Speech intended to generate financial or commercial gain; they receive less First Amendment protection, primarily to discourage false and misleading ads.
A section of the U.S. copyright law that allows the use of copyrighted works in reporting news, conducting research, and teaching
Central Hudson Test
Determines extent of protection for commercial speech.
1. is the ad true and legal
2. is the govt interest substantial?
3. does regulation directly advance govt interest?
4. is it no more broad than necessary?
The radio spectrum simply did not have enough room for every religious political or social school of thought to have its own separate station on their. it was the duty of each broadcast licensee to make sure that a full range of viewpoints was presented.
1. devote a reasonable amount of their programming to controversial issues of public importance.
2. provide contrasting viewpoints on those issues.
Abandoned in 1987 because it discouraged rather than enhanced the coverage of controversial issues.
What is the purpose of copyright law?
Encourage creative production for the benefit of society.
Give creators economic incentive so societies will benefit.
What does copyright law protect?
Original and "Fixed in a tangible medium"
7 categories of authorship:
4. Pantomime and choreographs
5. Pictorial, graphic, sculptures
6. Motion pictures
7. Sound recordings
What works are NOT eligible for copyright protection?
2. Names, short phrases, slogans
4. Works produced by federal Gov.
5. Methods of operation
8. Principles/ discovery
9. Useful articles - clothing, furniture
10. Compilation of facts
Feist Publications, Inc. v. Rural Telephone service Co.
Facts: White pages listing in the phone directory. Not a copyrightable compilation because it was raw data and wasn't original. Too generic.
Outcome: Rural won.
Who owns Copyright?
Begins the moment a work is created.
Exception: work for hire: whoever hires you owns that material
Community for Creative Non-Violence (CCNV) v. Reid (1989)
Clarified the meaning of employment
Artist hired to create sculpture for display, no agreement on who owned copyright so the artist refused to let them have the sculpture. Court considered which party supplied the tools needed, location of work site, hiring parties right to control the work and how long the artist worked for to decide if he was employed or a freelancer. Outcome: Considered an independent contractor. The artist won copyright.
Know duration of copyright ownership
Works for hire = 95 years from 1st publication/ 120 years from year of creation (whichever comes first)
Original copyright term = 28
Copyright Act of 1976 = Life +70
Copyright term extension act of 1978: Added an extra 20 years, Life + 70 + 20.
"Mickey Mouse Protection Act" = 2023
Eldred v. Ashcroft
Said congress acted rationally and that the 20-year extension brought the US in line with the European Union.
What is the public domain?
Copyright can never again be owned' the work is available to be freely copied or published by anyone without fear of infringing on copyright.
Exclusive rights of copyright holders
2. Adapt (translation, movies)
3. Public performance
4. Public display
5. Perform digital sound recording
*All same for internet
What is copyright infringement?
When a change in medium doesn't avoid infringement. One or more copyrights violated.
What is actual damage?
Actual loss + wrongful gain
What is statutory damage?
Nonwillful infringement = $500-20,000
Willfull infringement = up to $100,000 but have awarded more
Exact copying or substantial similarity and intent is irrelevant. Even if you didn't mean to copy it, you still did.
1. Vicarious liability: didn't supervise and benefitted from the infringement.
Contributory infringement: knowingly causes or contributes to infringement.
A&M Records, Inc. v. Napster, Inc.
Facts: 18 record companies sued for contributory infringement. Users of Napster were blatantly infringing and the creators should be sued because they were aware of the illegal activity.
Outcome: Courts said that downloading for personal entertainment is not socially productive. Had a harmful effect on the music owners potential market.
Metro-Goldwyn-Meyer Studios, Inc. v. Grokster, Ltd.
Facts: Sued for their users infringement saying that they fully intended for consumers to use their software illegally.
Outcome: SC held that they could be liable for their users infringements even thought it wasn't through a central server like Napster.
*Legal precedent = one who distributes and promotes a product with the clear intent of fostering copyright infringement is liable for the acts of infringement by others.
Usually negotiated contracts that may be exclusive or nonexclusive.
The transfer of limited copyright interests in a piece by piece fashion, with the primary owner retaining the bulk of the rights.
Requires 2 separate licenses:
1. Musical composition and
2. The sound recording by a particular artist.
Three forms: Synchronization, Master Use, Performance
Use a composition in film or commercial
Use artist recording in a film or commercial
Publicly perform a composition (includes broadcasting on the radio)
Tasini v. New York Times Co.
Facts: Freelance authors and the Nexis database. Believed that they were writing for a separate publication without pay and license. The NYT decided to just pull their articles instead of pay them. Outcome: Database was not a revision of periodicals from one medium to another = was a substantially different service. Content of original print wasn't there, which made it a separate publication.
What is the fair use doctrine?
Exception to copyright owner's exclusive rights. Gives people other than the copyright owner a limited privilege to use the work without the owner's consent or without paying royalties.
Fair Use Doctrine
1. Purpose and Character of use: commercial vs. nonprofit - public benefit. Commercial = NOT fair use
2. Nature of the copyrighted work: published or not? Unpublished deserves greater protection. Fact vs. Fiction, facts like news are more likely fair use. Out of print/ not available for purchase? Yes = fair use.
3. Amount and substantiality of portion used: Quantitative and Qualitative elements. How much in relation to work as a whole. The smaller the amount, the more likely it's ok. Was it the most important element?
4. Economic effect: Impacts potential market value. Adversely effects copyright owner.
Sony Corp. of America v. Universal City Studios, Inc.
Facts: Whether home videotaping of TV shows was considered fair use. Outcome: Ruled in favor of Sony upholding the right to manufacture VCRs without copyright liability. 4 Fair use Factors:
1. Time shifting was for personal, noncommercial use
2. Shows voluntarily placed on TV to be viewed freely by general public.
3. Can see the entire amount because it allows them to see content they were invited to witness.
4. No actual harm: time shifting effects size of audience for reruns was speculation.
Harper & Row Publishers v. National Enterprises
Facts: President Ford partnered with Harper & Row to publish his memoirs. Agreement gave publisher exclusive rights to license prepublication excerpts. Time would pay to publish 7,500 words but Nation scooped the manuscript and published a 2,200-word article and Time pulled out, refusing to pay the publisher. Harper & Row won because the unauthorized excerpts used in Nation weren't fair use.
Mainly for commercial reasons even though it was news.
Campbell v. Acuff-Rose Music, Inc.
2 Live Crew Case:
Facts: 2 Live Crew did a remix of Pretty woman that took most of the song owned by Acuff-Rose without seeking their permission. While they only used a little, they had to you enough of the song for others to recognize it, and it was the most important part.
NOT liable for copyright infringement because there song was a parody and criticized the original work, which is protected.
They were also created in two different time periods for two separate audiences.
Know the safe harbor provision for ISPs under the Digital Millennium Copyright Act
Update of the Copyright Act to fulfill high tech advancements.
A distinctive mark used in commerce to identify and authenticate the goods of a particular manufacturer. Trade names and service marks perform similar functions for business names and their services.
How is trademark different from copyright?
Copyright is ONLY federal.
Trademark is state AND federal.
Copyright begins at the moment of creation. Trademark begins at the first commercial use of the product.
whether the allegedly infringing mark is similar enough to create confusion in the marketplace.
Any activity that weakens a well known/ distinctive trademark or tarnishes a reputation of a trademark even without business competition. Ex: Adults R'Us.
Improper use of a trademark becomes so common that it overshadows the original purpose of the trademark. Ex: Xerox
The use of deceptive means to unfairly gain competitive advantage in commerce, considered a tort in many jurisdictions.
International News Service v. Associated Press
AP was getting scooped, found to be unfair competition.
NBA v. Motorola, Inc.
People were sending scores of the games out 2 minutes after each play with a 2 minute delay to motorola pagers. Found not to be unfair competition because it was the passing of fact.
Usable radio spectrum is limited and cannot accommodate everyone who might wish to be a broadcaster.
Concept of public trusteeship
Those who are given licenses hold portions of the spectrum in trust for the public.
Broadcast media are ubiquitous, constantly intrusive, and omnipresent. = More powerful than print media.
"Uniquely accessible to children, even those too young to read."
Red Lion Broadcasting Co. v. FCC
upheld the Political Editorial Rule and the Personal Attack Rule = equal airtime to respond to criticism. Firmly established spectrum scarcity. Compelling government interest in the scarcity and must be responsible for a scare resource.
Miami Herald Publishing Co. v. Tornillo
Didn't have to give equal space in the paper because it's at their discretion.
Equal opportunities rule
If you give one political candidate time you have to give the opposing party the same amount of time to the same audience at the same price. For broadcast and cable. Non-political appearances still count as a "use" of broadcast time. Even Regan's film counts. Exemptions: news interviews, news documentaries and debates and spot coverage of events.
The Zapple doctrine
Provides equal opportunities for those who support candidates.
Reasonable access rule
Requires broadcasters, NOT cable, to allow reasonable access to airtime for candidates for FEDERAL office not state or local. Broadcasters can't categorically exclude access or otherwise deny reasonable request to purchase political time but does not require giving time; buy time and cheaply.
Children's TV Act of 1990: 3 hrs/week of educational programs. Commercials limited to 10.5 min/ hour on weekends and 12/hour on weekdays for those ages 12 and under. Can't air commercials for SpongeBob on the same channel that's playing SpongeBob (kids can't tell the difference between ads and shows)
Telecommunications Act of '96 required TV manufacturers to include it in their TV so parents can screen programming.
Know the level of First Amendment protection afforded to cable television and the rationale
Regulation would be upheld if it advanced an important governmental interest unrelated to the suppression of speech and if it didn't burden more speech than necessary. Treat cable operators much like the print media, with substantial 1st amendment protection. Cable doesn't intrude in people's homes, the subscriber must purchase additional channels.
Turner Broadcasting System v. FCC
The Turner I case: Facts: trying to determine validity of a statute requiring cable operators to carry the signal of local broadcast stations. Should have same 1st amend. standards applicable to noncable standards. Outcome: Analyzed under Immediate Scrutiny Test.
Turner Broadcasting System v. FCC
The Turner II case: Applied intermediate scrutiny to the must carry rule. Upheld the must carry requirement because it serves an important gov. interest of preserving free over the air TV for the public. Promotes many programming voices and fair competition in the market. Found no broader than necessary.
Three-part definition of obscenity
1. The average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest = the means that the material was intended to excite lewd, lascivious, shameful or morbid thoughts about sex.
2. The work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law.
3. The work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Miller v. California
Court concluded that the obscenity definition should accommodate varying community standards because "our nation is simply too big and too diverse".
Difference b/w obscenity and indecency
1. Obscenity: must show or describe sexual conduct, and it must do so in a patently offensive manner. Taken as a whole it lacks serious literary, artistic, political and scientific value.
limit obscenity to hard-core materials.
describes or depicts =, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, at time of day when there is a reasonable risk that children may be in the audience.
FCC v. Pacifica Foundation
George Carlin had a show on air midafternoon called "filthy words" that focused on 7 words that you couldn't say on airwaves. The station issued a warning but a man in his car tuned in too late with his young son in the car. Outcome: SC upheld the FCC order. Even though not obscene it 1. Turning off the radio isn't a solution if you've already been hit. 2. Program was uniquely accessible to children. *The time of day, audience and context of program were too important to overlook.
U.S v. Playboy Entertainment Group Inc.
Facts: Playboy claimed that section 505, which attempted to shield basic cable subscribers from sexually oriented programs, was an unconstitutional content-based restriction. Outcome: court sided with Playboy saying that they were part of a blanket restriction that can otherwise be blocked by the households that didn't want the channel. Section 505 violated the 1st amend.
Sable Communications of California Inc. v. FCC
Facts: Sexually messages via telephone services and the protection of children. Outcome: court upheld the statute only to the extent that it banned obscene messages because they don't have 1st amendment protection even for willing adults. Also stated it to be overbroad because it blocked merely indecent messages. FCC created reverse blocking = telephone subscriber has to create a written request before receiving access to the phone calls.
Communications Decency Act (CDA)
Crime to place on the Internet any sexual expression that was patently offensive or indecent, though not necessarily obscene, unless the material could be effectively shielded from minors.
Reno v. ACLU
ACLU claimed that the act was overbroad and threatens the ability of the Internet to serve as a medium of free expression, education and commerce for adults. Outcome: the Internet had no previous content regulation and users rarely found websites on accident (not invasive like radio). Used Sable case as precedent.
Children Online Protection Act (COPA)
whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the WWW, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful t minors shall be fined not more than &50,000, imprisons not more than 6 months, or both.
Ashcroft v. ACLU
ACLU said COPA was written too broadly and would have a chilling effect on protected adult speech. Outcome: SC sided with ACLU saying that filtering software allows consumers receiving the material to make their own selective decisions to block certain material.
Why was advertising traditionally viewed as not having First Amendment protection?
Because it was viewed as self-serving, one-sided and socially worthless for most of the 1900's. It contributed nothing to public discourse.
Valentine v. Chrestensen
Facts: Man purchased used Navy sub and handed out pamphlets promoting paid tours. Police said he wasn't allowed to distribute commercial leaflets on the streets due to city ordinance. Outcome: SC sided with police and city ordinance.
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council
first signal of shift towards 1st amendment protection. Facts: Court held that pure commercial speech is generally protected by the first amendment. Users claimed 1st amendment right to receive info that pharmacists wish to communicate to them through ads.
Is a communication message is commercial or noncommercial?
Commercial Speech that does no more than propose a commercial transaction.
Bolger v. Youngs Drug Products Corp
Facts: mailing info about condoms and mentioning manufacturers products. Outcome: 3 Characteristics of mailings that deem it as commercial speech. Must show proof of all 3 combined. 1. The company paid for the pamphlets 2. The pamphlets included references to a specific product 3. Company had an economic motive for mailing the pamphlets.
Kasky v. Nike Inc
Facts: media reported that Mikes overseas factories paid workers less than minimum wage, violated legal limits on overtime, exposed workers to unsafe working conditions = sweatshops. Nike issued articles and paid for ad space in papers to run refuting messages to allegations. Outcome: court held that it was commercial speech due to speaker, intended audience and content of message.
Central Hudson Test
determine constitutionality of regulation
1. Is the commercial message misleading or unlawful? Yes = banned.
2. Is there substantial government interest to restrict speech?
3. Does the restriction advance this interest?
4. Is the restriction no more extensive than reasonably necessary?
*If answer to last 3 questions is yes, then the restriction on truthful commercial speech will be upheld.
Central Hudson Gas & Electric Commission
Facts: NY ban on ads by electric utilities. Ads that promote electricity went against national policy of conserving energy. Outcome: commercial speech is accorded lesser protection that other constitutionally guaranteed expression.
i. Not inaccurate or unlawful.
ii. Substantial state interest in conserving energy.
iii. Ban advanced stated interest because of link between promotion and increased sales.
iv. Ban was more extensive than necessary - even though there was an effect on energy use = unconstitutional.
Rubin v. Coors Brewing Co
Facts: Coors wanted to provide labels and ads that disclosed alcohol content or beer. Denied in fear of causing "strength wars" among brewers. Health and welfare concerns became substantial.
Outcome: dismissed at 3rd test because disclosure of come alcohol content/ content wording such as "malt" was already in use/ required of some brewers.
44 Liquormart v. Rhode Island
Facts: could the state constitutionally prohibit the advertising of alcohol prices in public places. Ban was in place in hopes of preventing a public price war. Outcome: SC held ban invalid. The ban was overbroad and failed 4th step of Hudson test.
Greater New Orleans Broadcasting Association v. US
Facts: federal statute that prohibits broadcasters from airing any commercials for gambling.
Outcome: SC overturned states hearing that supported the ban - holding the statute unconstitutional as applied to broadcasters in states where casinos are legal. Could not meet government interest when government laws themselves are confused about gambling exceptions.
Lorillard Tobacco v. Reilly
Facts: restraints on tobacco product ads. Regulations prohibitedoutdoor ads within 1,000 feet of a playground or school. Outcome: court dismissed cigarettes because of federal statute, but examined smokeless tobacco and cigar ad restrictions.
ii. Substantial state interest in preventing tobacco sales to minors
iv. No. Too broad. Regulation would prevent outdoor ads from appearing in 87-91% of Massachusetts.
Functions of FTC
Predominant force against deceptive ads. It may concern itself with any activity intended to draw public attention to a product, service, person or organization for purposes of trade -location is irrelevant.
Representation or Omission
1. Implied representations
2. Express claims
3. Content or visual messages
4. Omission of important details about product/service
Material representation: likely to influence a consumer's choice of a product or service.
Halts the illegal advertising. May also issue:
1. an injunction
2. Corrective Ads
3. Court Injunctions
4. Civil and Criminal penalties with fines up to $10,000
When is advertising considered deceptive?
1. When it is likely to mislead consumers acting reasonably under the circumstances
2. Is "material", meaning important to a consumer's decision to buy or use the product.
What is the FTC definition of deceptive advertising?
Any deceptive business conduct as "a material representation, omission or practice that is likely to mislead a consumer acting reasonably under the circumstances."
What are examples of advertising that were found deceptive?
1. Lady Kenmore "no scraping, no pre-rinsing" campaign
2. David Erickson the "trichologist" who could cure baldness
What is the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act?
Prohibits spammers from sending misleading information or using deceptive subject headers, requires them to include a functional return address in the emails and prohibits them from sending additional emails to any recipient who has indicated he or she doesn't want further messages from the spanner.
Can the media be liable for running a deceptive ad?
No. Under general legal principles of civil and criminal liability, media is usually removed from chain of liability. Most media are not in the position to check every ad given to them for accuracy. CA says, "liability does not apply when medium broadcast or publishes an ad in good faith, without knowledge of its false, deceptive or misleading character."
red lion broadcasting vs. fcc
1969 the US Supreme Court upheld the FCC's determination that a radio station was required to provide a liberal author with an opportunity to respond to a conservative commentator's attack that the station had aired.
part of the 1934 Communications Act; it mandates that during elections, broadcast stations must provide equal opportunities and response time for qualified political candidates
broadcasters must provide reasonable access to federal candidates
cbs vs fcc
312 is constitutional
becker vs. fcc and farmers vs. wday
court has not found liability