Mass Media Law CH 14 Textbook

critical

"The Daily Show" on Comedy Central used a video clip from a public access television show, "The Sandra Kane Blew Comedy Show," to introduce a segment called Public Excess. The segment features examples of public access television. Sandra Kane, a comedienne and former stripper, sings, dances and tells jokes on her show while wearing little or no clothing. She sued for copyright infringement , but the federal court said the use of the clip by Jon Stewart on "The Daily Show" was a fair use because it was used for__________ purposes. "In presenting plaintiff's clip, defendant sought to critically examine the quality of plaintiff's public access tevelvison show," the court ruled. But a federal court in California rejected a fair-use argument made by the operator of an Internet bulletin board who posted complete copyrighted articles from the Los Angeles Times and the Washington Post on the site so people could comment on the news and criticize the manner in which the news stories were reported. The court noted that adding commentary to a verbatim copy of a copyrighted work does not automatically protect it as a fair use. The court issued an injunction barring future postings and assessed a $1 million in damages against the defendant. Whta's the difference in rulings for these two cases? It involves the amount of copyrighted material that was used in the instances. In the California case, the defendants used a great many copyrighted articles form the two newspapers. Significantly smaller amounts of copyrighted material were used in the other case.

*fair use*

*Owners of a copyright are granted almost exclusive monopoly over the use of their creations.* The word "almost" must be used, for there are really 4 limitations on this monopoly. 3 of the limitations have been discussed already. FIrst, the work must be something that can be copyrighted. There can be no legal monopoly on the use of something that cannot be protected by the law. Second, the monopoly protects only original authorship to creation. If the creation is not original, it cannot be protected. Third, copyright protection does not last forever. At some point the portection ceases and the work falls into the public domain. The fourth limitation on exclusive monopoly is broader than the other three, is certainly more controversial and is concerned with limited copying of copyrighted material. This is the doctrine of _____________, which has been defined by one court as follows: A rule of reason...to balance the author's right to compensation for his work, on the one hand, against the public's interest in the widest possible dissemination of ideas and information on the other."

trademark confusion; marketplace

A _________ is any word, symbol or device-or combination of the three-that differentiates an individual's or company's goods and services from the products or services of competitors. The trademark on a particular item assures the buyer that he or she is getting the real item and protects the manufacturer or service provider from the unfair business practices of others. The function of trademark law is to stop _____________ in the _______________, to clearly identify the products and services created by a specific business.

U.S. Constitution

British copyright law was appleid in the colonies until American independence. American copyright law derives directly from the ____________________. Provision Article 1, Section 8 gives Congress the power to legislate on both copyright and patent. The Congress did just that in 1790 by adopting a statute similar to British law. The law gave authors who were U.S. Citizens the right to protect their books, maps and charts for a total of 28 years-a 14-year original grant plus a 14-year renewal. In 1802 the law was amended to include prints as well as books, maps and charts. In 1831 the period of protection was expanded by 14 years. The original grant became 28 years with a 14-year renewal. Also, musical compositions were granted protection. Protection for photography, works of fine art and translations were added later in the 19th century.

intangible property

Copyright is an area of the law that deals with ___________________-property that a person cannot touch or hold or lock away for safekeeping.

fostering of the creative spirit.*

Copyright protection was unneeded until the development of mechanical printing. The time and effort it took to hand-copy a manuscript made the theft of such work both tedious and unprofitable. But the printing press gave thieves the ability to reproduce multiple copies of a work relatively quickly and cheaply, and this capability changed things dramatically. Each subsequent technological development has put new stress and strain on copyright law. The development of motion pictures and the broadcast media, recorded music, audio- and then videotape, photocopying, and most recently interactive computer-mediated communication have all required modifications or new interpretations in the law as the government has sought to protect the right to literary property. The British were the first to attempt such protection. Copyright law developed in England in the 16th century as the government sanctioned and supported the grant of printing privileges to certain master printers in exchange for their loyalty and assistance in ferreting out anti-government writers and publishers. But the rights of authors, as opposed to printers, were not protected until the early 18th century when the British Parliament passed the nation's first copyright law. The law gave the legal claim of ownership of a piece of literary property to the person who created the work or to a person who acquired the rights to the work fro, the author. The statute was a recognition b the Crown that in order to encourage the creation of books, plays and art, the creators of these works had to be assured that they would be rewarded for their labor. *That is the real logic behind copyright law, the _______________________________.*

"scènes à faire"

Courts have ruled that what are called ________________ is uncopyrightable. These are situations and incidents in a story that flow naturally from the basic plot premise.

3; abandonment

Failure to use a name for as little as ___ years can constitute _________________. It is also possible that trademark protection can be lost if the owner of the mark allows others to use the mark in a generic way. (For example, if the makers of Super Glue (a trade name) adhesive failed to try to stop other adhesive makers from referring to their products as super glues, the trademark protection could be lost.) As trade names become more commonly used, there is a tendency for them to slip into a generic term. Google was not happy when people stopped putting the capital "G" and started saying "i googled something," when Google would rather people say "i used the search engine Google to..."

a scene to be made

Infringement: -not defined well 1. Is the work original?(if not original, you can't copyright it) - the copyright office is *not* the one who determines if the copyright is original. They don't care. The only time it comes up is in a copyright lawsuit. -Scènes à faire: means _______________ -it is just a thing, you can't copyright it -ex: you can't copyright saying - "children played on a playground" or copyright "how to play on a playground" 2. Access -in the past this has been more difficult -it is becoming more muckier for the courts 3. Copying and Substantial Similarity: -court case with J.K. Rowling -Rowling won the case -other person appealed and dropped it -then published "similar" book but took out the substantial similarity by taking out the chapters from her book The FatJewish: -accused of stealing content on his Instagram page -she showed us a video -FatJewish wasn't just stealing credit, he is also making money off it -Twitter; Instagram are tricky to figure out if copyright is occurring -There is an effect on market (like we talked about earlier in chapter) -Copyright is complicated on the internet because it is so easy to take

substantially similar

More often than not, however, direct or literal copying is not an issue. In these cases the defendant is not accused of taking a particular line or segment of a work, but of appropriating "the fundamental essence or structure of the work." There must be more than minor similarities between the two works; they must be _______________________. But this is another instance in which it is easier to state a rule than to apply it. Courts use a variety of tests to determine substantial similarity, but virtually all the tests focus on two aspects of the work. The courts will first ask whether the general idea or general theme of the works is the same. If the general idea of the two works is not similar, there is no infringement and the courts usually insist that the similarities must be apparent to an average, lay observer, not an expert. If the general idea in the two works is substantially similar, the court must then take a second step and look to see how the idea or concept is expressed in the works. (How is the theme carried out?)

5; 10

Once registered, a trademark must be renewed after ____ years. Renewal is then required at _____-year intervals. But as long as it is properly renewed, a trademark can be maintained indefinitely.

infringement original

People who believe their exclusive right to control the use of a copyrighted work has been violated will sue for _________________. The federal copyright statute does not actually define infringement. The law simply states that anyone who violates any of the "exclusive rights" of the copyright holder is guilty of an infringement of copyright. Courts that litigate copyright cases seem to focus most often on 3 criteria to determine whether a particular use is an infringement: -Is the copyright on the plaintiff's work valid? (While this inquiry will look at matters such as the proper registration of the work, the heart of this examination is to determine whether the copyrighted work is an _____________ work that can be protected by copyright.) -Did the defendant have access to the plaintiff's work prior to the alleged infringement? -Are the two works the same or substantially similar?

copyright cases ethical; legal

Plagiarism occurs when a writer takes the ideas, thoughts or words from another and passes them off as his or her own. The notion of taking credit for the work of another is a key element in plagiarism. While the mass media is certainly not rife with plagiarism, it is probably more common than many people suspect, especially editors. Most cases of plagiarism that are uncovered are suavely resolved outside of the legal system. The plagiarist is humiliated and often fired from his or her job. The publicity damages his or her reputation. A plagiarist may lose future book contracts or assignments. When instances of plagiarism reach the courts they are generally litigated as ___________________. But copyright infringement and plagiarism are different acts with some potential overlap. Plagiarism is an ____________ concept. Copyright is a _______ concept.

statutory damages $750

Plaintiffs in a copyright suit can ask the court to assess the defendant for any damage they have suffered, plus the profits made by the infringer from pirating the protected work. Damages can be a little bit or a lot. In each case the plaintiff must prove to the court the amount of the loss or the amount of the defendant's profit. But, rather than prove actual damage, the plaintiff can ask the court to assess what are called ________________, or damage amounts prescribed by the statute. The smallest statutory award is $_________, although in the case of an innocent infringement, the court may use its discretion and lower the damage amount. The highest statutory award is $30,000. However, if the plaintiff can prove that the infringement was committed willfully and repeatedly, the maximum damage award can be as much as $150,000.

utility; designs; furniture; plants

The constitution has given Congress the right to promote the sciences and the useful arts by protecting the rights of inventors. There are at least 3 different kinds of patent protections. -One variety protects inventions that have _________, such as a machine or a process. (A typewriter can be patented; so can a specific way of reducing the hiss or noise on a recording.) -Patent law also protects ________-the appearance of an article of manufacture. (The design of a piece of _____________ or a tire tread or a belt buckle can be patented.) -A variety of patents protect _______, but only those kinds that can be reproduced asexually through means other than seeds, like cuttings or grafting. Patent rights do not exist until the patent is issued by the U.S. government. Hence, the famous abbreviation on many items, "pat.pending," which means the patent has been applied for and is pending.

500

The law of copyright is almost _______ years old.

Internet

The law regulating mass media has had to adapt to changes in media technology many times in the past 200 years. When the nation's first copyright law was adopted, printed material comprised the mass media. But since then, the law has been forced to cope with photography, radio, motion pictures, sound recordings, television, audio- and videotaping, photocopying, computer programs, CD-ROM and so on. But no technology has challenged the law to the extent the _____________ has. By its very nature, the new medium lends itself to the theft of the work of others. As on legal expert noted, digitized information can be copied quickly, easily and cheaply, and the copy is every bit as good as the original. Once the information is copied, it can be easily distributed via the Web to receivers who can make their own copies of the material and further distribute it: an almost endless chain. Copyright issues involving computer-generated communication are commonplace today. And the owner of the copyright can be left out completely.

access

The second dimension of an infringement suit is __________: The plaintiff must convince the court that the defendant had access to the copyrighted work. An opportunity to copy has to exist. If plaintiff's cannot prove that the so-called literary pirate had a chance to see and read the work, they are hard-pressed to prove piracy.

90

The statute gives an author or owner _______ days to register a work. What happens if the work is still not registered after 90 days and an infringement takes place? The owner can still register the work and bring suit. But a successful plaintiff in such a suit cannot win statutory damages or win compensation for attorney fees. It is best to get into the habit of registering a work as soon as it is published or broadcast. Courts are of at least 2 minds regarding when a work is officially registered. Some courts have said a work is not registered-prohibiting a court from exercising jurisdiction in a case-until a certificate of registration is actually issued by the Copyright Office. Other courts have ruled that official registration begins once the registration application has been mailed to the Copyright Office.

*there must be proof that the defendant had access to the stolen work.*

The theft of recorded music via the Internet wasn't a serious problem until the late 1990s because it took long to download a song. But the development of inexpensive data compression technology solved this problem, and the introduction of MP3 players, which brought this technology within reach of music lovers, resulted in the dramatic growth of illegal music file sharing. The music industry tried to block the manufacture and sale of the MP3 players, but the courts ruled they were simply space shifters, not audio recording devices. File-sharing services like Napster, StreamCast Networks, Grokster and many others began to spring up, facilitating the free transfer of copyrighted music, giving music fans access to recorded music without having to purchase a CD. One by one these services were sued for abetting copyright infringement, and for the most part, the courts supported the recording industry in its attempt to stop the piracy. But the litigation was costly, time-consuming and did not end the problems generated by file sharing, as new, slightly different services sprang up. The industry then began to attack the file sharers themselves, individuals who used the peer-to-peer music sharing systems. From 2003 to the end of 2008 the Recording Industry Association of America (RIAA), the trade group representing the recording industry, sued about ________________ people for swapping songs online. Judgments or settlements averaged about $3,500 in these cases-hardly worth the cost of the lawsuit.

Berne Convention; *copyright notice* "innocent infringer"

Until 1989 when the provisions of the ___________________ became applicable to American copyright law, a work would not be protected from infringement unless it contained a _________________. Failure to affix a notice meant the automatic loss of most copyright protection. Under international law, however, the affixing of a copyright notice is not required to protect a work. Once a work is created it is protected. American law now states that a copyright notice "may" be placed on works that are publicly distributed. The U.S. Copyright office, however, still strongly urges creators to include notice on all their works. Copyright law protects the ______________ from liability for infringement. Someone who copies a work that does not contain a notice could claim an innocent infringement; that is, could argue that she did not realize the work she copied was actually protected by copyright. Although the absence of notice doesn't guarantee a finding of innocent infringement, putting notice on a work eliminates the possibility of an innocent infringement defense. Placing a proper notice on the work is simply prudent behavior.

1. All rights 2. First serial rights 3. First North American serial rights 4. Simultaneous rights 5. One-time rights

What rights does a freelance journalist, author or photographer hold with regard to stories pr pictures that are sold to publishers? The writer or photographer is the creator of the work; he or she owns the story or the photograph. Consequently, as many rights as such freelancers choose to relinquish can be sold or given to a publisher. Beginning writers and photographers often do not have much choice but to follow the policy of the book or magazine publisher. Authors whose works are in demand, however, can retain most rights to the material for their future benefit. most publishers have established policies on exactly what rights they purchase when they decide to buy a story or photograph or drawing. The annual edition of "The Writer's Market" is the best reference guide for the freelancer. Some rights publishers may buy include: 1. __________: The creator sells complete ownership of the story or photograph. 2. _______________: The buyer has the right to use the piece of writing or picture for the first time in a periodical published anywhere in the world. But the publisher can use it only once, and then the creator can sell it to someone else. 3. _________________________: The rights are the same as those provided in number 2, except the publisher buys the right to publish the material first in North America, not anywhere in the world. 4. __________________________: The publisher buys the right to print the material at the same time other periodicals print the material. All the publishers, however, must be aware that simultaneous publication will occur. 5. ______________________: The publisher purchases the right to use a piece just one time, and there is no guarantee that it has not been published elsewhere first.

story

When the news is reported correctly it is basically an account of facts. Can a news account be copyrighted? Can one journalist claim the exclusive right to report a story? Suppose a TV reporter gets an exclusive interview on the evening news. Does the law of copyright prevent other journalists from relating the substance of what was revealed in that interview? The answer is no. Other stations cannot replay the same interview. Newspapers cannot publish a transcript of the interview. But both broadcast and print journalists can tell their viewers and readers what the public figure said in the interview. Copyright law doesn't even require the competitors to credit the TV journalist for the interview. Failing to give proper credit to the TV journalist who got the interview is grossly unethical but happens all too often. Charges of plagiarism might be made. Copyright law protects the expression of the _______-the way it is told, the style and manner in which the facts are presented-but not the facts in the story. For many writers this concept is a difficult one to understand and to accept. After all, if one reporter works hard to uncover a story, shouldn't he or she have the exclusive right to tell that story? This argument again reflects the sweat-of-the-brow doctrine that has been rejected by the Supreme Court. Shouldn't hard work be rewarded? In this case the law is clear: hard work must be its own reward. Copyright protects only the way a story is told, not the facts in the story.

File sharing

_____________, or the ability of computer users to move files from one computer to another or a great many other computers, caused some of the most perplexing and widely publicized copyright problems,s during the past decade. But by late 2009 file sharing had ceased to be a primary issue in copyright litigation; not because the questions had been resolved, but because this was a problem that appeared to be intractable. Every time a legal solution was fashioned, new technology allowed file sharers to bypass the legal limits put in place. At some point, leaders of especially the recording industry concluded that there was little more they could do to stop the widespread sharing of music.

*Misappropriation*; *unfair competition*

_____________________________, or __________________________, is sometimes invoked as an additional legal remedy in suits for copyright infringement (it also guards against the theft of intangible property-like copyright law). Unlike copyright, which springs largely from federal statute today, misappropriation remains largely a creature of common law. One of the most important media-oriented misappropriation cases were decided by the Supreme Court more than 80 years ago and stemmed from a dispute between the Associated Press (AP) and the International News Service (INS), a rival press association owned by William Randolph Hearst.