Final Review

Question 1

DMCA Notice Requirements
S.C.C.C.G.F.A.

Answer 1

Signature
Copyrighted Work
Copy of Copyrighted Work
Contact Information
Good Faith Belief Work Was Infringed
Accurate Under Penalty of Perjury

Question 2

Cease & Desist Elements
R.C.T.C.R.

Answer 2

Rights Violated
(Demand o/b/o) Client
Time Frame for Response
(No) Criminal Action Threatened
Reserve Rights

Question 3

Cal. Civil Code §2855
(“Seven Year Rule”)

Answer 3

A contract rendering a personal service may not be enforced against the employee beyond seven years from the commencement of service.
Applies to adults & children.

Question 4

Coogan Act

Answer 4

California law for court approved minor contracts for “artistic or creative services”. There is an added requirement for 15% of money set aside pursuant to the contract.

Question 5

§107 Fair Use

Answer 5

Allows use and reproduction of work without author’s consent under certain circumstances.
The fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Question 6

Fair Use Factors

Answer 6

(a) Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(b) The nature of the copyrighted work;
(c) The amount of substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) The effect of the use upon the potential market for or value of the copyrighted work.

Question 7

Copyright protection is afford to:

Answer 7

original works of authorship fixed in any tangible medium of expression
Works of Authorship include the following categories:
(1) Literary works;
(2) Musical works, including any accompanying words;
(3) Dramatic works, including any accompanying music;
(4) Pantomimes and choreographic works;
(5) Pictorial, Graphic, and Sculptural works;
(6) Motion Pictures and other audiovisual works;
(7) Sound recordings; and
(8) Architectural works.

Question 8

Transformative Use Test

Answer 8

Created by Three Stooges case. If work has significant transformative elements, it is especially worthy of a First Amendment protection. Court looks at:
(a) Raw materials
(b) Primarily Defendant’s own expression
(c) Is it imitative or creative
a. Avoid artistic judgments by fact finder
(d) Is value of challenged work derived primarily from the celebrity
(e) Is artistic skill subordinated to celebrity likeness in order to commercially exploit celebrity fame

Question 9

Right of Publicity recovery elements

Answer 9

A plaintiff may recover by proving that
(1) the defendant used the plaintiff’s identity,
(2) the appropriation inured to the defendant’s advantage,
(3) the plaintiff did not consent, and
(4) the plaintiff suffered injury as a result.

Question 10

Trademark Infringement
(Likelihood of Confusion Test)

Answer 10

Multifactor test varies, but usually analyzes:
(a) Similarity of marks
(b) Strength of senior mark
(c) Relatedness of goods/services
(d) Similarity between distribution channels
(e) Types of goods/services and sophistication of purchasers
(f) Evidence of actual confusion
(g) Bad faith/intentional copying
(h) Likelihood of expansion into other products

Question 11

Rogers Test

Answer 11

Concerns titles using trademarked names.
Balances First Amendment concerns in context of titles of artistic work using trademarked names.
A title will be protected unless it has no artistic relevance to the underlying work; if there is artistic relevance, protected unless it explicitly misleads as to the source or the content of the work.

Question 12

Lanham Act - §41(a)

Answer 12

Grants a statutory remedy for false designation of origin and likelihood of confusion or any false description of representation in connection with any goods or services.
Should be construed to apply to artistic works only where public interest in avoiding confusion outweighs the public interest in free expression. Lanham Act also addresses use of a celebrity’s name.
Protects consumer against deception.

Question 13

Parody

Answer 13

Parody is a work which mimics to invoke humor. It relies upon exaggeration to deride its target, with the primary aim to amuse to either comment or criticize it. In doing so, a new work is created.
Fair use defense exists for parody.

Question 14

Satire

Answer 14

Satire uses humor to convey an underlying critical message, not the specific work. Satire has first amendment protection.

Question 15

Libel Proof

Answer 15

A person’s reputation is so bad that it cannot be damaged

Question 16

Actual Malice

Answer 16

Knowledge the statement was false or reckless disregard of whether or not the statement was false
Ask: Did the author entertain significant doubt as to the truth of the assertion?

Question 17

Involuntary Public Figure

Answer 17

Think: Life Magazine Hostage Case
A person can become an “involuntary public figure” as the result of publicity, even though that person did not want or invite the public attention.
Actual Malice Standard for right of privacy/defamation

Question 18

Limited Public Figure

Answer 18

A person can also become a “limited public figure” by engaging in actions which generate publicity within a narrow area of interest.

Question 19

Defamation Elements

Answer 19

(1) Statement made about Plaintiff
(2) Statement published to a 3rd party
(3) Statement is false
(4) Statement harmed Plaintiff by lowering standard in community

Question 20

Miller Test (Censorship)

Answer 20

(1) Whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to prurient interest;
(2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Question 21

Cal. Civil Code §3423 (“$9,000 Rule”)

Answer 21

$9K minimum compensation in the first year of contract service

Question 22

Injunctive Relief Requirements
(Personal Services)

Answer 22

1. Irreparable harm + likelihood of success at trial
2. Exclusive personal services which are unique & special. Damages are insufficient remedy for loss.

Factors to consider: uniqueness, irreparable injury, undue restraint, investment in talent, competitive impact, statutory requirements

Question 23

Moral Rights

Answer 23

The right of an author to prevent revision, alteration, or distortion of her work, regardless of who owns the work.

Question 24

2 Types of Copyrights for Songs

Answer 24

1. Musical Composition (sheet music and lyrics)
2. Sound Recording (actual recording of song)

Question 25

§512 Safe Harbor

Answer 25

Protects service providers from liability as long as they follow DMCA requirements.
Relevant for this class: Safe harbor on information residing on systems or networks at the direction of users

Question 26

Trademark Purposes

Answer 26

1. Helps avoid consumer confusion about source and quality of goods
2. Helps producers prevent others from profiting from their own reputation and quality through misappropriation or misidentification of goods

Question 27

Trademark

Answer 27

Any word, name, symbol, or device used by a person/entity to identify and distinguish their goods from those manufactured or sold by others and to indicate the source of the goods, even if unknown