Media Law Final Flashcards
(36 cards)
Fanciful
strongest mark, they consist of a made up word. Such as Viagra this is their trademark
Arbitrary
In the category. of an existing word, makes you think more of what the product is can have nothing to do with the product Ex: Apple
Copyright
hand copy manuscript made theft of such work both tedious and unprofitable
Descriptive
weakest mark can be registered with the USTPO things such as The Holiday Inn. You don’t really have to think hard on what the brand or company is.
Work is fair use the court considers these factors
-The purpose and character of the use
-The nature of the copyrighted work
-The amount and substantiality of the portion used in relation to the copyrighted work as a whole
-The effect of the use on the potential market
Copyright rules
The law gave authors who were US citizens the right to protect their books, maps, and charts for a total of 28 yrs - a 14 yr original grant plus a 14 yr renewal if author was still alive and wished to renew
fair use
a rule of reason to balance the author’s right to compensation for his work
How long does copyright protection last?
works created after january 1, 1978
-The life of the creator plus 70 yrs
Works created by More than one person
The life of the last living creator plus 70 years
Works for Hire
-Ninety-five years after publication
Works Created Before January 1, 1978
Ninety five years
Community v. Reid
Asked Reid to create a sculpture, wanted to use at their facility only for a certain amount of time. Reid agreed to it, and it was a hit so people wanted to take it on the road. Reid didn’t want it to be on the road. The court sided with Reid
Copyright Infringement
Violation of the exclusive rights of a copyright holder
Who is liable or responsible for copyright infringement
Direct Infringement
Respondent superior
Vicarious infringement
Contributory infringement
Everyone involved is responsible for the use not just the boss
Fair Use cases
-Sony Corp. of America v. Universal City Studios, Inc (1984-85) - ‘time shifting’ (sony created a device that could record their work. Universal sued for copyright, Sony won)
-Basic Books Inc. v. Kinko’s Graphics (1991) - nature and intent of the coping’ (professors were copying books/materials and sell it to students, court said professor overstepped the boundary)
-Campbell v. Acuff-Rose Music Inc. (1994) - ‘parody’* (Not in Ross readings) (“Pretty Woman” and “Oh Pretty Woman” parody )
-MGM Studios v. Grokster (2005) - inducement theory (Who is responsible when a consumer is downloading music
How does the court determine if use is ‘fair use’?
-What is the purpose and character of the use (what do you plan to do with it?)
-What is the nature of the copyrighted work?
-What is the amount and substantiality of the portion used? ( no magic number, essence of the work)
-What is the effect of the use upon the potential market value of te work?
-Transformative use (did you take an original and make it into something new)
Digital Milennium Copyright Act )1998)
Digital Milennium Copyright Act )1998)
-Expanded rights of broadcasters to make digital transmissions of sound recordings on the Internet using streaming audio technologies.
-Required commercial nd noncommercial radio stations that stream songs on the Internet to pay royalties for music played online.
Trademark
Protected as a form of property and increase the reliability of marketplace identification
-Protect your companies distinct mark
-Requires proof of actual dilution and not the merce likelihood of it
Dilution is used to address the lessening of a mark used to identify and distinguish a product
Anheuser- Busch, Inc. V. Balducci Publications (1994) Court disagreed that it was a parody, it was violating the Busch brand their sales lowered
Lanham Act
put in effect to stop unfair competition in the marketplace, putting forth false narratives about companies can be responsible for civil damages
Question to ask with Lanham Act to enforce
-What message is it that the ad is trying to get across
-Is the message false or misleading
-Does this message injure the plantiff
Puffery
the agency believes the typical reasonable consumer does not take such claims seriously and thus they are less likely to be deceptive (exaggerated comments about a product or service)
Advertising substatiation
The commission asks advertisers to substantiate made in their advertisements
Corrective Advertising
advertising to correct erroneous claims or misleading messages in previous promotional announcements.
Native Advertising
Advertisement disguised as true content
Gambling
Supreme Court upheld a ban on radio ads for lotteries in North Carolina where gambling is illegal.
-Court rejected the advertiser’s audience-based argument
Alcohol
Supreme Court reversed labeling ban preventing Coors from displaying percentage of alcohol content
In Liquormart Inc. v. Rhode Island, Supreme Court favored a liquor store that wrote Wow instead of prices in an ad.
Restricting False or Misleading Commercial Speech
Constitution does not protect deceptive advertising.
Misleading commercial speech loses First Amendment protection.
Ad regulation justified if it has a tendency or potential to mislead consumers such as a “material misrepresentation”- Relied upon to the consumer’s detriment
