MMC4200 Exam 2

What is the Lanham Act and when is it used?

(Injunction from FTC) Companies can use the Lanham Act to seek injunctions themselves to stop deceptive ads of competing companies & get monetary damages Anyone, whether a competitor or not, who believes that he or she is or is likely to be damaged by deceptive ads may seek an injunction Plaintiffs usually seek to halt an offending ad, but they may also be entitled to significant monetary damages

What is RICO and when is it useful to stop misleading or deceptive advertising?

(Quicker injunction & meant for consumers) Racketeer Influenced and Corrupt Organizations Act Consumers can sue an advertiser or company advertising falsely 1970, to curb organized crimes and infiltration of businesses Used because consumers cannot sue under Lanham or FTC act ex- Purina Puppy Chow helping hip displacement

Cox Broadcasting Corp. v. Cohn

**established nearly complete First Amendment protection for media to report information from official records available in open court** - TV station reported name of girl who was raped and murdered; reporter learned name of victim by reading the indictments provided by court clerk and later stated name in report about the court proceedings → violation of GA statute - Father brought civil suit claiming invasion of privacy - GA SC - privacy suit should go to trial; SC - reversed - US SC - First Amendment does not permit privacy suit against media for disseminating private info contained in public records that are part of open court proceeding; event was of public concern and is press's responsibility to report operations of Government, public benefit performed by reporting true contents of the records by media - Punishing press for "offensive" public records would encourage self-censorship and limit speech If matters at a trial should remain private, the gov't should not put them in public domain

What authorities can regulate advertising?

- All 50 states have enacted legislation; can only regulate within their borders FTC: -Prospective Remedies (Staff opinion letters, advisory opinions, industry guides, laws) -Halting Advertisements (Consent decrees, cease-and-desist orders, injunctions) --Federal statutes --FDA

Cantrell v. Forest City Publishing Co.

- Bridge collapse killed Cantrell's husband - Reporter visited home and wrote article, implying that he had interviewed wife about what happened but he did not; she was not even home - He wrote "Cantrell won't talk about what happened nor how they are doing", "She wear the same mask of non-expression as she wore it at the funeral" - Cantrell sued for invasion of privacy, shown in false light - SC majority - he placed her in false light with NYTimes Actual Malice

Milkovich v Loraine Journal Co.

- C Span Video - Journalist in Ohio said Milkovich, a high school wrestling coach, was a "liar" in his opinion - Court determined that "liar" was not an exaggerated or figurative term but rather something that can be determined as true or false, and that the journalist was implying that the coach had committed the crime of perjury. Court ruled 7-2 that wrestling coach was libeled.

Valentine v. Chrestensen 1942

- Chrestensen had been distributing handbills advertising tours of a former Navy submarine in Manhattan for 25 cents in 1942. - City officials told him to stop distributing the handbills because he was violating the New York City Sanitary Code, which prohibited the distribution of "commercial and business advertising." - Chrestensen then added a message to the back of his fliers protesting the restrictions. With a "political" message on one side the handbills, he sought an injunction barring police from interfering with distribution of what he argued was constitutionally protected expression. - U.S. SC ruled that NY officials could stop distribution of his fliers without violating the First Amendment. The Court said the fliers were "purely commercial" advertising that fell outside constitutional protection. The Court dismissed the political message on the back as a ruse not to be taken seriously.

Harper & Row Publishers, Inc. v. National Enterprises

- H&RP was going to publish Ford's autobiography - Nation Magazine gets their hands on the manuscript & releases a 300 word excerpt - declared the 300 most important words (the heart of the autobiography) -Court concluded that the Nation's use of verbatim excerpts from the unpublished manuscript was not a fair use. -Unpublished materials get more protection.

Campbell v. Acuff-Rose Music, Inc.

- SC - copying is a fair use when new work is "transformative" (author adds something new by altering original with new expression, meaning, message) - Parody must quote original enough for audience to recognize its connection to the original - Parody song would not interfere with potential market for other rap versions of song if Acuff-Rose would ever make its own rap version; unlikely that people would choose parody over original - Copyright violation found when copy becomes substitute for the original, not when copy successfully surpasses original - Parody (copies from object it mocks) not same as satire (uses recognizable elements from original work to mock something else)

What does "tipping," "tipper" and "tippee" mean?

-Tipping: Passing nonpublic material onto friends or brokers so they can trade stocks -Tipper: Person who passes on the nonpublic material to a friend, broker, etc -Tippee: Person who receives an insider tip and makes a securities trade based on the information (Martha Stewart was investigated and convicted for being tippee)

What rights do authors have?

-exclusive right to copy or reproduce a work -to create adaptations or derivative works -to distribute copies of a work -to perform and display the work publicly

What are the defenses to a private fact case?

1. First Amendment -protects most truthful information lawfully acquired IF not highly offensive to a reasonable person and of legitimate concern to the public 2. Newsworthiness -Public Records and Occurrences (Court records, crimes, prosecutions) -Strange and Unusual -Newsworthiness over Time 3. Consent -Expressed or Implied

What are the Four Torts of Privacy?

1. Publication of Private facts 2. Intrusion 3. False Light - protects the right to be portrayed accurately 4. Commercialization/Appropriation

What are the libel/defamation defenses?

1. Truth- if it is true, absolute defense truth became less important to media defendants when NYT v Sullivan required libel paintiffs to prove falsity and fault 2. Opinion - protected by First Amendment 3. Privileges - Absolute Privilege, Qualified Privilege

Kasky v. Nike

: Nike issues press release in response to charges of "sweatshops" and claims of immoral behavior. Sued by Kasky for unfair trade practice and false advertising. California Supreme Court ruled 4-3 that the statements were commercial speech and therefore misleading information not protected by the First Amendment. U.S. Supreme Court refused to hear the case, Nike settled for $1.5 million.

What is the FTC's complaint process?

A citizen or competitor sends a letter to the FTC complaining about an ad. If it appears that the ads are deceptive, the staff conducts an investigation If the investigation reveals that corrective action may be necessary, a proposed complaint may be submitted to the commission The commission then notifies the party of the proposed complaint and asks if they will sign a consent order to agree discontinuation of the deceptive practice If consent is not reached, the FTC may issue a cease-and-desist order If the ad is a concern of public health, the court may issue an injunction

What is the FTC? What does it regulate? Where does its authority come from? What powers does it have?

A five-person commission whose members are appointed by the president to be staggered seven-year terms. The Federal Trade Commission's, started in 1914, rulings and reports define the scope of regulation and determine standards for state and industry regulatory bodies. Its primary mission is to protect consumers from unfair or deceptive market practices and to promote vigorous competition. The Federal Trade Commission Act gives the FTC the authority over advertising and monopolistic and other anticompetitive agencies. The FTC has the power to require that advertisers substantiate the accuracy of advertising claims.

What is the Digital Millennium Copyright Act? What must Internet service providers do to remain protected under the DCMA?

A law that criminalizes acts that disable or circumvent technology designed to prevent illegal copying. Internet service providers must take down internet postings if they are notified that their is a copyright infringement.

How and why are parodies protected by fair use exception to the law of copyright?

A parody distorts or closely imitates another work to make fun of the original work. The Supreme Court said the parody needs to mimic the original work to make its point. It cannot be just for attention. SCOTUS ruled that a parody may be fair use even though it has commercial purposes and copies the "heart" of the original

What is a work for hire and how is this different from free-lancers?

A work made for hire is a work where the party hires an employee or commissions a freelancer to create a work. The work is done by an employee within the scope of his/her employment or a work specifically ordered. The employer gets the copyright because it was the employer that assigned the task, risked the resources and directed the work. Freelancers own their own copyrights unless they explicitly sign a written agreement with the employer saying it's "work for hire" or signing over their copyrights

Desnick v. ABC

ABC reporters posed as patients at eye clinics in Indiana and Wisconsin to gather info about allegedly unnecessary cataract operations. Appellate court (7th circuit) said ABC reporters did not trespass - compared it to food critics coming to eat at restaurants without revealing their purpose, says eye clinics consent to letting all customers enter knowing they might not be who they say. Supreme Court upheld this decision.

What are the libel privileges and how do they work? (absolute and qualified)

Absolute Privilege: - Spoken and written word from Government Officials acting in their official capacity have absolute privilege - consent - if you consent to being interviewed and the interviewer is accurate, you can't go back and sue them; Media have an absolute privilege to defame a person who consents to be defamed - Doctor/Lawyer Qualified Privilege: Defendant bears of proving that they meet these privileges: - Reporters Privilege - Reporters will be protected from libel suits as long as they report official proceedings and records "fairly and accurately", with proper attribution and without ill will - Neutral Reportage - protects journalists who accurately report false defamatory statements by responsible parties about public officials and public figures - Mutual Interest - protects communications among persons w/ common interest (business parters)

What is a deceptive ad?

An ad that is likely to mislead a reasonable consumer with a material statement or omission Ads don't have to deceive someone to be considered deceptive--they must just have the "tendency" or "capacity" to mislead a reasonable consumer. It doesn't matter if the advertiser's intent wasn't to deceive. Deception is determined by overall impression of an ad

Anderson v. Pensacola News Journal (2004)

An article said that Anderson killed his wife in a 10 years earlier, but he sued for false light arguing that they left out the fact that it was a proven accident until two sentences after the original mention Attorney agreed facts were true- but claimed paper SLANTED them- making it look like Anderson was a murderer Anderson won about $18 million from the jury, but the appellate court reversed the jury award ruling that the trial court should have dismissed the case because Anderson mischaracterized his lawsuit as "false light" in order to evade the 2-year statute of limitations in Florida defamation cases

Time, Inc. v Hill

Broadway play "Desperate Hours" is based on a similar ordeal as what the Hill family experienced; hostage Family in story was victimized by threats of sexual abuse and other violent acts Life Magazine published article with photographs of actors of this play in the Hills family old house reenacting what happened, but the staging was exaggerated Hill family sued; assumed they did not fact check; won initial case, was appealed to SC SC - plaintiff needed to prove NYTimes actual malice b/c it was a newsworthy event → Time, Inc. v Hill The lower courts upheld the false light claim but the Supreme Court reversed · Recognized the false-light tort but ruled that plaintiffs, even private plaintiffs, must, like public figures, prove NYT actual malice IF they are involved in a newsworthy issue · Life reported on a broadway play that depicted the ordeal of the Hill family when three convicts held the hills hostage in their home · The fictionalized article in Life renewed memories the Hill family were trying to forget · The lower courts upheld the false light claim but the Supreme Court reversed

Central Hudson Gas & Electric v. Public Service

Case that created the Central Hudson Test (aka the Commercial Speech Doctrine). Utility company had an advertising campaign promoting electricity use during energy crisis; Supreme Court upheld the right of the utility company to promote. - The Court struck down a state regulation that prohibited electric utilities from running all advertisements promoting the use of electricity. The prohibition barred ads promoting efficient uses of electricity as well as those advocating inefficient or wasteful uses. - The Court ruled that a blanket ban on all electricity ads violated the First Amendment.

What is the Central Hudson test and when is it used?

Central Hudson Test for regulation of commercial speech: 1. Is it commercial speech? 2. Is there a legitimate government regulatory interest? 3. Is there direct advancement of government regulatory interest? 4. Is there a reasonable fit between the interest being asserted and the regulation? (aka is it narrowly drawn?)

What are the elements for an emotional distress lawsuit?

Conduct so outrageous in character and extreme that it is beyond bounds of decency and regarded as atrocious and utterly intolerable in a civilized community 1. The defendant's conduct was intentional or reckless 2. The defendant's conduct was extreme or outrageous 3. The defendant's conduct caused the plaintiff emotional distress 4. The emotional distress was severe

What is the CAN-SPAM Act, and what does it protect against?

Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 - regulates any advertising that occurs via email that's false or misleading - subject line must prove it's an ad - required to include an opt out - 10 day prohibition - Disclosure - - Identification as ad or solicitation, notice of "opt- out" and valid postal address -- Aggravated violations

What does copyright protect?

Copyright allows authors to control how their creative expression is copied, distributed and performed. -Protects the creator's particular manner of expression, not ideas or underlying facts

What are the penalties for violating the copyright law? Trademark laws? Laws against unfair competition?

Copyright: o Infringer pays the actual dollar amount of damages and profits o The law provides a range from 200-150,000 for each work infringed o Infringer pays from all attorney's fees and court costs o The court can issue an injunction to stop the infringing acts o Court can impound illegal works o Infringer can go to jail Trademark: o Compensating the trademark holder for lost profits or paying the trademark holder all profits o At the discretion of the court, the damages awarded to trademark holders can be tripled. Finally, counterfeiting trademarked goods can carry a felony charge under the United States Anti- counterfeiting Consumer Protection Act of 1996. NO JAIL TIME

In Florida, what is the statute of limitations for filing a defamation lawsuit?

Defamation claims must be started within a specific period of time - 2 years in Florida Under Florida law, the elements of a defamation claim are: 1. the defendant published a false statement; 2. about the plaintiff; 3. to a third party; and 4. the falsity of the statement caused injury to the plaintiff. Florida's Retraction Statute - Chapter 770 Plaintiff must serve notice on defendant 5 days before filing action You have 10 days to retraction Call your lawyer Limits your potential liability to actual damages, no punitive

What are the defenses for a false light case? What's happening in Florida?

Defendants may claim that the plaintiff is not identified by the publication and that the publication is true Minor falsehoods that offend only hypersensitive people is not a false-light suit Clearly unbelievable false-light falsification will usually not support a false-light suit Florida does not recognize false light: "duplicated existing torts without the attendant protections of the first amendment" -uses defamation by implication

What is dilution? How does it differ from confusion?

Dilution is when a trademark infringement is used that could diminish the value of the original mark. An example is when a poster in New York displayed the word cocaine in the same font as Coca-Cola. Coca-Cola didn't want to have its name associated with the promotion of an illegal substance.

What are the elements of a false light tort? See Cantrell v. Forest City Publishing Co.

Dissemination of highly offensive false publicity about someone with knowledge of or reckless disregard for the falsity. The interest protected by law is "the interest of the individual in not being made to appear before the public in an objectionable false light or false position, in other words, otherwise than he is."

What are the elements of a trespass?

Entering a private property or inviting someone to go on private property without consent of owner or possessor

Zacchini v. Scripps-Howard

Established right of publicity. The only publicity case the Supreme Court has ruled on. Media not protected from appropriation case if they appropriate an entertainer's entire act. If they do this, there is no reason to go see the act if the media broadcasts the whole thing. Ohio TV station broadcasted Zacchini's entire human cannonball stunt act on TV without permission. Because the act was broadcasted without consent, it posed a substantial threat to the economic value of the performance and not protected under First Amendment. Established professional property and publicity.

What special issues are now arising with popular Web sites YouTube, MySpace, and Facebook?

Even if an Internet site knows generally that many user-generated posts contain infringing copyrighted works, the service provider is not obligated under the DCMA to find and remove that material

What are express and implied falsehoods?

Express Falsehoods: -Can be determined from the plain meaning of the words -Express falsehoods include claims that furniture is antique when they are not old enough to qualify as antique, that coffee is caffeine-free when it contains caffeine -False demonstration Implied Falsehoods: -Statements or omissions in advertisements that create a false impression by implication 1. Reasonable Basis Implication: Advertisements must be able to support all material claims with results from scientific tests 2. Proof Implication: Falsely creates the impression that evidence presented proves a claim 3.Demonstration Implication: A demonstration can be true but creates a false impression about how the product will perform under normal circumstances 4. No Qualification Implication: Bold assertions without qualifications "The best beer" 5. Ineffective Qualification Implication: qualification presented weakly or too small 6. Significance Implication: Insignificant facts stated so that they appear to be significant 7. Puffery: exaggerate or puff products on subjective matters (taste, feel, appearance) -- IS ALLOWED IF SUBJECTIVE MATTER 8. Experts and Celebrities: Required to use the product and say that they were paid

What are the four factors a court considers when determining whether the use of copyrighted material is a fair use?

Fair Use Factors: 1. Purpose and character of the use 2. Nature of the copyright work 3. Amount and substantiality of the portion used 4. Effect on the potential market (main one that tends to drive court's opinions) ^ court balances these factors; not necessarily a test

What is the major defense to a claim of copyright infringement?

Fair-Use: Copyright law permits limited copying for comment and criticism under this doctrine

Does the First Amendment protect false advertising?

False and misleading advertising and advertising for illegal products and services are not eligible for constitutional consideration.

Hustler Magazine v. Falwell

Falwell sued for an ad in Hustler that said he was a drunk who lost his virginity to his mom in an outhouse (lmao). The court denied him because it was not used for commercial purposes and that "nobody would believe it," but did agree that emotional distress was caused. Public figures have always been torched in cartoon and similar settings and to not allow people to make up parodies would invalidate opinion.

What makes a work "original?" See Feist Publications, Inc. v. Rural Telephone Service Co.

Feist Publications, Inc. v. Rural Telephone Service Co.: Feist Publications used information from Rural Telephone Service Co. to publish its own directory without consent. The Court held that the names, towns, and telephone numbers copied by Feist were not original to Rural and therefore were not protected by the copyright in Rural's combined white and yellow pages directory. (The court ruled the larger regional telephone directory did not violate copyright by taking names and addresses from the smaller local directory.) Yellowpages, however, was granted a copyright because of the decisions used to decide which commercial categories to place and what businesses go where. Not copied from another work, with a modicum of intellectual effort

Fla. Publishing Co.v. Fletcher

Florida Times Union photographer was invited by fire officials into a private home after a major fire, which is a customary practice. Court ruled that media could not be sued for trespassing in this scenario under "custom and usage" defense (Florida is one of the only states that recognizes this defense - often used in Florida cases dealing with fires and hurricanes.

What is the general rule about filming, photographing and recording?

Generally, the more public the surroundings, the less the expectation of privacy.

Hustler Magazine v. Falwell

Hustler Magazine ran parody ad for Campari liquor with popular evangelical minister Jerry Falwell talking about his "first time", said in small print at bottom that ad was a parody and not serious. The Court held that public figures may not recover for the intentional infliction of emotional distress without unless the offending publication contained a false statement of fact which was made with "actual malice" - parody does not count as actual malice.

When would fair use and the First Amendment be successful defenses to infringement claims?

If a trademark is used in an unauthorized comedy, parody, or criticism, the use may be protected by the First Amendment First Amendment protects those who borrow trademarks to gather news

What is the general rule when it comes to copyright?

If there is only one way to state something, it is not copyrightable

What is an unfair practice?

In 1994, Congress defined an unfair act or practice as one that "causes or is likely to cause substantial injury to consumers which is not reasonably avoided by consumers themselves and not outweighed by countervailing benefits to consumers or to competition."

What is the defense of custom and usage? See Florida Publishing Co. v. Fletcher.

In Florida Publishing Company v. Fletcher, the state supreme court ruled that a Florida Times Union photographer did not trespass when he accompanied firefighters into a private home after a major fire that killed a 17-year-old girl, Cindy Fletcher. Cindy's mother, Kleena Ann, who was not at home when the fire destroyed the house, sued the Florida Times Union for trespass after reading a story about the fire that was accompanied by a photograph of Cindy Fletcher's silhouette outlining where she lay after she was overcome. The Florida Supreme Court ruled that the Times Union photographer did not trespass because he had been invited into the Fletcher home by fire officials. The court reasoned that the practice of journalists accompanying officials into private places following a calamity was so common that the law created an implied consent for the journalists' entry. The court said that journalists accompanying officials onto private property following a catastrophe is similar to a magazine salesperson knocking on a householder's front door. Both acts are so customary, the court reasoned, that the law recognizes a privilege for the entries, a privilege in "custom and usage."

What is "insider trading" and what are the penalties for insider trading?

Insider trading: when corporation "insider" buys or sells a company's stock for their own benefit and base their decision on nonpublic material facts. Insiders have a duty to disclose material information before trading because of the fiduciary nature of their positions. (Fiduciary: people who have a position of trust that prohibits them from acting only in their self-interest.) Insider defined as one who, by virtue of his position with issuer of stock, has access to nonpublic corporate info that is supposed to be used only for corporate purposes rather than purposeful benefit.

What are the elements of intrusion?

Intrusion includes the secretly recorded conversation, the overly aggressive surveillance, and the long-distance photograph made with a tele-photo lens. Intrusion is part of privacy law because an intrusion violates citizens' rights to be left alone and to control information about themselves. Intrusion is a tort of information gathering, not a tort of disseminating information by publishing or broadcasting. · Whether an act intrudes on the privacy of another depends on "whether that person has a reasonable expectation of privacy."

What's happening with personal data collection? Websites, businesses, social media, like Facebook?

Major search engines like Google and Yahoo collect and store billions of bit of information The Principles of Fair Information Practices: 1. Notice 2. Choice 3. Access 4. Security In 2012, Facebook settled with FTC over charges the media company engaged in unfair and deceptive privacy practices Of most concern to the FTC is behavioral advertising: the tracking of consumers online activities over time

Dietemann v. Time, Inc.

Man was posing as a doctor and examining women in his own home. Time magazine sent two undercover reporters inside his home, transmitted photos and recordings from inside his home to expose him. Jury awarded $1,000 for intrusion in the man's home, said he was in his home and had no expectation of the patient being wired (both audio and visual) and transmitting info outside of the home without the knowledge of the man.

What is unfair competition? Is it the same as a copyright or trademark claim?

Misuse of another's trademark so as to confuse the public

What is participant monitoring? What is the law in Florida? How is this different from the federal law?

Occurs when at least one party to a conversation is aware of a secret recorder or transmission, usually done to get someone to speak with candor. Federal law permits a person to have a secret recorder. Florida law requires that the person interviewing another asks the opposite party if it can be recorded.

Florida v. Globe Communications, Inc.

Patricia Bowman accused Ted Kennedy of rape. Her identity was revealed by NY Times, NBC News and the Globe. Attorney General sued the Globe for publishing her name. Florida Supreme Court said state could not oppose information from matter of public concern, said info was lawfully obtained.

Bartnicki v. Vopper

Pennsylvania radio talk show host Vopper broadcast an illegally recorded cell phone conversation during which the head of a local teacher's union suggested blowing up the porches of school board members if they didn't offer higher pay raises. Vopper received the recording from a source who received it from an anonymous provider. Court ruled 6-3 that media's dissemination of lawfully acquired info about an issue of public importance outweighs legislative interest in protecting privacy of conversations. Key takeaway is that journalist is okay IF the conversation is of great public interest and the journalist himself didn't break a law to obtain it.

Florida Star v. BJF

Police officials mistakenly gave the name of a rape victim to a reporter from a Jacksonville newspaper. BJF sued for privacy, received both compensatory and punitive damages from jury. Supreme court reversed this decision, saying that the paper lawfully obtained and published a matter of public importance (info about a serious crime), and that rather than punish the press, the government should place stronger safeguards on confidential information. Categorical restriction. Not narrowly tailored enough - unconstitutional

When are regulations (also known as "prior restraint") permissible when it comes to advertising? What are some other differences between commercial and political speech?

Prior restrains may be permitted to halt misleading commercial speech Commercial vs. Political o Commercial speech is more easily verified o Advertisers are not as intimidated by government regulation as politicians o Commercial speech can more easily withstand regulation

What are the elements for a private fact case?

Publication of a private matter that is: 1. Highly offensive to a reasonable person 2. Not of legitimate concern to the public - truth is not a defense - must be widely published

Feist Publications v. Rural Telephone Service Co.

Publisher of regional telephone directory borrowed names and addresses from smaller local directory book SC - publisher did not violate copyright of smaller directory; compilation and arrangement of facts lacked creativity; refused to recognize a copyright based on time, money, and effort telephone company expended on creating book Constitution requires originality, not effort alone, as condition for successful copyright claims

When are corporations required to report financial information? See SEC v. Texas Gulf Sulphur Co.

Require stock companies to disclose financial information before shares are offered and while they are being traded · Mandated disclosure includes prospectuses before a stock is offered for sale and periodic reports after trading begins · Companies must disclose a few significant events if they occur between annual reports

What's the difference between private figures and public official/figures suing for intentional infliction of emotional distress?

Several courts have refused to dismiss intentional infliction claims in cases of aggressive news coverage of vulnerable private people Although private persons may occasionally be allowed to pursue outrage suits against the media, the SC has all but eliminated such suits by public figures and officials

SEC v. Texas Gulf Sulphur Co.

Supreme Court case that involved insider trading. Company issued a press release to dampen rumors about "large" copper deposit in Oregon, said estimates of ore were without factual basis so that investors sold their shares, when the mine could actually increase value of its stock; 12 days later, 10 million ton strike of mineral deposits was announced. Several top executives bought stock before the information went public. The appellate court ruled in favor of the SEC. Texas Gulf Sulphur Company issued a materially deceptive press release to dampen rumors of a major copper discovery saying "substantial coppy discovery in Timmins, Ontario, were exaggerated," and "public estimates about the size and grade of ore were 'without factual basis and have evidently originated by speculation of people not connected with TGS.'" Relying on this negative release, several investors sold shares in the company, only to learn from a TGS press release 12 days later that the company had made a 10-million-ton ore strike, one of the largest in history. TGS said it would have been premature and misleading for the company in its first release to speculate the size and grade of ore at the mining site. A federal appeals court ruled that the known richness of the ore sample even before chemical analysis was material and didn't justify a press release as negative as the company first issued. The US Court of Appeals for the Second Circuit said that the TGC press release misleadingly suggested there was no basis for investor optimism. Insiders in the company had also bought stock and tipped friends.

Does the First Amendment protect opinion? If so, how?

The First Amendment, the Supreme Court has said, has not created a "wholesale defamation exemption for anything that might be labeled 'opinion.'" Statements of purported opinion, such as "In my opinion John Jones is a child molester," are not protected opinion, the Supreme Court says, if they connote provably false statements of fact. When a speaker says, "In my opinion, John Jones is a child molester," the speaker implies he or she knows unstated facts about Jones's activities. AKA opinion is protected because an opinion cannot be proven false · Rhetorical Hyperbole: Some words are so exaggerated or are used in such a figurative sense that the Supreme Court has said they are incapable of a factual interpretation · Ollman Test

What is the SEC? Where does it get its authority? What does it have authority over?

The SEC, created in 1934, is an independent, bipartisan, quasi-judicial agency. Has 5 members, no more than 3 of whom can belong to the same political party. Members are appointed by president for 5-year staggered terms. SEC oversees financial disclosure required of companies that trade publicly, has also begun to regulate disclosure by cities/public agencies that issue municipal bonds. Congress gave SEC authority to bring civil enforcement actions against individuals or companies alleged to have committed accounting fraud, bribery, provided false information, or engaged in insider trading/ other violations of the securities law. Power to: Register, regulate, and oversee brokerage firms, transfer agents, and clear agents as well as the nation's securities SROs & stock exchanges.

What is the extent of First Amendment protection for commercial speech? Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council

The Supreme Court struck down a Virginia Statute prohibiting licensed pharmacists from advertising the price of prescription drugs. The ads were purely commercial because they did "no more than propose a commercial transaction." The Consumer Council argued that it was information that allowed persons to be in good health by being aware of the drugs out there. The decision was reversed as the court saw the democratic means that came with the awareness of different prices.

When is the media responsible for physical harm, which results from incitement, negligence or lack of duty not to publish material due to foreseeable harm?

The media is most accused of physical harm when someone copies what they have seen or read. Some plaintiffs accuse that the media incites harm. The first amendment is the defense for the media unless it can be proven that the media did in fact incite harm. Courts hold that the media is generally not responsible for negligence. Incitement: -When stories or programs appear to cause physical harm, some courts have ruled that First Amendment prohibits holding the media responsible unless it can be shown that the media "incited" the harmful action -Herceg v. Hustler (autoerotic asphyxia), Ozzy Osbourne = no incitement -Incitement for Hit Man book describes how to murder Negligence: -People act negligently if they breach a duty of care owed to the plaintiff and that breach causes injury -Courts have generally held that the media owe no duty of care under the common law of negligence to a general audience either for physical or financial losses Foreseeable Harm: -A few courts have ruled that the media may be liable for causing serious physical harm to an individual

Do reporters trespass when they misrepresent themselves to acquire information from public businesses?

The press is considered part of the public · If general public has access, the press does too · Press has no special privilege to access crime scenes and accidents that the general public is excluded from · Will be trespassers if they misrepresent the purpose of the interview with a private person, fail to identify themselves as reporters or unnecessarily disrupt a business

Where did the right to privacy come from?

The right to privacy is protected by the US Constitution (the right to be let alone and free from unwarranted governmental intrusion) AND Tort Law (the right to be free from unwarranted publicity)

What "test" does a judge use in determining whether a regulation of advertising is an unconstitutional regulation because it violates the First Amendment?

There is a four-part test that determines the constitutionality of regulations on commercial speech set forth by Central Hudson Gas and Electric Corp vs. Public Service Commission 1. Is it commercial speech? - must be lawful and not false or misleading; ads for a sale 2. Is there a legitimate/substantial governmental regulatory interest? - health, safety, aesthetic, morals 3. Does the regulation directly advance the governmental interest? 4. A regulation on commercial speech has to be the "least restrictive" possible - Is the statute narrowly drawn to promote the interest; cannot be broader than necessary to carry out the interest

What is a trademark and how is it different from a copyright? How is it similar?

Trademark: Word, name, or symbol a company uses to identify itself as the source of goods Trademarks help distinguish goods from one another Unlike copyright, trademark does not depend on originality, invention or discovery even if it embodies imagination. Trademark owners are given exclusive rights because of the distinctness.

What is the purpose of a trademark?

Trademarks and service marks have value as intellectual property because they represent a portion of the goodwill of the company. They are signals to consumers of the quality of goods and services. They reduce the time and effort used to buy products. Overall, trademarks have commercial value. The purpose is so consumers are not misled about the source.

What must a trademark plaintiff show in order to prove trademark infringement?

Trademarks must be registered with a drawing of the mark and an application fee. A registered mark has an R with a circle and the phrase Registered in the U.S. Patent and Trademarks office or an abbreviation. Pending marks can have a Trademark Pending mark or ™. Registration must be done every 10 years. Marks must be strong and not generic words in the title. Strength Similarity in appearances Meaning Goods in question Intention of defendant using the mark

Food Lion v. ABC

Two ABC reporters got hired at Food Lion and secretly gathered information/videotaped while on the job for a story on low-quality meat. Lower court awarded punitive damages, appeals court reversed finding of fraud, ultimately awarded $2 for disloyalty and trespass.

How did the First Amendment protections for commercial speech evolve? See Valentine v. Chrestensen and New York Times v. Sullivan.

Valentine v Chrestensen placed advertisement outside first amendment protection. NY Times v Sullivan ruled that political criticism of public officials was protected under the first amendment even if it was paid for.

Braun v. Soldier of Fortune

Veteran ran an ad in Fortune Magazine offering his services for a contract killing, Fortune published it and Braun killed because of it. Magazine held liable because they have a public duty not to publish a clearly identifiable unreasonable risk of harm. Court - it clearly depicted unreasonable risk: 1) emphasized "Gun for Hire", 2) described Savage as "professional mercenary", 3) stressed his willingness to keep assignments confidential, 4) listed legit jobs involved gun use and had reference to "other special skills", 5) stated he would consider all jobs

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council

Virginia statute made it illegal for pharmacists to advertise prices of prescription drugs. Supreme Court struck it down, gave commercial speech First Amendment protection. Wasn't so much to protect the First Amendment rights of the pharmacists who were speaking but the consumers who have a right to receive the information - court recognized the consumer right to receive information for the first time in this case (1976). SC struck down a Virginia statute prohibiting licensed pharmacists from advertising the prices of prescription drugs. The pharmacists' ads were purely commercial because they did "no more than propose a commercial transaction," the Court said. The Virginia Board argued: The prohibition of on price advertisements for prescription drugs did not violate the First Amendment because purely commercial speech had not been protected by the First Amendment since Valentine v. Chrestensen. That aggressive price competition among pharmacists would harm consumers because pharmacists would have less time to compound and dispense drugs. That competitive advertising would not necessarily result in the lower drug prices anticipated by the Virginia Citizens Consumer Council. SC recognized a constitutional protection for purely commercial speech motivated by a desire for profit.

When must a plaintiff prove "actual malice" in a false light case? See Time, Inc. v. Hill.

While all false-light plaintiffs must meet a fault requirement, public figures and plaintiffs involved in issues of public interest must prove actual malice In Time, Inc. v. Hill, the SC decided that false-light plaintiffs involved in issues of public interest may not successfully sue for false light without proving that publication was made with NYT actual malice Actual malice: that the media published defamation knowing that their story was false OR with reckless disregard for the truth

Cape Publishing, Inc. v. Bridges

Woman's husband held her hostage for hours, made her undress, ended up killing himself in their kitchen. Woman sued newspaper who published a photograph of her being escorted out of her house by a police officer, naked covering herself with nothing but a dishtowel. Court sided w/ press, said this was a newsworthy event, said she wasn't showing any more than she would at a public beach or pool (not indecent exposure), was on a public street.

Cape Publishing, Inc V. Bridges

Woman's husband held her hostage for hours, made her undress, ended up killing himself in their kitchen. Woman sued newspaper who published a photograph of her being escorted out of her house by a police officer, naked covering herself with nothing but a dishtowel. Court sided w/ press, said this was a newsworthy event, said she wasn't showing any more than she would at a public beach or pool (not indecent exposure), was on a public street. Key: public occurrence, unusual circumstance, and newsworthy

What are your defenses if you get sued for appropriation?

consent and newsworthiness

Where do the laws of copyright come from?

constitutional protection - Article 1, sect. 8 Congress the power to "promote the progress of Science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." It benefits both society and the creator. The creator gets to profit on the discovery for the amount of time it is held in copyright. The public then benefits when it is made available for anyone to use. Also the Copyright Act of 1976 and all of its revisions

How does copyright work? How long does it last? What are the three elements of notice? How do you register a copyright? Why would you register a copyright? How do you enforce a copyright?

copyright lasts for life of author plus 70 years The copyright goes to the estate of the author for those 70 years afterwards. If a company creates the copyright, it lasts for 120 years from the date of the creation or 95 years from the date of publication, whichever is shorter. Notice: 1) a C in a circle, the word copyright or an abbreviation 2) the year of first publication 3) the name of the copyright owner Registration: The correct form and registration fee must be submitted to the copyright offices in D.C. It is $35 electronically or $65 by paper. To gain all benefits, a copyright should be submitted within three months of publication. Why would you register? Registration is required before you can sue and recover certain damages

Ollman Test

lower courts adopted for more guidance (Is it Opinion?) 1. Can the statement be proven true or false? 2. What is the common or ordinary meaning of the words? 3. What is the journalistic context of the remark? 4. What is the social context of the remark?

What is copyrightable?

original work of authorship from which they can be reproduced or otherwise communicated; Clues: original, fixed in tangible form Authorship: literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, sound recordings

What types of individuals are common libel defendants?

publishers, editors, reporters, photographers, advertisers, public relations counselors, private individuals

What are the rules about secret recording (hidden cameras)?

secret recording by a participant to a conversation may be an intrusion, particularly if subterfuge is used to bring electronic eavesdropping equipment into a private place, such as a home. In one well-known case from California, a federal court ruled secret transmitting and photographing by two journalists in a private home were an intrusion. In Dietemann v. Time, Inc., the U.S. Court of Appeals for the Ninth Circuit ruled that A. A. Dietemann, a quack doctor, could collect damages from Time, Inc., for invasion of his privacy by two Life magazine employees who secretly used a voice transmitter and camera in the doctor's den

What is Rule 10(b)? What does it prohibit? How does it define fraud?

unlawful for any corporation or agent to be manipulative or deceptive in connection with the sale of securities - deliberately misleading material statements and failing to clarify a statement to avoid misleading investors are fraudulent. PR firms are liable for fraud if they pass on misleading investment information. False and misleading statements & insider trading

What are the elements of appropriation?

usually the unauthorized commercial use of another's name or picture in an advertisement, poster, public relations promotion or other commercialization

Basic Books v. Kinko's Graphics Corp.

· While student use of course packs was educational, reprinting of copyrighted works by Kinko's was for commercial purposes · Not protected by fair use doctrine · Negatively affected market of copyright owners