts of case: Marc Kasky said Nike made false and misleading statements in trying to counter allegations that the company had unsafe working conditions and paid subpar wages in its SE Asia plants. Nike had refuted the claims in press releases, letters to the editors, ads, etc. Is this commercial speech when Nike isn't selling its product in this way? CA Ct. said.: Nike's speech was commercial and would receive only limited 1st A. protection. S. Ct. dismissed the case, so Kasky could pursue his case in CA with Nike's speech being deemed commericial. Nike eventually settled the case by giving $1.5 million to the Fair Labor Assn. for factory monitoring.
VA State board of pharmacy v. Virginia Citizens Consumer Council (1976)
Facts of the Case: A VA statute prohibited licensed pharmacists from advertising the price of prescription drugs. State board argued Valentine v. Chrestensen, that purely commercial speech was not protected, that aggressive price competition might hurt consumers because pharmacists would not spend as much time dispensing drugs. The Consumer Council, representing older people and ill people, argued that the prohibition violated the consumers' 1st A. right to receive information necessary to their good health. It denied them information to comparison shop. Court said: S.Ct. said that pharmacists' ads were purely commercial speech motivated by profit but that commercial ads, like editorial comment, contributes to democratic decision making served by the 1st A. The right really belonged to the consumer who has a constitutional interest in receiving information. This free flow of commercial information is important, just like the free flow of political information.
Central Hudson v. Public Service Comm. (1980)
Facts of the Case: A state regulation prohibited electric utilities from running all ads promoting the use of electricity. It was designed to conserve energy but also barred the advertising the efficient ways of saving elec. as well as the wasteful. Court said: Sct. said this regulation violated the 1st A. developed a four-part test. Did bill stuffers from utility co. encourage electricity use during the energy crisis? Ct. said can't prohibit this.
Bigelow (ME of the paper) v. Virginia (1975)
Facts of the Case: The case began in 1971 2 years before Roe v. Wade. When a newspaper at UVA ran an ad for the Women's Pavilion in NYC that said: they would help women deal with unwanted pregnancies by helping them find accredited hospitals, etc.. (Abortions were legal in NY, but not VA). A VA state statute prohibited advertising of abortion referral services Court said: S.Ct. said that's OK because it's legal in NY and maybe it would "useful information to some people." The Ct. struck down. However, the ads were not considered "purely commercial" speech. Unlike product ads, the abortion referral ads contained factual material similar to the political content of editorials and news columns. The ad was also different because abortion had been made a legal right in 1973 with Roe v. Wade .
Acuff-Rose Music Inc. v. Campbel
Facts of the case: 2 live crew parodied song "pretty woman," which was written by Roy Orbison and owned by Acuff-Rose music. Court said: Parody in its proper role creates something new by drawing from the old. As long as it does not take more than necessary from the original for an effective parody and does not harm the market value of the original, parody was not infringement. Court said after taking the first line, 2 Live crew added its own lyrics. It is a form of criticism under fair use
Community for Creative Non-Violence v. Reid (1989).
Facts of the case: A homeless assistance organization commissioned a Christmas sculpture to dramatize the plight of the homeless. Baltimore sculptor James Earl Reid created the sculpture, which was then put on display for a month at Christmas in downtown D.C. He was paid $15,000 to create sculpture, which basically covered his expenses. CCNV wanted to take the sculpture on tour after the month. Reid said no. He said the sculpture material was not meant to travel. CCNV said it owned the sculpture. Reid said he held the copyright. Court said: Originally it was said CCNV and Reid should share the copyright. But full deliberation about "works for hire" showed that Reid was not considered an employee of CCNV but an independent contractor. But the sculpture idea came from CCNV and was paid for by them. But the organization had no right to copyright the sculpture. The result of this case for other freelancers: Unless there is a written contract with work for hire language, freelancers who sell to publishers give permission for only one-time publication. All other rights remain with the freelancer.
Braun v. Soldier of Fortune (1993)
Facts of the case: Advertisement for gun for hire. Atlanta businessman was killed by a hit man hired thru the ad; his sons sued. Soldier of Fortune was found liable for negligently publishing an ad that resulted in a contract killing. The ad was seen as presenting a grave risk -- murder -- that outweighed the burden of the publisher to foresee the likely consequences of the ad. Court said: The ad was a clearly identifiable unreasonable risk because: 1. used term Gun for Hire 2. killer described himself as professional mercenary 3. private nature of assignments 4. listed jobs that required gun and "other special skills" 5. He considered "all jobs." First Amendment freedom of the press is important, but in this case, protecting the public from ads that pose an unreasonable risk of violence is more important.
Funky Films vs. Time Warner
Facts of the case: Gwen O'Donnell sued Time Warner, owner of HBO, saying the show "Six Feet Under" was a copy of a story she wrote in the 1990s called "The Funk Parlor" that she turned into a screenplay. Her story traces the lives of a family who runs a funeral home in Connecticut and Six Feet Under was about a family-run funeral parlor in LA. Both start with the death of the father and the return of the prodigal son. Court said: The family-run funeral parlors and death of the father were the only 2 similarities. The Funk Parlor is a murder mystery; Six Feet Under is a relationship drama. Not enough similarity; she lost.
Harper and Row v. Nation
Facts of the case: Nation pirated excerpts of Ford's memoir and scooped Time, which had a contract with Harper & Row for Gerald Ford's memoirs. Court said: S.Ct. said the money is important and what Nation did canceled a contract. Scooping a news competitor -- A news organization that steals and publishes a competitor's news may infringe copyright. Nation was trying to beat Harper and Row to the market place and that's not fair use. In Harper & Row v. Nation, the ct. said the 300-400 words Nation quoted from the Ford book had a potential effect on the commercial market. Harper and Row $12,500 from the Nation publication because Time mag. canceled a contract to serialize the book. The pub. of the quotes therefore affected the marketability of the first serialization
Posadas de Puerto Rico v. Tourism Co. of Puerto Rico (1986)
Facts of the case: PR had banned gambling ads so that PRs would not be encouraged to gamble. Posadas ran an ad in PR. Court said: Ct. chose judicial restraint and said no ads could help keep residents from gambling but it was an admirable state goal. They were trying to preserve the health and welfare of the PR people. The gambling could result in disruption of moral and cultural patterns, increase local crime, foster prostitution etc. Ct. said it is reasonable for the PR legislature to believe that advertising gambling would on the island would increase the number of gamblers. And the ban was narrowly drawn because ads were still allowed in the continental U.S. so as only to attract tourists. 1996 — S. Ct. Justice John Paul Stevens said that Posadas was wrongly decided (44 Liquormart case). There is a difference between state regulation of an activity (which is fine) and regulation of truthful, nonmisleading speech about an activity, which is dangerous under the 1st amendment.
Valentine v. Chrestensen (1942)
Facts of the case: The case that decided this. Chrestensen was distributing handbills advertising tours of a former Navy submarine. These were 25cent tours of the sub he owned that was moored on a pier in NYC. City officials told him to stop distributing the handbill because he was violating the city's Sanitary Code, which prohibited distribution of commercial advertising. SO Chrestensen added a message to the back of his handbills protesting these restrictions. He then sought an injunction to stop the police from interfering with his constitutionally protected speech. Court's reasoning: S.Ct. said that NY officials could stop the handbill distribution without violating the 1st A. They said: * the fliers were purely commercial advertising that fell outside constitutional protections. * that his political message was a ruse and not to be taken seriously. Therefore, constitutional protection of advertising was denied until the 1970s.
What determines fair use of copyrighted works i.e. limited copying?
Fair Use section of 1976 copyright act. Factors to be considered when ct. is determining whether copying is fair use: 1. Purpose and character of copying/use. Education may be a justification. Profit is not a justification. Teaching/Noncommercial research -- Teachers may make single copies for students. They may make multiple copies if there is not time to get copyright ok and still effectively teach the material.
Universal City Studios v. Film Ventures
Film Ventures produced a movie called "Great White". Universal sued for infringement, saying the movie copied "Jaws." Obviously, everyone in the nation had access to seeing Jaws or reading the book. And the ct. determined that "Great White" was substantially similar. Both about sharks that threatened Atlantic coastal towns. Same manner of expression, characters, scenes, sequence of events, development and interplay of characters. Each had an explosive ending. The District Ct. in CA issued a preliminary injunction to stop "Great White" from the infringement.
Fake news Websites
From the FTC, http://www.ftc.gov/opa/2011/04/fakenews.shtm April 2011 = The Federal Trade Commission is requesting federal courts to temporarily halt the allegedly deceptive tactics of 10 operations using fake news websites to market acai berry weight-loss products. The FTC seeks to permanently stop this misleading practice and has asked courts to freeze the operations' assets pending trial. According to the FTC, the defendants operate websites that are meant to appear as if they belong to legitimate news-gathering organizations, but in reality the sites are simply advertisements aimed at deceptively enticing consumers to buy the featured acai berry weight-loss products from other merchants. The FTC complaints allege that typical fake news sites have titles such as "News 6 News Alerts," "Health News Health Alerts," or "Health 5 Beat Health News." The sites often include the names and logos of major media outlets - such as ABC, Fox News, CBS, CNN, USA Today, and Consumer Reports - and falsely represent that the reports on the sites have been seen on these networks. An investigative-sounding headline on one such site proclaims "Acai Berry Diet Exposed: Miracle Diet or Scam?" The sub-headline reads, "As part of a new series: 'Diet Trends: A look at America's Top Diets' we examine consumer tips for dieting during a recession." The article that follows purports to document a reporter's first-hand experience with acai berry supplements - typically claiming to have lost 25 pounds in four weeks. "Almost everything about these sites is fake," said David Vladeck, Director of the FTC's Bureau of Consumer Protection. "The weight loss results, the so-called investigations, the reporters, the consumer testimonials, and the attempt to portray an objective, journalistic endeavor." The Illinois Attorney General's office is announcing an additional case against an affiliate marketer using fake news websites to promote acai berry weight-loss products.
distribution of copies
Giving the power to publish, sell, loan, or rent a copyrighted work. This includes the right to pick the time when a work will be distributed if at all. The author's control and royalties stop after the 1st sale. can't get royalties from subsequent resales or rentals.
Sony Corp. v. Universal studios (1984)
Homeowners can copy copyrighted TV shows with their VCRS for their personal, noncommercial use. The reason this is Ok is because of a concept called time-shifting; people record so they can watch at a later time. This is a noncommercial, nonprofit activity. In the Sony home recording case, the ct. said the effect on the market from home taping was speculative and it was not satisfied there was a likelihood of future harm to Hollywood producers. Ct. said producers might even benefit because time shifting allows more people to see the programs.
Sexting by minors:
If minor pictures are sent out and broadcasted, they could be arrested. (Excluding boyfriend/girlfriend relationship)
The Geritol case
In 1962 the FTC filed a complaint charging its TV ads were misleading. The FTC said the ads misleadingly said the vitamin and iron tonic was an effective remedy for tiredness, loss of strength, and that run-down feeling. FTC found the ad misleading because Geritol is only effective in those cases where tiredness is caused by lack of iron. In most cases fatigue is not caused by factors affected by Geritol. The FTC issued the cease and desist order in 1964. Geritol did not comply. The company was fined $800,000 in fines in 1973 for its violation but a court of appeals ordered a new trial. in 1976 the FTC finally won a $280,000 judgment against the makers of Geritol.
Military Bases
In 1996, they passed the military honor and decency act that prohibited sale or rental or sexually explicit material in the PX. Court said this is fine.
Registration of trademarks
Inherently distinctive, fanciful, arbitrary or suggestive Ovaltine, Apple computers, Coppertone suntan lotion * a descriptive mark that has acquired a secondary meaning, a mental association in a buyers mind between the mark and the product. Vogue magazine, Payless drug stores
When and why did copyright law begin?
Intellectual property has been protected since the Constitution of 1789 by granting creative people exclusive control over their intellectual expression for a fixed period. The law has been revised twice in the 20th century, once in 1909 and once in 1976 because of tech. advances. 1909 act had no way of covering movies, records, TV, computers, tape recorders, photocopies, satellites, cable, etc. The 1976 act was adopted by Congress after 20 years of study. In 1988 the U.S. joined the Berne Convention, the international copyright treaty.
AP v International News Service
International News Service was taking dispatches from AP and running them on the INS wire. Ct. said INS was liable for misappropriation because it was taking material acquired as the result of AP's expenditure of labor, skill and money, all of which have a monetary value.
What the courts look for in infringement cases:
Is it a copyrightable work? Has it been registered? Is it an original work? For example, if the alleged infringed material is facts, rather than original creative expression, it is not an infringement. 2. Did the defendant have access to the original? (not necessarily that the defendant copied it). difficult to prove if an unknown work, more likely to prove if it is a well-known book or song. There are cases where someone has published something just like a copyrighted work, but if there was no access to the original work, it's not infringement, just a coincidence. 3. Was there substantial similarity? * Is the general theme or idea of the works the same? * If yes, is the idea or theme expressed in a substantially similar way?
Ex. of trademarks
Kleenex, Scrabble, Chocolate World... Slogans and even colors (pink insulation) can be trademarked
Jenkins v. Georgia
Little town in Albany Georgia tried to band movie called "Cardinal Knowledge" (Hollywood movie) They tried to ban it because of the sexual scenes. Court said you'd have to apply The Miller Test
Roth Test:
Made to guide the courts in whether something is obscene or not. To the average person applying contemporary community standards the dominant theme of the material taken as a whole, appeals to the prurient interest
Service mark EX
Mc donalds, Holiday inn
Is it an informational work or a creative work?
Obviously a creative work probably has more originality so it may be more highly protected. Although info works are copyrightable too. * Is the work published or unpublished? Obviously, the courts want to protect the author's right of first publication.
Civil nuisance laws
Only works if it fits the Miller Test
What is time shifting and why is it not copyright infringement?
Personal entertainment. Copying a whole work for personal entertainment is usually not fair use, such as copying a book so you don't have to buy it.
Voyeur Dorm v.Tampa
Porn site to pay out women to live out their sex lives.The women were in a house in Tampa.The city of Tampa found out.They tried to argue that the house isn't zoned for that kind of entertainment. Court said adult entertainment took place in virtual space and not in Tampa so ZONING ORDINANCE don't appl
1969 blue ribbon panel
President Johnson assembled blue ribbon panel to make decisions on erotic materials.They said that all the laws should be taken away.
1971 — first corrective ad.
Profile Bread claimed to be have fewer calories per slice and that eating 2 slices before a meal would cause someone to lose weight. The slices were only less because they were thinner and the weight lost was only if someone reduced what they ate at breakfast, lunch, and dinner. The FTC forced the bread company to reveal these falsehoods in 25 percent of the their advertising for a year.
Trade Dress
Protects the way a product is packaged
How do you copyright something?
Register with copyright office at the Library of Congress. Cost $35 (for online registration). * send two copies to the Copyright Office * Notice is given with circled c or the word copyright, the year of first publication, and the name of the copyright owner.
How is Patent offensiveness defined?
Representationsordescriptionsofsexualacts,normalorperverted(Or simulated in which was tossed out 2002) • Representationsordescriptionsofmasturbation,excretoryfunctionsorlewd exhibition of the genitals • Excessofsexualdetailrepeatedlyandusuallyinacommercialcontext • Itisnotjustnudity • Notfourletterswearwords
Controversy over Do Not Call registry:
Several telemarketing agencies filed lawsuits in 2003 against the FTC, alleging the FTC didn't have the power to adopt a D-N-Call registry. They claimed the registry violates the first amendment rights of advertiser who use telemarketing. The registry is being enforced while the cases move thru the courts.
Victor's Little Secret case
Sex toy, lingerie shop in KY. Victoria's Secret sued and court said the mental association between the names was not enough. But V. Secret did not have to show $ loss but some kind of harm.
Ginsberg v. NY
States can bar the sales of these materials if they appeal to the prurient interest of minors or lack serious social value to minors.
Copyright infringement on the Internet:
Stealing software and other digitalized material on networks. * Copying materials in other forms, such as photos or articles, and transmitting or posting them without permission. * Downloading copyrighted material from the Internet for use in other formats without permission
Roth v. United States
Supreme Court said obscenity deserves no court protection because it is utterly without deeming socially important. Not valid enough to be protected.
When and why did regulation of broadcasting begin?
The Act that provided the framework for the Communications Act was the 1927 Radio Act. It authorized regulation of radio because by 1926 there were 800 radio broadcasters broadcasting whenever they wanted, on whatever frequency, and at whatever power. The public was getting annoyed with all the interference in trying to access this increasingly popular medium.
What is the community standard?
The average persons values in a city,county or state • They can do a public opinion poll to find out the opinions about these community standards
Why can broadcasting be regulated?
The physical limitations of the broadcast spectrum justify government licensing of broadcasters, the ct has said. Broadcast licensees, in return for receiving one of the limited number of spectrum assignments, can be required to serve the public interest.
Can a media outlet refuse to take advertising or is that a violation of the First Amendment?
They can refuse. They are private businesses and can refuse whatever ads they want. (Except broadcasters do have an obligation to carry political advertising — more on that later).
Laws that try to say porn discriminates against women and causes violence against women
Typicality stuck down
Freelancers vs. Employees' copyright:
Typically the employer owns the copyright if: * A work was prepared by an employee within the scope of his or her employment * A work was specially ordered or commissioned for a collective work if a work for hire agreement was signed.
Can a work be protected even without the notice?
Under international law, affixing a copyright right notice is not required to protect a work. Once it is created, it is protected.
Zoning laws
Use time, place,and manner restrictions to protect people who want to avoid pornography The zoning ordinance should be reducing crime and neighborhood decay 2. No banning 3.The ZONING ORDINANCE is narrowly drawn so it doesn't restrict more speech than necessary
District court developed the Lanham Act false advertising test in 1974:
What is the message the ad conveys, either explicitly or implicitly? * Is the ad message false or misleading? * Will that message injure the plaintiff? The plaintiff is trying to: * stop or change the deceptive ad * recover damages
What is "serious value"?
When a reasonable finds serious literary artistic value in the work
implied falsehood
a false meaning added to a truthful ad by the reader or viewer because of an impression that the ad leaves. i.e. they should imply a scientific study by putting people dressed as scientists in their ads
Service marks
a symbol used in sales or advertising to identify businesses instead of products Ex. Holiday Inn, McDonalds
Commercial Speech Doctrine:
a. There is a substantial state interest to justify the regulation b. There is evidence that the regulation directly advances this interest. C. There is a reasonable fit between the state interest and the gov regulation.
Copyright
allows authors, songwriters, photographers, painters, and other creative people to control the copying and other uses of their expression. It protects books, records, software, songs, and other original expression from unauthorized copying.
what the FTC has jurisdiction over:
almost all advertising in any jurisdiction * misleading or unfair practices on the Internet, web pages or email * it must act in the public interest, i.e. stopping false advertising because it hurts people
express falsehoods
determined from the plain meaning of words. if something is called an antique it should be an antique
Obscenity
hardcore pornography that is so patently offensive and so lacking in social value that is denied first amendment protection
Collective marks
identify and protect members of organizations EX national association of relaters
1996 — Federal Dilution Trademark Act
it gives owners of trademarks and trade names legal recourse against anyone who uses the same or similar trademarks on even dissimilar products. Ex. Sony can block the use of the name Walkman on anything, not just audio players
Deceptive Ad
one that is (1) likely to mislead (2) a reasonable consumer (3) with a material statement or omission.
Berne Convention for the Protection of Literary and Artistic Works of 1988
protects American authors in member countries whether or not the works display the notice. A strong agreement was passed to try to curb the unauthorized copying of copyrighted works, esp from the U.S. U.S. entertainment industry loses $4 billion annually to unauthorized copying. Now infringers in those member companies can be stopped from publishing and be held liable for damages for the violation of copyright.
Patents
protects inventions that have utility (like a machine), designs (the appearance of an article of manufacture), and new developed plant varieties. Patent must be issued by the U.S. government.
Tasini et al vs The New York Times et a
s the landmark lawsuit brought by members of the National Writers Union against The New York Times Company, Newsday Inc., Time Inc., Lexis/Nexis, and University Microfilms Inc., charging copyright violation regarding the electronic reuse of work produced and sold on a freelance basis. For decades, when freelance writers sold stories to American publications it was understood by all concerned that they were selling only First North American Serial rights which allowed the newspaper or magazine to publish the story in print one time. For freelance authors, retention of all other copy rights is crucial to their economic survival because a significant additional source of income comes from their ability to sell secondary rights such as syndication, translations, anthologies, and so forth, to other publications. With the advent of electronic media including databases like Nexis, publishers such as Time/Warner and the Times/Mirror Company, the parent companies of Time and Newsday, have been selling freelance-authored material to electronic databases such as Nexis/Lexis without any additional payment or purchase of electronic rights from the original authors. They claim, without justification, that by purchasing First North American Serial rights they automatically gain electronic re- publication rights. Tasini et al vs The New York Times et al is going to establish that they are violating the copy rights of writers. The appeals court ruled that the reuse of freelance work on databases and CD-ROMs without the authors' express permission constitutes copyright infringement. This is a major victory for all independent creators
Indecent material/Pornography
sexually graphic writing drawings pictures or films designed to arouse sexual desire. Portrayal of explicit material.
Lanham Act
someone can claim competitive injury from deceptive ads. It is used to stop unfair competition in the marketplace.
Plagiarism
taking ideas, thoughts, or words from another and passing them off as your own. It is usually tied to copyright infringement when it gets to the courts
Abandonment
this can be deliberate or unintentional. trademarks last as long as it is used for commerce. usually happens when the term become generic or passes into the public domain. If a mark is not used for 2 years, it is considered abandoned. Kleenex fights against this in ads such as the one in the book. formerly trademarked terms -- thermos, aspirin, linoleum
Dilution
use might be prohibited if it tarnishes or dilutes the value of the mark. Coke stopped a co. from creating posters that spoofed Coke ads, saying enjoy cocaine.
Certification marks
used for good and services
Injunctions
used when the public's health may be at risk to stop the offending ad quickly. usually a temporary injunction because FTC prefers cease and desist orders.
the Fed Communications Act of 1934
was adopted and it regulated telephone and telegraph (common carriers) as well as broadcasting. It set up quite of a few regulations that have since been dropped
Compilation
work formed by the collecting and assembling of preexisting materials or data that are "selected, coordinated or arranged" in such a way as to create an original work. It may even be an assembly of facts that individually could not be copy righted. Example: Trivia dictionary or Dow Jones stock list can be copy righted. Example of collective works: a gathering of preexisting works that may already be copyrighted individually and the collective work may be copyrighted separately. Ex. An anthology of magazine stories.
