Media Law Notes 3 PDF

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Lecture notes covering the final section of the media law class...

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Media Law Notes 3 Intellectual Property 

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Copyright: an author’s of originator’s right to certain literacy or artistic productions that gives the excusing privilege of multiplying, publishing and selling the productions o Constitutional protection  Some constitutional protection to copyright  Congress right to enact legislation to promote scientist and artistic progress  Idea that if you are protected in what you dream up then you are more likely to dream up more Original works of authorship fixed in a tangible medium of expression… from which they can be perceived, reproduced or otherwise communicated Original: substantial originality o Must be original in the thing you made up by yourself o When compared to something else, but be substantially different o 10 line different in a play is NOT original Fixed in a tangible medium: sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than a transitory duration. o Creations that are expressed in a certain manner but not ideas o Cant say “you had that idea” something must have been done with it Rights Granted o Reproduce o Prepare derivatives o Distribute o Perform o Display Duration: life of creator + 70 years Notice o Letter c in a circle o Year of first publication o Name of copyright owner o When copy right term has ended then ideas fall back into public domain o Registration if you want damages for someone using your work What works can be copyrighted o Original works o Compilations  Works formed by collecting and assembling pre existing materials in order to create a new work  Databases, dictionaries  Vice publications v telephone company

SC ruled that publisher of regionally phone book did not violate local phone book company when publishing the same names  Basic facts- no originality so cant be copyrighted  The sweat of the brow doctrine: you can put time and effort into something but if not original, not copyrightable o Collective works  A gathering of pre existing works that may already be copyrighted, people of stuff in collective work maintain that copyright- they don’t loose copyright o Derivative works  Transform or adapt an original work- copyright owner has exclusive rights on this ex. JK Rowling What cant be copyrighted? o Trivial materials o Ideas o Utilitarian goods (patten sometimes covers) o Methods, systems mathematical principles o Facts o Slogans (can trademark) Law protects expression of idea but not the idea itself 1976 Copyright act: Works of Authorship o Literacy works (computer software) o Musical works (accompanying words) o Dramatic works, including music o Pantomimes and choreographic works o Pictorial, graphic and sculptural works o Motion pictures and other audiovisual works o Sound recordings o Architectural works Fair use: to balance the authors right to compensation for his work, on the other hand against the publics interest in the widest possible dissemination of ideas and information on others o Defensive position o A way to defend yourself for having used copyright work without permission o The purpose and character of the use  Comment, criticism and news  Teaching and noncommercial research  Personal entertainment  Sony crop v universal studios o Can you tape shows and watch later because it’s being reproduced? Yes because just time shifting  AM records v Napster 

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o Napster allowed people to download music for free  If you download music from your computer without paying, its not time shifting  You have the right to something (paid) and you want to move it, you’re allowed to shift it in those ways  Parody?  Luther Campbell v Acuff-Rose music o 2 Live Crew was a foul group asked if they could parody Roy Orbison’s song and he said no and they do anyway o Roy Orbison sues for infringement and SC said it was allowed because it’s a parody o Parody is a fair use o The nature of the copyrighted work  Harper and Row v. Nation Enterprises  Give information to news information but cant release about book until the books released  Nation got copy of script unlawfully and published part of book  Court said unpublished nature of book that this was not a fair use and Harper and Row won o The amount and substantiality of the portion used  Quality v Quantity  The greater the amount used the weaker the fair use defense o The effect on the potential market  Perfect 10 inc. V Amazon.com Music Sampling o Blurred lines  Same vibe from Robin Thicke to Marvin Gaye, millions in damaged, but appealing because it’s just inspiration – that’s what copyright is for  If it stands inspiration in this way could still be considered infringement o Sam Smith, Tom Petty o Substantial similarities Selling Rights: Freelance o All rights o First serial rights  Buyer has right to use material for the first time because the first time is the most valuable o First north American Rights serial rights o Simultaneous rights  cant sell the more than one person without telling everyone

o One time rights  Has been published one place before and re publishing  Infringement o Originality  Must show substantial similarity o Access  Show us how the defendant got access to your work o Substantial  Similarity o Forms  Direct  Contributor  A and M Records v Napster o Vicarious Commercial Speech Deceptive Advertising  No first amendment protection  Federal trade commission (FTC) o Powers  Require advertisers to substantiate claims  Punish advertisers who engage in unfair competition and unfair or deceptive ads or practices Deceptive Advertising definition: if it is likely to mislead a reasonable consumer with a material statement or omission  Express Falsehood o Can see on their face  Implied falsehood o Reasonable basis implication  Advertiser must have reasonable proof for their claims o Proof implication  Advertiser mis represents evidence, could use test data to create a false ora of false scientific support o Demonstration implication  Demonstrates a product and it doesn’t work that way  Eggstractor example o No qualification implication  If you omit a part of the product o Ineffective implication  Hides them doesn’t communicate them well o Significance implication o Expert and celebrity endorsement implications  Experts must actually have experience in that field  Celebrities must use the product

o Puffery Implication  Claims that are so outrageous that no one would believe  Red bull gives you wings  State and Federal Regulations o All 50 states have legislation o FTC complaints  FTC Remedies o Industry guides o Voluntary compliance o Consent agreements o Litigated orders o Substantiation o Injunctions o Corrective advertising o Trade Regulation Rules Other Implications  Racketeering o Racketeer influenced and Corrupt Organizations Act  Laws that prohibit illegal business patterns  Media’s right to refuse advertising o Miami Hearld v Tornillo  Newspapers are not forced to carry advertising  Because newspapers are not considered a public good, govt cannot regulate it o Broadcast?  One spectrum for broadcast and limited spaces on the spectrum for broadcasting  If you have too many people it wouldn’t work  Limited spaces so govt can regulate and can require certain types of ads Obscenity NOT PROTECTED – level three However commercial and sexual expression is regulated but some protection  

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Obscenity o NOT protectable, can be outlawed Non-obscene sexual expression o Has some redeeming value, not as bad as obscenity, some social or political value Indecency (broadcasting only) o Non obscene sexual protection that’s ON BROADCASTING o Can regulate what’s seen on TV but not as much print o Another regulatory structure

Comstock Act  Prohibited the mailing of obscene, lewd or lascivious materials Hicklin Rule  Whether the tendency of the material was to deprave and corrupt young minds Roth Test: Foundation of the Miller Test  Began to develop test for sexual content  The average person would find the material appeal to interest  Utterly without social importance  Not obscene if it had social value Miller V California (1973)  Appeals to the prurient interest of the average person applying contemporary community values o What is prurient interest  Appealing to a shameful or morbid interest in sex o Who is the average person  Determined by judge or jury but based on members of a community by a whole o What are contemporary community values  Each community determines what is obscene through votes and polls  More conservative community, values will be different  It depicts or descries in a patently offensive way sexual conduct specifically defined by applicable state law o What is patently offensive  Excess of sexual detail, hardcore sexual material o What is applicable state law?  Allows every state to decide what obscenity will be  Protecting young people, or if there is any literacy value – most likely to make it not obscene  Taken as whole, it lacks seriously, literacy artistic, political or scientific value o The most important part of miller- most likely to fail here o Took a turn from Roth o If any value can be determined it should be protected o Reasonable person not an average person- not requiring the community decides, just a generally reasonable person  IF passes all three, it is obscene and gets no protection, if fails 1 or more it is non-obscene sexual expression Controlling Obscenity  Not illegal to possess but to buy, sell or distribute is illegal  Civil nuisance laws

o Community pass ordinance which defines nuisance and then can control in those ways  RICO statuses o Intended to limit organized crime, used to fight illegal activities from state to state- selling across state lines can you RICO statue against that  Postal censorship o Comstock act gave postal service right to regulate, must be outwardly suspicion  Film Censorship o What films they want shown in their community o Rating systems Controlling Non-obscene sexual expression  Zoning laws o Regulations of sexually oriented businesses when there is a substantial government interest and there is no complete ban  Ex of Lillian’s bar and topless coffee shop  Attacks on Arts o National Endowment for the Arts (NEA) receives gov’t funding o Museum funding o Record labeling  Record companies should place stickers on outside albums to show bad lyrics  If musicians want to distribute with big companies, must have labels Broadcasting = Indecency (fewer spaces on the spectrum)  Language or material that in context depicts or describes, in terms of patently offensive by community standards for the broadcast media, sexual or excretory activities or organs at times when children are likely to be in the audience  FCC V Pacifica o Boy and dad in car hear 7 dirty words o Filed a complaint because child was in audience o FCC can regulate that fits the definition of indecency Internet Controls  Communications Decency Act 1996 o Went to overbroad to highly focused o Held unconstitutional because it affected sexual expression that results had the right to have  Child Online Protection Act of 1998 o Want to protect children o Anything appeals to aperient interest and lacks value by community standards o Was content based o Required strict scrutiny, was still too overbroad o Not narrowly tailored enough

2001 Children’s Internet Protection Act o Required all public libraries to install internet filters if they want  However were over blocking sites that adults needed o Public library must grant request from adult to remove block Broadcasting History of Broadcast Regulations  Radio Act of 1912 o All passenger ships had to carry a radio o Required radio transmitters be licensed  Radio act of 1927 o First comprehensive set of broadcasting regulations o Govt helped with renewal, hours of operation, licensing o Broadcast spectrum was a scared resource  Federal Communications Act 1934 o Board of members regulate the broadcast industry  7 but now 5 members appointed by President and approved by Senate  Main Distinction o Physical limitations in the broadcast spectrum justify government licensing of broadcasters who can then be required to serve the public interest Licensing  Applicant must be US citizen  Must have funds to build and operate system without funding for 3 months  Be able to hire people who can operate broadcast system  Honest and open with the commission and have good character  Granted for 8 years and then renew License Renewal  Station has served public interest convenience and necessity  No serious violations  Hasn’t violated the communications act or commission rules and regulations  No patterns of abuse FCC Sanctions  Letter of reprimand o Goes in their file a quick warning  Cease and desist order o Can stop a broadcaster from doing something commission thinks is bad o Used for repeated offenders  Forfeiture or fine o Has the right to fine broadcasters for violations o Howard Stern was fined 1.7 million because of indecency regulations  Short term renewal o Instead of 8 year renewal time, give them less time for license  Non renewal or revocation of license Permissible Regulations 

Communications act of 1934 Content regulations are permissible Because allowing govt to regulate public good Program Regulation o Red Lion Broadcasting v. FCC  Opportunity to respond to attacks that are over broadcasting, we want person whose attack to have the right to reply to criticism  If there are limited spaces on spectrum, the govt can regulate  Govt regulations are allowed to protect public good on the spectrum  Without this, radio broadcasters have more rights to the first amendment, could use as a loudspeaker o Fairness Doctrine HAS BEEN REVOKED  Right of reply and personal attack rule  Broadcasters had to allow in a timely manner (air time) for those people to respond  Had a chilling effect on broadcast  They didn’t want to talk about person because then would waste airtime letting them respond later Indecency  Regulated by the FCC  At a time when children are in the audience o FCC v. Pacifica  2001 policy refinement  Fleeting expletives o Same definition of indecency but also includes three factors of what constitutes “patently offensive” o Explicitness or graphic nature of description o Whether the material repeats at length the description o Whether the material is sued to shock, titillate or pander o Wanted to go back and fine past things  Safe Harbors and Channeling o Times during which it is unlikely there is a child in the audience o FCC allows racier programming later in the night because children’s are less likely to be watching 10 pm to 6 am o Channeling: moving programs into a safe harbor o Doesn’t apply to cable and satellite because pay for that o Pervasiveness of broadcast- need strict guidelines to protect kids Permissible Regulations o Cant rig game shows o Staged or distorted news: will intervene if broadcaster intentionally mislead viewers o Violence o V chips    

 Allowed parents to block violent programming o Ratings o Children’s Television o Limits on commercials  Time and number o Product based programming and program length commercials  Cant advertise DORA products during a DORA show  Turns the whole thing into an ad o Number of commercials o Cable FCC regs on cable is not a whole lot o Origination programming  Doesn’t apply to content that cable broadcaster wants to present o Must carry rules o Can air indecency Internet: Net Neutrality: o FCC: idea that all content on the internet should be treated equally by broad band providers o Trying to even the playing field Basic Rules o Cant block lawful content o Cant slow down content o Cant charge fees for prioritization o NOW intents to invalidate net neutrality Online Lectures: Patent and Trademark Patent: a grant made by the government to the inventor conveying the exclusive right to make, use and sell the invention for a term of 17 years  Utility patents: typewriters, projectors  Designer/appearance: furniture, belt buckle  Plants: that only reproduce through cutting and grafting Trademark: a distinctive mark of authenticity, such as any word, symbol or device that differentiates individual’s services of competitor’s  Coke bottle  Don’t need to register, person who first uses it holds the right to words  Must be renewed first 5 years and then 10 years after Infringement: court considers strength of marks, similarity of appearance, meaning of marks, goods in question and intention  Protections for parody’s and comedies o Just like in copyright

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o First amendment protection and in news Main Functions of trademarks o Identify goods and distinguish from those sold by others o Signify that goods come from a single source o Signify the quality of goods serve as a prime instrument in advertising and selling goods

Equal Opportunities Rule: Broadcast Unit (ONLY)  Regulation is allowable because its on a limited spectrum  Communications Act 1934 o Broadcasters must give all “legally qualified candidates” the same opportunity  Publicly announced for elected office  Meets lawful requirements  Qualifies for ballot as a write in  Local, state and federal candidates  Time requirements o “Use” requirement  Candidates voice or image o Must give same exact deal to every candidate o Exceptions:  Newscasts, news interviews, documentaries, on the spot news and debates  Fairness Opportunities  Zapple Rule o Triggered by candidates supporters o If supporter of candidate speaks out, so must the other side Lanham Act  How competitors react to each other  Protects trademarks and service marks  Subsection allows competitors to sue each other over false or misleading ads  Defendant must have made a false or misleading statement of fact in advertising  That statement must have actually deceived or had the capacity to deveice substantial segment of the audience  The deception must have been material, in that is was likely to influence the purchasing of goods  Allows competitors to get quick resolution...