Exam 3

Why is broadcasting regulated?

Airwaves belong to public & there is a scarcity of resources; efforts of self-regulating fell through

How can the "fixed" requirement be met?

It is embodied in a medium sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated.

Is it legal to buy, sell, or distribute obscenity?

It is illegal to buy, sell or distribute obscenity

Does commercial speech get the same amount of protection as political speech? Why or why not?

It is not. Commercial speech is more objective

With respect to news items, copyright law protects:

The style and manner of how a specific story is presented.

What is sampling? Is this a copyright infringement?

The technique of taking a small piece or "sample" of a pre existing piece of music and using the sample to create or enhance a different, new piece of music.

What is a trademark?

a symbol, word, or words legally registered or established by use as representing a company or product.

What, in general, is a fair use?

Limitation on the exclusive right of copyright owner where used for -criticism, comment, news reporting, teaching (includes copies for the class), scholarship or research

What does it mean to say a work is part of the "public domain?"

Refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it.

Which is NOT one of the four rights of a PAC?

Release Advisory opinions.

In a consent order proceeding, which of the following must an advertiser agree to?

Sign a statement agreeing to do or not to do certain things in future advertising.

How did the U.S. Supreme Court define obscenity in the Miller case?

Supreme Court determined a 3-part test to decide whether the material is obscene. 1. It appeals to the prurient interest of the average person applying contemporary community values 2. It depicts or describes in a patently offensive way sexual conduct specifically defined by applicable state law 3. Taken as a whole, it lacks serious literary, artistic, political or scientific value. (all 3 parts of the test must be met before the work is defined as obscene.) Social Value: 1. Must consider the work as a whole, not a few isolated passages 2. A "reasonable person" - not an "average person" - must determine if the work has any artistic, literary, political or scientific value

What is a patent?

a government document that establishes an inventor to exclusively sell or make an invention

It would be considered a copyright infringement to use an author's work without consent for purposes of

earning a profit.

How did the decision in Citizens United v. FEC change the status of the law?

it led to unlimited corporate campaign contributions

The obscenity test in Miller v. California requires an application of community standards, which has been defined as

local standards, including city, county or state standards.

The case of Red Lion Broadcasting Co. v. FCC

upheld the constitutionality of an FCC requirement that broadcasters provide a right of reply to a person whose character has been attacked during discussions of controversial public issues.

In the definition of obscenity, patently offensive works are those that

use repetitive and explicit sexual activities

In obscenity, patently offensive works are those that:

use repetitive and explicit sexual activities.

The fairness doctrine:

was abandoned by the FCC in 1987.

Examples of copyrightable material include all of the following EXCEPT

A company's logo.

What is the difference between a contribution and an expenditure?

A contribution is a gift, whether monetary or not that is given to a campaign and the candidate decides what to do with it. An expenditure is any cost done on behalf of the campaign.

Included in the exclusive rights of the copyright holder are the rights to

- derivative works. - reproduction and distribution. - public display and public performance. - public digital performance of a sound recording. Answer: all of the above

What are the six exclusive rights of copyright owners?

1. Repreproduction 2. Preparation of derivative works 3. Public distribution 4. Public performance 5. Public display 6. Public digital performance of a sound recording

What is a PAC (Political Action Committee)? What four issues must we remember about PACs?

-Corporations can form and support PACs 4 issues -Sponsorship of PACs -Solicitation of Funds -Contribution by PACs -Expenditure by PACs

What are the Equal Opportunities Rule and Reasonable Access Rule? Where are they provided for?

-E.O.R: requires broadcast stations and cable systems to offer a legally qualified candidate access to approx.. the same size/type of audience for the same amount of time as the station did for the candidate's opponent. -R.A.R: calls for TV. And Radio stations to make a "reasonable" amount of time available to candidates for federal office.

What is the "fairness doctrine"? Who dumped the fairness doctrine? and when was it dumped?

-Must air controversial issues and stations must allow opposing viewpoints to be heard. -dumped In 1987 -FCC changed its rules in that the fairness doctrine violated broadcasters' First Amendment rights.

What is indecency in broadcasting? How is it regulated?

-Regulated by FCC -Defined as: Language that in context depicts or describes, in terms patently offensive, by contemporary community standards for the broadcast media, sexual or excretory activities or organs at times when children are likely to be in the audience

What is the purpose of the Federal Election Campaign Act of 1971 and what does it prohibit?

-To establish regulations on the way American political campaigns for Congress and the presidency raise money and disclose the amount and sources. -Prohibits using general treasury (instead of PACs) for campaigns. ( Tillman act 1907)Taft/Harley Act of 1947 prohibits labor unions from using general treasury money for campaign money. 1. The size of contributions 2. Sources of contributions 3. Public disclosure of campaign financial info 4. Public financing of presidential campaigns.

What is the Zapple Rule? Political Editorial Rule? What is the Personal Attack Rule?

-Zapple Rule: Supporters of the opposing candidates must be given the same amount of airtime during election campaigns. -Political Editorial Rule: required broadcasters to provide a candidate notification, script of tape, and time to reply to station editorials that opposed a candidate or endorsed a competing legally qualified candidate. -Personal Attack Rule: broadcasters have to offer reply time if the honesty, character, or integrity of an identified person or group was attacked during the discussion of a controversial issue of public importance.

What three types of specialized works can be protected under the Copyright Act?

-compilations -collective works -deritive works

What is a compilation?

.collection or assembly of preexisting materials combined to create original work (trivia dictionary, databases, Dow Jones Stocklist)

What three factors are considered in determining whether an ad is deceptive?

1) Likely to mislead 2) A reasonable consumer 3) With a material statement or omission

What remedies are available to the federal government to stop false or misleading advertising?

1. Cease and Desist Orders 2. Corrective Advertising 3. Court Injunctions 4. Civil and Criminal Penalties 5. Consent Decrees 6. Substantiation of Ads

What are the steps in registering a copyright?

1. Complete and submit an application to the Copyright Office 2. Pay the application fee($45) 3. Deposit copies of the work

What are the disclosure requirements under FECA?

1. Each political committee and the federal candidate must register with FEC 2. Each committee and candidate must keep detailed records of contributions (above $50) and expenditures 3. Donors and the amounts of contributions and expenditures must be disclosed 4. Source of funding for ads must be disclosed (if the ad advocates election for defeat of a candidate) --the identity of the sponsor must be clear and conspicuous --candidates and their committees must file periodic reports listing contributors and recipients Reports must be made available for inspection and copying Failure to comply in reporting an aggregate amount of $2,000 in one year could lead to a prison term of\ up to one year and up to $25,000 in fines.

What is the four-part test the Court developed in the Central Hudson case to determine whether speech is protected under the commercial speech doctrine?

1. Expression is protected by the First Amendment? 2. Government interest is substantial? 3. Regulation directly advances the government interest? 4. Could government interest be served as well by a more limited restriction on commercial speech?

What are the possible remedies for a copyright infringement?

1. Injunctive relief preliminary -show a. valid copyright b. infringement Permanent 2. Monetary Awards -damages -profits -statutory damages (amount $750-$30,000 according to what the court finds "just") (court can award up to $150,000 if the infringement is willful [punitive damaged]) 3. Criminal penalties -infringement qualify as a federal misdemeanor... up to $10,000 in fines and a year in prison -prosecutions have been infrequent

What are the eight types of works of authorship protected in copyright law?

1. Literary works 2. Musical works, including accompanying words 3. Dramatic works, including accompanying music 4. Pantomimes and choreographic works 5. Pictorial, graphic and sculptural work 6. Motion pictures and other scholarly work 7. Sound recordings 8. Architectural works

What does it mean to be a "legally qualified" political candidate under the equal opportunities rule?

1. Must publicily announce an intention to run 2. meets qualifications prescribed by law for the office 3. must qualify for a place on the ballot or publicly commit to seeking election as a write-in candidate.

What four factors are studied to determine if a fair use exists?

1. Purpose and character of the use 2. The nature of the copyrighted work 3. The amount of the work 4. The effect of the use on the potential market

What three elements were required for copyright notice before 1989?

1. consists of copyright symbol 2. date 3. owner's name

What are the two types of works for hire?

1. when the work is created by an employee as part of the employee's regular duties 2. when a certain type of work is created as a result of an express written agreement between the creator and a party specially ordering or commissioning the work

The FCC has established a safe harbor for the broadcast of adult or indecent material between the hours of

10 p.m. and 6 a.m.

What if the copyright holder is a corporation?

120 years from date of creation or 95 years from date of publication (whichever is first).

What is a service mark?

A trademark that is used to distinguish the services (rather than the products) of one person or company from those of another.

What is a derivative work?

A work based on or derived from one or more already existing works. (translations from foreign language, movie versions of plays and novels)

Why did the Supreme Court say that commercial speech should be protected in Virginia Board of Pharmacy?

Although motivated by a desire for profit, commercial advertising does, in fact, contribute to a democratic decision making process.

What part of the Constitution gives Congress the authority to make copyright law?

Article 1, Section 8: Congress has the right 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

What is the status of each of these rules?

Both were abolished and only Zapple remains. (RTNDA v. FCC (2000 case))

How did each of the above acts fare in court?

CPPA was held unconstitutional by the U.S. Supreme Court COPA was affirmed by the U.S.S.C in ACLU v Ashcroft (2003) CIPA was upheld by the U.S.S.C

What did CPPA, COPA and CIPA provide respectively?

CPPA- illegal to send/possess digital images of child pornography. applied whether image was made by computer or an actual photograph. COPA- banned internet distribution to children of material "harmful to minors." restricted transmitting harmful content applied only to people intending to profit from using the internet. CIPA- stop money from going to schools and libraries that don't install "technology protection measures" on computers accessible to the Internet. Congress has right to set conditions for receipt of federal money

The Supreme Court held that a parody of a song was protected under the fair use defense and so not a copyright infringement in

Campbell v. Acuff-Rose Music.

How does a trademark differ from a copyright in terms of gaining protection?

Copyrights primarily protect the rights of the people who create literary, dramatic, musical, artistic, and certain other intellectual works. Trademarks protect the use of a company's name and its product names, brand identity (like logos) and slogans

Who does copyright protection extend to?

Extends to original works of authorship fixed in any tangible medium of expression; Generally, slightest amount of originality confers protection under the law.

What is the federal agency chiefly responsible for regulating advertising?

Federal Trade Commision (FTC)

What five types of rights may a publisher buy from a freelancer?

Freelancers can pass on all rights, first serial rights, first north American serial rights, simultaneously rights, and one-time rights on a contract.

What is the duration of copyright protection for a creator of a work?

Lifetime of the author plus 70 years

What is another name for the Bipartisan Campaign Reform Act?

McCain-Feingold Act

Complaints about ads that are made through the industry's self-regulation practices are investigated by the

National Advertising Division

In what ways does the advertising industry regulate itself?

National Advertising Review Council: -Formed in 1971 -Founded by the ANA, AAAA, AAF and the CBBB -Fosters truth and accuracy in national ads through self regulation -Establishes policies and procedures for all self regulation review panels Review Panels: -NAD -NARB -CARU

Individual articles or book chapters used in College course packets are:

Not protected under fair use and require copyright permission and possible fees.

Can non-obscene sexual expression be regulated? In what ways?

Obscenity can be banned, but sexually expressive materials that are not obscene cannot. They can be restricted, however. -Zoning Barnes v. Glen Theatre (4-part test) -Whether governmental regulation is within the constitutional power of the government? -Whether it furthers an important or substantial government interest? -Whether governmental interest is unrelated to the suppression of free expression? -Whether the restriction on 1st Amendment freedoms is no greater than essential to the furtherance of this interest?

What is the legal difference between pornography and obscenity? Indecency?

Obscenity is a legal term and shoult NOT be confused with pornography, which has no legal meaning (except for child pornography).

What level of First Amendment protection does obscenity receive?

Obscenity is outside of the protection of the First Amendment

When freelancers sell to publishers the right to use a piece only once, and there is no guarantee that it has not been published elsewhere first, this arrangement is known as a transfer of

One-time rights.

The Federal Trade Commission uses several of its own remedies to regulate deceptive or untruthful advertising. NOT among them are:

Public reprimands

What are the duties and powers of the FCC under the Communications Act of 1934?

The Act charged the Commission to: -Regulate wire and radio communication -Require that broadcasters operate in the public's interest, convenience and necessity (PICON) Duties/Powers of the Commission: -Make policy for the Telecomm. Industry -Enforce Congressional and Commission policies

When was the last major revision of the Copyright Act? Know the two major names.

The Communication Term Extension Act of 1998 (Copyright Extension Act). Sonny Bono Copyright Extension Act (Mickey Mouse Protection Act)

Why is registration of a copyright important?

The Copyright Act strongly encourages registration -no action (lawsuits or infringement) can be maintain without registration -The Certificate of Registration, if obtained in a timely fashion (within 5 years of creation) is prima facie evidence of valid of the copyright

What act protects trademark holders from infringement?

The Lanham Trademark Act 1946; The Lanham Act permits the holder of a registered trademark to file a trademark infringement claim against any person who, without the registered trademark holder's consent, (1) uses any reproduction, counterfeit, or copy of a registered mark; (2) in commerce; (3) in connection with the sale, offering for sale, distribution, or advertising of any goods or services; (4) where such use is likely to cause confusion, or to cause mistake, or to deceive.

The Copyright Extension Act of 1998 is also known as:

The Sonny Bono Copyright Act

Is commercial speech protected under the First Amendment to protect the listener or the speaker?

The listeners

What is considered a "safe harbor" in indecency? What hours are safe harbor?

The term "safe harbor" refers to the hours during which broadcasters may transmit material deemed indecent for children. This "safe harbor", enforced by the Federal Communications Commission, extends—legally—from 10 PM to 6 AM and was established by the US Supreme Court case FCC v. Pacifica

Broadcast regulation was originally justified because

There were a limited number of frequencies available for broadcasters

How and why did the decisions in the Red Lion and the Tornillo cases differ?

Tornillo case relates to printed media and Red Lion to broadcast. The effect of the two cases is that there is no right to reply to negative statements about politicians in the print media because the determination of what goes into the media is the role of the editor. On the other hand there is a right to reply to criticisms in the broadcast media because of the limited spectrum.

How is a trademark registered?

Trademark and service mark - created through adoption and use -Registration through the Patent and Trademark Office -Provisional approval - must be used within 6 months -Registration certificate is issued -Renew every 10 years -can be renewed for as long as the mark is used

Which of the following statements is NOT true regarding trademark law?

Trademarks and service marks are protected, but slogans and titles are not.

The first obscenity case on the internet was

U.S. v. Thomas.

In what major way did the decision in the Citizen's United case change campaign finance law?

Unlimited corporate independent expenditures.

The first time the U.S. Supreme Court ruled in favor of constitutional protection for purely commercial speech was in:

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council.

How does the regulation of indecency differ from the regulation of obscenity?

What does the FCC deem indecent? -Expletives -Sexual Innuendo -Descriptions of sexual activities or organs -Descriptions of excretory activities or organs For the most part, the rules of both of these, and when these materials can be disseminated, deal with the dissemination of sexually explicit materials. • Such sexually suggestive or explicit materials can be generally split into three categories: - Obscenity: This category is so offensive that is deserves and receives no First Amendment protection. • It can be regulated or outlawed at the will of the states. - Indecency: This category is "less offensive" than obscenity. It enjoys First Amendment protection. However, it may be regulated more than political speech . • e.g., to protect children from indecent images, etc. - Speech that doesn't rise to the indecency level enjoys full First Amendment protection.

After the Two Live Crew case, is parody now considered a fair use?

Yes

Which of the following FCC fairness policies still exist today?

Zapple Rule

Pornographic materials may be found to be obscene if

a. the work is taken as a whole to appeal to the prurient interests. b. they are lacking in literary, artistic, scientific, or political value. c. they would be prohibited by contemporary community standards. d. they are patently offensive. Answer: all of the above.

Ownership of a trademark may be unwittingly lost if it is

abandoned and gradually falls into the public domain.

In RTNDA v. FCC the Court:

abolished personal attack and political editorial rules

In RTNDA v. FCC the Court

abolished personal attack and political editorial rules.

In Barnes v. Glen Theatre, the U.S. Supreme Court found the state ban on totally nude dancing to be

constitutional because the state's interest in protecting public morality was unrelated to the suppression of free expression.

In the current state of the development of the commercial speech doctrine, the U.S. Supreme Court has

created a First Amendment right of expression that is largely based on the citizens' right to receive information.

What is a collective work?

created from the assembly of other works already copyrighted (anthologies, magazines, and ads [must have permission of individual copyright holders], newspapers

A major part of the Fairness Doctrine required that broadcaster

give political candidates for office 30 minutes each to speak.

When there is a proper registration on a trademark

rights are created through adoption and use of the mark.

The first major Congressional act to regulate commercial broadcasting was

the Radio Act of 1927.

Which of the following is NOT a factor in determining fair use?

the amount of use in commerce.

What is copyright?

the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.

What does the act prohibit?

trademark infringement, trademark dilution and false advertising

Under federal law, it would NOT be proper to try to copyright

trademarks.