3-29/3-31-2016 Notes MC 401
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This 6 page Class Notes was uploaded by Meagan Mowery on Sunday April 3, 2016. The Class Notes belongs to MC 401 at University of Alabama - Tuscaloosa taught by Bunker in Summer 2015. Since its upload, it has received 19 views. For similar materials see Law and Regulation in Journalism and Mass Communications at University of Alabama - Tuscaloosa.
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Date Created: 04/03/16
Mowery 1 3/29/2016 Who owns the copyright? Work on your own – you do. “Work for hire” on behalf of employer – employer does Freelancer -- ??? Never a bad idea to specify things in writing in advance Elements of Copyright Infringement (1) Valid Copyright and Plaintiff is the owner (2) Access – must be “copied” (indep. Creation is OK) -- Person supposedly copied from has to have access to your work. Have to have seen it to copy it. (3) Substantial similarity -- How close is too close? How do we know? Methods of determining (3): Dissection approach -- “good” approach. -- Got to take all the things that aren’t very copyrighted and put them off to the side (1) Idea [anyone can use an idea; not infringing; 13 going on 30 different states], take out the (2) facts [Selma; anybody can use facts] -- Thoughtful approach “Ordinary observer” test -- The “bad” way. -- Play them both songs. -- Guy off the street won’t know that song… -- overall impression -- not taking out and dissecting the matter Copyright Fair Use Fair Use o Fair use protects interest in wide dissemination and discussion of the work. o Copyright Owner can’t put barbed-wire fence around the work. o Fair use is a defense Fair Use Factors Mowery 2 Nature of the Original --What is this thing that you are borrowing from? How long? Factual or fictional? Nature of the Use --Why am I borrowing? Commercial purposes? Educational purposes? Advantage: Educational Extent of the Use --How much am I borrowing? (1) Quantity (2) Quality: The heart of the work; the really good stuff. -- LANS: Riot in LA Rodney King verdict. LANS had a helicopter: hours of video. News stations took their footage from them. Argued fair use but they took the heart of the video; what really matters from their footage. Effect of Use on Market for Original -- Your borrowing could cause that person your borrowing from losing them money. -- Affecting their market. No single factor controls – balance of the equity Campbell v. Acuff-Rose 2 Live Crew case involving “Pretty Woman” Silly case, but huge impact on fair use law Rise of “transformative use” factor – adding “new expression, meaning or message” -- If you take a work, then add something to it… Eliminates that you were doing it for commercial use. -- Understand that they were doing a parody of it. -- It’s not going to affect their market. -- It’s not really a substitute. -- Not taking away sales from them. Transformative use is now hugely important in fair use cases. This Land is Your Land -- Nature of Original: Original song Effort to create? Yes. Copyright owner WINS -- Nature of Use: Commercial use? Yes. Comments on the candidates. Significance amount to the original song. Jib Jab WINS Mowery 3 -- Extent of Use: Took a ton of the lyrics; 100% of the music. Called it a parody. They’re not parodying the song. Taking the song and mocking candidates. Copyright owner WINS -- Effect of Use on Market on Original No it wont affect the original song. JIB JAB WINS 2-2 they took so much… Extent of Use *** Hypothetical Question for Fair Use on Test *** Read the book chapter on this. Advertising Advertising Constitutional Issues (1) Right of Access under First Amendment to place ads? Generally, no. -- Can’t force your advertising. -- The company has control over what they put out. -- One exception: Political ads. -- Take ad from one candidate; have to take from the opponent. (2) To what extent does First Amendment allow regulation of advertising? Rise of First Amendment protection for advertising. Evolution of Commercial Speech Doctrine Initially, no First Amendment protection for advertising. Sullivan case -- Supreme Court did protect that ad. -- 1 stop on maybe we do need to protect it. Virginia State Board Case -- Pharmacists, Doctors, Lawyers, Professionals, can’t advertise in Virginia. -- 1976: Not the pharmacists, the consumer group. -- Why? ... So they can find out where the cheapest drugs are. -- Win for the consumer group. -- It IS worthy. Central Hudson Case -- Sets the standards for today. -- 1980 -- Energy crisis: 1970’s Mowery 4 -- Only go to the gas station 3 days a week… -- Can’t advertise cause bad for the energy crisis. -- Electric Company challenges. (Central Hudson) -- NY not allowed to advertise. -- WINNER: Central Hudson; are allowed to advertise. Pages 84-98 Guest Speaker April 5 Co Author of our text book TEST: Tuesday, April 12 th th REVIEW: April 7 3/31/2016 Central Hudson Test -- Burden of advertiser -- Has to be legal (1)(a) Lawful activity? (1)(b) Is ad deceptive? -- Pass these, move on to… Burden shifts to gov’t: (2) Substantial gov’t interest? (3) Law directly advance the gov’t interest (4) Law more extensive than necessary? (aka overbroad) (1)(a) Yes. PASS. (1)(b) Yes. PASS. State of New York: -- (2) Energy Crisis. Yes. PASS (3) Advertising works. Yes. PASS (4) Couldn’t meet. NO PASS. Court goes to Central Hudson. Posadas vs. Tourism Company Owns a casino company. Legalizes gambling. Puerto Rico cannot direct their advertising to local citizens. https://www.quimbee.com/cases/posadas-de-puerto-rico-associates-v- tourism-co-of-puerto-rico http://caselaw.findlaw.com/us-supreme-court/478/328.html (1)(a) PASS (1)(b) PASS (2) PASS (3) This will make it a little better. Government wins. Mowery 5 (4) Narrow tailored. Locals are the problem. Locals are who we don’t want to gamble. Just can’t advertise towards this distinct group of people. Government wins. Posadas loses. Advertising Regulation The FTC Independent regulatory agency Five commissioners appointed by President No more than 3 from one party FTC’s prospective powers Staff Opinion Letters Advisory Opinions Industry Guides -- Guidelines -- Law-like -- Like Suggestions -- Example: Endorsers -- Jennifer Anniston, Jennifer Garner -- Celebrity actually has to believe what they’re saying. -- Can’t put out something you cannot claim. -- Free iPhone > write a review > bloggers > you have to tell your viewers that it was free. Rules -- Pass rules that have a force of law. -- Most serious thing under prospective powers FTC’s after-the-fact powers Consent Decree – most common remedy -- Basically an agreement -- Sign a paper -- Like a settlement Cease-and-Desist Orders -- Stop what you’re doing -- They can fine you every day you don’t stop -- Manufactures making billions? May not force them to stop what they’re doing. Fed. Court injunctions -- Really serious… -- Don’t comply? Go to jail. Corrective Advertising -- Advertisers hate the most. -- Force advertisers to advertise about their wrongness of their brand. Mowery 6 -- Example: YAZ -- Listerine: Cures cold and sore throats: no evidence just put it out there. “Contrary to prior advertising.” Didn’t have to use those words. What is deceptive advertising? A misrepresentation Likely to deceive In a material way -- Not material: Not actually the real ice cream in the commercial… Real ice cream would melt under the lights. -- What’s material??? Window paintings… take them out… no window at all. No glass. Made the product look more successful than it really was. To a reasonable consumer To his/her detriment -- Some harm to the consumer. -- Bought something that didn’t appeal to the consumer; not necessarily harmful. What is puffery? NOT regulated at all No reasonable person would believe or consider Similar to “opinion” in libel – not a factual statement Endorsements For consumer testimonials – must be “generally expected result” FTC discourages “results not typical” (e.g., weight loss) Competitor Remedies Competitors can sue for false advertising under Lanham Act They will typically watch you closer than FTC will Lanham Act allow injunctions and monetary damages Vital to substantiate factual claims you make in ads