Download Intellectual Property Law: Defamation, Privacy, Copyright, and Trademark and more Exams Advanced Education in PDF only on Docsity!
MGMT 446 Exam 2 With
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Defamation - ANSWER A statement that tends to subject a person to ridicule in the community-- not parking lot swearing, maybe accusing one of theft. Unprotected speech.
- Statement made concerning plaintiff;
- Statement had been published to at least one other party;
- statement was false (presumed at common law); and
- statement harmed the subject's reputation by lowering his or her standing in at least some part of community (1+ persons)
Slander - ANSWER Verbal form of defamation
Libel - ANSWER Written form of defamation
1st amendment issue (defamation) - ANSWER My right to swing my fist ends where someone else's face starts (where it reaches their reputation, and this depends on if it was public or private person)
Successful defamation claim for public person (famous) - ANSWER - Must demonstrate malice
Malice - ANSWER Party making statement knew it was false and said it anyways
- does not apply to defamation claim for private persons
Infliction of Emotional Distress - ANSWER - extreme and outrageous conduct intentionally or recklessly causing severe emotional distress
- paparazzi, peeping tom
- can't be mere name calling
- typically has physical component to prove (stress and anxiety medication, hair loss etc.)
Invasion of Privacy - ANSWER - most common tort claim in entertainment setting
- not just physical component of privacy-- revealing personal information about an individual without his or her consent. (med records, photos, private info)
- no reasonable expectation of privacy on street though
Public vs. Private Person - ANSWER - Private can become public if we inject our self into that light somehow
- Private can be public for certain purposes
- Public has reduced expectation against privacy and infliction of emotional distress
Publicity Rights - ANSWER - Considered Property-
- ___________ ___________ can be sold/transferred/ inherited
- Celebrity's right to exclusive use of name/likeness
for live event and/or recorded/televised use
- Independent creation of new intellectual product
- Protection doesn't extend to facts -- only to expression of fact
- "Tangible" work
- something that can be discerned (heard, seen, etc.)
- some degree of permanence (record, music sheet, program, etc.)
Elements for infringement claim - ANSWER 1. Must have had access
- Must be substantially similar
- CR is violated only if prior work has been copied, not simply duplicated
Things not protected by copyright - ANSWER - Does not extend to facts, only to expression of facts
- Common geographic scenes, non-descript characters
Fair Use Doctrine - ANSWER Part of copyright law that provides for the limited use of copyrighted work without permission.
Things to be weighed:
- purpose and nature of "new" work (profit vs. non-profit)
- the nature of the CR'd work -- don't worry about this too much
- Amount and substantiality of the CR'd work used
- the effect of the use upon the potential market for or value of the CR'd work (does it siphon money away?)
Additional basis for artists to claim rights - ANSWER 1. right to artistic credit even if other rights sold (union agreements and Lanham)
- Lanham Act prohibits false and misleading statements/ advertising (federal law)-- CA has civil code 17.200 (false advertising)
- moral rights now recognized in U.S. upon adoption of "Berne Convention" (treaty)
- ** Sublicensee does not have greater rights than original licensee
Lanham Act - ANSWER Prohibits false and misleading statements/ advertising - Federal law
Ex: Artistic credit left out like Lamothe Case
California Civil Code 17.200 - ANSWER State version of Lanham Act that prohibits false advertising
Berne Convention - ANSWER - Concerns moral rights
- Only applies to creators not owners
- Foreign or domestic creators can bring a claim with this
- No moustache on the Mona Lisa etc.
Trademark - ANSWER Basically the logo
- define -- "word, symbol, etc., used to identify goods (not services) it's a limited property right)
- even though work has CR-- author can TM characters
- Infringement- any name or symbol that is confusingly similar
- Fair Use Doctrine permits use of other trademark (strong mark v weak mark like in Hormel)
Copyright Licensing - ANSWER 1. Determine who is actual owner
- transfer of ownership occurs by express or implied contract
- Only rights transferred go to new owner-- all others stay w artist (i.e., transfer rights to live performance does not necessarily include movies or recording)
Available Remedies - ANSWER 1. Damages
- Injunction
- Specific Performance
Damages - ANSWER - Punitive or Compensatory (2 types of compensatory are actual and general) for infringement
- Punitive not allowed for breach of contract
- p trying to prove damages, the amount, prove how you suffered a billion. In CR, can prove by loss of profit due to the person's conduct - siphoning.
- Actual Damages reimburse the P for the extent to which the mkt value of the CR'd work at the time of the infringement has been injured or destroyed by the infringement — calculation may be based on P's lost profits, D's profits, or combo of both, though double recovery is not permitted
- When actual damages would be impossible or difficult to prove, a P can elect to recover statutory damages — the way this is calculated depends on
variety of issues, including rough estimate of plaintiff's actual damages, amount it'd take to induce someone in P's position to produce a similar work, or necessity to deter future infringement
- 'Actual' damages are intended to provide funds to only replace what was lost
Injunction - ANSWER - Stop (they may not have $ so just get this)
- Can be used when someone takes publicity rights
- Temp restraining order (TRO)
- Preliminary __________ (stop till trial)
- Permanent __________ (never do this again + pay plaintiff maybe)
Specific Performance - ANSWER = go
- Ex: We have a contract and broadway opening is coming up, I need the costumes so I ask court to order u to fork em over + u don't have the $ for my losses + I just want costumes
Criminal Celebrities - ANSWER ____________ _________________ sell (they generate a lot of money by speaking about their stories)This trend in ____________ _________________ stories has generated popular concern and political reaction - not about the crime stories being told, but about the criminals being paid for the stories
Public Tort - ANSWER Wrongdoing between govt and person
4 Distinct causes of action for Invasion of privacy - ANSWER 1. unreasonable intrusion on personal solitude;
- public disclosure of true but embarrassing private facts;
- presentation of people in a false light in the public eye; and
- appropriation of one's name and likeness
Dresbach v. Doubleday - ANSWER Facts:
- Mewshaw decided to make a book about what happened with the Dresbach's family from Lee's perspective where his older bro Wayne had murdered his parents
- Lee was cool w everything until the book got into how he viewed his inheritance from his parents and did not use it for Wayne among other things post murder
- He contends that some assertions were not true and thus challenged them under false light privacy doctrine
- Court has to decide whether true parts of the book were matters of public interest at time of publication and if the inclusion of p in connection w the matters was legit, or if countervailing interest in p's privacy concerning those matters years after events renders publication actionable
- Partial summary dismissal granted where Lee potentially prevails on Mewshaw being negligent when it comes to asserting certain facts that may have placed Lee in a negative light but the other part of summary judgment was granted pertaining to whether the material in the book was mostly accurate on Lee's privacy claim
Street v. National Broadcasting Co. - ANSWER Important case w regard to 1st amendment. The girl was a witness at trial — any testimony at trial is privileged (protected speech). After trial finished and murderers got convicted, she held a press conference on the steps of the Ct house. Decades passed and they made a movie about this and she wasn't put in the best light portraying her actions during trial and she ain't like it and sued — she lost. Take away is private citizens can become public. (thrust self into public eye for doing press conference on steps of ct house)-- this determination of public or private was done in order to determine whether defamation over this movie could be claimed without having to adhere to the malice standard
MLK case (1st half) - ANSWER MLK's fam is upset w fellow who claimed to have a church and be a minister. The guy was w charity org. makes busts of MLK for like 30 bucks and sells em and the King fam gets upset and they don't want this freeloader to make statues of their deceased fam member making a buck at their expense since he was a public figure. Guys says nah I can cuz im doing it for charity. Court said you gave a dollar to charity and 29 to ur pocket so get outta here. MLK had commercial value as a purpose and to use this as a purpose to make money is not allowed. Ch 3 akin to infringement. Can't misappropriate public figure's likeness.
Hicks v. Casablanca Records - ANSWER - Agatha Christie was a notable author who had died in 1976 and shortly after the d began filming a movie about an event surrounding what had occurred in her life which was a great mystery and so the film was of great speculation
- When her daughter who was her heir heard of this she filed suit alleging violation of her mom's right of publicity (since defamation and privacy claims die with the person portrayed)
- Since it was a novel (aka not taken to be true) the court found that the d was availed of first amendment protection
- Court finds that the right of publicity doesn't attach here, where a fictionalized account of an event in the life of a public figure is depicted in a novel or a movie, and in such novel or movie it is evident to the public that the events so depicted are fictitious
- Summary Dismissal denied
Simon & Schuster v. New York State Crime Victims Board - ANSWER - mid level mobster made to tell about his exploits for a movie and made some money (sold the rights). They wanted to stop this, making money from criminal exploits. The studio said nah that violates free speech. Said NY and CA laws were overly broad and included if a criminal wrote a book about gardening the money could be taken by the state — law was stricken down as it violated the 1st amendment
- Criminals have 1st amendment rights (takeaway). Can't prohibit criminal from
Johnny Carson v. Here's Johnny Portable Toilets, Inc. - ANSWER Guy manufactures portable toilets - Here's Johnny the King Commodian and Johnny Carson thought that was too close. Was it substantially similar w regard to access and how close of an association can this phrase: "Here's Johnny" does this constitute a taking of his publicity rights (court ruled yes it does bc it was so closely associated w Johnny Carson to the point where people would think he was sponsoring it)
- He didn't want his name besmirched
- It doesn't have to be a violation of publicity rights — it could be something associated with you (your orbit) — so closely tied w him that it constitutes a violation of publicity rights
Vanna White v. Samsung Electronics America, Inc. - ANSWER - On this commercial depicting the future at the time it had featured various celebrities including a robot dressed like Vanna, standing like her, next to a wheel and it said longest running game show. She was the only one on the ad that had not given consent nor was receiving compensation for the ad so she sued and it was granted summary judgment so she had to appeal and it had to be determined if any state law publicity rights of hers had been infringed and whether Samsung had a first amendment right to do so
- The appellate court reversed this case w the belief that Vanna's identity was appropriated for profit
- Parody defense doesn't really make sense because they are not trying to poke fun but instead trying to manifest profit as a result of what they've
people — so Denker sued driving Ms Daisy. Court said no just because they deal w similar race relations does not mean they are substantially similar — case dismissed
Fink v Goodson-Todman Ent, Ltd. - ANSWER 2 series, Fink submits his to the d 5 years before d airs a show that is somewhat similar in plot to the d's but he does not establish substantial similarity enough and thus does not prevail
Unprotectable Story Parts - ANSWER line between what is protectable is between idea and the expression, e.g. story of girl and fam hiding from Nazis is protected as expressed in Anne Frank is protected but the concept of hiding from Nazis isn't
Scenes-A-Faire - ANSWER - Scenes that necessarily result from the choice of a setting or situation
- Copyright neither extends to "stock themes"
Characters - ANSWER in order to be protected, they have to be identifiable as belonging to someone like Donald Duck (identified as being a character on its own) not generic like stick man
- more generic, the less they're protectable
Warner Brothers, Inc. v. American Broadcasting Companies, Inc. - ANSWER
-Superman case where WB attempted to issue an injunction on ABC for their character which the court did not grant bc the judge believed they were not substantially similar and even if, it was a parody that was protected under the Fair Use doctrine
- They both wear capes and lead double lives (similar ideas, but expression is different) but the way they conduct their selves is so different and the similarities are able to be explained away through the generalities of what occurs in the superhero genre
Campbell A.K.A. Luke Skyywalker v. Acuff-Rose Music, Inc. - ANSWER - 2livecrew aka p made a parody of d's song and gave them credits for original composition but did it without permission even though they were denied permission
- D sues P for CR infringement and dist ct. granted summary judgment for P
- Appellate ct. reversed and remanded saying that the parody took too much and that its blatantly purely commercial purpose prevents this parody from being a fair use
- Supreme Ct. reversed and remanded saying the Appellate ct. erred — the commercial use did not render this parody presumptively unfair
Who can sue for infringement? - ANSWER only the owner
Artistic Credit - ANSWER ____________ ___________ translates to $. IF performer u
except he omitted eight minutes of the original sound (including some of the instruments) so Granz sued to block the release of the recordings
- Since he was required to credit him, this carries the implication/ contractual duty to not sell records which make the required legend a false representation, so the P is entitled to injunction
- Harris altered work of Granz, then he cut out 8 mins of the recording and he put his own name on it, presented it as genuine when it fact it was altered and violated Lanham act + Granz never agreed to it. Granz complained on moral rights, you altered my own don't do that — INJUNCTION
Gilliam v. American Broadcasting Companies, Inc. - ANSWER - Injunction issued because Monty Python did not allow ABC to truncate their works — Lanham Act violation
- you have comedy group, Python (British), they licensed work to be shown on the BBC for TV airing. BBC then licensed it to ABC in the US — ABC cut out portions (bc we have more advertising and the humor is more racy), Monty Python found out and sued ABC. They couldn't sue for breach of contract since they didn't have a contract so they sued BBC. It was a sublicense and BBC can't sublicense anything more than they received ( they received rights to show MP skits in total, they can't sub license it to anyone else to do anything else — so breach of contract between MP and BBC not ABC). ABC says hold up US has more broadcast restrictions than Europe, court and MP said nah stop it. Assignment: transfer contract rights.
TM & CR - ANSWER treat same for purposes of this class
Hormel Foods Corp. v. Jim Henson Productions, Inc. (1st half) - ANSWER - Got in fight w muppets bc of little frog character and she was in mud, judge says cmon where's your sense of humor. Hormel claimed CR infringement (Access but no substantial similarity), muppets are from another universe. Court said Hormel is tripping.
- Court sees the mark as strong enough to withstand confusion, parodic intent distinguishes the 2 marks so it's not seen as similar, the products are not in close proximity to each other, Hormel doesn't show intention of entering entertainment, no actual confusion arises, no bad faith, the 2 products are clearly different, and consumers are sophisticated enough to know what they're buying
- Appellate Court affirms that Hormel's infringement claim is without merit as Spa'am was clearly put together w the image of obvious parody in addition to being inoffensive
Hormel Foods Corp. v. Jim Henson Productions, Inc. (2nd half) - ANSWER - Here the court addresses the question of whether the movie had diluted the distinctive quality of SPAM by blurring or tarnishing its name under state law
- Blurring occurs when the D uses the P's mark by changing it a bit in order to identify its own goods and services, raising the possibility the mark will lose its ability to serve as a unique identifier of the P's product — there is low chance Spa'am will weaken the association between the mark SPAM and Hormel's lunchmeat
