Term
| What are the two types of emotional distress? 2 |
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Definition
| Negligent infliction--> the victim experiences emotional damages as a result of defendant’s negligence |
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Term
| What are the two types of emotional distress? 1 |
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Definition
| Intentional infliction-->conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community/ Think Hustler |
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Term
| What must a public figure or official prove to win an emotional distress claim? |
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Definition
| Public figures may not successfully sue the media for intentional infliction without proving that they are the subject of a false statement of fact published with actual malice |
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Term
| What does a plaintiff have to show in order to win an emotional distress claim? |
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Definition
| Courts do occasionally recognize the tort of intentional infliction of emotional distress where “outrageous” conduct by the media is thought to cause severe anxiety in private persons. Must prove that the victim suffers rather ill-defined, subjective mental anguish and emotional upset. The victim may also suffer tangible damages such as ulcers and lost wages. |
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Term
| * How did Hustler change the standard of emotional distress for public figures? |
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Definition
“Ad parody, not to be taken seriously”
Attempts by public figures to employ intentional infliction suits as substitutes for libel and privacy suits were stalled when the SC ruled that the First Amendment bars outrage suits by public figures who cannot prove the statements are false and published with actual malice |
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Term
| * Why did the Court of Appeals in Braun v. Soldier of Fortune rule against Soldier of Fortune magazine on the negligence issue? |
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Definition
| The court ruled that Soldier of Fortune magazine violated a public duty not to publish a clearly identifiable unreasonable risk of harm that in fact led to Richard Braun’s death. One determines whether a risk is unreasonable, the court said, by balancing the risk of a serious harm against the cost of guarding against it. The magazine was held liable because the ad presented a grave risk-- murder-- that outweighed the burden of requiring the publisher to foresee the likely consequences of the ad. |
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Term
| What is the liability of the media in other areas where the media or media events cause harm to people? PHYSICAL HARM 3 WAYS |
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Definition
1. Incitement
example of 14-year-old boy copying a masturbation technique he read about in Hustler that involved autoerotic asphyxia--> the magazine warned that it was dangerous, but the boy still tried it and died
example-->Ozzy Osbourne’s lyrics and teen suicide
2. Negligence
example--> Soldier of Fortune
example--> Weirum v. RKO General--> station encouraged teenage audience to hurry to the d.j.’s next stop to claim a prize. Car overturned, killed one of the kids.
3. False information causes financial harm |
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Term
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Definition
| Patent: a grant made by the government to the inventor conveying the exclusive right to make, use and sell the innovation for a term of 20 years. |
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Term
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Definition
| A trademark is the word name or symbol that a company uses to identify itself as the source of goods. Trademark: a distinctive mark of authenticity (such as a word, name, or symbol)through which the products of manufacturers may be distinguished from those of others. 10-year term; renewable indefinitely. |
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Term
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Definition
| A service mark or servicemark is a trademark used in some countries, notably the United States, to identify a service rather than a product.[1] When a service mark is federally registered, the standard registration symbol ® or "Reg U.S. Pat & TM Off" may be used (the same symbol is used to mark registered trademarks). Before it is registered, it is common practice (with some legal standing) to use the service mark symbol ℠ (a superscript SM). |
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Term
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Definition
| Copyright protects intellectual ideas and gives exclusive rights to the author for a certain length of time. Copyright: a right granted by statute to the author or originator of certain literary or artistic productions, whereby that person has the exclusive privilege of multiplying, publishing and selling them. Term: life of author plus 70 years. Copy right law punishes those who infringe the rights of authors to control the reproduction, adaptation, distribution, display and performance of their original work. Copyright protects books, music, newspaper articles, recordings, software, TV shows, ads, podcasts, e-mails, and other original expression. |
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Term
| What part of the Constitution gives Congress the authority to make copyright law? |
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Definition
Intellectual property was protected before first was added.
Section 8 encourages intellectual creativity of benefit to the society by granting creative people exclusive control over their intellectual expression for a fixed period, after which the work passes into the public domain. |
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Term
| When was the last major revision of the Copyright Act? |
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Definition
| In the United States, the first federal copyright law was adopted in 1970. It was revised twice in the 20th century with the last being in 1976. The 1976 Copyright Act was adopted after 20 years of study. It included several changes that made it easier for authors to control when and how their works are used by others. It also made copyright law more uniform by preemptin 8 state copyright law. |
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Term
| What are the 8 types of works of authorship protected in the copyright law? |
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Definition
Literary
Musical
Dramatic
Audiovisual
Pictorial, Graphic or Sculptural
Sound recordings
Architectural works
Pantomimes and choreographic works (seriously, it’s in the course pack) |
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Term
| What are the 6 exclusive rights of copyright owners? |
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Definition
Copying: control copying or reproduction of a work
Derivative works: transformations or adaptations of existing work (sequels, films, plays, cartoons)
Distribution: exclusive right to distribute-- publish, sell, loan, rent copies
Display: display means to show a copy either directly or by means of a film slide, television image to a substantial number of people besides friends and acquaintances |
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Term
| What is the duration of copyright protection for a creator of a work? What if the copyright holder is a corporation? |
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Definition
| The length of the author’s life plus 70 years. If it’s a corporation, the duration is 120 years from the date of creation or 90 years from the date of publication, whichever is shorter (what the fuck?). |
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Term
| What was the duration of copyright protection before 1978? |
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Definition
| The length of author’s life plus 50 years. |
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Term
| What 3 elements were required for copyright notice before 1989? |
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Definition
1. the letter C in a circle with the word copyright or an abbreviation
2. the year of first publication
3. the name of the copyright owner |
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Term
| Why is registration of a copyright important? |
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Definition
| Way of establishing who first wrote a disputed work. The person who first registers a work has strong legal evidence of copyright ownership. |
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Term
| What are the steps in registering a copyright? |
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Definition
| An author may register a published or unpublished work to the Copyright Office in Washington D.C. by submitting the proper form and a registration fee. It is $35 for an electronic registration fee and $65 to register a literary work on paper. It should be done within 3 months of publication to receive all benefits of registration. The author must deposit two copies of the work to the Copyright Office. |
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Term
| What benefits do copyright owners obtain by registering their copyright? 3 ways |
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Definition
infringement
1.actual damages-- money for lost sales and for profits the infringer illegally gained
o 2.Statutory damages-- are awarded to owners of registered copyrights simply because the copyright is infringed, without proof of financial damages, usually ranges between $750 - $30,000 for each work infringed and up to $150,000 if the work was infringed willfully.
3. can request injunctions to stop further infringement/injunctive relief. preliminary or permanent. |
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Term
| What does it mean to say a work is part of the “public domain?” |
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Definition
| After the duration of copyright protection, works are available for other creative authors without permission or royalty payments. |
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Term
| What is a collective work? |
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Definition
| a gathering of preexisting works that may already be copyrighted. |
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Term
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Definition
| o A compilation is a work formed by collection and assembling materials or data that are selected. coordinated or arranged in such a way as to create a new original work. It can be a compilation of facts that, individually, would not be copyrightable. Collective and derivative works are examples of compilations. |
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Term
| What is a derivative work? |
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Definition
| A derivative work is a transformation or adaptation of an existing work. |
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Term
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Definition
| When a work is made for hire, the “author” - who owns the copyright - is the party who hires an employee or commissions a freelancer to create a work. Stories, photos and videos can be created by staff reporters, artists, publicists, photographers and copywriters but the copyrights would belong to the publisher, broadcaster, public relations firm or advertising agency. |
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Term
| What, in general, is a fair use? |
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Definition
| Use of copyrighted material in a way that does not legally infringe upon the copyright (examples: criticism, reporting, teaching, research) |
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Term
| What 4 factors are considered in determining if a fair use exists? |
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Definition
1. the purpose and character of the use
2. the nature of the copyrighted work
3., the amount of the work used
4. the effect of the use on the work’s potential market |
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Term
| After the 2 Live Crew case, is parody now considered a fair use? |
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Definition
| Yes: even if a parody uses the “heart” of a work as its basis, it is protected. The audience must recognize the original in order to understand the parody. |
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Term
| What are the 2 types of works for hire? |
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Definition
| Works prepared by an employee within the scope of employment (example: university professors) and works specifically ordered or commissioned for a collective work within a work-for-hire agreement. |
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Term
| What 5 types of rights may a publisher buy from a freelancer? |
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Definition
| All rights, first serial rights, first North American serial rights, simultaneous rights, one-time rights |
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Term
| What is the most common way publishers buy rights from freelancers? |
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Definition
| Buy all rights to an article or photo and reassign rights to creator after publication. Usually agree to revert to freelancer after a period of time. |
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Term
| What elements must be proven in copyright infringement cases? |
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Definition
| Plaintiff must prove ownership of the work and that defendant violated one or more exclusive rights (copying, etc) |
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Term
| What are the possible remedies for a copyright infringement? |
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Definition
| Injunctive relief or monetary awards. The latter includes profits and damages/statutory damages |
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Term
| What is the purpose of a trademark? Why does the law protect them? |
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Definition
| They identify or distinguish goods or services from others and are protected so companies cannot mislead consumers. |
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Term
| How is a trademark registered? |
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Definition
| Through Patent and Trademark office, obtain approval to use mark within six months. Once used, a registration certificate is issued and must be renewed every 10 years as long as the mark is used. |
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Term
| How does a trademark differ from a copyright in terms of gaining protection? |
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Definition
| Protection lasts until 70 years after the creator’s death for copyrights, whereas a trademark can be renewed indefinitely. |
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Term
| What makes a mark distinctive enough to render it trademarkable? |
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Definition
+ Inherently distinctive (3 ways)
+ Fanciful-made up
+ Arbitrary-contains words that have nothing to do with what you’re selling
+ Suggestive-what product does is used as word (varnish)
+ Descriptive with secondary meaning (american airlines, kentucky fried chicken) people know it’s connected to your good or service |
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Term
| What act protects trademark holders from infringement? What does the act prohibit? |
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Definition
| Lanham Trademark Act (1946) prohibits commercial use of a mark likely to confuse people about the source of goods/services and any false or misleading statement in ads that misrepresents the advertised goods/services. |
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Term
| What is “trademark dilution” and how does it differ from a claim of trademark infringement? |
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Definition
| Infringement refers to the confusion discussed in the Lanham Act. Dilution refers to a use that would tarnish or devalue a mark although the average consumer would not be confused by the product (example: Adults R Us website won’t be confused with Toys R Us, but it won’t reflect well on the toy store.) |
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Term
| How are the terms “abandonment” and “generic mark” relevant to trademark law? |
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Definition
| If an owner fails to guard a mark against use as a generic, the mark is considered abandoned and becomes a generic mark (examples: aspirin, escalator, linoleum) |
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Term
| * What was the constitutional status of corporate speech before Belloti? |
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Definition
| Before Belloti, corporations weren’t seen as public speakers so their protection was virtually nonexistent. |
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Term
| What is the difference between a contribution and an expenditure? |
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Definition
| A contribution is a gift, whether it be monetary or other in nature, that is given to a candidate and the campaign decides what to do with the gift. An expenditure is any cost done on behalf of the campaign. |
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Term
| * What did Belloti allow corporations to do? |
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Definition
| It created an almost unlimited First Amendment freedom for non-media corporations to spend money to support ballot propositions and other social issues. Belloti is founded on the right of citizens to receive political speech by corporations. |
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Term
| * How did the Pacific Gas & Electric case expand protection for corporate speech? |
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Definition
| It protected corporations from compelled speech. Speech about a tax referendum, the Court said, is constitutionally protected political 1st Amendment’s protection. |
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Term
| What is the purpose of the Federal Election Campaign Act of 1971 and what does it prohibit? |
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Definition
| The purpose of the Act was to prevent the “distortion”/corruption that might result if massive corporate and union capital enters the electoral process. It applies to corporations and unions and prohibits contributions or expenditures from corporate treasury in connection with candidates from federal office. |
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Term
| What does FECA apply to? What doesn’t it apply to? |
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Definition
| Meant to protect against corruption. It applies to business corporations but it does NOT apply to nonprofit ideological corporations. |
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Term
| What kinds of corporate participation are allowed in elections? |
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Definition
| Corporations can buy ads to discuss issues associated with a candidate, but CAN NOT urge election or defeat of a candidate. They can contribute “soft money” to state and local political parties for voter registration drives (so long as it doesn’t exceed $10,000). They can also form and support political action committees. (PACs) |
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Term
| Can corporations support PACs? To what extent? How? |
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Definition
| CAN ONLY solicit funds from management, shareholders and their families, not employees. Corporations may support PACs. They may provide sponsorship critical to their success. A sponsoring company or union can pay for all costs of establishing and operating the separate segregated funds (the sponsoring corporation, union or trade association may pay the salaries overhead and costs of soliciting contributions. |
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Term
| Who can corporations and unions solicit funds from? |
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Definition
| Corporate PACs can solicit voluntary contributions from management, stockholders and their families. Union PACs can solicit funds from members and their families. |
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Term
| What are the limits on contributions by PACs? To PACs? By individuals to individuals? |
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Definition
| PACs may give up to $15,000 annually to any national party committee and $5,000 annually to any other PAC. PACs may receive up to $5,000 from any one individual. An individual may contribute $2,400 maximum to an individual candidate. |
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Term
| What are the disclosure requirements under FECA? |
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Definition
| (1) Donors and amounts of contributions and expenditures must be disclosed. (2) Each political committee and federal candidate must register with the FEC. (3) Each committee and candidate must keep detailed records of contributions (above $50) and expenditures (4) Source of funding for ads must be disclosed if the ad advocates election or defeat of a candidate |
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Term
| Why is broadcasting regulated? |
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Definition
| There’s limited space in the broadcast spectrum as well as the historical factor (it has always been that way) |
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Term
| What are the duties and powers of the FCC under the Communications Act of 1934? |
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Definition
| The duties and powers of the Commission is to make policy for the telecommunications industry as well as enforce congressional and Commission policies |
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Term
| * How are Red Lion and Tornillo cases different? |
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Definition
| Red Lion represents the medium for the least protected area--radio and television--while Tornillo offers a medium for the most protected, the newspaper. Tornillo overturned a Florida state law requiring newspapers to allow equal space in their newspapers to political candidates in the case of a political editorial or endorsement content. In effect, it reaffirmed the constitutional principle of freedom of the press and prevented state governments from controlling the content of the press. Red Lion saw the FCC added an "equal time rule" and a "response to personal attack" rule. The right of free speech is not violated when the FCC acts to ensure that the spectrum is used to benefit the public. Court sustained the Fairness Doctrine, requiring that public issues be presented by broadcasters and that each side of those issues be given fair coverage. |
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Term
| What is the Zapple Rule? Political Editorial Rule? What is the Personal Attack Rule? |
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Definition
| Zapple Rule--supporters of opposing candidates must be given about the same amount of airtime during election campaigns. Political Editorial Rule required broadcasters to provide a candidate notification, script of tape, and time to reply to station editorials that opposed a candidate or endorsed a competing legally qualified candidate. Personal Attack Rule said that broadcaster had to offer reply time if the honesty, character or integrity of an identified person or group was attacked during the discussion of a controversial issue of public importance. |
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Term
| What is the status of these rules? |
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Definition
| The personal attack rule and the political editorial rule were discontinued in 2000. The Zapple Rule is still in effect. |
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Term
| What are the Equal Opportunities Rule and Reasonable Access Rule? |
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Definition
| Equal Opportunities Rule requires broadcast stations and cable systems to offer a legally qualified candidate access to approximately the same size and type of audience for approximately the same amount of time as the station or system provided by the candidate’s opponent. Reasonable Access Rule calls for television and radio stations to make a “reasonable” amount of time available to candidates for federal office. |
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Term
| What does it mean to be a “legally qualified” political candidate under the equal opportunities rule? |
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Definition
| (1) A candidate must have publicly announced an intention to run for office (2) the candidate meets the qualifications prescribed by law for the office (3) A candidate seeking an elective office must qualify for a place on the ballot or publicly commit to seeking election as a write-in candidate. |
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Term
| Can the FCC censor indecency in a political advertisement? |
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Definition
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Term
| Who is required to register as a lobbyist under the Lobbying and Disclosure Act of 1995? |
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Definition
| Those who generate a govt. lobbying income that exceeds $5,000 over 6 months; those whose govt. lobbying expenses exceed $20,000 over 6 months. Nonprofits must also register and must file file semiannual statements. |
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Term
| What must registered lobbyists do to comply with the ’95 Act? |
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Definition
| Lobbyists must report their affiliations, the way they carry out activities, how they receive and spend money, how they disseminate info to influence opinion. They are legally prohibited from spending $$$ to influence an American political election. |
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Term
| Who is excluded from the Act’s requirements? |
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Definition
| (1) Public officials acting in an official capacity (2) newspapers and other mass media (3) people who testify before a Congressional committee (4) lawyers and others whose lobbying efforts are less than 20 percent of their work for clients. |
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Term
| Why did the Supreme Court say that commercial speech should be protected in Virginia Board of Pharmacy? |
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Definition
| In this case, the Supreme Court struck down a Virginia statute prohibiting licensed pharmacists from advertising the prices of prescription drugs. The pharmacists’ ads were purely commercial, and the Supreme Court recognized a constitutional protection for purely commercial speech motivated by a desire for profit. The court protected this commercial speech because it said consumers have the right to receive information from businesses. Justice Blackmun said the consumer’s interest in the free flow of commercial information may be just as strong as their interest in big news events like political debates. |
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Term
| Does commercial speech get the same amount of protection as political speech? Why or why not? |
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Definition
No. Starting in Virginia Pharmacy and continuing with other commercial speech decisions, the court has permitted many regulations on commercial speech that would not be tolerated on political speech. The Court says the regulations are different because of ‘common sense’ differences between commercial speech and political speech:
o advertising can more easily withstand regulation
o It’s easier for advertisers to verify their statements than it is for politicians, so there is less reason for the courts to tolerate false and misleading statements in commercial ads. |
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Term
| Is commercial speech protected under the First Amendment to protect the listener or the speaker? |
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Definition
| listener. Virginia Board, for example, was looking out for the interest of the customer. |
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Term
| What is the 4-part test the Court developed in the Central Hudson case to determine whether speech is protected under the commercial speech doctrine? |
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Definition
1. Expression is protected by the 1st amendment?
# commercial speech defined as proposing a commercial transaction or relating to economic interest of the speaker and its audience
# Is it lawful?
* Does the expression promote a lawful product or service?
# Is it not misleading?
* commercial speech not only must promote a lawful product or service but also must be true and not misleading
o 2. Government interest is substantial?
# Does it represent an interest in promoting the health, safety, morals or aesthetic quality of the community?
* 3. Regulation directly advances the governmental interest?
# States must present evidence that a regulation will advance a legitimate interest
+ 4. Governmental interest could be served as well by a more limited restriction on commercial speech
* Is the regulation narrowly tailored?
* The ban must be the least restrictive one possible |
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Term
| In order to even be eligible for First Amendment protection what initial two criteria must commercial speech meet? |
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Definition
o Must promote a lawful product or service
o Must be true and not false, misleading or deceptive |
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Term
| Can unfair and/or deceptive advertising be banned outright? |
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Definition
| Yes b/c false and deceptive commercial ads are outside constitutional protection |
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Term
| What 3 factors are considered in determining whether an ad is deceptive? |
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Definition
o Likely to mislead
+ It does not matter whether the advertiser intended to mislead. Deceptiveness is determined by the overall impression of an ad, not by isolated statements within it.
o Reasonable customer
+ An advertisement is not deceptive if it would mislead only a few gullible consumers.
+ Must deceive a large number of customers
o Material statement or omission
+ Advertising that has a tendency to deceive the average consumer must be material
+ A material statement in advertising is one that is likely to affect a purchasing decision
+ An ad is deceptive if it is likely to, or has the capacity to, affect consumer choices. |
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Term
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Definition
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Term
| Reasonable basis implication |
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Definition
+ advertisers should be able to support all material claims with results from scientific tests or other appropriate evidence
If an ad asserts scientific support by saying ‘test prove,’ the advertiser must be able to provide supportive results for the claim |
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Term
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Definition
| Ad creates a false impression about how the product will perform in normal circumstances |
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Term
| Demonstration implication |
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Definition
| Demonstration may be true, but it presents a false impression about how the product will perform in normal circumstances |
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Term
| No qualification implication |
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Definition
| For example, FTC ruled that a Firestone tire ad was misleading b/c it claimed w/o qualification that Firestone was “The Safe Tire” |
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Term
| Effective qualification implication |
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Definition
+ Ads may be deceptive even if they claim accurate but ineffective qualifications
+ See Chevron gasoline example-p. 357 |
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Term
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Definition
| insignificant facts stated so that they appear significant |
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Term
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Definition
| Advertisers may exaggerate their products on subjective matters such as taste, feel, appearance and smell |
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Term
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Definition
| FTC requires advertisers to inform consumers if product endorsements are paid for with money or products |
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Term
| Are states allowed to regulate advertising? Under what conditions? |
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Definition
o Yes. States can regulate ads only within their borders, although regulations in important commercial states, such as Florida, have a national impact
o All 50 states have enacted legislation that prohibits unfair competition and unfair acts and practices or otherwise allows citizens and companies to sue over deceptive advertising. |
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Term
| Federal agency chiefly responsible for regulating advertising? |
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Definition
o Federal Trade Commission (FTC)
o Federal Trade Commission (FTC) |
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Term
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Definition
| The FTC files a complaint against an advertiser and a an FTC administrative law judge either dismisses the case if there isn't enough substantial evidence against the advertiser or or issues a cease-and-desist, which includes fines if the advertiser fails to abide by it. |
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Term
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Definition
| When the FTC requires that ads contain statements to correct misrepresentations created by misleading ad campaigns. The FTC may impose corrective advertising if consumers develop false beliefs due to an ad campaign and if consumers are likely to hold those false beliefs into the future. To determine whether corrective ads are necessary, the FTC considers consumer surveys, the duration of the ads, the persuasiveness of the ad claims and how sophisticated the audience for the ads is. |
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Term
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Definition
| In cases of deceptive ads that put the public health at risk, the goal of the FTC is to stop the offending ad quickly. The FTC can ask a federal district judge for an injunction to halt deceptive advertising. |
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Term
| Civil and Criminal Penalties |
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Definition
| Fining authorities of the advertising campaign or punishing them with criminal charges. |
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Term
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Definition
| More than 90 percent of FTC cases are settled by consent decrees in which a party agrees to discontinue an advertising practice. Advertisers have a strong incentive to sign consent decrees because they receive less bad publicity, they don't have to admit to being deceptive or false and it saves time and money. Failure to comply with a consent decree subjects a company to fins of up to $10,000 a day for as long as the ad campaign continues. |
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Term
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Definition
| The advertiser must prove to the FTC that the claims in its ad campaign are true. |
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Term
| What types of remedies are open to competitors? |
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Definition
| May seek a court injunction to stop the deceptive ads of competing companies under Section 43(a) of the Lanham Trademark Act of 1946. |
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Term
| In what ways does the advertising industry regulate itself? |
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Definition
| Forming association such as the American Association of Advertising Agencies, making broadcast networks have advertising acceptance guidelines and adopting a code of ethics. |
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Term
| What are the self-regulatory bodies? |
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Definition
| The National Advertising Division (NAD) and the National Advertising Review Board (NARB) |
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Term
| What body investigates complaints made through the advertising industry???s self-regulation practices? |
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Definition
| The National Advertising Division (NAD) |
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Term
| What do SEC regulations require? |
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Definition
| That stock companies disclose financial information before shares are offered and while they are being traded. Mandated disclosure includes prospectuses before a stock is offered and periodic reports after trading begins. |
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