Media Law Ch. 12-14
Roth v. United States
-1957: Court said the first amendment does not protect obscene material -Rejected Hicklin too: material is obscene if 1) average person, applying community standards, found the work appealed to prurient interests (lustful thoughts or sexual desires), 2) without social importance and 3) not obscene if both of prurient interests and of social value
New York Times v. Sullivan
-1964 (actual malice libel case): In Chrestensen, the advertisement for the submarine tour did no more than propose a commercial transaction; In Sullivan, by contrast, the advertisment was not a commericial advertisement. Instead, it communicated information, expressed opinions, and sought support "on behalf of an important movement." -The idea was emerging that free speech could include kinds of commercial speech, and thus have first amendment protections, if the commerical speech has some informational value
Pacifica
-1973: Father said his son heard, at 2pm, George Carlin's "Filthy Words" on the radio; stand-up contains the 7 words you cannot say on the airwaves; lead to the FCC fining the Pacifica Foundation -Reached the SC: because of spectrum scarcity and broadcast availability to minors, the FCC's fine was justified and allowed to question such a first amendment protection of broadcasters
Miller v. California & the Miller Test
-1973: still in effect today; defendant convicted under Cali obscenity statute appealed and led to Miller Test -Mateiral is obscene if 1) avg. person thinks it appeals to prurient interests, 2) it's hard-core pornography (its patently offensive), and 3) the work, taken as a whole, lacks serious artistic, literary, political or scientific value" by national standards
Copyright Duration & the Sonny Bono Copyright Term Extension Act of 1998
-1976 copyright law gave copyright protection for the creator's life plus 50 years after the creator's death with no possible renewal -Works made for hire are protected for 95 years from publication or 120 years from publication, whichever is shorter -Sonny Bono Copyright Term Extension Act of 1988: extended all copyright laws by 20 years; creator's lifetime plus 70 years -public domain works remained in the public domain
Works that copyright protects...
-1976 law says that copyright protection applies to works that are 1) substantially original and 2) fixed in any tangible medium of expression -Includes literary works, musical works, dramatic works, pantomimes and choreographic work, pictorial, graphic, or sculptural works, motion pictures and other audio visual works, sound recordings, and architectural work
Central Hudson Gas & Electric Corp v. Public Service Commission
-1980: during a severe energy crisis, NY prevented Central Hudson from advertising in the media -Company sued, arguing the restriction went against the company's first amendment rights -Court had to wrestle between the company's first amendment rights and energy conservation; court developed a test...
Recording Labels
-1985: the Recording Industry Association of America, the National Parent Teacher ASsosciation and the Parents Music Resource Center agreed to have recording companies voluntarily apply a Parental Advisory label on certain music recordings -Includes explicit lyrivs, references to drugs and sex
Child Pornography Protection Act (CPPA)
-1996: made it illegal to send or possess digital images of child pornography -illegal to send or possess an image that "is, or appears to be, of a minor engaging in sexually explicity conduct," or if the image is advertised or distributed in a way "that conveys the impression" that a minor is "engaging in sexually explicit conduct" -"appears to be" and "conveys the expression" found to be overbroad
Using Zoning to restrict Adult Stores
-Does a city's use of zoning powers in this way infringe on the First Amendment right of an adult establishment's owner? -SC has allowed cities to zone adult establishments into confined areas or to disperse them throughout a city -Court justifies this ruling on the basis that government may curb the secondary effects resulting from the presence of an adult establishment
Valentine v. Chrestensen
-FJ Christensen, in 1942, purchased a submarine to charge people for tours on it -printed an advertisement for both his submarine and a political ad protesting the city ordinance that kept him from advertising the commercial part of his flyer -Went all the way to the Supreme Court, who sided with the city; still had no first amendment protection and could therefore be regulated -This would slowly change
A trademark must be distinctive
-Fanciful marks, arbitrary marks, suggestive marks, descriptive marks (in order of most distinctive)
Indecency
-Indecent speech: non-obscene sexual expression with excretory functions and filthy words... vague and difficult for courts to really rule on -Indecent speech is protected in print media, movies, recordings, and the Internet; protected on most cable TV programming -Not protected if broadcast by radio or television during most hours of the day or if directed to children over the telephone -Despite the 1934 Comm Act's forbidding braodcast indecency, the FCC didn't act against indecency until 1975 - George Carlin
Inducer Infringement
-Individuals or companies who induce or encourage other to engage in copyright infringement -Ex: torrent sites know that they are allowing for copyright infringement; they induce infringement
Prodedural Protections: Can authorities censor or block obscene material?
-Movie censorship boards ended in 1981; but they set a standard for SC to rule on a standard for all obscenity prosecutions -Officials must prove work is obscene and prior restraint on obscene material must be for as short a time as possible until a court decides whether the work meets the obscenity standard
1. The right to reproduce the work
-No one may copy a work without the copyright holder's permission -Exception 1: US SC allowed home taping of TV broadcasts for personal use -Exception 2: A single copy of analog or digital recording for personal use -First Sale Doctrine: enables reselling of trademarked products after the trademark holder put the products on the market -Kirtsaeng v. Wiley is a United States Supreme Court copyright decision in which the Court held, 6-3, that the first-sale doctrine applies to copies of copyrighted works lawfully made abroad
Community for Creative Non-Violence v. Reid
-Non-profit asked a sculptor to create a sculpture; both claimed the copyright -Court ruled in favor of the artist because the artist's status was no as an employee, but that of an independent contractor -Defined rules surrounding a person's stance as an employee and an independent artist in a copyright case
Gambling Advertising
-North Carolina radio station has many VA listeners and wanted to promote VA lottery, couldn't because NC gov had right to discourage lottery within the state -New Orleans broadcasters challenged a regulation that banned broadcasters from airing ads for legal casino gambling; still failed central hudson test
Lanham Act
-protects trademarks that are eligible for registration with the US Patent and Trademark office -ensures that if a company complies with a certain requirements, no other company may use a word, symbol, slogan, or other such item that will confuse consumers about who supplies a particular product or service -Also prevents using a mark to falsely suggest a product's source even if the mark is not registered
6. The right to transmit a sound recording, such as a CD, through digital audio means
-provision requires obtaining permission from a recording company to play one of its recording via the Internet, satellite radio, or other digital media, including interactive services -permission is NOT required if it is a live performance or over broadcast
Tobacco Advertising
-regulation of tobacco ads within distances of school and in certain locations; regulate teh retail sales practices applied to tobacco products - targeted self-service machines (Court upheld restrictions because the state's interest was "unrelated to the communication of ideas") -Criticisms of Joe Camel -1995, Clinton instructed FDA to take necessary steps to stop sales and marketing of cigarettes to children; eventually tobacco companies agreed not to use cartoons or place ads in transit areas
Opinion Letters
-requested by an advertiser from the Federal Trade Commission containing advice about advertising technique
Sound Recordings
-series of musical or other sounds recorded on a vinyl disc, a CD, a DVD, an audiotape, or some other storage medium -these are eligible for copyright protection -Sound recording is not the composition; it is the literal recording; the captured performace of the musical sounds and words -It is not the CD or DVD itself (these are called phonorecords) -Work must be original to be eligible for copyright -may be owned by musicians or jointly with a record company
14: Commercial speech
-simile to advertising; commercial speech refers to afd proposing commercial transactions -Not political or informational ads
1976 Copyright Act
-sspecifies what may be protected by copyright, what rights that protection includes, any restrictions on those rights and the formalities necessary to exercise the rights -Outdated almost immediately with the advent of new technologies like Internet, personal computer, and wireless/satellite tech
Safe Harbor Policy
An FCC policy designating 10pm to 6am as a time when broadcast radio and television stations may air indecent material without violating federal law or FCC regulations -Otherwise, indecent material over radio and television are not fair game
Comstock Act
Anthony Comstock, a clerk, in 1872 convinced the YMCA to support his campaign against sexual content in art, newspapers, books, magazines and other media -Backed by industrial and financial giants of the time, Comstock used his power to urge congress to tighten regulations on sending obscene material through mail -Led to the Act: 1873, prohibits the mailing of "obscene, lewd, or lascivious" material -Comstock went on to oversee project for 42 years -Law remains in effect today
Child Online Protection Act (COPA)
-1998: Intended to correct constitutional problems of the CDA -consistently found unconstitutional -Where the CDA broadly limited obscene, indecent, or offensive content, COPA banned INternet distribution to children of material "harmful to minors," defined in part as being designed to pander to prurient interest, determined by applying contemporary community standards -COPA's restriction on teansmitting harmful content applied only to people intending to profit using the Internet; also defined minors as 16 and younger, not 17 as CDA did -COPA limited adults to accessing materials appropriate for children - just as the CDA did -Constant debate over if COPA limits too much speech to protect minors from inappropriate material online -By 2009 it was ruled unconstitutional
Ads by Attourneys
-2 Arizona lawyers challenge the advertising regulation in part on First Amendment grounds -the court rejected the arguments of the State Bar Association and ruled it's regulation in violation of the First Amendment the ruling emphasized however that it was stopping short of granting a blanket endorsement to attorney advertising -reasonable restrictions for example those pertaining to. Advertising could survive First Amendment scrutiny
Children's Internet Protection Act (CIPA)
-2000: Schools and libraries that receive federal funding for Internet connections and computer equipment will not receive money if they do not install "technology protection measures" on their computers accessing the Internet -Meets first amendment standards
Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (the Protect Act)
-2003: makes it illegal to provide someone with or request from someone an image that "is indistinguishable from that of a minor" in a sexual situation -Breaks from vague language in CPPA -Offering to give or receive unlawful material has no social value -2008, SC found the Protect Act constitutional
Trade regulation rules
-A broadly worded statement by the Federal Trade Commission that outlined advertising requirements for a particular trade
Work made for hire
-A copyright is owned by the creator unless they are a work made for hire -Work created when working for another person or company; the copyright in a work made for hire belongs to the employer, not the creator -A work may be for hire also if the creator and employer agree to that in wiring and if the work is specifically ordered or commissioned for use in, for example, a compilation, motion picture, a textbook, or any several other categories the law sepcifies
The Federal Trade Commission
-A federal agency created in 1914 whose purpose is to promote free and fair competition in interstate commerce; this includes preventing false and misleading advertising
Lanham Act (1938)
-A federal law that regulates the trademark registration process but that also contains a section permitting business competitors to sue one another for false advertising -1938 -though the act was seldom used as a check on advertising initially it eventually became the foundation for lawsuits as advertising grew and begun using new techniques such as comparative advertising -one example can be found in a truck companies advertising of U-Haul with false prices and photos of you holes beat up which resulted in U-Haul experiencing financial losses; A federal court ruled that the advertisements violated the Lanhan act by being deliberately full misleading to consumers
Trademarks defined
-A word, name, symbol, or design used to identify a company's goods and distinguish them from similar products other companies make
Applying the Doctrine
-AS with other first amendment areas, controversial commercial speech-that is, advertising for "vice" products- is primarily where the doctrine has been tested
FCC v. Fox Television Stations
-After 2004 Superbowl wardrobe malfunction, FCC imposed $550,000 fines on all Viacom stations that aired the superbowl -US Court of Appeals overturned the commissions fine, saying in the past, content was only indecent if the content was SO shocking -SC told appeals to reconsider the decision; stood by original ruling -Resulted in SC's overturning the Cher and Nichole Richie decisions -In all three cases, the FCC did not act arbitrarily or capriciously when it ruled that a single use of an expletive is indecent; they didn't work on a case-by-case basis when they should have -Save broadcasters from experiencing a chilling effects from FCC's overly harsh rules
Trademark Infringement Defenses
-All listed in Lanham act -fair use defense: permit's usig one comapny's trademark to describe another company's product; courts accept this id the defendant used the mark to describe its goods and not as a trademark; use also cannot cause customer confusion -disputed facts - a defendant might argue that the registered trademark was obtained fraudulently or that the trademark has been abandoned and no longer is in use -Defendant might also claim to have used and registered the mark first
Copyright
-An exclusive legal right protecting intellectual creations from unauthorized use -US Constitution: Copyrights and Patents - 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; adopted in 1970 -Encourages people to create new works by allowing them to profit from their efforts -Lasts for the creator's life plus 70 years
Possessing Obscene Material and Stanley v. Georgia
-Authorities have no grounds to invade someone's home or property and arrest a suspect after finding obscene material -Arose after police officers who suspected a bookkeeping of gambling, found obscene material and arrested the suspect -Merely categorizing the films as obscene does not justify "such a drastic invasion of personal liberties guaranteed by the first amendment" -This rule does NOT apply to child pornography; a ban on possession is supported by the Supreme Court - attempt to protect children's psychological and physical health and ending sexual exploitation
5. The right to publicly display a work
-Same as "the right to publicly perform a work," but this right adds protection for "pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work."
CDA and Reno v. ACLU
-CDA (Communications Decency Act), part of the 1996 Telecommunications Act: made it illegal to knowingly transmit "obscene or indecent messages to any recipient under the age of 18." -SC found the CDA unconstitutionally overbroad in Reno v. ACLU: Internet, unlike broadcasting, has full 1st amendment protection; INternet not as intrusive as broadcasting, families who are worried about obscene material online need not purchase Internet service -SC refused to find the Internet bound by the Pacifica case -CDA restricted speech, so the court used strict scrutiny; the CDA denied adults access to protected speech as a way to prevent minors from being exposed to potentially harmful content
FTC Corrective Measures
-Cease and desist orders -Consent orders -Substantiation -Litigated orders -Corrective advertising -Injunctions
Child Pornography & the 1996 Child Pornography Protection Act (CPPA)
-Child Pornography: any image showing childre in sexual or sexually explicit situations -By 21st century, every state had child porno laws and congress had tightened federal law -CPPA: criminalizes the ending or possessing of digital images of children in sexual poses or activities, even if they weren't real children or they were adults who looked young; later found unconstitutional
Eldred v. Ashcroft
-Claim that Bono Act violates the constitutional copyright clause of the first amendment -Eric Eldred sued when the copyright period extended, wanting to publish Robert Frost poems on his site thinking they'd enter the public domain -Upheld Bono ruling because congress has the right to define was "limited time" means in copyright law (they chose 70 years) - therefore constitutional
Public Funds for Pornographic Art
-Congress adopted a law preventing the National Endowment for the Arts (operated under federally funded National Foundation on the Arts and Humanities) from granting frunds for art that, in the NEA's judgement, "may be considered obscene, incuding depictions of sadomasachism, homo-eroticism, the sexual exploitation of children or individuals engaged in sex acts." -Later required the NEA to use artistic excellemnce and merit as the criteria by which grant applications are judged taking in to consideration general standards of decency and respect for the diverse beliefs and values of the American public
Alcohol Advertising
-Coors sued because of a federal law barring alchol distrubiutors from advertising or disclosing alcohol content for fear that an ensuing "strength war" would harm society -This constituted a substantial government interest, and Coors lost becasue their tort did not pass the Central Hudson test
Infringement Remedies
-Copyright holder seeks compensation for the harm the infringer has casued; actual damanges is a possibility (profits infringer has gained from stolen copyrighted material) -Statutory damages: copyright statute allows a plaintiff to ask for appropriate compensation ranging from $750 to $30,000; plaintiff may ask jury or judge for this number -if it is deliberate, the price goes up -innocent infringers can still receive low fines of $200 -Judge can even award attorney's fees -Criminal charges can be brought on a defendant/infringer
Bigelow v. Virginia
-Court ruled that advertisements for abortion services are legal -publisher of a newspaper that ran an ad for an abortion service, which is against VA state law, was charged and convicted of violating the law -By the time the appeal happened, Roe v. Wade happened -Court ruled the ads in question were purely commercial speech -
The Commerical Speech Doctrine
-Created by Central Hudson Gas & Electric Corp v. Public Service Commission ruling A) The government may regulate ads that are false, misleading or deceptive, B) The gov may regulate advertising for unlawful goods and services; if these criteria are met, then advertising can still be regulated if... 1) The gov claims a substantial state interest to justify the regulation, 2) The government demonstrates that the regulation directly advances the claimed interest and 3) the government shows that there is a reasonable fit between the claimed interest and the regulation
How the FCC defines indecent material
-Describing sexual or excretory organs or activities and -being patently offensive based on national standards for the broadcast media
Music Licensing
-Obtaining a music license requires many hurdles because... 1) the composition - the music and lyrics 2) a recorded song is a sound recording - the words and music performed by musicians and embedded into a CD< DVD, audiotape, or some other recording medium 3) the recording is called a "phonorecord" which have copyright protection 4) permission is needed to copy a recorded composition onto film or videotape; this is called a "synchronization" license
FTC Preventative Measures
-Opinion letters -Advisory opinions -Industry guides -trade rules -voluntary compliance
When does copyright take effect?
-Original work is copyrighted from the moment it is created and fixed in a tangible medium
Synchronization Rights
-Permission is required for a television station, for example, to have licensed music playing during a show or spot -TV station must have a synchronization license; needed any time a recorded composition is used in a filmed or videotaped work -Sampling
Proving Infringement
-Plaintiff must prove: 1) The work used is protected by a valid copyright - meaning it is an original work fixed in a tangible medium 2) The valid copyright is registered with the Copyright Office 3) And either: a) there is evidence the defendant directly copied the copyrighted work, or b) the infringer had access to the copyrighted work and the two works are substantially similar
Regina v. Hicklin & The Hicklin Rule
-Post-Civil War era: more cases arose concerning obscene material; need definition -Hicklin Rule: came from 19th century English case Regina v. Hicklin; adults could only be exposed to material acceptable for the young, or "tendency to deprave those whose minds are open to such influences" -Remained in effect until the 1930s
Trademark
-Protects creations such as ad slogans, movie and book titles, and cartoon characters
RICO
-Racketeer Influenced and Corrupt Organizations Act -RICO forbids using money gained from illegal activity to finance legal or illegal business or nonprofit enterprises engaged in interstate commerce -Defendant's theaters and adult bookstores seized by government because, in the past, he had sold obscene (not sexually explicit) material, thus justifying RICO
Registering a Copyright
-Registration with the US Copyright Office is not required for a work to be copyrighted, but the creator, without registering, cannot sue if infrigned upon -copyright.gov, fill out forms, $35 fee
Denver Area Educational Telecommunications Consortium Inc v. FCC
-SC found two of the three of the provisions that congress had come up with in 1992 to control indecent cable content were unconstitutional -SC upheld the leased access provision (leased access channels can be rented by individuals or companies to show programming the cable company wants subscribers to see), but cable systems could not prohibit indecent programming on PEG channels; nor would the court allow a requirement that cable systems put all patently offensive (indecent) leased access programming on one channel and deliver that channel of to subscribers who request it. -Much fragmentation and disagreement in court over this decision
New York Times Co, Inc v. Tasini
-SC ruled against media having copyright possession when articles are transferred from a collection in a magazine or newspaper to online -NYTimes online, the court said, reproduced and distributed each individual article, not the newspapers as a whole -Freelance writers retained their copyright; contract must say it includes explicitly a transfer to online
Patent
-protects inventions
12: Obscenity, Indecency, and Violence: Social Norms and Legal Standards
-Sexual expression is ubiquitous in contemporary societies; some believe sexually explicit content does not deserve first amendment protection, others argue that it's just expression -Current federal and state laws have stripped obscene material of all first amendment protection; making, selling, distributing obscene materials, and possessing child pornopgraphy, are illegal activities; but how does the court define obscenity? -Pornogrpahy is also vague and legally imprecise because it encompasses both protected and unprotected sexual material -Indecency has only a narrow legal meaning, referring to sexual expression inappropriate for children on broadcast radio and television -Does sexually explicit material subjugate women? Are performers willing? What are the gendered effects of pornos?
Contributory infringement
-Showing that the defendant knowingly aided or contributed to copyright infringement is sufficient -This is not specifically banned by copyright law, the statute implies that contributory infringement is actionable and courts long have held it actionable -Ex: TV producers sued Sony for creating VCRs that allow for taping; okay if the purpose is simply personal and to watch later
Non-regulatory measures to control indecency
-The V-Chip required of TV set manufacturers; loophole around congress not being allowed to censor; parents can! -National Association of Broadcasters, MPAA, and the National Cable TV Association responsible for rating systems -Oversight monitoring board oversees ratings
FCC 2001 Indecency Clarifications in determining "Patently Offensive"
-The commission said it would consider several factors in determining whether braodcast material were patently offensive: -How explicitly or graphically the material describes sexual activities -Whether the material dwells on sexual activities, and -Whether the material is meant to shock or sexually excite the audience
Variable obscenity
-The concept that sexually oriented material would not meet the definition of obscenity if distributed to adults but would be found obscene if distributed to minors -Court is responsible for looking out for minor's well-being: therefore, a state may "adjust the definition of obscenity to social realities" by considering minors' sexual interests.
Dial-a-Porn: Telephone Indecency
-The court has ruled that companies may use telephone facilities to transmit sexually explicit content if they employ ways to ensure that only adults are using the companies's services, such as verified identification numbers.
Intellectual Property Law
-The legal category including copyright, trademark, and patent law -Ensuring that people will benefit financially from their creations encourages them to continue being creative
Phonorecords
-The literal recording (CD, DVD, etc) that a composition and recording are on -1976 law: congress said phonorecords - the disc, record, tape or other recording object - have copyright protection -you infringe on this copyright when you copy or distribute a phonorecord without permission
The Public Domain
-The sphere that includes material not protected by copyright law and therefore available for use without the creator's permission
4. The right to publicly perform a work
-This right applies to "literary musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works" -Cannot show a film in public without consent of copyright owner
Vicarious Infringement
-Those who benefit financially from copyright infringers also may be liable -Ex: Selling pirated DVDs
Dilution or tarnishment
-Trademark dilution is a trademark law concept giving the owner of a famous trademark standing to forbid others from using that mark in a way that would lessen its uniqueness. In most cases, trademark dilution involves an unauthorized use of another's trademark on products that do not compete with, and have little connection with, those of the trademark owner. For example, a famous trademark used by one company to refer to hair care products might be diluted if another company began using a similar mark to refer to breakfast cereals or spark plugs
Trademark infringement
-Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers
Moral rights
-Under the US copyright law, the rights of certain artists-creators of paintings, drawings, prints, sculptures, and art photographs-to require that their name be associated with their works, forbid others from claiming to be creators of the works, and prevent intentional harm to or modification of a work that would harm the artist's reputation
Virginia State Board of Pharmacy
-VA state pharmacy rule existed that prohibited licensed pharmacists from advertising the price of any prescription drug; the rationale was to maintain professionalism; this did, however, keep important information about the drugs from the public; group of plaintiffs sued -Court agreed: commercial speech, then, does have SOME first amendment protection with this 1976 ruling; still incredibly limited compared to political speech -Law is clearly more tolerant of error and falsehood in a political context than of speech in the commercial arena
FCC single use of an expletive/Fleeting expletive
-Went against 2001 standards and asserted for the first time in 2003 that a "fleeting expletive" - a single, non-literal use of a curse word - could be indecent -Occurred when Bono won a Golden Globe and said "This is really, really, f***ing brilliant." -Commission said the F-Word is one of the most vulgar and graphic words in the English language and inherently has a sexual connotation -Applies to Cher and Nichole Richie's comments too; 2004 Superbowl Wardrobe malfunction - lead to anti-indecency frenzy -Overruled previous rulings on fleeting expletives as not indecent
2. The right to make derivative works
-Without the copyright holder's permission, no one may use a novel as the basis of a play or make a movie from a television program
Puffery
-advertising that exaggerates the merits of products or services in such a way that no reasonable person would take you seriously. Usually puffery is not illegal given that reasonable person understands the claim is not to be taken literally.
Digital Millennium Copyright Act (DMCA)
-bans technologies that circumvent copyright protections -protects Internet service providers against copyright suits if the ISP takes down material a copyright holder says it posted without permission
Does the first amendment protect commercial speech?
-commercial speech does not enjoy the same level of protection as political speech -early in its history, ads were though to have so little value that it deserved no 1st amendment protection
Suggestive Marks
-hint at a product's qualities but do not describe what the product is (ex: playboy)
Industry Guides
-in advertising a Federal Trade Commission measure that outlines the FTC's policies concerning a particular category of product or service
Advisory opinion
-in advertising a federal trade measure that suggests to an advertiser how a specific advertisement maybe falsely misleading and how to correct it
Voluntary Compliance
-in advertising the opportunity granted by the FTC to an advertiser to abide by the FTC's rules
Fanciful Marks
-invented marks, including made up words (ex: Peterbilt)
Descriptive marks
-mark describes the product or service and may or may not suggest what company provided it
Bureau of Consumer Protection
-meant to protect customers against unfair deceptive or fraudulent practices -one element of this bureau is the division of advertising practices which is the nation's enforcer of federal truth in advertising laws
File Sharing
-peer-to-peer networks, like Napster and Kazaa, allowed one computer user to reach into another user's files and retrieve copyrighted music; millions of computers did this at once -Napster knowingly allowed copyright infringement to happen; lawsuits and subpoenas to ISPs from recording industries followed
Music Composition
-protected by copyright; original and fixed in a tangible medium -Consent is required to broadcast or record a song, perform the song live, play a recording containing the song in restaurants or stores, or use the song in a number of other ways
Corporate Speech regulation
-the Supreme Court has upheld the right of corporations to communicate through purely political speech; the first in this line of cases involved a bank that wanted to influence a voter referendum by communicating it's viewpoint -if a corporation wants to discuss a topic of public importance is it political speech? -Nike launched a PR campaign in 2003 to dismiss accusations that there plants abroad contained of used workers; Nike ended up losing the case because the speech was commercial and could therefore be punished under state. Advertising and unfair competition laws
Arbitrary marks
-words that have ordinary meaning but not manings applied to a product or service (ex: Apple Computer Inc) -Includes numbers and letters arranged in a distinctive order (BEBE, V-8)
Fair Use Defense
1) Why and for what purpose was the copyrighted work used without permission? 2) What was the nature of the copyrighted work that was used without permission? 3) How much and what particular portion of the copyrighted work was used without permission? 4) What effect did the unauthorized use have on the copyrighted work's market value?
Rights in Copyrighted Material
1. The right to reproduce the work 2. The right to make derivative works 3. The right to distribute the work publicly 4. The right to publicly perform a work 5. The right to publicly display a work 6. The right to transmit a sound recording, such as a CD, through digital audio means
13: Intellectual Property: Protecting and Using Intangible Creations
Copyrights, trademarks, and patents
Patently Offensive
Term describing material with hard-core sexual conduct - untilmate sexual acts, normal or perverted, actual or simulated; masturbation, excretory functions and lewd exhibition of genitals
3. The right to distribute the work publicly
The copyright owner determines when a work will be publicly distributed -Ex: TV commericial may not be shown to the public until the copyright holder gives permission
