Media law exam 3

Question 1

What category of speech is not protected by the First Amendment?

Answer 1

Obscenity

Obscenity is defined by the U.S. Supreme Court’s decisions and is determined using the Miller test.

Question 2

What federal law was adopted in 1873 prohibiting the mailing of obscene material?

Answer 2

Comstock Act

The Comstock Act was part of a broader campaign against sexual content in media led by Anthony Comstock.

Question 3

Which rule defined material as obscene if it tends to corrupt children?

Answer 3

Hicklin Rule

The Hicklin Rule was derived from a mid-19th-century English case and was used in the U.S. until the mid-20th century.

Question 4

What was the significance of the 1933 decision regarding James Joyce’s ‘Ulysses’?

Answer 4

It rejected the Hicklin rule and advocated for reviewing material in its entirety.

The decision emphasized assessing a work’s effect on the average person rather than on children.

Question 5

What two criteria did the U.S. Supreme Court establish in Roth v. United States for determining obscenity?

Answer 5

1. Appeals to prurient interest based on community standards.
2. Lacks serious literary, artistic, political, or scientific value (S.L.A.P.S test).

Question 6

What does the term ‘variable obscenity’ refer to?

Answer 6

Restricting minors’ access to sexual material.

It acknowledges that material not obscene for adults may still be considered obscene for minors.

Question 7

How does federal law define child pornography?

Answer 7

Any visual depiction involving a minor engaging in sexually explicit conduct or modified to appear like a minor.

This definition is upheld to protect minors from exploitation.

Question 8

What is the ruling of the U.S. Supreme Court regarding the possession of obscene material in one’s home?

Answer 8

Protected under the First Amendment, except for child pornography.

This was established in the case Stanley v. Georgia.

Question 9

What act allows the government to seize assets involved in racketeering activity related to obscenity?

Answer 9

RICO Act

The act is used to combat organized crime and has been applied in obscenity cases.

Question 10

What is the definition of ‘indecency’ according to the U.S. Supreme Court?

Answer 10

Nonconformance with accepted standards of morality.

Indecency is distinct from obscenity and refers to content some people may find offensive.

Question 11

What does the FCC’s indecency regulation aim to protect?

Answer 11

Children from exposure to indecent content on broadcast radio and television.

This was emphasized in the case of George Carlin’s ‘Filthy Words’ monologue.

Question 12

What is the ‘safe harbor’ provision in the context of the DMCA?

Answer 12

It shields online service providers from liability for copyright infringement if they comply with certain requirements.

This includes implementing notice-and-takedown procedures.

Question 13

What is the purpose of the Children’s Internet Protection Act (CIPA)?

Answer 13

To protect children from harmful online content.

CIPA requires schools and libraries to implement internet safety policies.

Question 14

What does the Miller Test require to classify material as obscene?

Answer 14

1. Appeals to prurient interests.
2. Patently offensive sexual conduct defined by state law.
3. Lacks serious literary, artistic, political, or scientific value.

Question 15

What is the significance of the PROTECT Act?

Answer 15

It criminalizes the solicitation of sexually explicit images of children, regardless of whether the material uses real children.

The act was upheld by the Supreme Court as constitutional.

Question 16

What does copyright law protect?

Answer 16

Exclusive legal rights for creators of original works of authorship.

Copyright prevents unauthorized use of these intellectual creations.

Question 17

What was the initial purpose of copyright in 15th century England?

Answer 17

To prevent sedition—criticizing the king or queen.

The Crown controlled the printers who controlled publication.

Question 18

What did the Statute of Anne of 1710 grant authors?

Answer 18

Copyright protection if they registered their works with the government.

Authors could control their creations but often sold their rights to printers.

Question 19

What is the public domain?

Answer 19

Creative materials that are not protected by intellectual property laws.

The public can use public domain work without permission.

Question 20

When did the first U.S. Congress give copyright to books, maps, and charts?

Answer 20

In 1790.

It granted a 14-year copyright.

Question 21

What significant extension occurred in copyright protection in 1866?

Answer 21

Copyright protection was extended to 28 years, with a renewal period of another 28 years.

The 1870 act established the Library of Congress which could register copyrights.

Question 22

What is the Berne Convention?

Answer 22

An international copyright treaty adopted by many countries.

The United States adopted it in 1988.

Question 23

What did the Copyright Act of 1976 specify?

Answer 23

What copyright protects, the rights under that protection, any restrictions, and the formalities necessary to exercise the rights.

Question 24

What does copyright protect according to the 1976 law?

Answer 24

Original works of authorship fixed in any tangible medium of expression.

Authorship includes artists, composers, journalists, sculptors, etc.

Question 25

List the eight illustrative categories of eligible works under the 1976 law.

Answer 25

* Literary works * Musical works, including accompanying words * Dramatic works, including accompanying music * Pantomimes and choreographic works * Pictorial, graphic and sculptural works * Motion pictures and other audiovisual works * Sound recordings * Architectural works

Question 26

What is required for a work to be protected by copyright?

Answer 26

The work must be substantially original and independently created. ## Footnote It must possess some degree of creativity.

Question 27

What was significant about the U.S. Supreme Court's ruling regarding design features in clothing?

Answer 27

Design features in clothing could be eligible for copyright protection under specific conditions.

Question 28

What copyright protection was given to songs recorded in 1972 or later?

Answer 28

Protection under federal copyright law. ## Footnote Songs prior to 1972 have limited protection under state laws.

Question 29

What types of works are not protected by copyright?

Answer 29

* Ideas, history, and facts * Words and phrases, including advertising slogans * Works created by the U.S. government

Question 30

Who owns the copyright for a work made for hire?

Answer 30

The employer owns the copyright.

Question 31

What factors does the Supreme Court consider to determine if a person acted as an employee?

Answer 31

* Organization’s right to control how the work is accomplished * Who owns the equipment used to create the work * Where the work took place * Who determined the days and hours worked * The relationship between the two parties * Who hired any assistants

Question 32

What rights do copyright holders have?

Answer 32

* Reproduce the work * Make derivative works * Distribute the work publicly * Perform the work publicly * Display the work publicly * Transmit a sound recording through digital audio means

Question 33

What is a derivative work?

Answer 33

A work that is obtained from or created in relation to an original work.

Question 34

What constitutes fair use in copyright law?

Answer 34

Limited use of copyrighted material without permission, balancing the rights of copyright holders with public interest.

Question 35

What are the four criteria courts use to determine fair use?

Answer 35

* Purpose and character of the use * Nature of the copyrighted work * Amount and substantiality of the portion used * Effect on the plaintiff’s potential market

Question 36

What does the Copyright Act of 1976 shift from?

Answer 36

From a fixed-term system to a life-plus system.

Question 37

What is the current copyright term for individual authors after the Sonny Bono Copyright Term Extension Act?

Answer 37

Life of the author + 70 years.

Question 38

What is the copyright term for works for hire after the Sonny Bono Copyright Term Extension Act?

Answer 38

95 years from publication or 120 years from creation.

Question 39

What are the eight illustrative categories of eligible works under the Copyright Act of 1976?

Answer 39

* Literary works * Musical works, including accompanying words * Dramatic works, including accompanying music * Pantomimes and choreographic works * Pictorial, graphic and sculptural works * Motion pictures and other audiovisual works * Sound recordings * Architectural works ## Footnote This list defines the scope of copyright protection in the United States.

Question 40

What does the Digital Millennium Copyright Act (DMCA) aim to integrate?

Answer 40

The DMCA aims to integrate the internet and other digital media into copyright law ## Footnote The DMCA was adopted in 1998 to address advancements in technology.

Question 41

What types of software does the DMCA ban?

Answer 41

The DMCA bans software and hardware that facilitate circumventing copyright protection technology, with certain exceptions. ## Footnote For example, it forbids software that disables anti-copying features.

Question 42

Define a trademark.

Answer 42

A trademark is a word, name, symbol, or design used to identify a company’s goods and distinguish them from similar products. ## Footnote A service mark serves the same purpose for services.

Question 43

What are the distinct categories of trademarks based on distinctiveness?

Answer 43

* Fanciful * Arbitrary * Suggestive * Descriptive ## Footnote Each category reflects the degree of distinctiveness and protects the trademark accordingly.

Question 44

What is a fanciful trademark?

Answer 44

Fanciful trademarks are invented words that have no prior meaning, e.g., Lexus, Xerox, Exxon. ## Footnote These are considered the most distinctive marks.

Question 45

What is the legal significance of a descriptive trademark?

Answer 45

A descriptive trademark may be trademarked if it has acquired a secondary meaning associated with a product's source. ## Footnote Without secondary meaning, descriptive terms cannot be trademarked.

Question 46

What is the purpose of the Lanham Act?

Answer 46

The Lanham Act prohibits false or misleading descriptions or promotions of goods, services, or commercial activities. ## Footnote It also provides legal remedies for trademark infringement.

Question 47

What does trademark tacking allow?

Answer 47

Trademark tacking allows a trademark owner to slightly alter a trademark without abandoning ownership of the original mark. ## Footnote The new mark must create the same commercial impression.

Question 48

What are the two types of dilution of a trademark?

Answer 48

* Blurring * Tarnishment ## Footnote Blurring reduces distinctiveness, while tarnishment harms the reputation of the mark.

Question 49

What is puffery in advertising?

Answer 49

Puffery refers to exaggerated or boastful claims that are subjective and not intended to be taken literally. ## Footnote Such claims are generally legal if they do not imply factual claims.

Question 50

What are the three elements that comprise deception cases according to the FTC?

Answer 50

* Likely to mislead the consumer * Examined from the perspective of a reasonable consumer * Material representation, omission, or practice ## Footnote These elements guide the FTC's evaluation of deceptive advertising.

Question 51

What is the FTC's stance on substantiation of advertising claims?

Answer 51

Advertisers must support claims with adequate evidence to avoid being classified as deceptive. ## Footnote This applies to both explicit and implied claims.

Question 52

What is the difference between express and implied claims in advertising?

Answer 52

* Express claims: Explicit representations requiring no additional evidence * Implied claims: Indirectly suggested meanings based on reasonable consumer inference ## Footnote Both types must be evaluated for potential deception.

Question 53

What does the FTC require for disclosures in advertising?

Answer 53

* Prominence * Presentation * Placement * Proximity ## Footnote These criteria ensure disclosures are clear and effective.

Question 54

What is the significance of the term 'material' in advertising claims?

Answer 54

A claim is material if it is likely to influence a consumer's purchasing decision. ## Footnote Materiality is a key factor in determining deception.

Question 55

What actions can the FTC take against misleading advertising?

Answer 55

* Issue consent decrees * Issue litigated orders * Order corrective advertising * Seek injunctions ## Footnote These actions help enforce advertising regulations.

Question 56

What does the Federal Trade Commission (FTC) ensure regarding advertising claims?

Answer 56

Advertisers support claims with evidence ## Footnote The FTC requires substantiation for both explicit and implied claims.

Question 57

What is the definition of materiality in advertising?

Answer 57

A decision likely to affect a consumer’s choice or conduct regarding a product or service ## Footnote Material claims can relate to health, safety, performance, or effectiveness.

Question 58

What distinguishes puffery from deception according to the FTC?

Answer 58

Puffery is exaggerated statements that are not considered deceptive ## Footnote Advertisers must ensure their claims are not deceptive and have adequate substantiation.

Question 59

What was the significance of the U.S. Supreme Court decision in Valentine v. Chrestensen?

Answer 59

Messages promoting commerce do not receive First Amendment protection ## Footnote This established a basis for regulating commercial speech.

Question 60

What authority does the FDA have regarding online sales and ads?

Answer 60

Can take action against misleading online marketing ## Footnote This includes regulating social media influencers and paid promotions.

Question 61

What age restriction must be verified for online tobacco sales?

Answer 61

21+ age requirement ## Footnote There is a strict prohibition against targeting youth in online ads.

Question 62

What was the Comstock Act of 1873 focused on?

Answer 62

Prohibited mailing of obscene, lewd, or lascivious material ## Footnote Initially targeted contraception and abortion materials.

Question 63

What does the Tobacco Control Act give the FDA authority over?

Answer 63

Regulate manufacture, distribution, and marketing of tobacco products ## Footnote This law was signed into law in 2009 to protect public health.

Question 64

What did the D.C. Court of Appeals rule regarding the federal ban on cigarette ads?

Answer 64

Did not violate free speech rights of tobacco companies ## Footnote The ruling allowed for regulation to protect minors and others.

Question 65

What is trademark dilution?

Answer 65

Weakening of a famous mark's unique identity ## Footnote It can occur through blurring or tarnishment of the trademark.

Question 66

What is the significance of the Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council case?

Answer 66

Provided commercial speech explicit First Amendment protection ## Footnote It emphasized the public's right to receive factual information.

Question 67

What are the criteria established in the Central Hudson test for regulating commercial speech?

Answer 67

1. Substantial state interest 2. Directly advances that interest 3. No more extensive than necessary ## Footnote This test determines the constitutionality of advertising regulation.

Question 68

What happens to commercial speech if it is deemed misleading or deceptive?

Answer 68

Loses First Amendment protection ## Footnote Misleading commercial speech is subject to regulation.

Question 69

What did the Sorrell v. IMS Health, Inc. case establish regarding commercial speech regulation?

Answer 69

Strict scrutiny applies to content-based regulations ## Footnote The case involved a law restricting the sale of physicians' prescribing patterns.

Question 70

What is the purpose of the Sorrell standard for commercial speech regulation?

Answer 70

To assess if the regulation is false or related to illegal activity ## Footnote If not, further scrutiny is applied based on content neutrality.

Question 71

Fill in the blank: The U.S. Supreme Court has held that the Constitution does not protect _______.

Answer 71

false or deceptive advertising ## Footnote This underscores the government's authority to regulate misleading commercial speech.

Question 72

What effect does mixing commerce with public issues have on commercial speech?

Answer 72

Moves the speech away from being purely commercial ## Footnote Courts struggle to define the boundaries of commercial speech.