Final Flashcards

Question

defamation subject

Answer 1

reputation must be capable of being harmed

Answer 2

would a reader with knowledge of surrounding circumstances reasonably understand the words referred to P?

Answer 3

legal issue: whether statement is capable of damaging reputation? factual issue: whether it did?

Answer 4

others reasonably understand P is the one referred to

Answer 5

knowledge of falsity or reckless disregard for the truth

Answer 6

D has actual, subjective doubt about truthfulness of statement

Answer 7

anything under that which an ordinary, reasonable person would do under the same circumstances

Answer 8

1) elected; OR 2) other gov official if: - substantial responsibility for gov conduct; - public interest in qualifications beyond that of a normal official; AND - statement is about job performance

Answer 9

those who achieve such pervasive fame or notoriety that they become public figures in all purposes and contexts

Answer 10

those who thrust themselves into the forefront of particular public controversies to influence the resolution

Answer 11

1) voluntary participation in controversy? 2) access to appropriate channels for P to rebut claims? 3) P played prominent role?

Answer 12

hurt feelings, mental suffering, or anguish

Answer 13

loss of employment, lost income, loss of earning capacity (always must be supported by evidence of injury)

Answer 14

clear and convincing evidence that D acted with actual malice

Answer 15

cannot libel someone while speaking in a legislative or judicial forum OR through official statements from public officials

Answer 16

may completely, fairly, and accurately report what happens at a government proceeding

Answer 17

- false light - publication of private information - intrusion on solitude - appropriation of NIL without permission

Answer 18

only enjoyed by natural persons, NOT companies or other entities

Answer 19

resemblance or evocation of identity of actual person, even absent actual use of NIL

Answer 20

NEVER acts as a substitute for the real thing

Answer 21

one cannot use another's identity for commercial use or trade purposes without consent

Answer 22

commercial production is not automatically commercial use; does not apply to works of fiction

Answer 23

product containing likeness is so transformed that it has become primarily D's own expression

Answer 24

public has a right to know and press has a right to tell

Answer 25

attaches to people who, through life or accomplishments, creates bona fide attention to activities

Answer 26

- books, plays, films, radio/TV programs - magazine/newspaper articles - material of political or newsworthy value - parodies or social commentary - single and original works of fine art - ads or commercial announcements concerning any of these (incidental use)

Answer 27

laws that give D an opportunity to correct, clarify, or retract story before suit can be filed

Answer 28

- P must request retraction before filing suit - retraction must be as prominent as alleged defamation

Answer 29

protection from "Strategic Lawsuits Against Public Participation"

Answer 30

attempts by wealthy to silence press or critics through threat of litigation

Answer 31

if statement at issue arises from an issue of public concern, P must show prima facie case before suit can proceed

Answer 32

if case is dismissed, D is entitled to attorney's fees

Answer 33

- applicability - prima facie viability - legal viability

Answer 34

movant shows that cause of action facially falls within the scope of the Act

Answer 35

cause of action states a prima facie case as to each essential element of claim

Answer 36

movant shows that no cause of action upon which relief may be granted has been stated

Answer 37

dated consent, capacity, substantial alterations from image upon which consent was granted

Answer 38

anything that is "fixed" in a tangible medium of expression

Answer 39

sufficiently permanent to permit it to be perceived, reproduced, or otherwise communicated for more than transitory duration

Answer 40

- ideas, themes, bare plots - non-creative titles, slogans, words, etc. - methods, systems, formulas, and equations - incidents, characters, and settings indispensable to a given topic/genre (scenes a faire) - facts/new events

Answer 41

creator of work

Answer 42

intellectual property; can be disposed of as property

Answer 43

when one creates a work at the direction of another, they do not own the copyright

Answer 44

- works created by employee within the scope of employment; OR - specially commissioned works in 1 of 9 categories AND parties agree that work is made for hire

Answer 45

1) contribution to collective work; 2) part of motion picture/AV work; 3) translation; 4) supplementary work; 5) compilation; 6) instructional text; 7) test; 8) answer materials to test; 9) atlas

Answer 46

one copyright can belong jointly to 2+ authors when they intend them to be inseparable or interdependent parts of a unitary whole

Answer 47

must be independently copyrightable

Answer 48

parts have little or no independent meaning standing alone

Answer 49

parts achieve primary significance because of combined effect

Answer 50

can reproduce as: - part of collective work - part of revision to original collective work - part of subsequent collective works in the same series as original collective work

Answer 51

author may freely exploit their own individual contribution

Answer 52

1) life of author + 70 years; OR 2) no identifiable author/works made for hire: - 95 years after first publication; OR - 120 years after creation (whichever expires first)

Answer 53

1) D actually copied (prove through access to) P's work; AND 2) substantial similarity between protected material in P's work & D's work (strict liability)

Answer 54

whether the average lay observer would find that D appropriated the alleged copy from the copyrighted work

Answer 55

- reproduction - derivative works - distribution by sale, rental, lease, or lending - performance of work publicly - digital transmission of sound recordings

Answer 56

purchaser of lawful copy can listen, watch, sell, lend, or lease that particular copy

Answer 57

1) is the work copyrightable? 2) is the copyright still valid? 3) did D have access to work? 4) are the 2 works the same/substantially similar?

Answer 58

1) ownership of valid copyright; AND 2) copying of constituent, original elements of work

Answer 59

- D had access to P's work; AND - D's work is substantially similar to P's protected expression

Answer 60

- purpose and character of use - nature of copyrighted work - amount/substantiality used v. whole - effect on the market

Answer 61

more likely to be fair if noncommercial or nonprofit

Answer 62

transformative use, parody, news/public interest, criticism and comment, teaching, scholarship and research

Answer 63

- informational or creative? - published or unpublished? - still commercially available?

Answer 64

what is the heart of the work and relative proportion used?

Answer 65

if challenged use becomes widespread it would adversely affect the potential market for copyrighted work

Answer 66

subject matter of state law claim is governed by copyright law

Answer 67

state law claim has extra elements that differentiate it from copyright law

Answer 68

- injunctive relief - actual damages - statutory damages (if timely registered) - attorney's fees

Answer 69

$750–$30k per work infringed (up to $150k if willfully infringed)

Answer 70

CANNOT be protected by copyright; must be novel and can protect through K law (look at number of works infringed)