Media Law Exam #3

Copyright Term Extension Act of 1998

- Created after January 1, 1978 Author: Life plus 70 years Works for hire: 95 years from first publication - Created before Jan. 1, 1978: Ninety-five years - This means that on January 1, 2021 works created in 1925 will finally pass into the public domain - Works for hire created in 2021 will lose copyright protection on January 1, 2117

Contempt of court

- Criminal contempt and civil contempt are not well defined concepts and their application varies by jurisdiction - Contempt can be used to force a party to do something: Fines/jail times are unlimited until such time as you comply - Contempt can be used to punish an individual for something they do: Fines/jail time is usually set

The mechanics of copyright: How to register, notice requirements, length of copyright protection

-Protection is immediate- a work is copyrighted "at birth" at the moment of creation. You do not need to register your work to have it protected by copyright law - Indicia: ex) Copyright 2020 Derigan Silver. This provides notice yet something actually has to get registered before you can sue someone for copyright. It is better to register your work as soon as you create it as proof that you made your work before the person copying it.

Mashups and copyright laws

-Musical work= the music and the lyrics (whats on sheet music) -Sounds recordings= specific recordings of musical works or the performance by an artist -separate copyrights * Mashups: -Whether involving audio or visual works, must be protected by fair use

Colorado Open Records Act

-Who: Any person may inspect public record at reasonable times -Why: The purpose does not affect the right to inspect public record -Cost: You can be charged "reasonable" copying costs Only nominal fees may be charged for search and retrieval *Costs may be waived if used for a public purpose such as journalism or academic research -What:

Commercial speech (2 meanings)

"Speech that does no more than propose a commercial transaction" "Expression solely motivated by the desire for profit"

"Famous marks"

"widely recognized by the general consuming public of the US as a designation of source of the goods/services of the mark's owner"

Experience and logic test

a constitutional right of access to a particular proceeding at issue. To decide this a court must consider: -Is there a tradition or history of openness associated with his type of proceeding (experience test) -Is openness necessary to the proper functioning of the judicial process (logic test)

Promissory estopple

An exception to the requirement of consideration. Contract can be enforced to achieve fairness when one person does something or refrains from doing something because they reasonably relied on the other person's promise. if the promise is not enforced, the relying party will suffer economic loss

What can be copyrighted

An expression of an idea can be copyrighted not the idea itself. Compilations of facts are copyrightable but compilation must be original. Copyrightable work can include literary works, musical works (lyrics too), dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works

trademark law protection

Any word, name, symbol, or device or any combination thereof, adopted and used by a company or individual to distinguish good and services from those manufactured or sold by companies. Brand names, brand symbols and brand slogans Ex) Coca-Cola, Snickers, Nike and their "swoosh", McDonald's golden arches

substantial similarity

It is so similar to the thing that was copied, often when new work "borrows" from another work. *Courts use a variety of tests to determine if two works are similar -Is the general idea or theme of the two works the same? - Is the idea or theme expressed in similar ways in the two works? - Two works can express similar ideas without infringement

derivative rights

Law restricting altering content, taking extracts from it, combining it with another work, translating it into another language, or otherwise creating a new work from an existing work.

copyright protection for work

Legal protection that is provided for under federal statutory law. Allows authors of original works to own for a limited amount of time the intellectual work they create. Protection is available to both published and unpublished works.

distinctiveness (fanciful, arbitrary, suggestive marks)

Most protected: Fanciful, arbitrary (strong mark) Least Protected: Suggestive, Descriptive: Requires proof of secondary meaning (weak mark)

generic use

Some trademarks become generic because of use or misuse by the public (asprin, zipper) (i.e. Jeep -- SUV, Kleenex-- tissue)

FA protection for commercial speech

Sources of Advertising Law -Heavily regulated -Constitutional law - Commercial speech is granted some constitutional protection - Amount has evolved over time -False/deceptive ads are not protected -Advertising for unlawful goods/services is not protected

Reporter's Privilege

The concept that reporter's can keep information such as source identity confidential. The idea is that the reporter-source relationship is similar to doctor-patient and lawyer-client relationships.

trademark dilution

The trademark owner contends that a use blurs the distinctiveness of the mark or damages or tarnishes it. Ex) "Eat more Kale" was found to infringe on Chick-fil-A's slogan "Eat Mor Chikin."

"likelihood of confusion" in trademark infringment

The trademark owner contends that consumers are likely to be confused about the source, sponsorship or approval of a product because of someone else's use of the trademark or a similar mark.

vicarious infringement

When someone has the right and ability to supervise an infringers' activities (can stop it, but doesn't) and benefits from infringement

What does it specifically not apply to? When does it apply? How can the privilege be overcome?)

*was received at a press conference -has actually been published or broadcast through a medium of mass comm. - was based on a news person's personal observation of the commission of a crime if substantially similar news info cannot reasonably be obtained by any other means or -Was based on a news person's personal observation of the commission of a class 1,2, or 3 felony · In order to compel a reporter to testify, party seeking testimony must show: 1) News info is directly relevant to a substantial issue involved in the proceeding AND 2) The news info cannot be obtained by any other reasonable means AND 3) The interest of the party seeking to subpoena the newsperson outweighs the interests under the FA of the newsperson in not responding to a subpoena and of the general public in receiving news info

subpoena

- A court order compelling an individual to testify in a judicial proceeding - Subpoena ad testificandum orders a person to testify - Subpoena duces tecum orders a person or org to produce physical evidence - Notice is given to respond

Fair use defense

- A defense against copyright infringement developed in common law and made part of statutory law in 1976 - Designed to balance the rights of the copyright holder with public interest of dissemination of copyrighted materials - Fair use of a copyrighted work, including reproduction for purposes such as criticism, comment, news reporting, teaching, scholarship or research is NOT an infringement

Rights of a freelancer

- All rights: They have ownership forever - First serial rights: They have the chance to publish it first anywhere in the world, but after this publication the rights return to the original writer - First North American Serial Rights: ^ but in north America - Simultaneous rights: Work is given to multiple people to publish all at the same time - One-time rights:

search warrant

- Authorizes law enforcement to conduct a search - Requires probable cause, must be reasonable and specific - No notice is given

Privacy Protection Act of 1980

- Limits the way law enforcement officials can search for or seize material that are in the hands of a member of the "mass media" - Searches can happen when: 1) There is probable cause to believe that the person possessing such materials has committed a crime 2) There is reason to believe immediate seizure would prevent the death of or serious harm to someone

Linking and embedding videos (copyright laws)

- Linking to material is NOT a violation of copyright; there is no "copying" - Historically, embedding a video was NOT a violation of copyright; there is no "copying" -Retweeting is NOT a violation of copyright; there is no "copying" and the original is not copyrightable -Taking a picture from FB, Tumblr, Twitter or something else is probably copyright infringement unless protected by Fair Use -Avoid the temptation to "right click and save"

News gathering in public places

- Reporters can gather news anywhere that can be "seen by passers-by" - Disaster, accident, Crime scenes - Officials have the authority to limit to public property when there is such a disaster in the interest of safety or administrative efficiency - Press has no right to access if public is excluded - Some states have statutes allowing the press access to accidents scenes as long as they don't interfere with emergency operations

Filming police officers in public

- Six US circuits recognize a qualified right to record police officers when they are exercising their official duties in public - One circuit has found there is no right to record police officers - Other circuits have not considered the question at the circuit level or at all *A qualified right to film: You may film police from a reasonable distance. The right to record might not exist in dangerous situations, when recording would impede police officers in the performance of their duties -You cannot film undercover investigators

Reporter's privilege in the U.S. Court of appeals for the 10th circuit

- The 10th circuit, and the fed district courts within the circuit, have recognized a qualified reporter's privilege under the FA, that extends even to published info

Trademark Dilution Act (2006)

-Congress revised the law to reduce the burden of proof required from actual harm to likelihood of dilution -Dilution by blurring : Impairment of the distinctiveness of the mark -Dilution by tarnishment: Reputational harm to the mark. The diluting harms the reputation of the famous mark by connecting the famous mark with something distasteful, negative or objectionable. Parodies are still protected *A famous mark "widely recognized by the general consuming public of the US as a designation of source of the goods/services of the mark's owner"

Federal Trade Commission

-Established in 1914 -Promote competition and protect the public from unfair and deceptive acts and practices in the advertising and marketing of goods and services -Focus is on national ad campaigns -Five commissioners; no more than 3 from one party -Nominated by president, confirmed by Senate, serve for terms of 7 years -about 1,000 employees -monitors national ad campaigns and acts on complaints from consumers, competitors, congressional inquiries or news stories

How does the FTC work? How do appeals work?

-Focus is on national ad campaigns -Five commissioners; no more than 3 from one party -Nominated by president, confirmed by Senate, serve for terms of 7 years -about 1,000 employees -monitors national ad campaigns and acts on complaints from consumers, competitors, congressional inquiries or news stories -determines unfairness in appeals

Requirements for trademark protection

-Governed both by common law, the "Lanham Act" and state statutory law -Registration is not essential for protection, but it is recommended in order to give notice -Owner of an unregistered trademark must bear burden of proof in court: Must show mark is inherently distinctive or it has become distinctive Registration: With the U.S. Patent and Trademark Office. Trademark law requires that a trademark is in use for protection; if the company ceases to use its trademark for 3 years it loses legal protection -Renewable every 10 years indefinitely -A mark must be inherently distinctive (must be fanciful, arbitrary or suggestive) or it must have acquired a "secondary meaning" -Generic terms- Ones that designate the substance of a product-cannot be used as trademarks ex) E-ticket, Texas Toast, buddy list

Puffery

-Hyperbole and exaggerations; reasonable people do not believe them. "World's finest"

State Shield Law

-Many states have recognized a journlists' privilege based on state constitutions -Other states based a reporters privilege on common law Some states recognize a FA based privilege Some fed circuits recognize a FA based privilege Courts can create their own rules of procedure · State shield laws provide strong protection to journalists in state courts · Today, 41 states and the DC have shield laws · Shield laws do not always protect journalists completely -Some are qualified, some are absolute -They vary significantly from state to state, and judges often interpret them very narrowly

strong trade dress/dress mark

1) Colors that are distinctively associated with a. brand (Tiffany's blue) 2) sounds distinctively associated with a company and 3) the distinctive design and appearance or look of a product or store (front of an IPhone)

Determining unfairness

1) It causes or is likely to cause substantial injury to consumers 2) Which is not reasonably avoidable by consumers themselves 3) Not outweighed by countervailing benefits to consumers or competition.

"work for hire"/who owns the work

1.) A work created by an employee for his/her employer within the scope of employment 2.) A work created by non-employee (free-lancer) that is specially ordered or commissioned for inclusion in a collective work (newspaper or magazine) If a work for hire agreement is signed 3.) Work specifically commissioned as "work for hire" as defined by statutory law

4 factor requirements to determine fair use

1.) Purpose and character of use 2.) Nature of the original copyrighted work 3.) Amount and substantiality of the portion used 4.) Effect on the potential market for the original -Can be very malleable concept -All four are explored together, not in isolation

FOIA exemptions

9 exemptions to disclosure under FOIA. Secrecy, Personnel, Statutory Nondisclosure, Private Business Information, Agency Memoranda, Personal Privacy, Investigation Records, Financial Institutions, Geological Exploration.

Central Hudson test

A four-part test used by the courts for determining restrictions on commercial speech. 1) Is the ad true and not misleading and does it advertise a legal product or service? 2) Is the asserted governmental interest substantial (does the regulation advance a substantial governmental interest) 3) Does the regulation directly advance that substantial governmental interest? 4) Is the regulation no more extensive than necessary to serve the governmental interest? (Narrowly tailored, but not least restrictive means)

Collective works/ who owns copyright

Collective works can be separately copyrighted as original expression while contributions retain their separate copyright

public domain

Comprises the body of knowledge and innovation to which no person or other legal entity can establish or maintain proprietary interests. This body of information and creativity is considered to be part of the common cultural and intellectual heritage of humanity, which in general anyone may use or exploit. - You do not need permission to use them, they belong to no one

FOIA

Freedom of Information Act, Guarantees access to records generated by the executive branch of the fed. Gov. And fed. Agencies -Agencies: But, NOT congress, courts or the President's staff

What cannot be copyrighted

Ideas, facts, news, names, titles of movies, books, mottos, slogans, phrases, utilitarian goods and useful articles, methods, procedures, systems, mathematical principles, works produced by the federal government are NOT copyrightable

dilution by blurring

Impairment of the distinctiveness of the mark

What must be shown to prove infringement of copyright/how is this proven?

Infringement: - Violation of any of the copyright holder's exclusive rights; not just copying; "piracy"; "bootlegs"; unauthorized performances; derivative works · Party claiming infringement must prove 1.) Ownership of copyright on the original work -independently created - minimal amount of creativity 2.) Unauthorized use- the infringement - Evidence of direct infringement OR circumstantial evidence

Colorado Shield law (who does it apply to? What does it apply to?)

Newsperson means any member of the mass media and any employee or independent contractor of a member of the mass media, who is engaged to gather, receive, observe or edit news info Mass Medium: Any publisher of a newspaper or periodical; wire service, radio or television station or network; news or feature syndicate; or cable television system. -CO Shield law is narrow in terms of who it protects - The 10th circuit, and the fed district courts within the circuit, have recognized a qualified reporter's privilege under the FA, that extends even to published info *Info that is protected: -"News info": knowledge, observation,

secondary meaning

People associate that term with a particular good/service.

Newsgathering in non-public places owned by the govt.

Prisons: The FA does not guarantee the press access to corrections facilities or to specific prisoners. Executions: SCOTUS has declined to hear cases involving the right to access execution or information about lethal injection drugs Military Bases, Operations and War Zones: The FA doesn't guarantee the press access to military bases, military operations or war zones -Journalists who embed with military units must have their stories reviewed. -Journalists can do little more than negotiate with the Defense Dept. and complain about access and censorship

FTC's definition of a deceptive advertisement

Representation, omission or practice must: 1) Be material. Material means it is likely to affect the consumer's conduct or decision with regard to the product or service ex) product cost, quality, durability or performance 2) Be likely to mislead. It is not necessary that it actually misleads 3) A reasonable consumer. Key is whether consumer interpretation or reaction is reasonable. FTC does not seek to protect the foolish or feeble-minded. FTC considers intended target.

dilution by tarnishment

Reputational harm to the mark. The diluting harms the reputation of the famous mark by connecting the famous mark with something distasteful, negative or objectionable. Parodies are still protected

What is a record? How do you request one? Who can request one?

Tangible items that can be reproduced. *Written requests are best, don't have to supply a reason -Anyone can make a request, not just "citizens" -Response deadline is 20 days but usually delays Ex) -Created or obtained by an agency and under its control is likely a record: -Paper documents -Emails -Computer generated material -Films -Tapes

contributory infringement

When one contributes to infringement without actually infringing themselves

"original works of authorship"

meaning work must be original and creative in order to receive copyright protection. 1.) Fixed in a tangible medium of expression from which they can be 2.) Perceived, reproduced or otherwise communicated wither directly or with the aid of some device.

Who owns copyright in a particular work

the creator/author

Collateral bar rule

you have to follow all court orders, even those that appear to be unconstitutional.

Federal Shield Law

· A federal shield law was first introduced into congress in 1929 · Currently there is no federal shield law · On oct. 16, 2007 the U.S House of Reps overwhelmingly passed legislation, The Free Flow of Info Act · In 2009 the House approved another bill and the Obama admin and the Senate judiciary committee reached a compromise on a bill · No bill has been introduced since

FA right of access to courtrooms and docs

· Civil Cases- Generally courts hold there is both a constitutional and common law right of access to civil cases unless there is a compelling interest to close the court that narrowly tailored ex) disclosure of trade secrets or litigation involving minors · Access- Access to government meetings and proceeding that DO NOT have to do with the judiciary are typically secured through statutory law

FTC combative remedies for deceptive advertising

· Consent Agreements/Consent Decrees - Following a complaint letter, an advertiser can "settle" with the FTC by signing a consent agreement (no judicial review) - Allows a company to avoid bad publicity · Cease and Desist Order - FTC Administrative law judge holds proceeding like a trial court - Orders requires advertiser to start or stop doing something - May be appealed to the commissioners and then to federal appellate courts · Corrective Advertising - FTC can require a company to correct its advertising in future ads. · Court Injunctions - FTC goes directly to federal court to seek a temporary of permanent injunction · Civil Penalties - FTC can request a federal court to impose civil penalties to reimburse victims · Criminal Penalties - FTC must refer case to Justice Dept. for proceedings

FTC requirements for endorsements

· Consumer endorsements - Must be a real consumer · Expert and organizational endorsements - Must be experts in the area · Disclosure of material connections - Was the consumer paid for endorsement? Was the audience paid? - It is assumed that celebrities are paid when they are in ads, but social media raises questions · If an ad represent that an endorser uses a product then the endorser must be a bonified user of the product · Advertisers must stop running the commercial if the endorser stops using the product · Endorsements must reflect the honest opinion of the endorser.

original purpose of copyright protection

· Copyright is the economic engine of freedom of expression. Original purpose was to promote creativity and innovation

FTC requirements for substantiation

· FTC requires substantiation of claims in ads · Scientific claims must have competent and reliable scientific evidence - Ex) "test proves" or "studies show" - Two scientifically valid tests - Claims must fit the study - An ad is deceptive if it creates a false sense of a scientific study that was not conducted

how 4 factors are applied (which one given the most weight)

· Is the use commercial? · Does the use serve the public interest by stimulating creativity? · Does the use do more than paraphrase the original, by adding "value"? Is the new work transformative? -Mere copying or using something for the same purpose as its original use is copying. If you add meaning or use it for a different purpose it is fair use

countervailing interest in having journalists testify

· Journalists frequently use confidential sources for news · This raises ethical and legal questions · 6th amendment guarantees the right to have witnesses and to compel them to testify · In some situations, this might violate a promise of confidentiality · Journalists might also be called simply to testify about what they reported

FOIA reforms

· Oppenness promotes effectiveness on our National Government Act (2007) Open Government Act - Expedite processing of FOIA requests - Makes it easier to track requests - Waives fees if 20 day deadline not met · FOIA improvement Act of 2016 - Records that fall under exemption must be released unless there is foreseeable harm - Created plan for single online portal for FOIA requests

rights secured by copyright law

· Owner's "bundle of Rights" from section 106 of the Copyright Act -Reproduce the original work -Create derivatives of the original work - adaptations of original work (sequels) -Distribute copies of original work (sale, leasing, transfer of ownership) -Publicly perform or display original work *Rights are separate, distinct and divisible*

Colorado Criminal Justice Records Act

· Police reports can be withheld in some situations. Police records are controlled by the CO Criminal Justice Records Act · Criminal justice records that are not official actions should be closed unless the agency determines that disclosure would be contrary to the public interest · Custodian can exercise discretion in determining whether disclosure of criminal justice records other would be contrary to the public interest