Mmc4200 Communication Law Exam 3

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1. Where do the laws of copyright come from?

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"the Constitution: Article I-Section 8

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2. What is copyrightable?

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“Original works of authorship fixed in a tangible medium of expressions… from which they can be perceived

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3. What does copyright protect?

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"Protects the creator’s particular manner of expression

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What are the 7 categories of copyright protected works?

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"Literary

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musical

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dramatic

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pantomimes/choreographic

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pictorial/graphic/sculptural

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motion/audiovisual

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4. What is the general rule when it comes to copyright?

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"If there is only one way to state something

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How long does a copyright last?

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Copyright lasts for life of author

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How do you register a copyright?

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"To register

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Why do you register a copyright?

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Registration required before you can recover certain damages

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6. What makes a work “original?” See Feist Publications

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Inc. v. Rural Telephone Service Co.

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7. What rights do authors have?

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Right of performance and display"

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Over the air broadcasting (including music – even in stores

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ex: GAP)

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8. What is a work for hire and how is this different from free-lancers?

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Work for hire means that the work of employees belong to the employer"

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9. What is the major defense to a claim of copyright infringement?

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Fair Use"

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Allows critics

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commentators

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10. What are the four factors a court considers when determining whether the use of copyrighted material is of fair use? See Harper & Row Publishers

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Inc. v. National Enterprises""

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>Purpose and character of the use - News and comments

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parody (ex: Acuff-Rose)

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11. How and why are parodies protected by fair use exception to the law of copyright? See Campbell v. Acuff-Rose Music

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Inc."

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*Define Parody"

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"Parodies are protected under fair use because the Supreme court said so. A pardoy is only protected if it is NOT DONE MERELY TO GET ATTENTION or to avoid the drudgery of doing something original.

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To answer the question of why they are protected

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just remember the 2 live crew case Campbell vs Acuff-Rose Music

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12. What is the Digital Millennium Copyright Act? What must Internet service providers do to remain protected under the DCMA?

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"Digital Millennium Copyright Act (1998): It criminalizes production and dissemination of technology

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Can be held liable for direct

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contributory or vicarious infringement

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14. What is a trademark and how is it different from a copyright? How is it similar?

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Trademark - “Any word

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A trademark MUST be registered

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unlike a copyright.

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15. What is the purpose of a trademark?

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Purpose of a trademark is to protect consumers from confusion"

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“A trademark is any words

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name

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16. What is unfair competition? Is it the same as a copyright or trademark claim?

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Unfair business is when 2 or more companies get together in collusion to disrupt the success of another company

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17. What must a trademark plaintiff show in order to prove trademark infringement?

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A likelihood of confusion to the consumer on the infringer’s behalf

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18. What is dilution? How does it differ from confusion?

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"Dilusion – when a mark is used and associated with something that is bad (coca-cola getting mad at the poster company for making the “enjoy cocaine” poster) enough to lessen the brand value of the company that is being mocked.

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It’s different from confusion because the dissolution is not meant to convince you that the mark used is associated with the product / idea

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but rather to make a satirical commentary on it (example above).

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19. When would fair use and the First Amendment be successful defenses to infringement claims?

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The first amendment can be used as a defense in an infringement case when the rights of the trademark owner are disproportionate to the interest of free speech."

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So if there is a reason for a professor to present your copyrighted work

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or the news needs to report on it

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What are the penalties for violating the copyright law?

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"Unregistered works are protected

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If work is registered before infringement

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owner can sue for statutory damages – no proof of financial damages required

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1. What constitutional provisions are in conflict when the media want to cover the courts?

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-Fair Trial vs. Free Press"

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2. What are the judicial remedies for prejudicial publicity? (Formed by Sheppard v. Maxwell)

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Change of venue "

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3. When can a court overturn a verdict because of pretrial publicity?

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Case may be overturned because of prejudicial publicity only if courts finds identifiable bias in individual jurors or such an extraordinary amount of prejudicial publicity that the presumption of prejudice is raised

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4. How does the U.S. Supreme Court define bias?

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Jurors are biased if they are so affected by prejudicial publicity that they cannot set aside preconceived ideas and decide a case solely on the evidence presented during a trail

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5. How should reporters respond if a judge wants to close a courtroom?

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When the motion is made for the court proceedings to be closed

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Is there a difference between federal and state courts allowing cameras into their courtroom?

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Supreme Court says no camera in their courtroom

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What’s the rule in Florida regarding video cameras in the courtroom?

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"Florida has one of the most liberal policies about cameras in the courtroom and it started with their year-long experimentation on having the cameras in the courtroom. It was found that after this experiment

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What are the rules regarding cameras in the courts?

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Cameras are allowed in some state courts but no federal courts. The decision as to whether or not cameras will be allowed in the courtroom are left to the individual states.

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How many states allow cameras in their courtrooms?

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"""Many"" states. It looks like about 35 states"

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7. What can't judges do to control prejudicial publicity?

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"Use gag orders without 3 part test

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What is the 3 part test on gag orders?

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"1. NATURE AND EXTENT of pretrial news coverage

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8. What is a gag order? Who can and cannot be gagged?

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"Gag orders

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What proceedings can they attend?

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""Yes there is a first ammendment right for the media to attend judicial proceedings."

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When can judicial proceedings be closed?

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Trial judges can constitutionally close courts if they can document overriding interest that cannot be protected by alternative means and if they can narrowly restrict closure.

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Which proceedings are open to the public?

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"Trials

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11. What kinds of statements are likely to raise a strong presumption of prejudice?

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"Confessions

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Results of a scientific test - DNA

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lie detector

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Potential witnesses

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testimonies or evidence

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Can gag orders restrict reporters?

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They can't restrict reporters

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(chapter 12)

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""The first ammendment does not provide access to information beyond criminal trials."

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It does not ensure that a reporter can gain entry to a city council meeting

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obtain a constultants report about the quality of water

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(chapter 12)

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""Because our government is based on the opinion of the citizens

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(chapter 12)

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It does. To criminal courts*"

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(chapter 12)

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""Access to public property by anyone is typically never limited. However

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At quasi-public places

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journalists are more limited to what they can do and where they can go. In this sense it is important for journalists to make relationships with public officials before an accident happens so that the access guidelines are established."

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""There is no First Amendment Right to Broadcasting because of the Scarcity Doctrine. "

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Since airwaves are a public resource

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we are obligated to act in the public interest. It is the right of the viewers and listeners to obtain this information.

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The Fairness Doctrine was a policy of the FCC that required the holders of broadcast licenses to

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both present controversial issues of public importance and to do so in a manner that was honest

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equitable

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and balanced.

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Later the Fairness Doctrine was eliminated by the FCC

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however

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""Must have equal air time for both parties. "

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Obscenity: If

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1. AVERAGE PERSON would agree that work as a whole “appeals to prurient interest” AND

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3. Work as a whole LACKS “serious literary

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artistic

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7. What level of First Amendment protection does obscenity get?

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NONE (however

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8. What does “prurient interest” mean?

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Purient Interest – lascivious

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How do courts define “community standard?”

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Community Standard – juries draw on his or her own understanding of average person’s views. Can be juror’s city

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""Patently offensive – more than pornographic ex: Playboy)"

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*Between the internet and broadcast

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which recieves the most protection for indecency?"

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Channeling indecency: constitutional to channel indecency to a time when children are least likely to hear/see it – ex: Cable Laws that require operators to scramble or block “sexually explicit adult programming or other programming that is indecent between 6AM and 10PM”"

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"11. Following the Janet Jackson episode

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what is happening in terms of indecency regulation now? (Hint – on outline and class discussion)

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""Fleeting Expletives (randomly dropping cuss words) are caught by the broadcasting company and “bleeped” before. "

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13. What is the difference between a broadcaster

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a cable operator and a common carrier? ""

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Why is the difference between a broadcaster

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a cable operator and a common carrier important? "

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You need to know what is able to air so you don’t put your company and yourself at risk. Can risk money damages and/or jail time.

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Passed by Congress and signed by President Clinton on Feb 8

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The Communications Decency Act stated that anyone using the internet to deliberately send indecent

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""Is considered the “Wild Wild West” of communication. It deserves the highest level of 1st Amendment protection. "

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The COPA was another attempt to protect children online

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CIPA was enacted to prevent people from using government funded library computers for viewing porn and to stop children from seeing inappropriate materials. The software was often ""overblocked"" and thus

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19. What are the effects of pornography? Violent pornography?

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"- Social Science research is not conclusive or clear but the Attorney General’s Commission on Pornography asserted that exposure to violent porno depicting the degradation

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Are violent video and Internet games ruining the young people of this country?

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- Feminist claimed that all violent and degrading portrayals should be illegal even if not obscene. The Seventh Circuit observed that violent pornography

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- Ninth Circuit said: “none of the research establishes or suggests a casual link between minors playing video games and actual psychological or neurological harm

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and inferences to that effect would not be reasonable."

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""Miller was the largest distributor of mass mailing ad campaign for adult material known as Hustler. It was a fight for the 1st Amendment

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N.Y. v. Ferber

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Case of child pornography. Mr. Ferber convicted of selling films of young boys. The Supreme Court said it was a big problem since the boys were not over 16 (the “defining” age). Current Issue: Sexting among middle school kids. "

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Ashcott was the attorney general at the time of the case. The Free Speech Coalition challenged the CCPA that those should be punished with virtual child pornography. Supreme Court ruled it was allowed because no young person was being “exploited.” It would be unconstitutional to ban this.

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Although someone may use the word “fuck” to describe something other than the sexual act

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Janet Jackson and the wardrobe malfunction - CBS was fined $0.5 million

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Turner Broadcasting System

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Inc. v. FCC "

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Result of this case: Cable Operators receive more 1st Amendment protection than broadcasters

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Supreme Court strikes down Communications Decency Act

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The third circuit again struck down the Child Online Protection Act (COPA)

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1. Can journalists be forced to testify in court? Can they protect their news sources

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notes and tapes? Under what circumstances? "

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Journalist do have 1st Amendment Right protection however after the Branzburg case

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In a (5-4) ruling

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The Branzburg v. Hayes case

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Branzburg Test -

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As of 2010

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A shield law or reporter’s privilege is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process. It is necessary because many sources would feel uncomfortable releasing information that might put their name out their as a snitch and if a court disagrees on if or how a privilege exists.

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There is NO federal Shield law.

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What are teh 2 main types of subpeanoes against journalists?

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"1. From law enforcement seeking the identities of posters who appeal to have inside information about a crime

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""A professional journalist has a qualified privilege not to be a witness concerning

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When a media source ""promises"" confidentiality

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Yes - Valerie Plain - CIA operative - secret agent

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Does obama endorse it?"

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"The FFIA is a bill that hopes to set a shield law at the federal level.

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US Supreme Court (5-4) rejects privilege and orders reporter Branzburg to testify. 

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The plurality opinion recognizes that news gathering

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including the protection of confidential sources

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Dan Cohen was a spokesperson for a canidate for gov in Minnesota. Gave info about opposing candidate (ex: shop lifting $6 worth of stuff 12 years ago)

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Where does the right of access to governmental records come from?

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The Freedom of Information Act

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What is the Freedom of Information Act?

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An act that requires federal agencies to provide any person access to records

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Who can use the FOIA?

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"Journalists

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Fiest Publications v. Rural Telephone Service Co.

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"Supreme Court case establishing that information alone without a minimum of original creativity cannot be protected by copyright. In the case appealed

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Harper & Row Publishers

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Inc. v. Nation Enterprises

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Campbell v. Acuff-Rose Music

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Inc.

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Basic Books v. Kinko’s Graphics Corp.

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This was the case where Kinkos was making copies of books for students and was sued by a conglomerate of publishers in new york. Kinkos lost the case and had to pay up to Basic Books. Of note in the case is the term unclean hands which is a defense that sites that the plaintiff is engaged in sketchy practices and thus the court does not want to dirty its hands so it typically gives the case to the defendant.

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Sheppard v. Maxwell

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"Was a United States Supreme Court case that examined the rights of freedom of the press as outlined in the 1st Amendment when weighed against a defendant's right to a fair trial as required by the 6th Amendment. In particular

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Murphy v. Florida

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"This was the case that established that a defendant can still receive a fair trial even if the jury is made aware of his prior criminal past outside of the court. In this case

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Patton v. Yount

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"This was a case in which the defendant

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Irvin v. Dowd

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"The Irvin case centered on a series of murders in Evansville

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Chandler v. Florida

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was a legal case in which the Supreme Court of the United States held that a state could allow the broadcast and still photography coverage of criminal trials.

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Richmond Newspapers

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Inc. v. Virginia

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Globe Newspaper v. Superior Court

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This was the case in which the supreme court ruled that state courts could not routinely close to the public during the testimony of minors in sec offense cases.

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Press Enterprise v. Riverside Superior Court (Press Enterprise I)

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"This was the case in which a black man was charged with raping and murdering a white woman after already being convicted of doing the same thing to another white adolescent girl. The defense asked that the man’s jury selection be closed to the public so he could have a fair trial. The supreme court ruled that the faith of the citizens’ it their court system outweighed the right of someone to have a fair trial

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Press Enterprise II

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"This was the case involving the Nurse

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Nebraska Press Association v. Stuart

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In this case a man in Nebraska murdered a family of six and confessed the next day. The case drew national media coverage and so the judge of the case restricted the media from publishing any of the information they had collected during the pretrial proceedings. The Supreme court ruled that this was in violation of the first amendment and allowed the media to cover the case and use the information they had collected in pretrial proceedings.

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Gentile v. State Bar of Nevada

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"In this case