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COM440 Mass Media Law Final
Terms in this set (76)
what is Appropriation?
the use of a person's name or likeness without consent for advertising or trade purposes
What is intrusion?
It is illegal to intrude physically or otherwise upon the solitude, seclusion, or private affairs or an individual within reason
-paparazzi are ******** who often break this law
What is False Light?
Prevents publications from publishing highly offensive information in an inaccurate light
* is what is published a matter of public concern
What are the four main points of Fair Use?
1.) Purpose and Character of Use
2.) Nature of the Copyrighted work
3.) Portion of Percentage of work used
4.) Effect on Market
What is the Booth rule?
The use of someones likeness/name for a magazine or newspaper if the photo or name has been or will be a part of the mediums news content( think of magazines like vogue and how they sell magazines by having interesting people on the front) ( time magazine's person of the year)
* Cardinal rule: use with caution and don't use material without consent
What are Washington's rule on recording devices and hidden devices?
Washington is a two party consent state
- you cannot record a conversation without the knowledge of all parties involved
What occurred in the court case Bartnicki vs. Vopper?
A radio station broadcasted a phone recording of two officials of a teachers union threatening school board members. *the case helped determine that the press can freely publish something if: 1.) what they are publishing it true 2.) matters of public significance 3.)it is gathered lawfully from someone even if they got it unlawfully 4.) Unless the gov can demonstrate a high interest in publishing matters of public importance
Why is fictionalization danger for media organizations?
when there is significant dramatization you take something from the realm of fact to fiction
- potential false light
What occurred in court case Comedy III vs. Gary Saderup Inc. (three stooges)?
Gary Saderup created charcoal drawing of the three stooges and printed t-shirts that also contained the drawing and was sued by Comedy III Inc. *Highlights the issue of Transformative use
What occurred in court case Time vs Hill?
The Hill family was help captive in their home and suffered severe emotional and physical damages. Their story was then used as a book and movie. The family protested and argued it was an invasion of privacy and false light
- established newspaper has access to info that would portray the right picture, which held Time responsible
- misrepresentation, fault and access were argued
What occurred in court case Bollea vs. Gawker?
-This is an issue of infringement
1.) purpose of use
2.) nature of copyrighted work( published vs not published, 50 shades of grey vs Harry Potter)
3.) amount of work used
4.) effect on market
How do journalist gather documents?
FOIA: freedom of information act
What is FOIA?
the Freedom Of Information Act
* allows anyone to have access to public records
What are exemptions to FOIA?
1.) national security matters
2.) housekeeping materials
3.) material exempted by statute
4.) trade secrets ( Pepsi's soda recipe)
5.) working papers/lawyer-client privileged materials
6.) personal privacy files
7.) law enforcement records
8.) financial institutions materials
9.) Geological data
How do you make FOIA requests and what can you request?
You can easily make requests by sending in an official form to the correct agency requesting specific enough data
Do you have a right to interview a public official?
No, you have the right to be apart of press releases but a politician has the right to refuse a one on one interview
What is FERPA?
Family Educational Rights and Privacy Act
- a federal law designed to safeguard the privacy of students "education records"
What is HIPAA?
Health Insurance Portability and Accountability Act
- protects patient records, status and insurance
What are open meeting laws?
Meetings held between two or more individuals appointed by the president MUST be open to the public
What occurred in the court case Baltimore sun vs. Ehrlich?
-Gov. Robert Ehrlich denied two Baltimore Sun reporters access to a one on one interview
-the paper claimed the no-access directive was un retaliation for negative coverage and commentary by two reporters at the sun
-HOWEVER: Governor Ehrlich did NOT violate the 1st amendment when denying them access with the court stating " a reporter endures only minimal inconvenience when a government official denies the reporter access to discretionary information or refuses to answer questions"
When can the government take your reporting notes or telephone records?
The government can search through your notes in a third- party search when looking for evidence relating to another crime even though there is no reason to suspect the owner or occupant of that property
What must someone prove to be able to argue that promissory estoppel was broken?
1.) that the defendant made a clear and definite promise to the plaintiff
2.) that the defendant intended to induce the plaintiffs reliance on that promise
3.) the the plaintiff reasonably relied on that promise to his/her for their safety or job security
4.) that the promise must be enforced by the court in the interests of justice to the plaintiff
What are the consequences of breaking confidentiality?
Liable to be sued
What are shield laws?
Protect reporters from having to reveal confidential sources in court and with other governmental pressures
What is reporter's privilege?
it varries from jurisdiction but overall it means
" the right to not be compelled to testify or disclose sources and information in court in each state and federal circuit
What is promissory estoppel?
When a reporter offers a source anonymity
what is a subpoena?
It is simply an order that you have been called to appear at some type of proceedings or supply certain documents
What must the government prove to be able to force a reporter to give up their confidential source?
1.) that there is a probable cause to believe that the reporter has information that is clearly relevant to a specific violation of the law
2.) that the information sought cannot be obtained by alternative means less destructive of the 1st amendment
3.) that the state has a compelling and overriding interest in the information
What are judicial remedies?
1.) Voir Dire
2.) Change of Venue
3.) Change of Veniremen
* these are chosen based on how well they are believed to work in a case by case basis
What are judicial restrictive orders?
Chief Justice Burger wrote that restrictive orders against the press are permissible if "the information is necessary to avoid danger"
What must be present for the government to 'constitutionally justify' restrictive orders against the press?
1.) intense and pervasive publicity concerning the case is certain
2.) no other alternative measure might mitigate the effects of the pretrial publicity
3.) The restrictive order will in fact effectively prevent prejudicial material from reaching potential jurors.
What is an impartial juror?
A juror free from the dominant influence of knowledge acquired outside of the courtroom and free from strong and deep impressions
What court case helped formulate the idea of an impartial juror? Why?
The 1807 ruling by Chief Justice John Marshall in the trial of the former US Vice President Aaron Burr for treason
What tools does a judge use to ensure a fair trial?
-Change of venue
-change of veniremen
What are restictive gag orders?
A court order limiting the discussion of the facts in a criminal case by both participants in the case and the press
What is the Skilling Test and who designed it?
It helps determine whether or not a jury is prejudice and whether a case should have a mistrial
1.) media interference with proceedings
2.) size and characteristics of community of crime
3.) nature and tone of media publicity
4.) time elapsed between crime and trial
5.) impact of crime and community
What is the press enterprise test?
The process in which a judge decided if a court case should have a closed courtroom
1.) is it already an open courtroom case? And will access to the court play a positive or negative role in the judicial process?
2.) if open then those seeking to close it must argue for closure
What occurred in the court case Press enterprise vs. Riverside superior court?
-Justices fashioned a complicated test that a judge must apply before they can constitutionally close off access to judicial proceedings
-the judge must answer two questions
1.) whether this kind of hearing has traditionally and historically been open to the press/public
2.)Whether public/press access to the case who'll play a positive/negative role in the functioning of the judicial process
What is Voir Dire?
The process in which the court can hold preliminary examinations of the jurors to help detect any prejudices in the jury before trial
What is change of veniremen?
Instead of moving the trial to another city, the court imports a jury panel rom a distant community
What is admonition?
The members of a jury are instructed very sternly by a judge to come to a verdict based on evidence presented during court only.
What is sequestration?
Jurors are removed from their homes and often placed in hotels and either have emails or phone calls screened by personnel and are often forbidden to use social media or news broadcasts and newspapers
What occurred in the court case Roth vs. United States?
It gave the Supreme Court an opportunity to redefine obscenity and gave 3 factors to determine Obscenity called the Roth-Memoirs
How did the Miller Test develop?
Marvin Miller sent five unsolicited brochures to a restaurant that advertised four erotic books and one film. And for the first time the Supreme Court came the having a majority opinion on the definition of obscenity.
What is the Miller Test? And what does it apply to?
1.) The work taken AS A WHOLE must arouse sexual lust
2.) must be hard-core pornography
3.) have no serious social value
*Also known as Miller Test
What role does the U.S postal system have in Obscenity?
The Comcast act rules that nothing obscene can be mailed anywhere within the US
What is the Hicklin rule?
Something can be considered obscene if it has a tendency to deprace and corrupt those whose minds are open to such immoral influences and into whose hands it might fall
*This is very outdated and is no longer used just understand it generally
What is the Comstock Act?
Congressmen Anthony Comstock declared that all obscene books, pamphlets, pictures, and other materials were non-mailable
What is the Miller test?
the work TAKEN AS A WHOLE must
1.)arouse sexual lust
2.)be hard-core pornography
3.) have no serious social value
What occurred in the court case Miller vs. California?
Marvin Miller was convicted to violating the California Penal Code for sending
What does copyright protect?
The goal is to foster creativity and innovation
* the goal is to protect the sciences and arts, NOT to protect the financial interest of authors
What is duration and how long does it last?
Duration is the copyright law that allows someone the right to their work for ife plus 70 years
What is the motivation behind fair use?
It emerged as a way to balance compensation for a limited amount of copying of material that has been properly credited
What rule tests for fair use?
1.) purpose and character of use
2.) nature of copyrighted work
3.) amount used ( small factor)
4.) effect on potential market
Can you own a sound?
What is trademark?
Trademark law is designed to reduce the likelihood of confusion in the marketplace
- can signify the quality of a product ( brand vs off brand)
-serves as advertisement to sell goods
* trademark infringement is hard to prove but dilution is not
What is plagiarism?
When an author takes the ideas, thoughts, or words from another and passes them off as her or her own
What is duration of protection?
Whoever owns the copyright to a work they also receive the rights of that work for life +70 years *ONLY APPLIES TO WORK DONE AFTER 1976
What is infringement?
The court does not officially define it but the law states that anyone who violates any of the " exclusive rights" of the copyright holder is guilty of an infringement of copyright
What is the Digitial Millennium Copyright Act?
It gave copyright protection to the owners of digitized works.
What occurred in the court case Monge vs, Maya Magazines?
-Superstar Noelia Monge and her producer got married in a secret ceremony in Vegas
-A bodyguard 'found' a memory chip from their personal camera used at the wedding and sold them to a magazine called Maya Magazine
- Monge sued for Infringement and the Magazine correctly argued that copyrighted material may be published for the purpose of news reporting
-HOWEVER, If the magazine wanted to report that it had evidence that the couple was in fact married it could have done so in other ways (i.e. publishing their marriage license)
What occurred in the court case Campbell vs Acuff Rose?
-Rapper Luther Campbell, leader of the 2live Crew sought permission to use "oh Pretty Woman" from Roy Orbison
- the Supreme Court sent it back to trial court stating the case needed to be tested for fair use
*IT IS TRUE THE PARODY TOOK THE OPENING LINES AND THE MUSICAL SIGNATURE, HOWEVER IF THE QUOTATION OF THE OPENING RIFF AND THE FIRST LINE DON'T ENCOMPASS THE HEART OF THE WORK.
What occurred in the court case Williams vs. Bridgeport?
-Marvin Gaye's Family sued Pharrell and Robin Thicke for copyright violations for "blurred lines"
- HOWEVER: Marvin Gaye's song "got to give it up" was copyrighted in 1977 BEFORE the current copyright protection law we have today
According to Mike Baker, why do we access records?
- are politicians telling the truth?
2.) Wrong doing
- abuse or mismanagement by government offices or records
- how an idea developed
- data shows whether things are getting better or worse
According to Mike Baker how do agencies hide records?
1.) Federal agencies
- delays can take years to respond to records requests
2.) state agencies
- inadequate searches
3.) 400 exemptions
4.) Private email adresses and phone numbers
According to Mike Baker what are some of the best ways to protect sources?
1.) meet in person
2.) Burner phones
3.) Records through mail ( no return address)
Can a court jail you for not revealing your sources?
Yes and a source can sue you for revealing their information
What is the Indiana Fair Use checklist?
1.) Use of Narrow down facts
2.) documents decision making
3.) don't just check boxes( what does the overall circumstances tell you?
4.) Creative Commons is a great resource
What is fixation?
A tangible thing that doesn't change from month to month
What is considered a community standard?
The overall trends and tendencies of a state
What is the FCC?
the Federal Communications Commission
- a commit appointed to administer the federal broadcasting and communications laws
What happened to the news outlet Gawker?
-Gawker Media posted 21 pages out of Sarah Palin's book days before it was released
-Palin brought suit asking for a court order to have Gawker to remove the excerpts
*Gawker would have lost an infringement case based on violating purpose and character of use, nature of the copyrighted work, amount of work taken/used, and the effect on the market
What is the transformative test?
Significantly transforming the image or likeness of a celebrity or public figure
" if it adds something new w/a further purpose or different character, altering the original message or meaning it is protected"
What three things must exist in order for an author to receive copyright on a work?
-must have been seen, read, or heard by a reasonable amount of people( cannot copyright an idea)
- independent creation by an author
3.) minimal creativity
What is Continuance?
A judge may postpone a trial based on the judges expectation that the people in a community will forget at least some of what has been written or broadcasted about a case and that expectation is probable
What are the four torts of Privacy Laws?
1.) appropriation of someones likeness or trades
2.)publication of private info
3.)Intrusion on someones solitude ( home)
4.) False light
THIS SET IS OFTEN IN FOLDERS WITH...
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