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9 Cards in this Set
- Front
- Back
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General Misappropriation
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International News Service v. Associated Press
1. common law tort 2. that which has been acquired (1) fairly and (2) at substantial cost and (3) may be sold fairly at substantial profit a. a competitor may not misappropriating it for the purpose of disposing of it to his own profit b. and to the disadvantage of complainant |
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Idea Submission
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Nadel v. Play-by-Play Toys & Novelties, Inc.
1. Property Misappropriation 2. Contract |
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Idea Submission: Property Misappropriation
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Nadel v. Play-by-Play Toys & Novelties, Inc.
1. absolute novelty or originality 2. an implied or express promise to pay 3. Defenses a. lack of novelty b. independent creation c. waiver |
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Idea Submission: Contract
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1. Disclosure of idea clearly conditioned on an obligation to pay if used
2. Condition set forth before disclosure and recipient must voluntarily accept 3. Novelty to the buyer |
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Scope of Right of Publicity
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Cal. Civ. Code § 3344
1. when another person uses a. name b. voice c. signature d. photograph e. likeness in any matter 2. of a living § 3344 or deceased § 3344.1 person |
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Damaged of Right to Publicity
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Cal. Civ. Code § 3344
CUMULATIVE 1. injury 2. $750 or profits 3. punitive damages 4. attorneys fees and costs |
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Right of Publicity: Fair Use
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Midler v. Ford Motor Co.
(informative or cultural test) 1. If the purpose is informative or cultural the use is immune; 2. If it serves no such function but merely exploits the individual portrayed, immunity will not be granted. Comedy III Productions, Inc. v. Gary Saderup, Inc (sufficiently transformative test) When an artist's skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame, then the artist's right of free expression is outweighed by the right of publicity. |
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Federal Preemption of State Law
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1. Express
2. Conflict 3. Field |
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Copyright Preemption
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17 U.S.C. § 301
1. the subject of the claim must be a work fixed in a tangible medium of expression and come within the subject matter or scope copyright protection in §§ 102-103 2. right asserted under state law must be equivalent to the exclusive rights contained in § 106 |
