Shared Flashcard Set

Details

Media Law test 3
Media law test 3
153
Journalism
Undergraduate 4
10/25/2011
Click here to study/print these flashcards.

Create your own flash cards! Sign up here.

Additional Journalism Flashcards

 

 

Cards

Term
Sources for right of access by media to information held by the government (3)
 Definition
1) Common Law; 2) Statutory Law, 3) Constitutional Law, but the media have been largely unable to use the First Amendment to gain access.
Term
Is tresspass--the intentional entry upon property possessed by others without consent--normally a civil or criminal matter?
 Definition
Civil.
Term
Express consent
 Definition
A specific authorization to enter someone's property
Term
Implied consent
 Definition
Being allowed entry to someone's property by general custom or a pattern of usage by others.
Term
Trespass occurs at which two points
 Definition
1) At the moment of entry or, 2) if there was express or implied consent, when the visitor fails to leave when asked to do so.
Term
If the homeowner fails to object to entry by the media, does it constitute consent?
 Definition
Miller v NBC (Calif., 1986) suggests "no." However, Florida Publishing Co. v Fletcher (Fla., 1976) suggests that it isn't trespass when consent can be implied and the owner is absent.
Term
An exception to trespass for newsgathering?
 Definition
Le Mistral v CBS (N.Y., 1978) suggests "no" if the owner or resident of a dwelling refuses to permit journalists to enter, even if news is happening there.
Term
Do ride-alongs with police that include entering private homes causes problems for reporters?
 Definition
Yes, according to the Court in Wilson v Layne (1999) [saying that a search warrant entitles officers, but not reporters, to enter a home] and Hanlon v Berger (1999) [police violate the right of residential privacy when they permit reporters to accompany them into private homes in searches or for arrests].
Term
Is additional permission required to photograph such things as stage productions or sporting events to which you have been given consent just to attend?
 Definition
Yes.
Term
If trespass results in damage, is injury subject to compensation?
 Definition
Yes, and nominal compensation may be required if there is no damage.
Term
Can trespass be a crime as well as a civil infraction?
 Definition
Yes, if trespass is in violation of the clear wishes of the land owner (willful trespass); e.g. Stahl v Oklahoma (Okla., 1983): reporters criminally trespassed when they followed protesters into a fenced construction site.
Term
Does trespass give the property owner or employees the right to seize film, notes or equipment (confiscation)?
 Definition
No, but if your actions are evidence of a crime, film could be seized as evidence.
Term
Are reporters required to obey orders of police at a crime or accident scene?
 Definition
Everyone must obey lawful orders by officials at the scene or be subject to arrest.
Term
Can the media be barred from being at places open to the public and from taking photos of what happens in public?
 Definition
No. Orders that are not lawful should be challenged.
Term
Can media access to government property such as military bases, prisons, power plants and schools be denied?
 Definition
Yes, in Houchins v KQED (1978), the Court said there is no First Amendment protection for the public or media to enter such institutions.
Term
What gives the media (and public) the right to see government records or attend meetings of government agencies?
 Definition
State open meetings and open records acts and the federal Freedom of Information Act (FOIA, 1996) and federal Sunshine Act (1976).
Term
What are the basic requirements of the federal open-meetings law (Government in Sunshine Act)?
 Definition
It reguires access to meetings of federal bodies a majority of whose members are appointed by the president and confirmed by the Senate.
Term
Are government bodies allowed to close meetings?
 Definition
They may close meetings for 10 exemptions: nine FOIA and if the body is considering legal preceedings.
Term
What is covered by the federal Freedom of Information Act?
 Definition
Any reproducible form of documentary information held by executive and military departments, government commissions, corporations and independent regulatory agencies, and the executive office of the president (but not the president's immediate personal staff).
Term
What federal entities are not covered by the FOIA?
 Definition
The legislative and judicial brances.
Term
What is an agency record?
 Definition
All materials an agency preserves in the performance of its functions, whether it created the record or not.
Term
Can some records be withheld from a FOIA request?
 Definition
Yes, if covered by an exemption.
Term
Are records covered by an exemption required to be withheld from a FOIA request?
 Definition
Not unless the information is protected from release by another law.
Term
What are the FOIA exemptons? (Nine)
 Definition
1) Matters relating to national security. 2) Matters related to internal personnel rules and procedures. 3) Matters exempted from disclosure by statute. 4) Trade secrets and financial information the agency obtains that is privileged or confidential. 5) Interagency and intra-agency memorandums and letters that would not otherwise be available to the public. 6) Private personnel and medical records if the release would constitute an invasion of personal privacy and the invasion is clearly unwarranted. 7) Records or information complied for law enforcement purposes that would a) interferes with enforcement proceedings; b) deprive someone of the right to a fair trial; c) unnecessarily invade personal privacy; d) identify a confidential source; e) reveal law enforcement techniques or f) endanger a person's life or safetyl or records concering criminal investigation, informant records and classified records. 8) Matters contained in or related to regulation and supervision of financial institutions. 9) Geological and geophysical information and data.
Term
Can the agency withhold an entire document when only isolated portions are exempt?
 Definition
Nooooooooooope.
Term
Can an agency charge for the record through a FOIA request?
 Definition
Yes, but it can charge news organizations and scientific/educations groups only reproduction costs, not search costs.
Term
How long does an agency have to respond to an FOIA request?
 Definition
It has 20 days to respond (but not necessarily provide it), but the media can request an expedited review in an emergency.
Term
Can you appeal if denied a FOIA request?
 Definition
Yes, and the agency has another 20 days to rule on the appeal.
Term
Can you appeal to the courts if denied a FOIA request for a second time?
 Definition
Yes, you can file suit in a federal district court. The agency may be assessed the cost of your legal fees and court costs.
Term
The OPEN Act Amendments of 2007 expanded the definition of "news media representative" to include whom?
 Definition
Freelancers, bloggers, website editors and other alternative media representatives, who qualify for fee waivers.
Term
May the government provide selective access?
 Definition
It may not broadly allows access but then exclude certain individuals unless the individuals clearly belong to a different classification of people who can reasonable be excluded or unless some compelling interest justifies the exclusion.
Term
Free press and fair trial is what kind of balancing test between the First and Sixth amendments (right to a fair trial)?
 Definition
ad hoc balancing test.
Term
What is prejudicial information?
 Definition
Information that can't be used at the trial or prosecutor can't use in court because it harms the defendant's chance for a fair trial. E.g.: Stories about a confession, stories about results of a lie detector test or defendant's refusal to take one, stories about the defedant's past criminal record, stories about the credibility of witnesses.
Term
What is meant by an impartial jury?
 Definition
US v Burr (1807): "An impartial juror is one whose mind is free from the dominant influence of knowledge acquired outside the courtroom, freem from strong and deep impressions that close the mind."
Term
In Irvin v Dowd (1961) the Supreme Court stated that failure of a state to accord a fair hearing to one accused of a crime violated the Sixth Amendment because of what?
 Definition
Incorporation through the Due Process Clause of the 14th Amendment.
Term
IMPORTANT: In Sheppard v Maxwell (1966), while overturning Sam Sheppard's conviction for killing his wife, the Court stated that judges must protect the fair trail rights of the defendant from the media by doing what?
 Definition
Controlling the participants and the process of the trial.
Term
Does publicity about a crime in itself mean that a jury can't be impartial?
 Definition
No. Two cases: Murphy v Florida (1975), the constitution requires that the defendant have a panel of impartial, indifferent jurors. They need not, however, be totally ignorant of the facts and issues involved; Patton v Yount (1984), the relevant question is not whether the people in the community remember the case, but whether the jurors had such a fixed opinion they could not judge impartially the guilt of the defendant.
Term
A person with knowledge of the case can serve in what two situations:
 Definition
1) If he/she can set aside his/her knowledge or opinions in the face of the evidence; and 2) if the publicity surrounding the case is not so widespread and prejudicial that the potential juror's assurances of impartiality can be believed.
Term
The ABA's Reardon Report (1968) proposed that judges use what against trial participants who violated restrictive (gag) orders by providing information to the media?
 Definition
Their contempt power.
Term
Restrictive orders are of two types:
 Definition
Those aimed at trial participants and those aimed at the media.
Term
IMPORTANT: Nebraska Press Association v Stuart (1976)
 Definition
Made it difficult for a judge to gag the media to prevent them from providing information about a case. The SC outlined a three-part test: 1) Would the media publicity relating to the case surely be intense and pervasive? If yes, 2) Would no alternative measures adequately protect against the prejudicial effect of media publicity? If yes, 3) Would the gag order on the media indeed prevent the danger of prejudicial influence? If yes, then the gag order is constitutional.
Term
Alternative measures that can be used to reduce the effects of pretrial publicity (3):
 Definition
1) Continuance: a delay; 2) Change of venue: change of location of trial (and change of venire: importing a jury from elsewhere); 3) Intnsive voir dire: jury selection, used to obtain jurors who are impartial.
Term
Alternative measures that can be used to reduce the effects of publicity AFTER jury selection (2):
 Definition
1) Jury admonition: the judge tells the jurprs to decide based only upon what they hear in court and not to read/watch the news; 2) Jury sequestration: keeping jurors together away from the media.
Term
Two types of challenges by lawyers to potential jurors (2):
 Definition
1) Challenge of cause: the person should not sit on the jury for some reason (unlimited); Peremptory challenge: No cause is required, but there is a limit.
Term
What do the rules of the U.S. Judicial Conference state about gags on the media?
 Definition
That no rule of court or judicial order should prohibit the media from publishing or broadcasting information relating to a criminal trial.
Term
Nebraska Press Test was strengthened by what two SC cases?
 Definition
Landmark Communications v Virginia (1978): The Court rules that the media could not be stopped from printing confidential proceedings of a state judicial review commission; Smith v Daily Mail Publishing (1979): The Court ruled that once the media have legally obtained truthful information, they cannot be stopped from publishing it except in extreme situations.
Term
Are gags on trial participants typically upheld on appeal?
 Definition
Yes, if narrowly tailored and accompanied by some specific justification.
Term
Gentile v Nevada State Bar:
 Definition
SC ruled that states may prohibit out of court statements by attorneys if they have a substantial likelihood of materially prejudicing the proceedings if the rules are specific enough.
Term
Do judges have broad authority to bar jurors and witnesses from speaking with reported after a trial?
 Definition
No, in Butterworth v Smith (1990), the SC stated that witnesses before a grand jury can't be prohibited from revealing what they had said, citing Smith v Daily Mail.
Term
Might a gag order against a mass medium be upheld if it publishes information that it obtained during discovery about a case it was a party to?
 Definition
Yes, if there was a protective order (Seattle Times Co. v Rhinehart, 1984).
Term
Prior to 1980, was media access to legal proceedings seen as being protected by the FA?
 Definition
No, if denial was nondiscriminatory.
Term
Richmond Newspapers v Virginia (1980)
 Definition
The SC, using a "tradition and function" analysis, held that criminal trials are preemptively open and the FA prohibits judges from closing courtrooms without exploring alternatives to closure [even if the defendant waives his Sixth Amendment right to a public trial].
Term
In Globe Newspapers v Superior Court (1982), the SC strengthened the media's FA right by ruling that because trials are prsumptively open, states may not do what?
 Definition
They may not require closure of portions of a trial, such as during a sexual assault victim's testimony. Closure must be based on the situation in each particular case.
Term
In Press-Enterprise v Superior Court of Riverside County, the Court stated that jury selection was presumed to be open (based on tradition and function) and did what that it hadn't done in Richmond Newspapers and Globe Newspapers?
 Definition
Set up a test to determine when court proceedings presumed to be open could be closed.
Term
Press-Enterprise I Test (Four prongs):
 Definition
1) Is there a substantial probablity that openness would jeopardize an overriding interest, such as a fair trial, or cause other serious harm? If yes, 2) Are there no reasonable alternatives to closure that can adequately protect the defendant's fair trial rights? If yes, 3) Are the reasons behind these conclusions fully ariculated as findings in the trial record? If yes, 4) Is the closure narrowly tailored to protect the overriding interest and, thus, no broader than necessary to protect the overriding interest? If yes, the closure is consitutional.
Term
In Waller v Georgia (1984), the Court ruled what about whether evidence supression hearings should be open?
 Definition
They normally should be open, and closure must meet requirements of the PE-I Test.
Term
In Press-Enterprise v Superior Court of Riverside County (PEII) the SC ruled that what proceedings are presumed to be open using the two-part Experience and Logic test?
 Definition
Pretrial hearings.
Term
May a judge close portions of a trial without allowing objections from the media concerning the proposed closure?
 Definition
No.
Term
What did the Court rule in Presley v Georgia concerning a defendant's Sixth Amendment right for a public trial?
 Definition
The Sixth Amendment requires the screening of jurors to be open to the public and that the PE test should be used.
Term
What other legal proceedings are presumed to be open?
 Definition
Pretrial detention hearings, bail hearings, plea hearings, sentencing hearings and attorney disciplinary hearings.
Term
Do the media have a FA right to record an execution?
 Definition
Not in the 8th Circuit. In Rice v Kempler, the Circuit Court stated that the FA doesn't require that the execution chamber to be open to cameras or audio recorders.
Term
Do the media have a FA right to attend civil proceedings?
 Definition
The SC hasn't ruled, but lower courts have found such a right.
Term
Can certain family law proceedings (such as divorce, child custody and mental health proceedings) be closed?
 Definition
Yes, but because of Globe Newspapers, it should be on a case-by-case basis.
Term
Are civil discovery and settlement proceedings normally open to the media?
 Definition
No, some discovery documents are made available and might be leaked to the media. However, terms of settlement often are kept confidential.
Term
Does a FA right of access apply to juvenile proceedings?
 Definition
The SC hasn't ruled, however, the media can publish it if lawfully obtained (Smith v Daily Mail).
Term
The SC allows states to close portions of trials in what situations?
 Definition
When a jevenile or a victim of a sexal assault is testifying.
Term
The SC finally ruled that cameras in the courtroom do not in themselves result in an unfair trial and are constitutionally permissible in what case?
 Definition
Chandler v Florida.
Term
Do all states allow camera? Do federal courts?
 Definition
To some extent all states allow camers. Most, including Missouri, allow still and video cameras (SC Rule No. 16). On the federal level cameras are not allowed at any level.
Term
Do the media have a right to transcripts of proceedings, pleadings and motions, court orders, and materials entered into evidence?
 Definition
Yes.
Term
Do the media have a right to videotapes of testimony submitted as evidence and played in open court?
 Definition
Normally, but in US v McDougal (1996), the 8th Circuit ruled that President Clinton's videotaped testimony didn't have to be released if a transcript was.
Term
When would a judge likely not allow media access to normally open documents?
 Definition
If the judge determines that public dissemination would threaten the right to a fair trial or invade personal privacy.
Term
Do the media have a right to materials not entered into evidence?
 Definition
In Nixon v Warner Communications, the Court said reporters have no absolute rights to materials not entered into evidence if some other interest might be harmed.
Term
Do the media have a right to transcripts of grand jury proceedings?
 Definition
No.
Term
Are anonymous juries seen as inherently prejudicial to defendants?
 Definition
No
Term
IMPORTANT: What did the SC rule in Branzburg v Hayes (1972) concerning whether reporters have a FA right not to have to respond to a subpoena and testify before a grand jury?
 Definition
Reporters, like other citizens, must respond to a grand jury subpoena.
Term
IMPORTANT: Do reporters have a qualified FA right not to have to turn over unpublished information and sources' identities in other situations?
 Definition
Yes. In Branzburg, five justices found an absolute or qualified privilege, and Justice Powell noted that the ruling was extremely limited.
Term
Have federal appeals courts ruled in favor of a reporter's privilege?
 Definition
Ten of the 12 Circuits have found at least limited protection for reporters who are asked to testify or produce photos or other materials at hearings other than grand jury proceedings.
Term
Does a qualified reporter's privilege exist in the 8th Circuit?
 Definition
Yes. The 8th Circuit found a right in a civil (libel) case, Cervantes v Time (1972).
Term
What will a court look at to determine whether the privilege exists in a non-grand jury situation (4)?
 Definition
1) Its relevance; 2) whether alternative means are available for obtaining the information; 3) the type of proceeding involved (civil or criminal); and 4) how the information was gathered (first-hand observations or from a confidential source).
Term
When might a reporter's privilege not be allowed?
 Definition
When the journalist has not promised confidentiality and if a reporter breaks the confidence to someone.
Term
Can a reporter be forced to provide the name of a source in a libel suit in which actual malice needs to be shown?
 Definition
No, however, judges can assume you have no source in a libel suit when actual malice is required and you won't divulge your source (no-source rule).
Term
May courts limit the Reporter's Privilege to journalists?
 Definition
Yes.
Term
IMPORTANT: May states provide journalists with greater protection that the limited privilege provided by the FA?
 Definition
Yes, through statutes known as shield laws or constitutional provisions.
Term
IMPORTANT: What provisions are normally included in a shield law?
 Definition
1) Who is covered--just journalists? If so, who is a reporter? 2) Who is covered--Does it protect confidential and non-confidential sources? Does it cover only sources or both sources and information? 3) Any qualifications to its use--Is it waived through voluntary disclosure of some material? In what venues can it be used? When is disclosure required?
Term
IMPORTANT: Does the enforcing of promises of confidentiality violate the news medium's constitutional rights?
 Definition
No. In Cohen v Cowles Media (SC, 1989): Journalists who break a promise of confidentiality to a source voluntarily may be sued for violating a contract, called promissory estoppel.
Term
IMPORTANT: Test for promissory estoppel
 Definition
1) Did the defendant make a clear and definite promise of confidentiality? If yes, 2) Did the defendant intend to induce the plaintiff's reliance on the promise? If yes, 3) Did the plaintiff rely on the promise to his/her detriment? If yes, 4) Must the promise made by the defendant be enforced by the court to avoid an injustice to the plaintiff? If yes, then it's promissory estoppel.
Term
IMPORTANT: Are newsroom searches allowed?
 Definition
Yes. In Zurcher v Stanford Daily (1978) the SC said the FA doesn't protect journalists from newsroom searches.
Term
IMPORTANT: What did Congress do in response to the Zurcher decision?
 Definition
It passed the Privacy Protection Act of 1980, which requires that all alw enforcement officials issue a subpoena instead of a search warrants to obtain either workd products or documentary material, in most situations.
Term
IMPORTANT: In what situations would a search warrant be allowed under the Privacy Protection Act of 1980 (Zurcher)?
 Definition
If, 1) the person possessing the materials is the criminal suspect; 2) immediate seizure of materials is deemed necessary to prevent death or serious injury; 3) serving a subpoena would likely result in destruction or concealment of the materials; or 4) a subpoena and court order to comply have already been unsuccessful.
Term
What should journalists do about saving notes and outtakes in the face of a possible subpoena?
 Definition
Follow a set policy about how long to save materials and don't destroy information being subpoenaed.
Term
What is contempt?
 Definition
Any act that interferes with the court's administration of justice.
Term
What are two uses of contempt power?
 Definition
1) To protect the rights of a litigant in a legal dispute (as to get a reporter to testify)--The judge can impose a fine or an indeterminate sentence (which lasts until the reporter does what is asked). 2) To vindicate the law, the authority of the court or the power of the judge--The judge can impose a fine or a determinate sentence (which requires you spend a certain number of days in jail).
Term
What are the two types of contempt?
 Definition
1) Civil (indirect) contempt takes place outside of the presence of the judge. Someone is compelled to do something or someone intentionally disobeys a court order. 2) Criminal (direct) contempt takes place in or near the court. Someone willfully disregards, disobeys or interferes with the court's authority. When the judge has first hand knowledge of contempt, the judge uses summary contempt power and acts as prosecutor, jury and judge. It can be appealed.
Term
Contempt powers are usually used against the media in what types of situations (4)?
 Definition
1)A judgement isn't paid. 2) A court order isn't obeyed. 3) The name of a source isn't disclosed or a reporter refuses to testify. 4) A jury is tampered with.
Term
Legislative limits on contempt power:
 Definition
Provide for a jury trial in some cases.
Term
Court-imposed limits on contempt power:
 Definition
Federal Rules of Criminal Procedure provide a right to counsel, witnesses, testimony and a jury trial in many cases.
Term
IMPORTANT: Nye v U.S. (1941)
 Definition
The SC said that summary contempt power can be used only when act was geographically close to the courtroom: inside, in the hallways, maybe the lobby of the courthouse.
Term
Bridges v California and Times Mirror Co. v Superior Court (1941):
 Definition
A judge can use contempt power to close off discussion of a case in the media only if there is a "clear and present danger" that it will produce interference with the proper administration of justice.
Term
Pennekamp v Florida (1946)
 Definition
The FA prevents judges from using their contempt power to silence criticism of themselves or court proceedings unless the criticism poses a clear and present danger to justice.
Term
Collateral Bar Rule
 Definition
From U.S. v Dickinson (5th Cir.)--Court orders that appear to be unconstitutional must still be obeyed. (Some other circuits and some states don't use the rule).
Term
What is the legal basis for modern American copyright law?
 Definition
The Constitution. Since the Copyright Act of 1976, the federal government has jurisdiction.
Term
What sort of things can't be copyrighted because they aren't seen as works of authorship?
 Definition
A trivial variation of copyrighted work, ideas, information, facts, short phrases, scientific quations.
Term
What three things are necessary for a work to be something that can be copyrighted?
 Definition
It must be 1) Work of authorship (primarily expressive in nature; seven categories listed); 2) Original; and 3) Fixed in a tangible medium.
Term
What is required for a work to be original?
 Definition
It must be created, a compilation or a collective work of existing material, a collective work or a derivative work of an existing copyrighted work (but the white pages of a phone book isn't original--Feist Publications v Rural Telephone Service, SC, 1991)
Term
What is required for a work to be fixed?
 Definition
It must be able to be reproduced.
Term
What is required for ownership of a copyrighted work?
 Definition
It begins at the moment of creation. The person who created it and not the owner of the physical work (such as a letter) owns the copyright.
Term
When a work is done for hire (an employee), who owns the copyright?
 Definition
The employer. CCNV v Reid (SC, 1989): An independent contractor (such as an artist/freelancer) is not an employee and, thus, owns the copyright unless there is a contract that says otherwise.
Term
Can government works be copyrighted?
 Definition
No, not if created by government employees.
Term
Under the Sonny Bono Copyright Act (1998), how long does copyright last for the creator?
 Definition
Life plus 70 years for work created since 1978, 95 years for work published between 1923 and 1977.
Term
How long does a copyright last for a work for hire?
 Definition
The earlier of 95 years from publication of 120 years from creation for work created since 1978.
Term
Eldred v Ashcroft (SC, 2003)
 Definition
Uphelp Sonny Bono Act extensions as within the power of Congress because it was limited.
Term
Two moral rights in copyright law:
 Definition
1) The right to attribution and 2) The right to integrity (outlawing modification of the work by others).
Term
Must a copyright holder affix the copyright symbol to his/her work?
 Definition
No, but affixing one stops anyone from claiming innocent infringement.
Term
Does a copyrighted work need to be registered with the US copyright office?
 Definition
No, but it is evidence of copyright ownership and is necessary before the copyright owner may file an infringement suit.
Term
Is prompt registration of a copyright advisable?
 Definition
Yes, it allows the owner to collect attorneys' fees and statutory damages on top of actual damages.
Term
Copyright notice consists of what elements?
 Definition
1) The word "copyright" or the copyright symbol; 2) The year of first publication; 3) The name of the copyright owner.
Term
What is copyright infringement?
 Definition
The reproduction, distribution, performance or public display of a copyrighted work, or making of a derivative work, without permission of the copyright owner.
Term
Infringement Test (4.3):
 Definition
1) Is the pre-existing work protected by copyright? If yes, 2) Has that work been copied or otherwise used to create a substantially similar work? Is part of all of the copyrighted work an exact copy? If yes, go to step 3, If no, then; Was the work substantially similar to the copyrighted work? If no, it's not infringement. If yes, then; Did the defendant have access to the original work before publication? If no, it's not infringement. If yes; 3) Was a license obtained to use the preexisting work? If yes, it's not infringement. If no, 4) Does this use of the protected work qualify as a "fair use"? If yes, it's not infringement. If no, it's infringement.
Term
Does copying have to be intentional to be infringement?
 Definition
No (Bright Tunes v Harrison, 1976 SDNY)
Term
What is fair use?
 Definition
The right to use a portion of a copyrighted work without the owner's consent and without paying a royalty.
Term
What qualifies for fair use?
 Definition
Criticism, comment, news reporting, teaching scholarship or research, which are seen to be in the public interest.
Term
The Fair Use Test (4):
 Definition
1) Purpose and character of the use; 2) Nature of the copyrighted work; 3) Amount and substantiality of the portion used in relation to the whole copyrighted work. 4) Effect of the use on the plaintiff's potential market.
Term
What did Sony Corp. of America v University City Studios (SC, 1984) say about the recording of TV programs?
 Definition
It is allowed under fair use becuase it is only shifting the time at which is is being viewed.
Term
What did Campbell v Acuff-Rose (SC, 1994) say about commercial use as being a bar to fair use?
 Definition
It's not a bar, but only one factor.
Term
What did Harper & Row v Nation (SC, 1985) say about something whether using the heart of the work can be considered fair use?
 Definition
It's more likely not fair use.
Term
What did Campbell v Acuff-Rose say about copying the heart of the work when a parody is involved?
 Definition
Copying does not become excessive merely because the portion taken was the heart of the original.
Term
What Salinger v Random House say about a close paraphrase being fair use?
 Definition
A close paraphrase may be used to determine the amount used.
Term
Under Campbell v Acuff-Rose and SunTrust Bank v Houghton-Mifflin, what is the key element of a parody that would likely determine whether it was fair use or not?
 Definition
It must add something new; that is, it must make some critical comment or statement about the original, giving it social value beyond entertainment value.
Term
What damages are allowed for infringement?
 Definition
Actual damages: income lost and profits made by the infringerl and statutory damages: range to $100,000
Term
What does licensing allow?
 Definition
Copyright holder can transfer rights to reprint excerpts, adapt it into a screenplay, first publication, exclusive rights, merchandising, etc.
Term
What are electronic rights?
 Definition
The permission to make additional uses of copyrighted materials in other media, such as DVDs, websites, etc.
Term
What did the SC rule in NYT v Tasini about electronic rights?
 Definition
Freelance authors need to give permission if the format is changed (such as the way the electronic page appears).
Term
In music licensing, what are the two different copyrights that have to be obtained?
 Definition
One for the musical composition itself and one for the recording of the song (sound recording).
Term
What types of license is used for integrating a music composition into a video production?
 Definition
Synchronization licenses.
Term
What type of license authorizes reproduction of a sound recording for use in an audio-visual production, such as a TV program or commercial?
 Definition
Master use license.
Term
Publicly performing a copyrighted composition or broadcasting a recording both require what kind of license?
 Definition
A performance license.
Term
What do performance rights organizations such as ASCAP and BMI do?
 Definition
They handle licenses on behalf of music copyright owners and collect royalty payments for the use of music by radio stations, live bands, film producers, TV programs, etc.
Term
Normally, broadcast stations pay a yearly license fee to the performance right organizations based on gross receipts to play their music for what kind of license?
 Definition
A blanket license to play any of the songs in their repertory.
Term
The 1976 Copyright Act set up what system that allows cable companies to retransmit copyrighted broadcast without consent if they pay a blanket license fee to the Copyright Office?
 Definition
A compulsory licensing system.
Term
The Cable Television Consumer Protection and Competition Act of 1992 did what in regard to carrying signals of local TV stations that request carriage?
 Definition
It required cable systems to carry such signals and to negotiate for retransmission consent if asked.
Term
Can satellite carriers deliver local broadcast TV stations?
 Definition
Yes, since 1999.
Term
What does the Satellite Home Viewer Act of 1988 do?
 Definition
It set up a compulsory licensing system for satellite retransmissions after paying royalties to the Copyright Office for distribution.
Term
What two organizations oversee global copyright law?
 Definition
The World Intellectual Property Organization and the World Trade Organization.
Term
The Digital Millennium Copyright Act of 1998, which imposes a compulsory licensing and royalty distribution scheme for the transmission of music on the Internet, did what in regard to immunity for ISPs?
 Definition
Section 512 protects ISPs from infringement claims if they remove material that a copyright holder says is posted without permission and the ISP played a passive role in its posting.
Term
What did the courts rule in the Viacom International v YouTube case?
 Definition
Viacom lost in trial court in 2010 on summary judgment, with the court saying Section 512 of the DMCA protects YouTube if it takes down material when the copyright holder objects.
Term
How did the decision in A&M Records v Napster differ from Sony?
 Definition
Napster's peer-to-peer network violated the copyright law because, unlike Sony, Napster knew users were infringing.
Term
How did MGM v Grokster differ from Sony concerning providers of software designed to enable file sharing of copyrighted works?
 Definition
Such providers are liable for copyright infringement by other, thus distinguishing Sony.
Term
How does a service mark differ from a trademark?
 Definition
It distinguishes services rather than the company itself.
Term
How is a trademark lost?
 Definition
By not renewing it or by not using it for two years.
Term
Mosley v Victoria's Secret Catalog stated what about trademark dilution?
 Definition
A trademark holder must show evidence of actual dilution of its trademark.
Term
Anheuser-Busch v Balducci Publications said what about parodies and trademark dilution?
 Definition
The FA does not shield a parody that utilizes protected trademarks to a degree greater than needed to convey its point.
Term
In 1999 Congress enacted the Anticybersquatting Consumer Production Act, which was designed to do what?
 Definition
To allow for civil action against someone registering a domain name identical or confusingly similar to an existing, distinctive trademark.
Term
Pirating someone else's news is a common law violation called what?
 Definition
Unfair competition: INS v AP.
Supporting users have an ad free experience!