Media Law & Ethics Exam 2

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Descriptive Ethics

"is"

Social Science; describing how people behave and what moral standards they follow

Normative Ethics

"ought"

Philosophy; about moral standards. What people SHOULD do. 2 areas - moral common sense and critical thinking

Moral Common Sense

Avoid harming others
Respect others' rights
Don't lie or cheat (Be honest)
Keep promises and contracts (Be faithful)
Obey the law
Prevent harm to others
Help those in need (Be compassionate)
Be fair (Be just)
Reinforce the above in others

Methods of Critical Thinking

Aristotle—virtue as habit
Mill—utilitarianism (greatest good for the greatest number); outcomes
Kant—categorical imperative (action as universal law); duties; intentions
King—protection of rights
Rawls—veil of ignorance
Bible, Other Religious Texts—Golden Rule

Methods of Ethical Analysis

*Non-outcome based approaches

Virtue-Based
- Prudence
- Justice
- Temperance
- Courage
Duty-Based
- Duties of fidelity in relationships
- Duties of loyalty to community

Outcome Based Approaches

Interest-Based
- Self-Interest
- Group interest
- Greatest good of greatest number
Rights-Based
- Rights as Fair Distribution
- Rights as Basic Liberties

5 Elements of Case Analysis

1. Describe the key facts of the situation

2. Discern the most significant ethical issue at stake

3. Display the main options available to the decision maker

4. Decide among the options and offer a plan of action

5. Defend your decision and your moral framework

Characteristics of Professions

-Body of knowledge conveyed through a formal educational program
-Code of conduct based on widely accepted professional values and taught as part of formal education
-Governing body overseeing compliance to code
-Licensing process with a comprehensive exam
-Clinical training
-Ongoing continuing education

NATIONAL ADVERTISING REVIEW COUNCIL'S MISSION

-Minimizing governmental involvement in advertising
-Maintaining a level playing field for settling disputes among competitive advertisers
-Fostering brand loyalty by increasing public trust in the credibility of advertising

National Advertising Division (NAD)

-Only accepts challenges to national advertising
-Challenged ads from any media
-Broad definition of "advertising"
-Requires substantiation from advertisers (like FTC)
-Consumer surveys not required (like FTC)
-Bars participants from touting victories in ads or p.r.
-The defendant has to prove (similar to FTC)
-No consumer surveys required (similar to FTC)

NAD Process

-NAD accepts challenge from competitor
-Forwards challenge to advertiser
-Advertiser responds
-NAD reviews responses from both sides
-Makes decision
-Advertiser can appeal decision to NARB

NARB Process

NAD as complainant; advertiser as defendant

Five-member panel holds hearing, applies legal deceptiveness standards, makes a decision

NARB outcomes:
Advertising substantiated
Advertising modified or discontinued
Advertising referred to government agency

NARB Sanctions

FTC notification
Media notification
Expulsion from BBB

95% compliance rate

Self-regulation benefits

-Faster, cheaper, more efficient than government
-Relieves government of case load
-Often more stringent than law
-Produces guidelines that help interpret law
-Can deal with issues of that law has trouble dealing with (e.g., taste and decency)

Shortcomings of Self-regulation

-Lack of enforcement
-Can be self serving - device to avoid government standards
-Usually insufficiently financed, publicized, and promoted
-Can run afoul of antitrust or other laws that forbid compulsory membership or preclude extreme penalties

Initiators of Advertising Challenges

-Self-Regulation: NAD, Media, Internal Review
-Private Litigation: Lanham Act, Consumer Protection Laws, Common Law Fraud, Breach of Contract
-Gov't Regulation: FTC, State Attorneys General, Postal Service, Industry Specific Agencies (e.g., FDA)

US Constitution Copyright Clause

The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Article 1, Section 8, Clause 8
U.S. Constitution

Copyright Owners Control

-Reproduction
-Public performance
-Derivative works
Based on original work but transform, translate, or otherwise rework original's creative expression (e.g., novel to movie)

Plaintiff Must Prove

-Ownership of copyright of a particular work
-Defendant's copying of a substantial, legally protectable portion of the work

What counts as creative?

-Copyright protects original "selection, coordination, and arrangement" of elements
-Copy may be "substantially similar" even if non-identical
-Underlying premises: degree of creativity that warrants copyright is described as "extremely low; even a slight amount will suffice"; copy does not need to be exact

What Can't be Copyrighted

-Underlying idea
-Facts
-Utilitarian objects.
-Systems
-Methods of Operation

What Can be Copyrighted

Books
Movies
Music
Choreography
Architectural works
Photographs
Software
Characters
Labels (if more than type)
Posters

Metro-Golden-Mayer, Inc. v. American Honda Motor Co

Alleged similarities:
"Spy Who Loved Me'—white sports car, beautiful woman, helicopter chase, similar dialog
"Dr. No"—villain with metal hands
"Goldfinger"—roof that detaches
"Moonraker"—villain with metallic teeth and goggles jumps from airplane

Fair Use Factors

-*Purpose and character of use, including whether use is of a commercial nature or is for nonprofit educational purposes
-Nature of copyright work
-Amount and substantiality of the portion used in relation to the copyrighted work as a whole
-*Effect of the use upon the potential market for or value of the copyrighted work

Eveready battery v. Adolph Coors

Supreme Court has determined that parodies are "transformative" in that they "add something new, with further purpose or different character, altering the first with new expression, meaning, or message"

Defenses to copyright infringement

-Fair use
-Comparative advertising
-Parody

Trademark Law

Has no express Constitutional authorization

Congress' right to enact trademark legislation comes from the Commerce Clause:
"The Congress shall have the Power . . .To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes . . .To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. . .

Trademark rights

Lanham Act (1946)

Right to trademark from "use in commerce"

"use in commerce" means the bona fide use of a mark in the ordinary course of trade, and not merely to reserve a right in a mark. . . a mark shall be deemed to be in use in commerce—
(1) it is displayed in any manner on the goods or their containers or the displays . . .or on the tags or labels. . .or on documents associated with the goods
(2) on services when it is used or displayed in the sale or advertising of services.

Why Trademark Law is confusing

Attempts to govern cognitive associations in consumers' heads and it rarely incorporates scientific evidence

It lacks consensus about a single theoretical justification

Protects consumers from imposter brands

Rewards producers for investment in quality

Trademark Protections

Trademarks*
Brand names
Logos
Colors
Sounds (NBC "chimes")
Slogans

Trade Dress*
Unique product packaging
Product features and attributes

PREMISE UNDERLYING TRADEMARK PROTECTION

STRONGER THE TRADEMARK, GREATER THE LEGAL PROTECTION


What makes a trademark strong?
-distinctiveness

Hierarchy of trademark distinctiveness

1. Fanciful trademarks—newly coined terms (e.g., Oreo, Kodak)
2. Arbitrary trademarks—dictionary terms given novel meaning (e.g., Apple, Inc.)
3. Suggestive trademarks—dictionary meaning suggests something about the product (e.g., Greyhound Bus)

*1, 2, and 3 are "inherently distinctive trademarks"—eligible for immediate trademark registration

4. Descriptive trademarks—dictionary words being used in a way that describes the trademark (Dress Barn, Smith's Dresses, Austin Dresses, Toys 'R' Us)

*Can be registered ONLY after they have received "secondary meaning" (i.e., consumers believe the descriptive term refers to only one producer)
ADVERTISING PLAYS A KEY ROLE

5. Generic terms—words used for their dictionary meaning (e.g., "apple" used to describe the fruit)

*Can never be trademarked

Slogans as Trademarks

Must stand out from advertising copy

Must identify the product source rather than describe its properties

Must have proven secondary meaning

Tips for Trademarked Slogans

Use unusual wording (e.g., "Baby Dry" for diapers)

Adopt unusual context for descriptive words ("We Smile More" for Marriott)

Avoid laudatory praises (e.g., "Number One in Floor Care," "America's Freshest Ice Cream")

Trademark Infringement Criteria

1. Plaintiff has a valid and protectable trademark
2. Plaintiff has priority over the defendant
3. Defendant used the trademark in commerce
4. The defendant's usage creates a likelihood of consumer confusion about the product's source, sponsorship, or affiliation.


Protectable trademark doesn't have to be registered, but needs a descriptive secondary meaning; or a higher term (secondary meaning, etc. - one of the first three)

Priority = been using it longer

#4 is the most important.

Likelihood of confusion test

1. Strength of the plaintiff's mark (e.g., distinctiveness, secondary meaning)
2. Degree of similarity between the two marks
3. Proximity of the products or services
4. Likelihood that prior owner will "bridge the gap" into the newcomer's product or service line
5. Evidence of actual consumer confusion between the marks
6. Whether the defendant adopted the mark in good faith
7. Quality of the defendant's products or services
8.Sophistication of the parties' consumers

Descriptive Fair Use

A term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party."

Applicable only to descriptive trademarks

Not applicable to fanciful, arbitrary, or suggestive trademarks

Nominative Fair Use

Facilitates comparative advertising

Successful defense requirements:
-Plaintiff product is not readily identifiable without using trademark
-Defendant uses plaintiff's trademark only as reasonably necessary to identify the plaintiff's product.
-Defendant's usage does not imply the plaintiff's sponsorship or endorsement

Perspective of the Deceived

Bok

-Deceit makes them (the deceived) unable to make choices for themselves using the best information.
-Deception gives power to the wrongdoer.
-The deceived have no way to determine which lies are trivial.
-The deceived have no confidence that liars will restrict themselves to trivial lies.
-Lying so often accompanies every other form of wrongdoing.

Perspective of the Liar

Bok

-Liars have confidence in their own ability to distinguish good reasons for lying from bad ones.
-Liars desire "free rider" status.
-Liars see most of their lies as white lies.
-When liars weigh the immediate harm for others against the benefits that the want to achieve, they
-Underestimate harm to themselves
- Underestimate harm to the general level of trust and social cooperation
-Liars rarely calculate the risks of being caught.

Types of Excuses

1. What is seen as a lie is not really a problem (e.g., a joke, an exaggeration, impossible to give objective distinctions between truth and falsehood—puffery).
2. The liar is not blameworthy because he is not responsible (e.g., incompetent, drunk, talking in sleep).
3. Moral reasons to lie—reasons that show that the lie ought to be allowed.

Common Moral Reasons to Lie

1. Avoiding harm
2. Producing benefits
3. Fairness
4. Veracity (truthfulness)


VERACITY IS INDISPESABLE TO THE PROPER FUNCTIONING OF THE FIRST THREE.

Justifying Lies Through Publicity

-Publicity -Can the lie be defended in public?
-Audience—Which lies would survive the appeal for justification to reasonable persons?
-Conscience—Is one's conscience sufficient to represent "reasonable persons"?
-Friends, colleagues, counselors—Are they sufficient to represent reasonable persons?
-Persons of all allegiances—Are they sufficient to represent reasonable persons?

Publicity rights from privacy torts

. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

Legal Implementation

28 states have publicity rights statutes

Some explicitly provide publicity rights beyond the person's death

In other states, publicity rights provided by common law

California and New York play important roles

Texas Law

3 Elements:
1. Defendant appropriated plaintiff's name or likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose
2.Plaintiff can be identified from the publication
3. There was some advantage or benefit to the defendant

Cohen v. Herbal Concepts

Someone took a candid shot of a woman and a naked boy in a stream.
The husband sees this picture and sues.
They're not famous.
They can't be recognized.
How can they sue?

Point: Publicity rights don't just belong to celebrities! They belong to regular people too.

The photographer lost.

Even though you can't see their faces, the court still felt that they were identifiable.

Motschenbacher v. R.J. Reynolds Tobacco Co

This is a characteristic car.
That's his number. This's his oval.
Tobacco company is trying to play off this symbolic car.

He wins because it is an association.
Something can be so closely associated with you that you can be protected from other people using it to make money.

Publicity Rights

1. Generally protect the use of people's names, images, voices, or other personality attributes from commercialization without consent
2. Protects celebrities and noncelebrities
3. Includes "look alikes" and "sound alikes"
4. Can include associations
5. Can extend after death

Defenses (Publicity)

Freedom of speech
Fair use
Transformative (parody)

Other Legal Protection for Celebrities

Trademark law
If public identifies celebrity with a business enterprise

Unfair competition
False descriptions, false statements, false representations

Copyright
If celebrity owns copyright to works or photos

Celebrity Endorsements Must:

Reflect the endorser's honest opinion
Make claims the advertisers can substantiate
Reveal biasing connections (e.g., financial interests)
Continued use of the product by endorser

Expert Endorsements Must:

Refer to product qualities within the endorser's expertise
Be based on product characteristics that are available to typical consumers
Be based on use of the expert's knowledge
Accurately portray the expert's opinion

Testimonials

Portray opinion of consumers
Must be based on "typical" consumer experience
Must use actual consumers rather than actors
Must disclose if actors are used

Bait & Switch Advertising

Advertising an unusually low price, often on a brand that will draw consumers to the store, combined with personal selling tactics that discourage the purchase of the advertised item and encourage the purchase of a higher priced item.

Moral Myopia

Moral Myopia is nearsightedness. You don't see the ethical issues clearly. There are several levels of myopia: Individual (lying), Organization (do work with tobacco company?), and Society (use ultra-thin models?)

Moral Muteness

Keeping silent in moral situations

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