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UF / Journalism Core / JOU 4200 / What types of individuals are common libel defendants?

What types of individuals are common libel defendants?

What types of individuals are common libel defendants?

Description

School: University of Florida
Department: Journalism Core
Course: Law of Mass Communications
Professor: Sandra chance
Term: Winter 2016
Tags: media law, Law, mass communication, law of mass communication, first amendment, court systems, and SCOTUS
Cost: 50
Name: MMC 4200 Exam 2 Study Guide
Description: Chapters 4, 5, 6, 8 Libel defenses and privileges. Privacy, privacy torts, intrusive behavior, false light, appropriation, intentional infliction of emotional distress. Copyright, copyright protec
Uploaded: 03/16/2016
23 Pages 30 Views 26 Unlocks
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Exam 2 Study Guide


What types of individuals are common libel defendants?



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)


What are the libel defenses?



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 true 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:


What are absolute privileges?



Don't forget about the age old question of What is bar tracery?

• 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.We also discuss several other topics like What is marginal social cost?

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 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 rather 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) Don't forget about the age old question of What are the styles of love?

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: We also discuss several other topics like What is semantic memory?

• 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 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  If you want to learn more check out How do you reduce poverty?

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 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 Don't forget about the age old question of Highest nervous activity

▪ 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 First 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 physical 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 in 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 secret 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 elements 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 implied consent  

o In Florida Publishing Co. v. Fletcher, the fire department 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 invasion 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 implied she had been interviewed 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 case?  (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 unauthorized 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 appropriation

▪ 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 must 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 holding was limited because of unique  facts (rarely would media broadcast entire events)

16. What are the elements for an emotional distress 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 intentional 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 because article was not believable; however, he  won for emotional distress.  

▪ Then the Court ruled that public figures 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 conversation 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 business, 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 between 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 doctor'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. Journalist 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 had 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 team 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 public 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 tort.  

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 one 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 provisions 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 created/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 works

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 phrasing 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 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 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.  

▪ Statements like e=mc2 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 deposit 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 register 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 protected)

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 services  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 otherwise/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 of  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 what 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 and 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 exception 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 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

12. What is the Digital Millennium Copyright Act?  What must 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 infringement 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 similar? 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, which 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 represent 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 claim? 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 themselves  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 plaintiff 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 infringement

▪ 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 expressive 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: stopping 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 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 Harper & Row Publishers, Inc. v. Nation Enterprises 

▪ Nation published around 300 words of a manuscript 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 the 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 fliers 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 prescription cost.

▪ VA law said pharmacists couldn't advertise 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 restraint”) 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 unfair 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 political 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 used to test whether commercial speech regulations are  constitutional. There are four factors:

1. Is it commercial speech?

2. Is there a legitimate governmental regulatory interest?

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 deceptive 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/competitor  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 advertising? 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 occurs 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 Facebook and  Google to self-regulate data collection

17. When are corporations 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 corporate information it knows is false  

18. What is the SEC?  Where does it get its authority?  What does it have authority over? 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 cost.

▪ VA law said pharmacists couldn't advertise its prices. S.C. found in favor of  Consumer Council. They had a First Amendment right to receive info.

o Central Hudson Gas & Electric v. Public Service 

▪ A state regulation prohibited electric utilities from running 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 charges of its employees working in  "sweatshops" and other claims of immoral behavior.  

▪ Sued by Kasky for unfair trade practice and false advertising (when it came to  light that most of the accusations were accurate).

▪ California Supreme Court (4-3 ruling) says that the company’s statements are  not protected by political speech.

▪ Statements deemed commercial speech and so misleading info is NOT protected  by the First Amendment. U.S. Supreme Court refuses to hear the case.  ▪ Nike settled for $1.5 million.

o SEC v. Texas Gulf Sulphur Co. 

▪ Insider trading and a misleading statement.  

▪ Company issues press release to dampen rumors about a "large" copper deposit  found in Oregon (saying that the estimates were “without factual basis.” As a  result, many investors sold their shares.  

▪ Insiders bought stock and tipped friends to do so as well (because they really  DID find a large deposit).

▪ This is extremely illegal!

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