PR Law and ethics exam 2

Is the bottle copyrightable?

But something strictly utilitarian (e.g., the bottle) is not copyrightable

Boundary spanning responsibilities

To research external stakeholders To analyze the consequences of organization's decisions on external stakeholders To communicate about these issues

Gay Gaddis: _ prompted her to do what

sell T3

civil law

2 private parties go to court to resolve a dispute Tort Law

Copyright licensing

Advertiser granted limited right to use

Onovulii v. Gap

The design of sunglasses is copyrightable

copyright owner owns

derivative works

cultivation theory

● Mainstreaming - manner in which images come into the mainstream ○ How images are repeated by the media and become prominent ○ People from different social groups will come together to share a common perception as a result of their exposure to television ● Resonance--describes how some images have a greater impact for people whose real life reflects what is shown in the media ● How mass media can serve to reinforce stereotypes

What societal changes have we seen that have changed these stereotypes and/or created additional roles?

● Men as Doofus Dads

How do men and women process ads?

● Men: ○ Men tend to look directly at the primary message ○ Men think linearly ○ More task oriented ○ Men evaluate messages and make decisions more quickly than women ○ Tend not to respond favorably to feminine imagery for male products ● Women: ○ Women tend to evaluate primary message and also pick up multiple cues and weave them together ■ More likely to think of interrelated factors ○ Can relate positively to masculine imagery ○ Tend to evaluate multiple cues from the message and try and piece them together to figure out what to do ■ Less linear ■ Each piece of information builds on prior information taken in ■ Evaluate more sources ○ Less task oriented

self categorization

● People identify with groups based on self categories (ones that are important to ourselves) Cultivation Theory—

The Thin Ideal

● The thin standard is unrealistic for most women and has been attributed with causing lowered self-perceptions. ~ 8 million Americans suffer from an eating disorder (NEDA)

Why do stereotypes work?

● They hold a grain of truth ● They can communicate a lot if you have a limited amount of time to make a decision ● Started out as a scripting word

burden of proof on libel

Burden of proof is on the plaintiff, who must prove that the statement was false.

chilling effect

; speech about public officials or public figures are public matters

What can be copyrighted?

Books Movies Music Choreography Architectural works Photographs Software Characters Labels (if more than type) Posters (Among other things including ad copy)

Is the label copyrightable?

A label's "graphical illustration" involves creativity and is copyrightable A label with only "textual material" does not involve creativity and is not copyrightable unless the text "aids or augments" an accompanying graphical illustration

What is the difference in "works for hire" and "copyright licensing"?

Advertiser's options Created in-house (advertiser owns) "Works for hire" Commissioning party (advertiser) is owner Copyright licensing Advertiser granted limited right to use

What are the intended effects of gender stereotypes in advertising, and what are the theories related to them?

Advertisers use beautiful women in ads because of heuristics... meaning consumers are inclined to carryover the beautiful qualities of the women over to the product

● Role-Product Congruity

Advertising effectiveness increased when appropriate models are used

Organization conscious

Boundary spanning responsibilities

Objectification

Any presentation emphasizing sexually aggressive body parts or not including the head - sexual deception · Can be demeaning and dehumanizing · Some say it contributes to violence towards women

How can one increase the likelihood of being successful when giving voice to values?

Ask these questions: · What are the reasons and rationalizations that support engaging in the behavior? · What is at stake for the key parties, including those who disagree with you? · What levers can you use to influence those who disagree with you? · What is your most powerful and persuasive response to the reasons and rationalizations?

● What is Beautiful is good

Assumption that physically attractive people are superior to others on many traits- including intelligence and overall personality

● Match-Up Hypothesis

Attractive models should endorse products that can enhance consumer attractiveness

Golden Rule

Bible/ other religious texts ● Treat others the way you wish to be treated

kants

Categorical Imperative- what would happen if we universalized this behavior, deciding whether or not its ethical • Ex used; inflating your hours to bill client but what if every advertising company did that?

Kant

Categorical imperative- action as universal law; duties; intentions, action is universal law, sees it as her duty to do whats right, can you universalize this behavior

Primary criticisms of Libel Law

Categories at times seem arbitrary and ill defined Who is a public figure? What is a matter of public interest?

Libel Law involves...

Civil Law 2 private parties go to court to resolve a dispute Tort Law Injury to reputation--libel, slander Constitutional Law First Amendment implications

● Halo Effect

Cognitive bias where one particular trait, especially good characteristics, influence or extend other qualities of the person.

works for hire

Commissioning party (advertiser) is owner

We reviewed some professional codes in advertising and public relations, which are a form of self-regulation. What are the common themes of these codes?

Common themes: doing what is best for the consumer/publics Transparency Fair, honest, and forthright manner Because of the erosion of our trust and suspicion of the media Truth never changes = in all forms of communication Ethical behavior guides personal and business conduct

What counts as a copy?

Copy may be "substantially similar" Underlying premise: copy doesn't need to be exact

advertiser's options

Created in-house (advertiser owns) "Works for hire" Commissioning party (advertiser) is owner

What does the copyright owner control?

Creator is the owner—so always get copyright deals in writing

What are the differences in decorative and sexual stereotypes?

Decorative Portrayals- show people in ads as passive and disengaged ● Alluring: less explicit; women submissively looking at product or camera ● Sexual Portrayals- Explicitly aggressive; image of a woman that focuses on her lips, breasts or groin area

defamation

Defamation exposes a person to hatred, ridicule, or contempt.

Effect of the use upon the potential market for or value of the copyrighted work

Does the accused work offer a market substitute for the original or cause the copyright owner to suffer other market harm?

Watch out for false dichotomies

Either need to be ethical and be broke, or be unethical and make a lot of money

Point out the costs to various parties

Ex; How much more damage it would cause a company if they were caught committing illegal activities trying to save money

Point out addictive cycles - slippery slope

Ex; if you cheat this one time you will be more inclined to cheat again

Defenses to Copyright Infringement

Fair use Parody Comparative advertising

when is fair use used

Fair use is greater for factual works than for fictional and more creative works

Provide actionable alternatives

Find possible actions for change Research what it would actually cost to get the data legally, and figure out a way to pay for it

What is falsity?

For a defamatory statement to be libelous it must be false. Therefore, it must be the kind of statement that can be proven true or false.

Frame in the long run vs. short run

Framing things in the long term can be very effective

2. Do the codes have common themes, and if so, what are they?

Honesty and transparency are big themes disclosing information Trying to make things better for society Conflict of interest

Identity

If a celebrity's identity is commercially exploited, there has been an invasion of his right whether or not his 'name or likeness' is used

What does it mean to play the role of organizational conscience, and how can one play such a role effectively?

Influencing an organization to act ethically: PR professionals as organizational conscious A professional who raises concerns when his or her organization's actions might bring about troubling consequences to various insider or outside parties Concerned not only with issues of law but also with issues that extend beyond the law to encompass the spirit of the law and other potentially problematic issues that the law does not address

tort law

Injury to reputation--libel, slander

bottom line of libel law

It's difficult to be vulnerable to libel suits when public officials, public figures, and matters of public concern are involved. One is more likely to be vulnerable to libel suits when private matters related to private individuals are involved . . . and that's what social media involves. The Court has been more concerned with preventing a chilling effect on speech than with preserving reputation.

Where do publicity rights come from?

Legal implementation No federal publicity right 28 states have publicity rights statutes In other states, publicity rights provided by common law California and New York play important roles Some explicitly provide publicity rights beyond the person's death

We reviewed some professional codes in advertising and public relations, which are a form of self-regulation. What are the common themes of these codes? What are their limitations?

Limitations: Explosions of new technologies is changing the marketing and advertising landscape both domestically and globally New media, new ideas and new challenges are changing the way the industry operates Consideration of ethics has to take place in fast-paced/competitive world of advertising and media... but ethical considers/dilemmas should still always be considered They assume people want to do the right thing assume people are going to try to comply

What are the unintended effects of gender stereotypes in advertising?

Many unintended effects are based on an assumption that gender portrayals do not reflect the roles that men and women undertake in the world today Limited Social Roles- "Lack of women in workplace because they are always portrayed in the home" ■ This can cause women to feel excluded from many facets of life outside of the home and men to feel excluded from activities within the home ● Value system on external beauty-advertisements focus on beauty may send a message that one's looks are the only aspect that is important to the individual and society ● Objectification

enablers of courage

Network of like-minded people - Surrounding yourself with a network of people who share your ethics and values Understand what truly is at stake Know that the alternative is untenable Focus on the possibility of positive change - If I speak up what change will it create Forgive yourself of your mistakes without denying them so you can learn from them "Pre-script yourself"

what does the plantiff must prove

Ownership of copyright of a particular work Defendant is copying a substantial, legally protectable portion of the work

Focus of Copyright Law

PROTECTING THE CREATOR'S RIGHTS TO THE CREATIVE PRODUCT

Is the photo copyrightable?

Photographs are a form of artistic expression requiring many judgments (i.e., creativity involved), and are copyrightable

What is the New York Times test for libel, and how did the Supreme Court expand it?

Plaintiff must be a public official or running for public office Plaintiff must prove her case with clear and convincing evidence Plaintiff must prove falsity of statement plantiff must prove malice

1. What does it mean to be a professional in advertising or public relations?

Professional vs. nonprofessional People pay for your service/opinions A lot of intangibles involved

King

Protection of rights

Fair Use Factors

Purpose and character of use, including whether use is of a commercial nature or is for nonprofit educational purposes -Fair use is generally permissible for criticism, comment, news reporting, teaching, scholarship ,or research -Work that is "transformative" is favored—has a different purpose or adds new meaning EFfect of the use upon the potential market

Dannon apologizes to John Butler trio

Ran an ad with the music that was almost exactly the same as another song Took the head bump from an ad in Canada You cannot copyright an idea, ONLY a tangible expression

What the copyright owner's rights are

Reproduction e.g., Artist controls reproduction of his painting on posters and coffee cups Public performance e.g., Playwright controls performances of her play Derivative works Creator controls works based on the original work that translate or rework original's creative expression e.g., Novelist controls rights to movie

4. What are the limitations of these codes?

They assume that people want to do the right thing/comply with codes

3. Do you notice differences across the codes, and if so, what are they?

Some codes are more specific Most codes are different focuses

What does it mean to "give voice to values"?

Standing up for what you believe in.. i.e. in a difficult moral situation, speaking up/making your stance known.

How is libel law different when lawsuits involve private individuals and private matters vs. public officials, public figures, and public matters?

Supreme Court expanded protection of speech... To include defamation suits brought by public figures (not holders of office but prominent in their community) To include people involved in matters of public concern even if the plaintiff is neither a public official nor a public figure Rationale: Public figures, public officials, and people involved in matters of public concern have greater access to channels of communication and can counteract false statements

Parodies Ridicule and Transform

Supreme Court has determined that parodies are "transformative" in that they "add something new, with further purpose or different character, altering the first with new expression, meaning, or message"

What do publicity rights after death entail?

Texas law: lasts 50 years after death

● Affect-Transfer Theory

Transfer positive effectiveness from the model to the product.

Where copyright comes from

U.S. constitution Copyright clause The Congress shall have 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.

copyright comes from _

US constitution

Comparative Advertising

Use of others' copyrighted works in comparative advertising has fared very well as long as the works at issue are the subject of the comparison

mill

Utilitarianism ● Greatest good for the greatest number; outcomes ● all of the stakeholders affected by the decision should be given just consideration. Utilitarianism deals with outcomes or end goals, and reasoning that "the end justifies the means" is one classic implication of utilitarian thinking.

Rawls

Veil of ignorance; seeing a situation with no biases - ignorant of your position in the situation and in society ● Difference principle- Inequality of benefits/ burdens acceptable only if it benefits weakest stakeholders

aristotle

Virtue as habit, focusing on the individual rather than the organization, listed such virtues as truthfulness, justice, generosity, and self-control as characteristics to which the noble person should aspire. In the theory of virtue, much attention is placed on role models

what qualifies as identity

Voice qualifies as identity Personality attributed qualify as identity

When do stereotypes become problematic

When we begin to think that every person who belongs to the group is a generic exemplum of a type rather than a unique individual

look alikes" and "sound alikes"

While a look-a-like business (Ron Smith's Celebrity Look Alikes) can market its clients for fun and profit in various areas, it cannot capitalize on the natural resemblance to a well known person for trade or advertising.

Machiavelli;

can't stay in power if you're good all the time, Judge actions based solely in terms of their consequences. An action is good because its consequences are the attainment and keeping of power.

how long can publicity rights extend to

protect celebrities and non celebrities, after death, include look alikes and sound alikes

libel

defamation in publication

slander

defamation in speaking

What is the difference between descriptive ethics and normative ethics?

descriptive - social science - describing the way people make decisions, ● The scientific study of moral beliefs and practices, to describe how people behave and think when dealing with moral issues and arguments Normative Ethics- "ought"; philosophy - what we use when we try to decide what we should do ● Study of ethical action ● When considering how one ought to act, what is morally right

lanham act is through what

federal court system

o Courts have laced more importance on _than reputations

free speech

Statements of opinion that do not_ cannot be the basis for a successful libel action

include factual claims

■ Hypermasuclinity

is a form of extreme gender ideals much like thin ideal ■ Exposes readers to these beliefs and normalizes them to an extent ■ Can lead to drug use, violence towards women, dangerous drinking, dissatisfaction with bodies

○ Social contract theory

is based on the most fundamental considerations for maintaining social order and harmony. Its premise is that people must generally agree to abstain from exploiting one another, and to ensure that this does not occur, rules and mechanisms to enforce cooperation are required

A communication is defamatory if

it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him."

prescripting

make it more likely for one to actually voice their values

public figures must prove _

malice

● How do men react to idealized images of masculinity in ads and pop culture?

men compare themselves to the ads implicitly (without being told to do so) ■ Lowered perceptions of self-esteem (just like women being exposed to beauty and thin-ideals) ■ Feelings of inadequacy ■ Vulnerability

what is required for a defamatory statement to be libelous

must be false. Therefore, it must be the kind of statement that can be proven true or false.

where can advertising be challenged

o Advertising can be challenged through state court system, attorney general, state fraud law, federal court system and administrative system

• Key criterion in determining copyright infringement

o Tangible expression of creativity

What is malice?

publication of defamatory material "with knowledge that it was false or reckless disregard of whether it was false or not" (Times v. Sullivan, 1964).

What are the typical gender stereotypes for men and women in advertising?

social and behavioral norms that are generally considered appropriate for either a man or woman in a social or interpersonal relationships

Right to Publicity

the inherent right of every individual to control the commercial use of their identity

What are publicity rights, and what do they protect? (You need to know how the courts have interpreted "identity." That is, what does "identity" encompass?)

to protect an individual's right to his or her likeness, names, images, voices, personality attributes or associations from commercialization without consent

What is the big idea of copyright law, and what is its origin?

to protect the creator's rights to the creative product

Consider the organization's wider purpose

what behavior enables them to serve their customers best; to manage themselves most efficiently; to manage themselves in the most honest manner

levers

what you can use to increase your power in a certain situation:

o First factor in determining fair use of ?

• Focus on whether the new work determines new meaning

o Key criterion in publicity rights

• Has someone capitalized on the value in a person's name or identity

○ Where are gender roles formed?

■ Parents ■ TV and media ■ History

huggies backlash

■ Women purchase 75% of diapers ■ BUT growing number of men consider themselves as involved and equal parents. ■ NOT happy with Huggies campaign ■ Huggies had to go to the Dad 2.0 convention in Austin to apologize.. ■ Launched a new version of the campaign

men as involved dads

○ Important to include men as dads! ○ Many brands are starting to do this ■ Hyundai, Volkswagen, Tide

● 2 areas of normative ethics:

○ Moral common sense ■ Basic judgement of what's right v. wrong i.e. being fair, don't lie, respect others, help those in need ○ Critical thinking ■ Various theories/approaches on critically thinking on morality ● Kant v. Mill v. Machiavelli v. Aristotle

● What are the common female gender roles portrayed in the media?

○ Stay-at-home moms (sainted mother), sex kitten, beauty, thin-ideal, professionals (hardface corporate climber), devious witch

Expectancy Theory—

● Advertising portrayals build to reinforce expectations and influence social reality

Old school ads

● All about women working in the house and staying at home and fit ● Ads for vitamins and light cereals

characteristics of professions

● Body of knowledge conveyed through a formal education program ● Code of conduct based on widely accepted professional values and taught as part of formal education. ● Governing body overseeing compliance to code ● Licensing process with a comprehensive exam ● Clinical training ● Ongoing continuing education

men gender role

● Bread winner ● Masculine ● Athlete ● "Player"

social comparison theory

● Drive to self evaluate relative to other like oneself

women gender role

● Feminine ● Stay at home moms ● Wives ● More passive than assertive

social identity theory

● Individuals become group when they share a categorization ● In-group vs. out group ○ Once you join a group, you see that as the "in-group" and other groups as the "out-group"

How does Keith Reinhard suggest that one can test for good taste in advertising?

● Intent ○ What is this ad designed to do-Is this intent something that's worthy or is it manipulative and opportunity? ● Relevance ○ What is the relevance of the message to the product and the target? ● Context ○ Is the context of the message appropriate ○ Is it getting to the right audience/is the ad in the right location ● Pride ○ Would you be proud for your family and friends to know about this ● Would you be proud to claim this as your work