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first time ad was protected
New York Times v. Sullivan
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some first amendment protection for commercial speech, created commercial speech doctrine
Bigelow v. Virginia
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No outdoor alcohol ads near kids school--meaning substantial state interest, evidence, narrowly tailored
Anheuser Busch v. Schmoke
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Motion pictures were not granted first amendment protection until this case
Burstyn v. Wilson
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This was too broad...about child pornography. supreme court narrowed the meaning of the statute
Osbourne v. Ohio
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Sweat of the brow doctrine-no matter how much work you put into, it is not covered
Feist publications v. Rural Telephone Service Co
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This ruling reached agreement on the definition of obscenity
Miller v. California
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Purpose is to distinguish your brand, protects business identity
Trademark
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Protects expression, original concept, creative use
Copyright
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what can be copyrighted?
- reproduction of work
- preparation of derivative works
- public preformance of the work
- right of public display of the work
- right of the public digital performance of a sound recording
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Limits of trademark
- You can keep renewing
- but if term starts to become generic, it can't be trademarked
- or if you don't renew it then its no longer trademarked
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Limits of Copyright
- Copyright work is life of author plus 70 years
- eventually runs out
- consent of copyright owner must first be obtained
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What can't be copyrighted
- trivial material
- ideas
- facts
- utilitarian goods
- methods, systems, and mathematical principles, formulas, equations
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Role of the First amendment and copyright
- difference is money
- right to know
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Copyright defenses
- its in public domain
- its research, history, facts
- fair use
- transformative use
- you can prove you created it
- not meant to be covered by copyright
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legal copyright infringement
Fair Use test
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Fair use test
- purpose of use-educational, news/social commentary
- nature of copyrighted work
- precent used
- effect on market
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Fair use: purpose and character of use
- criticism and comment
- teaching
- scholarship and research
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Fair use: The nature of copyright work
- is copyright work still availible?
- is it consumable work?
- is work an informational work or creative work
- is the work published or unpublished
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Once it's out there, its free for all
everyone has access to it, copyright runs out
Public domain
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Copyright requirements
- notice must be placed where it can be visually perceived
- if created today, last lifetime plus 70 years
-
Berne Convention
- Became a part of international treaty-changed our copyright law
- don't have to have copyright notice
- copyright begins the moment you created it if you register it it would help you to prove it
- You don't have to have copyright notice, but its smart to have it
-
statutory construction of indecency and obscenity
needs to be narrowly tailored
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This is protected by the first amendment. has no test to determine
Indecency
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a test to figure out if something is obscene, related to hard core porn
must use in defining all cases except juvenile cases
Miller Test
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Basics of the miller test
- average person finds it appeals to prurint interest, it depicts in an offensive way sexual conduct is defined by law, material lacks serious value
- decided by jury
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Adult content and zoning laws
- cannot bar all adult businesses
- substantial state interest
- narrowly drawn
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Role of the first amendment and indecency/obscenity
- First amendment protection for indecency, not obscenity
- swear words/profanity is protected by the first amendment
- movies have 1st amendment protection
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executive branch
regulates public airwaves
nothing to do with basic cable
they can shorten licensing time
does not regulate obscenity
does not have power to censor content
FCC-Federal communications commission
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Advertising and the First Amendment
- Advertising is the most heavily regulated form of media
- false advertising is not protected
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no more than promoting product or service, commercial transaction
commercial speech
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the legal doctrine that states that truthful advertising for products and services that are not illegal is normally protected by the first amendment to the us constitution
commercial speech doctrine
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Parts of commercial speech doctrine
- similar to time, place, manner
- substantial state interest to justify regulation
- evidence the regulation advances interest
- reasonable fit between state interest and regulation--narrowly tailored
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3 parts to lanham act
- 1.what message, either explicitly or implicitly, does the ad convey?
- 2.is this message false or misleading?
- 3.does this message injure the plaintiff?
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used to bar an advertiser from unfair competition
gave right to sue due to deceptive ads, unfair business practice
deceptive claims, deceptive studies
Lanham Act
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FTC remedies to stop false advertising
guides, voluntary compliance, consent agreement, litigated orders, substantiation, corrective advertising, injunctions, trade regulation rules
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Primary agent of government
FTC
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CAN-SPAM Act
- No deceptive subject lines
- identify email as an ad
- monitor what you do on others behalf
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