MMC 4200 Exam 2 Study Guide
MMC 4200 Exam 2 Study Guide MMC 4200
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This 23 page Study Guide was uploaded by Deena Acree on Tuesday March 15, 2016. The Study Guide belongs to MMC 4200 at University of Florida taught by Sandra Chance in Winter 2016. Since its upload, it has received 261 views. For similar materials see Law of Mass Communications in Journalism and Mass Communications at University of Florida.
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Date Created: 03/15/16
Exam 2 Study Guide Exam 2: Thursday, March 17, 2016 at 4:05pm. Professor Sandra Chance Covering Chapters 4, 5, 6, 8 Chapter 4- Libel (defenses only) • Questions: 1. What types of individuals are common libel defendants? o Likely/common Defamation Defendants : 1) Publishers 2) Editors 3) Reporters 4) Photographers 5) Advertisers 6) Public Relations Counselors 7) Private Individuals o Most of the time, defendants are (media or other) organizations that have deeper pockets (people often sue because they want money , not necessarily justice) o Punitive damages can be awarded from private individuals, but usually those people don't have a lot of money , so it isn’t worth the time and effort 2. What are the libel defenses? How do they work? o Truth: Protected as long as statement is substantially t rue and you can PROVE (NYT v. Sullivan) o Opinion: Protected unless it contains something that can be proven factual or not (this protects book, movie, restaurant critics ) § (Calling someone a snake cannot be defamation. Saying, "In my opinion, he is a child molester" IS defamation and not an opinion) o Privileges § Absolute Privileges - Defendants only have to prove that the statement took place in one of these protected areas: • Government Officials acting in their official capacity, they are absolutely protected. However, once the officials go into the bathroom, etc., and have the same conversations, they are not protected. • Consent - If someone consented to the interview, they can't come back and sue you if you accurately report • Broadcasts by Political Candidates - Broadcasters can air false defamatory speech of political candidates. -Political speech is at the core of First Amendment protection § Qualified Privileges - Have to meet other requirements: ( accuracy and no ill will) • Reporter's Privilege - Reporters can report defamatory statements as long as you report accurately and have no ill will • Neutral Reportage Privilege - Protects reporters when they get their information from a responsible, prominent organization. o Only A FEW states allow reporters to claim this pr otection. Florida is one of them. • Self-Defense - People can use reasonable means to defend themselves against an assault, an unfair business practice or libel. Thus, individuals and businesses are protected from defamation suits when they publish libelous statements to combat attacks on their own reputations. • Mutual Interest Privilege - Protects communication between people with common interests (business partners, letters of credit, references) 3. Does the First Amendment protect opinion? If so, how? o Yes, as long as the statement expresses a belief or judgment r ather than an assertion of fact, it is protected by the First Amendment. o Opinions are protected unless it contains a provable, false connotation that can be absolutely proven in some way (whether it’s a fact or not true) o This is what allows critics to state opinions. 4. What are the libel privileges and how do they work? (absolute and qualified) o Absolute Privileges: Protect the speaker of a defamatory message, regardless of the speaker's accuracy § Defendants only have to prove that the statement took place in one of these protected areas: • Government Officials acting in their official capacity, they are absolutely protected. However, once the officials go into the bathroom, etc., and have the same conversati ons, they are not protected. • Consent - If someone consented to the interview, they can't come back and sue you if you accurately report • Broadcasts by Political Candidates - Broadcasters can air false defamatory speech of political candidates. -Political speech is at the core of 1st Amendment protection o Qualified Privileges : Protect speech only on certain conditions that vary state to state (Can be defeated by abuses such as inaccuracies or common-law malice) § Have to meet certain requirements: (Accuracy and No ill will) • Reporter's Privilege - Reporters can report defamatory statements as long as you report accurately and have no ill will • Neutral Reportage Privilege - Protects reporters when they get their information from a responsible, prominent organization . o Only A FEW states allow reporters to claim this protection. Florida is one of them. • Self-Defense - People can use reasonable means to defend themselves against an assault, an unfair business practice or libel. Thus, individuals and businesses are protect ed from defamation suits when they publish libelous statements to combat attacks on their own reputations. • Mutual Interest Privilege - Protects communication between people with common interests (business partners and letters of credit and references) 5. In Florida, what is the statute of limitations for filing a defamation lawsuit? o In Florida, the statute of limitations for filing a defamation lawsuit is two (2) years. o There is also a specific process to do so: Florida's Retraction Statute -Chapter 770 § Plaintiff must serve notice on Defendant five days before filing action § You have 10 days to print a retraction § If this happens to you, call your lawyer § Limits your potential liability to actual damages, no punitive • Important Cases: o Milkovich v. Loraine Journal Co. § High school sports reporter covered a trial where a wrestling coach had testified as part of a case § Reporter said that the coach (Milkovich) was a liar § Coach sued and won because the statement (that the coach was a liar) could be factually proven true or false; the court ruled that calling someone a liar cannot qualify as an opinion Chapter 5- Privacy • Questions: 1. Where did the right to privacy come from? o Not stated by the Fir st Amendment, but is implied in other Amendments. o The U.S. Constitution protects right to privacy between you and government. o Tort law protects privacy between you and other people ( including the media). 2. What are the four torts of privacy? 1. Publication of Private Facts. 2. Intrusion. 3. False Light 4. Commercialization/Appropriation 3. What are the elements for a private fact case? 1. Highly offensive to a reasonable person 2. Private fact (like medical records) 3. Publication (widely) 4. Not newsworthy (of legitimate concern to the public) § Always ask "Does this person have a reasonable expectation of privacy?" § Tort of outrage is a sister to tort of private facts in Florida (6 y.o.'s skull) 4. What are the defenses to a private fact case? o Truth is NOT a defense o First Amendment protects most truthful info if it’s not highly offensive to a reasonable person and if it’s of legitimate concern to the public o Newsworthiness o Consent (either expressed or implied) § Mentally competent adults can consent 5. What are the elements of intrusion? o Reasonable expectation of privacy o The intentional invasion of a person's physica l seclusion or private affairs. o Highly offensive to a reasonable person o The public benefit outweighs the right to privacy. 6. What is the general rule about filming, photographing and recording? o The general rule is to get permission , however, you can record anything you can legally see in a public place. 7. When is intrusive behavior typically found not to be highly offensive o Intrusion has to be highly offensive to a reasonable person. o You have a reasonable expectation for privacy. § The highest expectation is i n your own bedroom or in a hospital room. § There is a low expectation if you're in a semi-public place like a restaurant. § There is no expectation if you are in a public place. o Intrusive behavior is typically found not to be highly offensive when it is done in a public or semi-public place (or if it is intrusive on something that is of public interest — paparazzi, etc.) 8. What are the rules about secr et recording (hidden cameras)? ( See Dietemann v. Time, Inc.) o It is unlawful to intentionally use any device to intercept wire, oral or electronic communication; it requires 3rd party consent. In Florida, it is illegal to record without consent of the other party. o Dietmann was a plumber illegally performing breast exams. Undercover reporters went in for an exam and recorded him. He sued for invasion of privacy and won a jury verdict. o In most states, you can record telephone conversations if you are a party. In Florida, you must obtain the other person's consent or there may be criminal penalties 9. What are the element s of a trespass? o Entering or inviting someone to go on private property without consent of the property’s owner or possessor. 10. What is the defense of custom and usage? (See Florida Publishing Co. v. Fletcher .) o The defense of custom and usage is one of impl ied consent o In Florida Publishing Co. v. Fletcher, the fire depar tment forgot their camera’s film to photograph deadly house fire. o They invited media to take pictures for them in order to get the photos for their record. o Homeowners tried to sue for inva sion of privacy, but court said since media was invited by the fire department, they cannot be sued. 11. What are the elements of a false light tort? (See Cantrell v. Forest City Publishing Co. ) 1. Words 2. Dissemination of highly offensive false publicity about someone (with a reckless disregard for the falsity of it) 3. Fictionalization o Cantrell v. Forest City Publishing Co. § Woman's husband was killed when the Silver Bridge collapsed into the Ohio River. § Forest City published article that im plied she had been inter viewed and was unemotional about the incident and had exaggerated the family's poverty. § She was cast in a false light. Court ruled NYT actual malice and she won. § (However, remember that Florida does not recognize false light because it is too close to defamation) 12. When must a plaintiff prove “actual malice” in a false light cas(See Time, Inc. v. Hill.) o Public interest, public officials, public figures must prove: NYT Actual Malice o Private persons must prove: negligence o Time, Inc. v Hill: § Time produced a photo essay about the Hill's hostage situation. Time made the captors look mean. § The Hill's sued for false light and lost because it was something in the public interest and they couldn't prove NYT Actual Malice. 13. What are the defenses for a false light case? What’s happening in Florida? Remember the Anderson case from our class discussion. o Florida does not recognize false light cases anymore ; the Florida SC has said that the false light tort can fall under other privacy torts, so it is not necessary o Anderson: article said he shot and killed wife, which was technically true, but didn't say it was accidental until two sentences later. o His attorney's claim the info was slanted. Won $18.28 M in compensatory damages. 14. What are the elements of appropriation? o Appropriation is the u nauthorized commercial use of another's name or likeness. (Appropriation = commercialization) o Florida prevents appropriation to promote a product or service, but does not protect publications or motion pictures that do not promote a product or service. § Example: The Perfect Storm movie —the family of the man which the story is about cannot sue for appropriation because it is a movie. Movies and news stories do not promote product or service so they're not included. 15. What are your defenses if you get sued for appropriation? (See Zacchini v. Scripps- Howard) o A traditional defense is the First Amendment’s constitutional privilege to disseminate information of public importance § Senator Orrin Hatch wasn’t liable for appropriation when using postal worker group photograph in his campaign literature in Cox v. Hatch (Utah, 1988) § Political posters were ruled to be constitutionally protected speech ; not capable of appropriation o Newsworthiness § This is the traditional common law defense against appropri ation § There is a very broad interpretation of what is newsworthy § Simple publication of names and pictures in news reports will not be deemed an appropriation o Consent § Broadcasters and publishers can usually rely on newsworthiness defense , but PR and advertisers should seek written consent for use of images in their materials § When doing so, they m ust abide by terms of consent (length of use, adherence to agreed upon subjects/quotes) § Oral or implied consent in appropriation cases is NOT recognized in many jurisdictions. (Get it in writing.) o Zacchini v. Scripps-Howard (1977) § SCOTUS held that broadcast of entire entertainer's human cannonball act was appropriation and not protected under 1st Amendment § Cleveland television station had aired Zacchini’s entire act during news program § This is the only SCOTUS case dealing with appropriation tort § SCOTUS did say in their ruling that this h olding was limited because of unique facts (rarely would media broadcast entire events) 16. What are the elements for an emotional distres s lawsuit? o Conduct so outrageous in character and so extreme in degree that it goes beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in civilized community. o This requires the plaintiff to prove that there was intentional infliction of emotional distress (IIED) on behalf of the defendant 17. What’s the difference between private figures and public official/figures suing for intentional infliction of emotional distress? (See Hustler Magazine v. Falwell ) o When suing for in tentional infliction of emotional distress (IIED), § Public officials/figures must prove NYT Actual Malice § Private persons only have to prove it was outrageous /extreme o Hustler Magazine v. Falwell: § Falwell sued Hustler Magazine for defamation and emotional distress when they published a parody article that suggested that he and his mother were drunk and had sex. § He (Falwell) lost for defamation beca use article was not believable; however, he won for emotional distress. § Then the Court ruled that public figu res must prove Actual Malice to sue for emotional distress. (This protected satire) 18. What is participant monitoring? What is the law in Florida? How is this different from the federal law? o Participant monitoring is when someone records or listens to a con versation without the knowledge of one or more parties in the conversation o Federal law is that this is legal when at least one party to the conversation knows it is being recorded o Florida law is that all of the parties involved in the conversation have to know that the conversation is being recorded. 19. Do reporters trespass when they misrepresent themselves to acquire information from public businesses? o Yes. See the Food Lion v. ABC case. o By falsely representing who they are and why they are at a public busi ness, reporters are trespassing in a way that means they can be held liable in case of a privacy tort. 20. When is the media responsible for physical harm, which results from incitement, negligence or lack of duty not to publish material due to foreseeable harm? o The media isn't responsible unless damage is foreseeable. (Foreseeable Harm) o The media will be held responsible if they incite physical harm. (Incitement) • Important Cases: o Bartnicki v. Vopper § A radio station broadcast of a cellphone conversation betwee n two public school officials § The officials were unhappy with something going on in the school board and said "if we don't get our way we'll have to go down there and blow down their doors" (it was hyperbole) § Illegally intercepted by an unknown person, who took it seriously and was concerned about the threat § This person released it to the press (radio station), who published it § SCOTUS ruled that the press legally received the information, so they cannot be held accountable (important distinction as to who is liable for an illegal action) § The press may freely publish: • Truthful material • Matters of public significance • Lawfully obtained (even if source obtained it lawfully) • Unless government can demonstrate compelling interest o Cox Broadcasting Corp. v. Cohn § Six men indicted for murder and rape. Reporter leaked victim's name. Father sued. § SCOTUS said no suits against media when they publish victim's name after it is disclosed in open court. o Desnick v. ABC § This is “the eye exam” case § Reporters went into an eye do ctor's office and filmed what went on because of been rumors that there were sketchy examinations being done . § The reporters posed as patients § 2 causes of action in this case: • Trespass: o Court said that there was no trespass because there was no invasion of privacy (nothing private was revealed) • Intrusion: o Court said that there was no intrusion either; the patients had agreed to the recordings even though the doctor did not o Doctor claimed that it violated patient -doctor confidentiality, but the court ruled that that right belonged to the patient only o This was in a one-party consent state; the patient (who was recording) had consented, so there was no wrongdoing in this case o Florida Star v. BJF. § Rape victim's name was listed in a police press release. Journa list published her name. Victim sued and won. § Journalist violated statute prohibiting publishing rape victim's name. S.C. overturned because statute was content based, not narrowly tailored, and failed strict scrutiny. o Florida v. Globe Communications, Inc. § Patricia Bowman accused Ted Kennedy of rape. Her identity was revealed by NY Times, NBC News and the Globe. § Attorney General sued the Globe for publishing her name. Florida Supreme Court said state could not oppose information from matter of public concern. § Globe had "lawfully learned of identity through standard investigative techniques." o Food Lion v. ABC § Food Lion sued ABC in 1995 after reporting on the “pink slime” case, including for trespass § ABC sent two reporters to Food Lion , who applied for and got jobs there § They were recording things that were happening in the meat department § In most places, you sign an employment contract that says you have a duty to your employer § This is how they were able to sue for breach of duty to the company § Appellate court said that they had trespassed because they ha d come in under false pretenses: • Didn't indicate (actually hid) that they were reporters • That would have kept them from being allowed into the restricted areas of the property § Upheld a $2 damage verdict — SCOTUS’ way of saying that ABC was wrong, but that Food Lion was even more in the wrong o Cape Publishing, Inc. v. Bridges § Crazy husband broke into house and forced Hilda Bridges to disrobe and held her hostage. He threatened to kill her for hours. The SWAT t eam was about to rescue her, then he committed suicide. § Paper published that picture of her outside in towel. Bridges sued and won $10,000 in privacy case with jury. It goes on appeal and it was reversed because it was newsworthy. § At some point, the publi c interest in obtaining information dominates the individual's right to privacy o Dietemann v. Time, Inc. § Dietemann was a plumber. Was charging women and providing breast exams. Two Time Magazine reporters went undercover and got breast exams from him. § Wire tapped him in his home and sent it to the DOH waiting outside. He was convicted of practicing medicine without a license. § Then he sued Time for invasion of privacy and won $1000. He had a reasonable expectation of privacy in his home. o Hustler Magazine v. Falwell § Falwell sued Hustler Magazine for defamation and emotional distress when they published a parody article that suggested that he and his mother were drunk and had sex. § Lost for defamation because article was not believable. Won for emotional distress. § Then the Court ruled that public figures must prove Actual Malice to sue for emotional distress. (thus protecting satire) o Zacchini v. Scripps Howard Broadcasting Co. § Ohio TV station broadcasted Zacchini's entire human cannonball act on TV. Broadcast was appropriation not protected under the First Amendment. § Because the act was broadcasted without consent, it posed a substantial threat to the economic value of the performance. § Zacchini won. § This is the only SCOTUS case dealing with an appropriation t ort. o Cantrell v. Forest City Publishing Co. § Woman's husband was killed when the Silver Bridge collapsed into the Ohio River. Forest City published article that implied she had been interviewed, was unemotional about the incident and exaggerated the family 's poverty. § She was cast in a false light. Court ruled NYT actual malice and she won. Florida does not recognize false light because it is too close to defamation o Fla. Publishing Co.v. Fletcher § 17 year old girl died in a house fire; the fire department forgot their camera’s film to photograph the deadly house fire. § They invited media to take pictures for them in order to get the photos for their record. The media then published the photos, including ones of the dead girl. § Homeowners tried to sue for trespassing, but court said since media was invited by the fire department, they cannot be sued. § Implied consent: FL recognizes the "custom and usage privilege" and is o ne of the only states that recognizes it. o Time, Inc. v. Hill § Time produced a photo essay that reported on a Broadway play which was based on a real life hostage situation (which they were involved in). § Hills said they were portrayed in a false light in the play, and that Time made the captors look mean. § Court ruled that the Hills must prove NYT Actual Malice because it was a newsworthy event. § The Hills sued for false light and lost because they couldn't prove NYT Actual Malice. o Anderson v. Pensacola News Journal (class discussion) § Public official went on hunting trip with wife, accidentally shot and killed her. § 10 years later, report said that he shot and killed her and didn't say until later in the story that it was an "accident." § Anderson sued for false light and won. § HOWEVER, Florida no longer recognizes false light as a tort. o Braun v. Soldier of Fortune § Soldier of Fortune Magazine ran an ad for a hit man and Braun was killed because of it. § Magazine held liable because they have a public duty not to publish a clearly identifiable unreasonable risk of harm. Chapter 6 - Copyright • Questions: 1. Where do the laws of copyright come from? o There is Constitutional protections for copyright: Article 1, Section 8 § Secures a limited time of protection for creators of works o Copyright Act of 1976 and revisions (statutory law) § Provides more exacting provision s for what is covered under law 2. What is copyrightable? o "Original works of authorship fixed in a tangible medium of expression…from which they can be perceived, reproduced, or otherwise communicated." o Clues: § Original • Doesn't have to mean anything "good" • Just means that it was created with some independent amount of effort • If something appears to be the same as something else but it was created independently of the other thing, it is still an individual copyright § Fixed in a tangible form • As soon as it is cre ated/recorded, it is copyrighted o IDEAS CAN NOT BE COPYRIGHTED o 1976 Copyright Act's Categories of Works of Authorship § 7 categories: • Literary works Musical works, including words • • Dramatic works, including accompanying music • Pantomimes and choreographic wor ks o Just doing a dance does not copyright it (it has to be in a fixed medium) o There are two ways to choreograph a dance: § Videotape it § Annotate it • Pictorial, graphic, and sculptural works o Includes characters (Mickey Mouse, Charlie Brown, etc.) • Motion pictures and other audiovisual works • Sound recordings § In addition to those categories, Congress has also found that other things also have copyright protections: • Computer software • Test questions § When talking about news, the facts aren't copyrightable; but phras ing of a story or method of depicting a story can be § The idea that goes behind a story, etc. cannot be protected , but details, specific scene descriptions could not have protections 3. What does copyright protect? o "Original works of authorship fixed in a tang ible medium of expression…from which they can be perceived, reproduced, or otherwise communicated." o Clues: § Original • Doesn't have to mean anything "good" • Just means that it was created with some independent amount of effort • If something appears to be the same as something else but it was created independently of the other thing, it is still an individual copyright § Fixed in a tangible form • As soon as it is created/recorded, it is copyrighted 4. What is the general rule when it comes to copyright? o General rule when it comes to copyright: If there is only one way to state something, it is not copyrightable. 2 § Statements like e=mc cannot be copyrighted because there is no other way to state it § The idea that goes behind a story, etc. cannot be protected § But details, specific scene descriptions could not have protections 5. How does copyright work? How long does it last? What are the three elements of notice? How do you register a copyright? Why would you register a copyright? How do you enforce a copyright? o Words o You have a copyright as soon as you create a work. o Copyright lasts for life of author plus 70 years § This additional step gives you more security and gives you additional benefits § Copyright laws have changed through time, but currently is life + 70 years § After that time, the work goes into the public domain and anyone can use it for anything § Disney has had a lot to do with extending the right of copyright o Work for hire copyright - 95 years after publication o To register, put notice on work, register and depos it copies with Copyright Office in Washington, D.C. and pay a fee. o The notice requires three items: § Letter c in a circle: © with word copyright or copr. § Year of first publication § Name of copyright owner o Registration required before you can SUE and recover certain damages o You do not have to register a work for it to be protected o You do have to register to sue and recover certain damages ; you would register it so that you can get damages for someone using your work without permission o U.S. authors must regist er before they can sue for infringement and actual damages (lost profits). o If work is registered before the infringement, owner can sue for statutory damages – no proof of financial damage required. § Statutory damages are extremely costly and even higher if it was willfully infringed o To enforce a copyright, you have to send the person infringing a notice (digitally through the DMCA or physically). If they do not comply, you sue for infringement. 6. What makes a work “original?” (See Feist Publications, Inc. v. Rural Telephone Service Co. ) o A work is “original” if the author creates the work independently with a modicum (amount) of intellectual effort § Does not simply reproduce existing material § No requirement that it be "unique" o Compilations: § Feist Publications, Inc. v. Rural Telephone Service Co. • Two telephone books created, one company sued the other claiming that they had "copied the information present in the other book" • Court said that the compilation of facts, although it may appear to be an individual work, is not enough to be copyrighted Court rejected the "sweat of the brow doctrine", saying that just • because the first company had worked hard on putting it together didn't mean that they got exclusive rights to publish information The court did say that if the publication presented the facts in a specific • and unique way (with headings or a specific layout/presentation), then that would be copyrighted—but not the information, as facts that are contained o Derivations—transformations/adaptations (also protecte d) o Doesn't have to mean anything "good" o Just means that it was created with some independent amount of effort o If something appears to be the same as something else but it was created independently of the other thing, it is still an individual copyright 7. What rights do authors have? o Performance and display § Just because you have contracted someone to display work in one medium doesn't mean you can display it in other mediums § You as the owner of the copyright can distribute the right to create a work in other forms as you wish, UNLESS you give over your copyright completely to the publisher § Over the air broadcasting • You have to pay loyalties to play music in public, to larger audiences • Restaurants, large stores, etc. have to pay royalties to play copyrighted music because it is being heard by large audiences • Businesses can pay companies like Pandora to play music (business account pays royalties to the copyright owners) § Cable and satellites • It is generally illegal for businesses to broadcast cable/satellite servi ces without permission o Copying § Protects the works of the author so that there are commercial incentives to pay for works; this gives them a monopoly for their work 8. What is a work for hire and how is this different from free -lancers? o Works made for hire § Any works that you make for a company which you are an employee of becomes the project for the company (usually you sign waivers which say this) o Freelance § Any works that you create freelance you retain the copyright to § UNLESS you sign a waiver which says ot herwise/says that the work is being specifically created for them and will become their property 9. What is the major defense to a claim of copyright infringement? o FREE USE is the major defense to a claim of copyright infringement. o Infringement is only okay if your use qualifies as a "fair use" § Is not a right, it's an affirmative defense (if someone accuses you of infringing on their copyright and sues, you can use a fair use defense) o Allows critics, commentators, reviewers, scholars to copy limited portions o f copyrighted expression for the purpose of comment and criticism o Permits limited copyrighting for non -commercial uses o VIDEO: Fair Use and Free Speech § Out of hand, copyright can become a tool of private censorship § Fair Use gives people freedom to create wh at they want to and publish it without being punished (maybe) o It's really something that falls to the fact finder § A jury would be considering and determining if your work was considered fair use or not o Goal is to give us an understanding of the elements a nd the idea of how courts interpret the elements 10. What are the four factors a court considers when determining whether the use of copyrighted material is a fair use? (See Harper & Row Publishers, Inc. v. National Enterprises) o Four factors a court uses: 1. Purpose and character of the use 2. Nature of the copyrighted work 3. Amount and substantiality of the portion used 4. Effect on the potential market o Court opinions are usually driven by the effect on the potential market factor o If the new work has no effect on the original work's place in the marketplace & doesn't affect the potential market at all, it usually ends well for the defendant o Harper & Row Publishers v. Nation Enterprise (1985) § Nation published around 300 words of a manuscript about Ronald Reagan’s life § Unpublished materials get more protection § The thought is that the author deserves the right to publish the work first § Court said that Nation had published “the heart of the work” and so had no fair use defense 11. How and why are parodies protected by fair use ex ception to the law of copyright? (See Campbell v. Acuff-Rose Music, Inc.) o Under the first factor of fair use: Purpose and character of the use o Usually falls under one of these categories: § News and Comments § Parody § Teaching and Noncommercial research § Personal entertainment § Advertising (only sometimes; you can use a small portion of a work to compare one product with another product) o Luthar R. Campbell (AKA Luke Skywalker) v. Acuff -Rose Music § Two Live Crew — Pretty Woman: a song with the same beat as the son g from the movie "Pretty Woman", and includes some of the lyrics § Acuff-Rose Music owned the rights to the song from the movie, sued for infringement § Was a parody, but was being used for commercial purposes § The court said that a parody has to create a big portion of the other work by its very nature and that parodies are protected by fair use § Just because something is created for commercial use doesn't mean that it falls outside of the fair use doctrine 12. What is the Digital Millennium Copyright Act? What mu st Internet service providers do to remain protected under the DCMA? o Digital Millennium Copyright Act (1998 ) (DMCA) o Just because something is posted online does not mean that it is in the public domain (quite the opposite) § This made ISPs not liable for inf ringement that their users do on their servers § However, if they are given notice and do not act, they can be held liable o Service Providers: § Not required to monitor their networks for infringers § Cannot play dumb about infringing activity on their systems § Can be held liable for direct, contributory or vicarious infringement o Safe Harbors for online service providers § Protects if conduits (like common carrier) § But must "take down" postings if notified o DMCA criminalizes acts that disable or circumvent technology designed to prevent illegal copying § Technology/programs that let you illegally copy a work (like ripping a CD and copying it) are only illegal if they are explicitly designed for that purpose § As long as they do something else, they are not illegal 13. What special issues are now arising with popular Web sites YouTube, MySpace, and Facebook? o With popular sites like YouTube, MySpace, and Facebook, there is now a culture of sharing and posting media (videos, music, photos, text, etc.) without giving attribution to its source. o There is a lot of concern here about how this is infringing on copyright. 14. What is a trademark and how is it different from a copyright? How is it simil r? o A trademark is “Any word, name, symbol or device used by a manufacturer or merchant to identify and distinguish her goods from those manufactured or sold by others to indicate the source of goods.” o Trademarks do not expire — ever o Represents a portion of "goodwill" of the company § This is so that companies can put a mark on their products, w hich allows customers to rely on the company's products for o Must be inherently distinctive (or have acquired distinctiveness) o Does not depend on originality, invention, or discovery o Rights of the trademark owner must be balanced against the interests of free speech when the unauthorized use is for expressive purposes § You can use a trademark to represent a work by that person/company, but not to claim that the work is your own o Trademarks are different from copyright because: § They do not expire § They must be inherently distinctive § They do not depend on originality § They represent companies to the public o Trademarks are similar because: § They have to be registered § They are protected by laws 15. What is the purpose of a trademark? o The purpose of a trademark is to re present a portion of "goodwill" of the company o This is so that companies can put a mark on their products, which allows customers to rely on the company's products for o Often, trademarks are used to protect the words or image a business uses to describe/name itself 16. What is unfair competition? Is it the same as a copyright or trademark clai ? o Unfair competition is not the same as a copyright or trademark claim. Copyright does not protect signs, titles, names, and slogans that businesses use to identify thems elves as they are considered too “trivial” for protection o Types of unfair competition that are prohibited: § Misappropriating the work of others § Using similar titles in a misleading way § Stealing trade secrets § Advertising falsely 17. What must a trademark plaint iff show in order to prove trademark infringement? o In order to prove trademark infringement, a plaintiff must prove: § The infringer had access to the work § The similarity must be substantial o A court will consider many factors when determining infringement: § Strength of the mark § Similarity in appearance of the products § The meaning of the marks § The kinds of goods in question § The intention of the defendant in using the mark o There are different kinds of infringement: § Direct infringement § Contributory infringeme nt § Vicarious infringement 18. What is dilution? How does it differ from confusion? o Not the same as confusion o In this case, the diluting work tarnishes the value of the mark o This is a work that tarnishes the value of the mark (ex: making the Coke logo into an image that says "Enjoy Cocaine") 19. When would fair use and the First Amendment be successful defenses to infringement claims? o The rights of the trademark must be balanced against the against the interests of free speech when the unauthorized use is for expres sive purposes o Those who borrow trademarks to gather news, create parodies, and other expressive purposes are protected o Fair use and the First Amendment are successful defenses to infringement claims when : o 20. What are the penalties for violating the copyright law? Trademark laws? Laws against unfair competition? o Penalties for violating copyright, trademark, and unfair competition laws vary based on the infringement/violation o Penalties for violating copyright law are based on: § Purpose and character of the use § Nature of the copyrighted work § Amount and substantiality of the portion used § Effect on the potential market o If copyright law infringement is determined to be fair use, there is no penalty. o Penalties that are assessed for copyright violations include: stoppi ng infringement, profits, court costs/attorney fees, and damages (if applicable). o Penalties for violating trademark laws include: stopping the infringing use, profits, damages, attorneys’ fees, and court costs. o Laws against unfair competition cover: § Misappropriating the work of others § Using similar titles in a misleading way § Stealing trade secrets § Advertising falsely o These penalties vary based on the infringement/violation ruling. • Important Cases: o Fiest Publications v. Rural Telephone Service Co. § Two telephone books created, one company sued the other claiming that they had "copied the information present in the other book" § Court said that the compilation of facts, although it may appear to be an individual work, is not enough to be copyrighted § Court rejected the "sweat of the brow doctrine", saying that just because the first company had worked hard on putting it together didn't mean that they got exclusive rights to publish information § The court did say that if the publication presented the facts in a spe cific and unique way (with headings or a specific layout/presentation), then that would be copyrighted—but not the information, as facts that are contained o Harper & Row Publishers, Inc. v. Nation Enterprises § Nation published around 300 words of a manuscri pt about Reagan’s life which had not yet been published § Harper & Row sued because of an expected loss in sales because the shorts publication made reading the entire manuscript less valuable § SCOTUS ruling: Unpublished materials get more protection § The thought is that the author deserves the right to publish the work first § Court said that Nation had published “the heart of the work” and so had no fair use defense o Campbell v. Acuff-Rose Music, Inc. § Two Live Crew — Pretty Woman: a song with the same beat as th e song from the movie "Pretty Woman", and includes some of the lyrics § Acuff-Rose Music owned the rights to the song from the movie, sued for infringement § Was a parody, but was being used for commercial purposes § The court said that a parody has to create a big portion of the other work by its very nature and that parodies are protected by fair use § Just because something is created for commercial use doesn't mean that it falls outside of the fair use doctrine o Basic Books v. Kinko’s Graphics Corp. § Teachers used to be able to to go Kinko's and copy any materials that were used in the course to give to the students § Courts ruled that although this was educational use, it was violating the rights of the copyright holders, which weren't being given any royalties § While student use of course packs was educational, reprinting of copyrighted works by Kinko’s was for commercial purposes § SCOTUS: Not protected by fair use doctrine § Negatively affected market of copyright owners Chapter 8 – Commercial Speech • Questions: 1. How did the First Amendment protections for commercial speech evolve? (See Valentine v. Chrestensen and New York Times v. Sullivan .) o In the case of Valentine vs. Chrestensen, the U.S. Supreme Court ruled that NY officials could stop the distribution of flie rs without violating the First Amendment because the fliers were "purely commercial." o Then, in the case of NY Times v. Sullivan, the ad was protected political speech because it communicated information, expressed opinion, recited grievances, protested abuse claims, and sought financial support on behalf of the movement whose existence and objectives are matters of the highest public interest. o There’s still no protection for purely commercial advertising , but paid political speech was then protected 2. What is the extent of First Amendment protection for commercial speech? (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council .) o In this case, consumers had the right to receive this information (prices of prescriptions). o Therefore, in cases where the information is important to the public or of high governmental interest, then the First Amendment should not censor the information. o Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council § Seniors wanted more information about prescrip tion cost. § VA law said pharmacists couldn't adv ertise prices. § SCOTUS found in favor of Consumer Council. They had a 1st Amendment right to receive info. 3. What “test” does a judge use in determining whether a regulation of advertising is an unconstitutional regulation because it violates the First Amendment? o Four-Part Test 1. Is it commercial speech? (False/illegal advertising is not worthy of protection or consideration) 2. Legitimate governmental regulatory interest? (Anything for betterment of society is allowed) 3. Direct advancement of government regulatory interest? (Must be interest in regulation) 4. Is the ban narrowly drawn to advance legitimate state interest? (Is it broad?) 4. Does the First Amendment protect false advertising? o No, the First Amendment does not protect false advertising. o The Federal Trade Commission (FTC) requires: § Advertisers must substantiate their claims § Punish advertisers who engage in unfair competition and unfair or deceptive ads or practices 5. When are regulations (also known as “prior rest raint”) permissible when it comes to advertising? What are some other differences between commercial and political speech? o Prior restraints are permissible when it comes to false or misleading advertising. o All 50 states prohibit unfair competition and unf air acts and practices or otherwise allow citizens and companies to sue over deceptive advertising. o Under many state laws, consumers as well as competitors can sue not only to stop deceptive ads but also to recover damages and attorney fees. o Can compel commercial speech if it is in the public interest o The main difference between commercial speech and p olitical speech is that political speech can't be regulated (paid placement for political speech cannot be censored by any party or denied; commercial speech can) 6. What is the Central Hudson test and when is it used? o The Central Hudson test is u sed to test whether commercial speech regulations are constitutional. There are four factors: 1. Is it commercial speech? 2. Is there a legitimate governmental regulatory inter est? 3. Is it a direct advancement of government regulatory interest? 4. Is the ban narrowly drawn to advance legitimate state interest? * o If you answer yes to all, the regulation stays. § *This is similar to being narrowly tailored (from FA rights) 7. What is the FTC ? What does it regulate? Where does its authority come from? What powers does it have? o The Federal Trade Commission (FTC) regulates advertising and punishes advertisers who engage in unfair competition and unfair or deceptive ads or practices. o The FTC is led by 5 commissioners who are appointed by the President o The FTC’s powers were given to them by the Federal Trade Act o FTC Powers: § Require advertisers to substantiate their claims. § Punish advertisers who engage in unfair competition and unfair or decept ive ads or practices. 8. What is an unfair practice? o If it causes substantial injury that is not outweighed by offsetting benefits to customers or competitors who cannot reasonably avoid the injury. 9. What is a deceptive ad? o Ads are deceptive if they are likely to mislead a reasonable consumer with a material statement or omission. 10. What are express and implied falsehoods? o Express falsehood: an outright lie o Implied falsehood: a statement that may be actually true but leaves a false impression § Reasonable basis implication § Proof implication § Demonstration implication § Experts and celebrity endorsements 11. What authorities can regulate advertising? o The Federal Trade Commission (FTC) can require advertisers to substantiate their claims o The Food and Drug Administation (FDA) can regulate advertisements relating to pharmaceuticals § Enforces Fair Packing and Labeling Act 12. What is the FTC’s complaint process? 1. Person makes their initial complaint. 2. Then the FTC will notify you of the complaint. 3. If you do not fix the complaint, then FTC will fine or sue you. 4. The FTC will publish the complaint if you do not fix it. 13. What is the Lanham Act and when is it used? o The Lanham Act protects consumers and competitors; it prohibits a company from falsely or misleadingly representing a fact o AKA Trademark Act § This is not a remedy for consumers, but rather competitors § Gives competitors an avenue to cease deceptive/false advertising o Competitor remedies § Injunctions § Damages § Corrective Advertising • Opportunities to change advertising and make it more truthful o Competitors can sue for any of the above remedies even if the name of the competitor isn't explicitly named o Anyone, even an indirect competitor, can sue under this legislation § It has to be deceptive/misleading and likely to damage the business/com petitor who is suing o Section 43(a) prohibits a person’s “false or misleading representation of fact” 14. What is RICO and when is it useful to stop misleading or deceptive advertisi g? o Racketeer Influenced and Corrupt Organizations Act (RICO) o Enacted in 1970 to "curb organized crime's infiltration of legitimate businesses" o Course of fradualent conduct that has harmed more than one person. o The RICO act was intended for stopping racketeering and for breaking up the mob § These are laws that enable consumers to sue for deceptive advertising § Also the only laws that allow consumers to do so; consumers cannot sue under the Federal Trade Act o Example: Purina Puppy Chow claimed in advertising that the food curbed canine hip displacement/dysplasia when the dogs got older § It didn't actually do that, so consumers were able to sue under the RICO act 15. What is the CAN -SPAM Act, and what does it protect against? o CAN-SPAM: "Controlling the Assault of Non -Solicited Pornography and Marketing Act of 2003" o Regulates advertising that o ccurs via emails § Regulates false and misleading emails § Requires them to include an opt-out option o Gives anyone who receives these emails a way to stop them o 10-day prohibition § They have to stop sending you emails within 10 days of you opting out o Disclosure § Identification as ad or solicitation, notice of “opt out”, and valid postal address § Includes the subject of the message; it has to include the fact that it's an advertisement for a product o Aggravated Violations § If a company has violated the rules many times, it can be fined more than usual or shut down 16. What’s happening with personal data collection? Websites, businesses, social media, like Facebook? o Personal data collection: this is called behavioral marketing; companies tracking and selling data about users so that they can learn about users’ habits and tendencies (both on a general and on an individual level). o For the most part, the government is encouraging social media sites like Face book and Google to self-regulate data collection 17. When are corporatio ns required to report financial information? (See SEC v. Texas Gulf Sulphur Co.) o Corporations are required to report financial information accurately. This means no false or misleading statements. § PR firms are liable for fraud if they pass on misleading investment information § “Reasonable investigation” § Responsible for withholding corp orate information it knows is false 18. What is the SEC? Where does it get its authority? What does it have authority ove ? o The SEC is the Securities Exchange Commission § It was created after 1930s market crash reaction to regulate the stock market. o It gets authority from Exchange and Security Act of 1934. 19. What is Rule 10(b)? What does it prohibit? How does it define fraud(See SEC v. Texas Gulf Sulphur Co.) o Rule 10(b) is from the Securities Exchange Act of 1934 § Governed by the Securities Exchange Commission (SEC) § Includes a duty to not make false or misleading statements, or omit important information that would make a difference on whether someone will purchase or sell stock in a company § PR firms can be held liable if they pass on misleading investment information o Makes it illegal for a corporation (or its agents) to connection be manipulative or deceptive in connection with the sale of securities o Includes not allowing false or misleading statements to be made § PR firms are liable for fraud if they pass on misleading investment information § “Reasonable investigation” § Responsible for withholding corporate information it knows is false 20. What is “insider trading” and what are the penalties for insider trading(See SEC v. Texas Gulf Sulphur Co.) o Insider trading is buying or selling securities (like stock in companies) based on this nonpublic corporate information. o Insider: Someone who because of their position has access to nonpublic corporate information § Insiders who trade securities must disclose material information before trading 1. Can't make omit or falsify facts that are material/important to stock decisions. § Have to be truthful, and cannot omit information to the public. 2. Insider trading (10b5) § Makes it illegal for a company to manipulate or be deceptive when selling stocks. Cant issue false or misleading information. 21. What does “tipping,” “tipper” and “tippee” mean? (See SEC v. Texas Gulf Sulphur Co. ) o Tipping: passing nonpublic information onto friends or brokers so they can trade on the stock market based on that information o Tipper: person who passes on the nonpublic material to a friend, broker etc. o Tippee: person who receives an insider tip and makes a securities trade based on the information • Important Cases: o Valentine v. Chrestensen § Submarine gives tours. Passes out ads to promote tour. He was arrested because it violated commercial speech laws. Supreme Court said that First Amendment does not protect advertising. o Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council § Seniors wanted more information about prescription cos t. § VA law said pharmacists couldn't adv ertise its prices. S.C. found in favor o f Consumer Council. They had a Fir st Amendment right to receive info. o Central Hudson Gas & Electric v. Public Service § A state regulation prohibited electric utilities from runni ng all advertisements promoting the use of electricity, instituted to conserve energy. § Court ruled in favor of Central Hudson. A blanket ban on all electricity ads violated the First Amendment. o Kasky v. Nike § Nike issued a press release in response to char ges of its employees working
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