Media Law 2

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lilyung1
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266308
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Media Law 2
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2014-03-17 03:48:39
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SHC Media Law 2
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  1. • 2-part definition of right to privacy
    • Familiarize: why it’s similar to libel/slander

    •Why are Warren & Brandeis important to judicial system's recognition of a right to privacy?
    • Right to privacy- original and modern def
    • • Right to avoid unwanted publicity when topic is not of public concern. 
    • • right to be left alone. Free from intrusion of new tech

    • Warren and Brandeis
    • • married Bayard, who was a public figure
    • • most read law journal article in the world "right to privacy in courts"
    • • Brandeis becomes Supreme Court Justice
  2. 1. (a) What is the significance of the case Olmstead v. U.S? (b) What did Justice Louis Brandeis state in his dissenting opinion? (c) What is the significance of the case Katz v. U.S.?  1) reversed Olmstead; 2) said privacy extends to all areas where there is a justifiable “expectation of privacy.” (d) In the case Kyllo v. U.S., what distinction did Justice Antoinin Scalia make between technology such as heat sensors and everyday technology?
    The significance of Olmstead v. U.S. was: it involved government eavesdropping to gain evidence against a subjected bootleggers in the prohibition era, and the majority opinion held that there was no violation of any privacy unless the fed era agents committed a physical trespass in order to listen to it. Brandeis called for a “right to be left alone”, and that the framers of the Constitution intended “to protect Americans in their beliefs, their thoughts,  their emotions and their sensations“. In Katz v. U.S., judges ruled that unauthorized law enforcement surveillance activities need not invoke a physical trespass to constitute a violation of the Fourth Amendment, after they stated that “a persons right to privacy extends to all areas where there is a justifiable expectation of privacy. Justice Antoinin Scalia stated there is a difference between using items like binoculars, which have been deemed ok to use, and heat sensor, which are more of a violation of privacy.
  3. (a) Briefly list the four torts of privacy (and know definitions for each), observed by legal scholar William L. Prosser. (b) Are all of these torts recognized from state to state?
    • 1. 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. 
    • • Not all of these torts are recognized in every state, but that may be remedied in a civil lawsuit.
  4. Intrusion
    • Concerns conduct of media.
    • Differentiate: taking a photo on private property without permission, taking a photo from a public street of a scene within plain view, taking a photo using extraordinary means (extravagant zoom lens, big ladder, etc.).
    • Legal test for intrusion.
    • 1-2 defenses for intrusion (and be able to explain them).
    • eavesdropping, snooping, hidden cam, or getting in way
    • Photography in private areas
    • Conflicting state laws
    • Ride-alongs- Warrant doesn’t cover media
    • Secret taping- Differ according to state
    • Telephoto lenses, boom mics- California’s anti-paparazzi law
    • Legal test for intrusion:Reasonable person & an expectation of privacy
    • Defenses for intrusion:Public property, Consent, Common custom & usage
  5. • Define the private facts tort.
    embarrassed, but not libeled
  6. Social utility test.
    • part of private facts
    •  if a communication had little social utility (use), then we cannot use newsworthiness as a defense.
    • in most cases, courts say ok
    •  Cox Broadcasting v Cohn (1975) on Q&A
    •  what happens in public is public
    •  Smith v Daily Mail- newspaper was indicted for violation state law for naming juvenile offenders in trail. Virginia Supreme Court deemed ok to use.
  7. • Legal test in private facts.
    • 1-2 defenses for private facts (and be able to explain).
    • Legal Test for 
    • • offensive and not newsworthy


    • Defense for
    • • newsworthiness
    • • already known
    • • truthfulness doesn't apply
  8. • Differentiate between the privacy of public records and medical records.
    • Public records not private
    • Health records most often private (confidential)
  9. The private facts tort provides a legal remedy for what kind of subjects of publicity? (b) Why is this particular tort problematic for journalists?
    The private facts tort provides a legal remedy for a person who has been embarrassed by a publication but may have little chance to win a libel suit because the facts revealed. This causes a problem for journalists because, it is often hard to anticipate which stories may lead to lawsuits.
  10. False light
    • Defined.
    • Do most states recognize it?.
    • • libel case without defamation/falsely portrayed
    • • only some states recognize it.
    • Dangers for photographers (photo captions, random shots, and what are alternatives?)
    • • misleading captions
    • • Random shots/Shoot unidentifiable images
    • Legal test for false light.
    • • Offensive to reasonable person and Publisher was at fault
    • 1-2 defenses for false light
    • • Truth
    • • No identification
    • • Privilege
    • • Fault not established
    • • Not offensive
    • • Consent
  11. Misappropriation
    • Defined
    • Differentiate – commercial exploitation vs. news coverage.
    • Booth rule.-- Misappropriation and film.
    • Legal test for misappropriation.
    • 1-2 defenses for misappropriation.
    • unauthorized use of peoples names or likenesses (or some other aspect of their public persona)by a 2nd party for the 2nd party's benefit.
    • Economic rights rather than personal
    • protection from commercial exploitation not news coverage
    • booth rule- media may use even previously published material in later ads as long as not implying the _____ endorses one magazine over another.
    • misappropriation and film- must have permission of everyone shown, employed as extras(commercial films)/ safe area based on fact (docudramas) 
    • legal test use without consent, for some profit, plaintiff identifiable
    • defenses- newsworthiness, consent, plaintiff not identifiable, art
  12. Definition of intellectual property law.
    • Rationale for this law.
    • Opposition to this law.
    • What Constitutional reference is this law based upon?
    • Two differences between other forms of media law. What is property right vs. personal right?
    • How does one achieve maximum legal protection for an original work?
    • Copyrights, Trademarks, unfair competition
    • encourage creativity. 
    • monopolistic
    • based on British Common Law,Article 1, Section 8 Constitution
    • differences- creative works are treated as private property. can be bought sold or rented
    • personal right- individual has personal right to sue. when dies, right to sue dies
    • property right- heirs can sue
    • Maximum protection- Register through Copyright Office, Library of Congress
  13. a) Explain and differentiate between simply placing “Copyright by J.J. Author” and registering for  a copyright; b) What can result from a creator taking neither of the above actions? Explain.
    When simply placing the copyright owner work, the failure to include a notice or even putting it in the wrong place means forfeiture of copyright protection. For full copyright protection, you should register for copyright. You are required to register within 90 days of publishing to work or at least before an infringement occurs. If you forget to register for a copyright, you still have a valid copyright but you must notify any infringer that the work is copyrighted. If you choose not to claim copyright protection, the work falls into the public domain. That means the work belongs to everyone, and anyone who wishes may reproduce or perform as if he or she on the copyright.
  14. Substantial similarity and its importance in proving infringement; familiarize with terms like “protectible elements” and “extrinsic and intrinsic tests.”
    • If the works at issue are intended for a particular audience, the question of substantial similarity should be addressed with that audience in mind. Would the audience confuse the two products
    • extrinsic- objective/ checklist for finding similarities 
    • intrinsic- subjective/ if a reasonable person would believe the two works are similar
  15. Familiarize with these defenses: Admission (de minimis and non-protectible elements);  “work for hire.”
    • Where a technical violation is so trivial that the law will not impose legal consequences
    • something that is done "work for hire" can not be copyrighted
  16. Fair use (definition) and familiarize with the exceptions (notes)
    • fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work
    • doesn’t interfere with profits, transformative use, and information public should have.
  17. • Parodies vs. satires.
    • Comparative advertising
    • Compulsory licensing of music.
    • Performance rights and blanket licensing.
    • “Homestyle” exemption (familiarize).
    • parody- copyrighted work with the intention of poking fun at original copyrighted work
    • satire- poke fun at something else or someone else, not original work
    • comparative advertising- Verizon vs at&t - create composition
    • sampling- ok if you only sample a small amount and the composition is completely different. using a sample and only playing at home don't need permission. For public usage, best to ask for permission. 
    • "homestyle" exemption- exempt from licensing if using tech that can be found in homes
  18. Have the courts been tough on computer companies who create products similar to others? Why or why not?
    • Computer Software & Games
    •  computer programming and binary code is protected
    •  similar look, feel, terminology, not infringement
    •  compatible devices- cartridges, add-ons not infringement 
    •  reverse engineering & re-making not infringement
  19. Does copyright carry over to the Web?
    • computer programming and binary code is protected
    • similar look, feel, terminology, not infringement
    •  compatible devices- cartridges, add-ons not infringement 
    •  reverse engineering & re-making not infringement
  20. • What is the misuse doctrine?
    • Does file-sharing fall under “fair use?”
  21. Trademark
    • Defined.
    • Difference between journalistic infringement and non-journalistic infringement.
    • a recognizable sign, designor expression which identifies products or services of a particular source from those of others
    • product name must be capitalized
  22. Obscenity and the law (Ch. 10)
    • The conflict and the rationale.
    • Differentiate between obscenity, pornography, indecency and child pornography.
    • What was the Hicklin Rule and the Comstock Law?
    • right of free expression vs. lawmakers ability to set limits on sexual communication. 
    • obscenity- sexual content unprotected from 1st amendment 
    • porn- sexual content with 1st amendment protection
    • indecency- patently offensive by broadcast standards 
    • child porn- immediately considered unlawful. no argument
    • "Hicklin Rule"- whether the content is intended to deprave or corrupt minds that are vulnerable. 
    • federal law that made it a crime to sell or distribute materials that could be used for contraception or abortion
  23. Book Entitled Ulyssess vs. U.S. (1934): Circumstances, decision and precedent/legacy.
    • Girl reads book. Suggest masturbation. Girl offended. Parents take to court.
    •  For a work to be obscene, based on effect on person with average adult instincts. (not children). Precedent- also signals end of Hicklin rule. Seeing things differently.
  24. Significance of “The Warren Court” to obscenity law.
    • Liberal Court
    • Overturning convictions against classic literature 
    • nudity is not obscene
  25. Roth v. U.S. (1957): Circumstances, decision and precedent/legacy.
    • circumstances- books about pedos, nudies, etc.Appealed to sexually curious males. Had nude images in pamphlets sent through mail. 
    • Goes to jail
    • Roth Test- average person applying community standards material, prurient desires. work as a whole
    • obscene material shouldnt be protected. 
    • 5-4
  26. Memoirs v. Massachusetts (1966): Circumstances, decision and precedent/legacy.
    • Fanny Hill- republished multiple times. drawn images. 
    •  Attorney general on state level has book ruled obscene. cant be read in Mass
    •  US SC reverses decision. It is a piece of literature that survived 200 yrs
    •  Social value test
    •  Roth test- work as whole 
    •  patently offensive- offensive to anyone
    • ª without social value
  27. Miller v. California (1973): Circumstances, decision and precedent/legacy.
    • Owns an adult material mail order business. convicted for mailing to people who didn't want it. Supreme Court upheld conviction. States can judge what is obscene. 
    • Miller test:
    • Roth test, plus
    • Patently offensive, according to state law
    • Lacks “serious literary, artistic, political or scientific value.”
  28. • PROTECT Act of 2003 and “altered images.:
    • Film censorship and evolution of First Amendment rights.
    • Child Internet Protection Act (2000).
    • the protect act upheld the ban on offering material purported to be child pornography. the majority put dealing in child pornography beyond the protection of the First Amendment. Work such as anime and manga that portrayed children engaged in sexual activities have also been included in the protect act's prohibitions.
    • movie ratings system
    • set new rules under which libraries and school must install internet filtering software.
  29. • What is a regulatory agency (from notes)?
    • Be familiar with (not for memorization): FCC definition of indecency (from FCC v. Pacifica).
    • Safe harbor rule.
    • Fleeting expletives rule.
    • independent governmental commission established by legislative act in order to set standards in a specific field of activity, or operations, in the private sector of the economy and to then enforce those standards.
    • language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.
    • "safe harbor" rule- time safe for family viewing (6am-10pm)
    • fleeting expletives rule (nudity)- no longer look at show in entirety, but tidbits for nudity
  30. • Rationale for regulation (scarcity rationale).
    o Airwaves.
    o Radio Spectrum.
    o Public owns airwaves (explain).
    o Why cable/satellite are subject to only SOME of the regulations that major networks face.
    • Only a limited number of frequencies are available, and the number of stations that may transmit at one time without causing interference is also limited. The idea that this justifies government regulation of broadcasting is called the scarcity rationale.
    • airwaves carry radio signals
    • radio frequencies
    • The government does not own the frequencies, as we call them, or the use of the frequencies. It only possesses the right to regulate the apparatus
  31. What are frequencies? What are Hertz? What are bands?
    • is the property of sound that most determines pitch
    • the unit of frequency in the International System of Units (SI)
    • AM, FM, VHF, UHF
  32. The Radio Act of 1912 and the Titanic disaster.
    • Powers given to FCC under Communications Act of 1934
    • radio act 1912- operator needs to be on hand at all times (radio operator didnt get message to save people on the titanic
    • develop a better way of determining who got to use what radio bands and for what purposes
  33. • How many members in FCC?
    • General familiarity with road to licensing a station, and road to renewing that license.
    • Five members (commissioners)
    • Legislative, enforcement and judicial and powers
    • Prospective licensee must: Be citizen of the U.S. or have less than 25% foreign ownership Have sufficient funds to operate the station for at least 3 months without earning any advertising revenue Hire people who possess the technical qualifications to operate a broadcast station
    • Renew a license as long as:Station has served the public interest, convenience and necessity Licensee has not committed any serious violations of the Communication Act or FCC rules Licensee has not committed any other violations that, taken together, would constitute a pattern of abuse
  34. General knowledge of the nature of the only 2 Supreme Court cases concerning FCC and decency: FCC v. Pacifica (1978) and FCC v. Fox Television Stations (2012)
    FCC V Pacifica- During a mid-afternoon weekly broadcast, a New York radio station aired George Carlin's monologue, "Filthy Words." Carlin spoke of the words that could not be said on the public airwaves. 5 votes for FCC, 4 vote(s) against. Amendment 1: Speech, Press, and Assembly

    FCC V Fox- changed its policy on what it considers “indecent” and thus could not be put on radio or TV between 10 a.m. and 6 p.m., because children might be watching or listening.fine was thrown out. Supreme Court made them change stance
  35. Commercial speech doctrine and the courts’ view of Advertising prior to 1980.
    commercial speech doctrine- automatically dismissed ads as something that was at the mercy of gov wo any 1st amendment protection
  36. Central Hudson v. Public Service Commission of New York (1980): Circumstances, decision and precedent/legacy.
    • gov agency sets new rules. cant market service to say consumers should use a lot of energy. Should be on side of conservation. NY Court of appeals rules they haven't done anything wrong. Need to conserve outweighs 1st amend. protection. Central seems to Supreme Ct. they reverse. commercial speech is constitutionally protected if it concerns a lawful activity. 
    • Central Hudson test
    • 1. Is it deceptive? (if it is, go no further).
    • 2. Government restriction justified?
    • 3. Does action advance government interest?
    • 4. Is regulation too broad?
  37. “Advertising today” slide – familiar with scale of First Amendment protection for advertising.
  38. Advertising of alcoholic beverages.  Does federal law prohibit today? What is the nature of voluntary prohibition of hard-liquor ads on TV?
    • if product is harmful even if legal should be subject to regulation
    • major networks avoid ads for hard liquor especially to younger audience
    • showing is voluntary
  39. Advertising cigarettes. Are there broadcast restrictions? Are there print restrictions?
    • state laws conflicting fed law advertising cigs are null and void
    • FCC prohibits ads for smoking things (tobacco products) on radio and tv or any other media under FCC jurisdiction. No print restrictions
  40. What is noncommercial speech?
    • Precisely drawn means of serving state interest.
    • Only regulates time, place and manner.
    • Narrowly drawn restriction of speech.
  41. What is the Federal Trade Commission? 
    • FTC’s view of consumer protection in the early years – caveat emptor.
    • FTC created 1914 for regulating business practice
    • caveat emptor- buyer beware
  42. How were the Federal Trade Commission’s powers expanded by the Manguson-Moss Act? (b) Why did the TFC have to close down operations briefly in 1980? (c) Today, what three-part analysisis does the FTC use to determine if an advertisement is deceptive?
    That law specifically empowered the commission to act against fraudulent practices all the way down to the local level. No longer would it be limited to practices involving interstate commerce as it had been; instead, the FTC could pursue businesses that merely “affected” interstate commerce.  Under the new “Trade Regulation Rules”, the commission entered an unprecedented period of activism in the late 1970s, but some of its actions so angered many business leaders that they prevailed upon Congress to hold up the FTC’s budget until the agency changed its policies.  1) Identify each affirmative claim or material omission and ask the advertiser to document what the ad says; 2) determine whether the claim could mislead a typical consumer acting reasonably; and 3) determine whether the claim is “material” (i.e., is it likely to affect purchasing decisions?).
  43. Familiarize: What is an “unfair ad?”
    • Significance of Lanham Act
    • Unfair:
    • Causes or likely to cause consumer injury;
    • Injury was not reasonably avoidable by consumers;
    • Not outweighed by countervailing benefits to consumers or competition
    • Lanham Act- allows for federal civil lawsuits between companies for unfair competition.
  44. • Familiarize for multiple choice/true-false: Copyright-eligible vs. not eligible.
    • Copyright-eligible
    • Fixed in tangible medium
    • Result of originator’s creativity
    • Not eligible
    • News
    • Facts
    • Ideas
    • Individual words and short phrases

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