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LAST TEST FOR MASS COM LAW!

Terms in this set (31)

-raw, unedited video footage of news events is sufficiently original to be protected by copyright. The "requisite level of creativity to qualify as an originally work is extremely low; even a slight amount will suffice." (where you point the camera)
- Los Angeles News Service records live news events on video and then sells the unedited but copyrighted footage to television stations. The TV stations take the raw footage, edit it any way they want, and use it in newscasts. Audio Video Reporting Services videotapes newscasts and then sells clips of the newscasts to interested parties. A business woman who has been interviewed for a news story, for example, may want to buy a copy of the story from Audio Video. Or the parents of the children featured in a news story on a school project might want to have a copy of that story. Or the parents of children featured in a news story on a school project might want to have a copy of that story. LANS sued Audio Video claiming that in selling these video clips, which were taken from the copyrighted raw footage LANS had provided to local television stations, Audio Video was infringing on the copyright LANS held on the videotape. Audio Video said it was not sufficiently original to be protected by copyright; all the photographer did was switch on the camera and point it at the news event. The court agreed with LANS! The video was creative because the photographer decides the subject, the background, the perspective, consider the lighting, and the action and so on.
- the unpublished nature of a work is a key, though not necessarily determinative factor tending to negate a defense of fair use.
-they stole the unpublished bibliography of G Ford (President); they published so much of it no one would buy the book from Times
- The Supreme Court first found that "the unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use,"[2] and that "[u]nder ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use."[3] The Court also refused to expand either the first amendment protections inherent in the idea-expression dichotomy, or the fair-use doctrine, to include "a public figure exception to copyright."[4]

Finally, the Court turned to the four fair use factors and resolved every factor against The Nation:

1. Purpose and character of use — Although The Nation's use of Ford's work was news, it also was for profit, was intended to supplant other news stories, and was based on knowing exploitation of a purloined work.
2. Nature of the work — The memoir was essentially facts and "the law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy," but Ford's work was also unpublished and this was "key."
3. The amount and substantiality of the use — The district court held that The Nation took what was essentially "the heart of Ford's book."
4. Effect on the market — "[T]he single most important element of fair use,"[5] also goes against The Nation, particularly because of damages (actual and potential) to serialization rights.
Nation Lost because the author decides who gets to release their work!
-gives us the commercial speech doctrine.
- The first amendment does not protect either false or misleading ads or ads for unlawful goods or services.
The government may regulate truthful advertising for legal goods and services if:
1) there is a substantial state interest to justify the regulation
2)There is evidence that the regulation directly advance this interest
3) there is a reasonable fit between the state interest and the government regulation, on other words narrowly tailored.
-There does not have to be least restrictive means.
- In the winter of 1973-74 there existed an electricity shortage in the State of New York. Accordingly the Appellee, the Public Service Commission (Appellee), imposed a ban on all advertising that promotes the use of electricity. By 1976 the electricity shortage subsided, causing the Appellee to determine whether or not to continue the ban. Upon further inquiry, the Appellee decided to continue the ban, causing the Appellant, Central Hudson Gas and Electric Corp. (Appellant), to file suit claiming that the regulation of the Appellee was infringing on their First and Fourteenth Amendment constitutional rights involving commercial speech.
-The Appellee's ban is unconstitutional. Under this four-part analysis the Supreme Court of the United States (Supreme Court) found that the advertising is commercial speech protected by the First Amendment of the Constitution. The Supreme Court found that the state interest in suppressing the use of energy is substantial. The Supreme Court also found a direct link between the state interest in conservation and the Appellee's order as there is a connection between advertising and demand for electricity. This lead the Supreme Court to consider whether the complete suppression is more extensive than what is necessary. The Supreme Court in this case determined that the Apellee has not shown that it could not protect its interest in energy conservation through a less restrictive means. For example, providing information in its advertisement about the relative efficiency and expense of its offered service. Therefore since there is a less restrictive means available, the restriction by the Appellant is an unconstitutional restriction of free speech.
-public service commission lost because they didn't narrow tailor the advertisements. they just ban all advertisments! and should have limited it instead.
-The FDA failed to provide data that the graphic warnings would directly advance their objective.
- In 2012, tobacco companies scored a major victory when a federal appellate court held that graphic, image-based warning requirements imposed by the Food & Drug Administration on cigarette packs violated the companies' First Amendment rights.
Specifically, the FDA wanted, as part of the Family Smoking Prevention and Tobacco Control Act of 2009, to require cigarette packs to carry:
1. Large images depicting the negative health consequences of smoking.
2. Word- based warnings such as "Cigarettes cause strokes and heart disease" and "cigarettes are addictive"
3. The phone number of the National Cancer Institute's Network of Tobacco Cessation Quit lines.
The FDA selected nine different images including macabre pictures of diseased lungs, a man smoking through a tracheotomy hot in his throat, a dead man with chest staples lying on an autopsy table, etc. The U.S Court of Appeals applied the Central Hudson test. The court ruled that the FDA failed to put forth any data demonstrating that the proposed graphic warnings would directly advance to a material degree the objective of reducing smoking rates. The FDA does not offer evidence showing that such warnings have directly caused a material decrease in smoking rates in any of the countries that now require them. The court concluded that the FDA relied on "questionable social science."
-FDA didn't give any data on that the pictures would reduce smoking.