Media Law Final Flashcards
1
Q
What CAN be copyrighted
A
Literary works (including computer programs) musical works dramatic works pantomimes and choreographic works pictorial, graphic, and sculptural works Audio-Visual works Sound recordings architectural works
2
Q
For copyright, works MUST be
A
original
fixed in a tangible meaning of expression
moderately creative
3
Q
What CAN’T be copyrighted?
A
Facts and ideas Procedures, processes, systems, etc. Scenes á faire Titles and names Typefaces United States Government Documents Works in Public Domain
4
Q
Who qualifies for copyright?
A
Original Authors
Works for Hire
5
Q
Who has the copyright for works for hire?
A
The employer: if the created work was created within the boundaries of what the employee was hired to do
6
Q
What are the Six Exclusive Rights?
A
Reproduction of the works Subsequent works Performance of the works Distribution of the works Display of the work Digital transmission of the work
7
Q
What is the First Sale Doctrine?
A
Entitles the lawful owner of a copyrighted work to sell, transfer, or dispose of the work without infringement
8
Q
Sally finishes writing a script, when is it copyrighted?
A
The ownership of a copyright automatically vests in the author when it is created
9
Q
how long is a Single Author Copyright?
A
The life of the author+70 years after death
10
Q
How long is a Multiple Authors Copyright?
A
The life of the last surviving author+70 years after death
11
Q
How long is a Work for hire, pseudonymous, anonymous copyright?
A
95 years after the date of publications or 120 years after creation, whichever comes first
12
Q
What is the Length of a copyright?
A
If created before 1978, generally speaking 28 years with the option to renew for a second 28 years (and sometimes more depending on when the work was created)
13
Q
If a copyright is infringed upon, what must the plaintiff prove?
A
Ownership at the time of infringement
Violations of one or more exclusive rights by substantial similarity by copy
14
Q
What is “Strict Liability” offense?
A
It doesn’t matter if the defendant intended to infringe on the copyright or not
15
Q
What are the ways a defendant can be liable for copyright infringement?
A
Direct Liability
contributory liability
vicarious liability
16
Q
You directly infringe on a copyright
A
Direct Liability
17
Q
You give tools that help someone else infringe on a copyright
A
Contributory Liability
18
Q
Holds an employer (or supervisor) liable when an employee infringes on a copyright
A
Vicarious Liability
19
Q
The unauthorized sharing of copyrighted media files
A
File sharing
20
Q
Provided a central site for sharing copyrighted files was contributory and vicarious infringement
A
A&M Records v. Napster Inc.
21
Q
Provided technology that could allow copyright infringement was not necessarily infringement itself if the technology was capable of substantial non-infringing uses
A
Sony Corp. of America v. Universal City Studios
22
Q
If the software’s primary use is for infringement and there is evidence of an affirmative intent to infringe, then it is infringement.
A
MGM Studios v. Grokster
23
Q
Makes it illegal to circumvent digital rights management technology directly or to import, offer to the public, provide, or otherwise traffic in any technology, product or service that can circumvent technological measures used to control access to copyrighted works.
A
Digital Millennium Copyright Act
24
Q
What is the Exemption for internet service providers?
A
Transitory digital network communications
System Caching
Information residing on systems
Information location tools
25
Do the exemptions under the DMCA—its ‘safe harbor’—shield YouTube from liability?
Viacom v. Youtube
26
How long does a copyright holder have after infringement to file a lawsuit? To whom does the lawsuit go to? What else can happen?
A copyright holder has 3 years after infringement to file a civil lawsuit in FEDERAL court and is given an opportunity to obtain a temporary restraining order and injunction to stop ongoing infringement.
27
What are the Civil Remedies?
Actual damages, along with any of infringer’s profits from illegal use
28
how much are the Statutory damages?
they range from $750 to $30,000 per infringing act, and for willful infringement, up to $150,000 per infringing act
29
What is under Fair Use?
Criticism
Comment
News reporting
Teaching, scholarship, and research
30
3 students plan to order 1 textbook and make 2 more copies to save money. is that fair use?
Even though it is for teaching, scholarship, and research, no it is not in Fair Use
31
What is the Four Prong Analysis?
The purpose of the character of the infringing use
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work
The effect of the use upon the potential market for or the value of the copyrighted work
32
If it is a matter of PUBLIC CONCERN, is it fair use to infringe?
No that is NOT enough
33
Are Parodies fair use?
Parodies are typically fair use BUT you should go through the four-prong analysis before creating the parody
In order for the parody to enjoy fair use, the copyrighted work must be the “target” of the satire, rather than being just an imitation of the work.
34
Is Hyperlinking copyright infringement?
No (it is fair use)
35
Are social medias (Twitter and Facebook) fair use?
it depends. If you are reposting a post from another account with the “retweet” option or “share” option, it is considered fair use, if you save the post and post it as your own, it is considered copyright infringement
36
What happened in Agence France Presse v Morel
Agence frace presse posted a copyrighted picture of Morel on twitter, Morel went to sue, not dropping the case, the courts pointed out that the licenes agreement was for twitter not its users, as a general guideline it is better to link an interesting article or photo than to copy and repost it
37
Using a portion of a sound recording, video, or photograph in a separate work
Sampling
38
do you need to use the four-prong analysis for sampling?
Yes.
39
How many licenses do you need for music?
2. one for the sound recording, one for the composition
40
When is a license not required?
an average listener would not notice the similarities between your end product and the sample
your use of the sample falls under “fair use”
41
What are the two aspects of the copyright of a recorded song?
The sound recording
| The musical work
42
Free licenses for certain uses of creative material that the authors have willingly allowed
Creative Commons
43
Does creative commons apply to the right to privacy?
No, ONLY copyright
44
What do Patents Protect?
Inventions
Processes
Devices
Methods
45
What are the three types of patents and what are examples of each?
Utility Patent: inventions or discoveries of any new and useful process, the machine, article of manufacture, or composition of matter (iPhone or Kindle)
Design Patent: new and useful processes, machines, and articles (Movado Watch)
Plant Patent: the asexual reproduction of new kinds of plants (seedless watermelon)
46
When two people discover the same thing, who gets the patent?
The first one to file the patent
47
Can you renew or refile a patent on a widget?
Nope
48
What can't be patented?
Laws of Nature, natural phenomena and abstract ideas
49
What are the requirements to register a patent
Novel
NOT described anywhere in print before the date of the invention or within one year before the application date
IS IT ORIGINAL
Useful
MUST serve a purpose
Not Obvious
Must display some ingenuity, and NOT be just some common sense solution
50
What will cause infringement?
Whoever without authority makes, uses, offers to sell, or sells any patented invention, within the U.S., or imports into the U.S. any patented invention during the term of the patent
Whoever actively induces infringement
51
any distinct group of words or word or symbol that distinguishes a particular good from similar goods in the marketplace.
Trademark
52
When is a trademark used?
When there is a genuine intent to sell a product via interstate commerce and whoever applies to register that mark
53
What are the types of trademarks?
```
Trademarks (Goods sold)
Service marks (businesses)
Collective marks (Memberships)
Certification marks (origin, quality, accuracy)
```
54
List off the distinctiveness in trademarks from least distinctive to most distinctive
```
Fanciful
Arbitrary
Suggestive
Descriptive
Generic
```
55
What words can't trademarks be?
That are immoral, deceptive and scandalous
| That disparage or falsely suggest a connection with persons living or dead, institutions, beliefs, or national symbols.
56
protects a product’s overall appearance such as packaging, color, size, and shape
Trade dress
57
Where do you register Patents and trademarks?
The Patents and Trademarks Office (PTO)
58
How long do trademarks last? can they be renewed?
Trademarks last 10 years and can be renewed on the 5 year
59
What does the plaintiff have to prove for trademark infringement?
They possess a valid mark
The defendant used that mark
The defendant’s use was in the context of commerce
The defendant’s use was in connection with the sale or advertising of goods/services
The use was in a manner to confuse customers
60
to show a likelihood of confusion, courts consider:
The strength of the plaintiff’s mark
The similarity between the plaintiff’s mark and the allegedly infringing mark
The similarity between the products and services offered by the plaintiff and defendant
The similarity of sales methods
The similarity of advertising methods
The defendant’s intent
Evidence of actual confusion
61
The lessening of the capacity of a famous mark to identify and distinguish goods or services
Trademark Dilution
62
Advertising based on words used in an Internet search
Contextual Advertising (Keyword Advertising)
63
Registration of domain names with the intent of selling them at a profit, without actually using them
Cybersquatting
64
what are the damages to cybersquatting
$1000 — $100,000
65
A confidential formula, pattern, compilation, program, device, method, technique, or process that offers its owner an economic advantage over competitors who do not know it.
Trade Secrets
66
How do you keep trade secrets safe?
Don't tell anyone
67
What happened in New York Times v. Sullivan
A Montgomery, Alabama police commissioner alleged that a political ad in the New York times had libeled him. The ad was from a group of African Americans during the civil rights movement that told of police action against students at Alabama State as well as against MLK, the plaintiff was not mentioned, but he claimed it referred to him because he supervised the police department.
There were inaccuracies (police ringing the campus as well as how many times King was arrested) Supreme Court established a framework for libel when it observed errors in reports as well as made liabilities more strict for those of public figures as well as put advertising under the umbrella of the first amendment.
68
must prove knowledge or “Negligence” that the defendant had knowledge of the falsity of the statement or should have known in the exercise of reasonable care that the statement was false
Private figures
69
It required public officials who sue for libel to prove that the offensive statement is false and that the defendant made it with ACTUAL MALICE
Public figures
70
knowledge of the falsity of the statement or a reckless disregard for whether it is true or not
Actual Malice
71
A civil tort handled under state law that involves harm to someone’s reputation
Defamation
72
Spoken Defamation
Slander
73
Printed defamation
Libel
74
Sally is walking across the street to get to JPCatholic for class. As she is crossing the street, she is hit by a car and dies at the impact. At the same time, John says that Sally is a shit-eating monster that kills puppies. About a week later, Sally’s mother tries to sue for defamation in Sally’s place. Is it defamation?
No, because reputation is not a property right to be passed down. Instead, it dies with the person.
75
Protects an entire market for particular products that may be harmed by false allegations.
Trade Libel
76
does it have to be clear that the defamatory statement caused the harm
Yes
77
Baseless lawsuits are used to silence critics by intimidation
Slapp suits
78
What does SLAPP mean
Strategic Lawsuit Against Public Participation
79
What are the elements of Defamation?
```
Publication
identification of the person
defamatory statement that injures the plaintiff's reputation
fault
damages
```
80
A statement by its very content injures a person’s reputation
Libel Per Se
81
By itself, it doesn't damage a reputation, but the extra information around the statement causes injury to a person’s reputation
Libel Per Quod
82
What are the defenses to defamation?
```
Truth
Opinion
Fair comment & criticism
Rhetorical hyperbole
Privilege
```
83
An apology or retraction is not enough to cancel out Defamation, but it may mitigate, or lessen, the number of damages
Mitigation of Damages
84
In the U.S., plaintiffs can sue for defamation only once and in only one jurisdiction
Single Publication Rule
85
Depending on the jurisdiction, a plaintiff may file a defamation suit from one to three years after the defamatory statement was made.
Statutes of Limitations
86
The question is whether the hypothetical ‘reasonable reader’ could be misled to think the satire/parody was stating actual facts. (In other words, if a reasonable person thinks it is fact, it is considered defamation)
Satire/Parody
87
the right to be left alone and the right to control access and use of information about oneself
Right of privacy
88
protects people from the emotional distress caused by an unexpected intrusion into their private affairs or loss of control over their personal information.
Privacy laws
89
What do privacy laws apply to?
LIVING people (with exceptions (right to publicity))
90
what is the common law right to privacy
intrusion
public disclosure
commercial appropriation
false light
91
What are the defenses for invasion of privacy?
News worthiness
Public documents
consent (is for ALL)
92
Applies to the online collection of personal information of children under 13 years of age.
Children’s Online Privacy Protection Act (COPPA
93
States where it is legal to record without all parties in the conversation consenting. Only one party (including the one recording) needs to consent in order for it to be legal
One-party consent states
94
States in which it is illegal to record without the consent of ALL PARTIES
All-party consent states or two-party consent states
95
Are hidden cameras violating privacy
only if they are in places with reasonable expectations of privacy
96
Businesses commonly use hidden cameras – without audio – to guard against theft... when is it unlawful?
When it is in areas where there is a legitimate expectation of privacy
97
Employers may monitor their employee's work, including email, that occurs within the scope of his/her service. There is no reasonable expectation of privacy on work computers, especially when a search is done for legitimate work-related purposes.
Workplace Privacy
98
Gathering information on the internet via cookies is not a privacy violation, nor is the sale of that information. Though websites still ask for consent with using cookies.
Marketplace Privacy
