Name: Brandon Dobson

Law 406 Summer 2013 Chapter 8 Creative Property Outline 155.5 /167= 93

I. Copyright The U.S. Constitution provides, “The Congress shall have Power . . . To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Copyright policy balances two potentially conflicting viewpoints. On one side is the interest in the free flow of information and on the other side is the interest in a right to seek monopoly rewards for one's original works of authorship. If the law provides too little incentive through reward, presumably creative people will stop creating knowledge. If the law provides too much reward or protection, presumably the public will stop paying and therefore will stop benefiting from the newly discovered or created knowledge, resulting in reduction of progress. The 1976 Copyright Act 1) protects all works fixed in a tangible medium of expression, and provides a nonexclusive list of types of works (many more types of works than the original U.S. copyright statute’s protection of books, maps, and charts), 2) as amended, extends the length of protection to life plus 70 years, or 95 years for non-author copyright holders (much longer than the original Act’s 14 years), and 3) lists types of copying that are permissible under the statute (effectively limiting many previously judicially permitted uses of copyrighted works). Not everything can be copyrighted: examples of non-copyrightable things include ideas, facts, titles, names, short phrases, list of ingredients.

Visit http://www.Copyright.gov . This website is a wonderful resource for copyright questions, Find out the answers to these questions: Do I have to register my copyright to have protection, and if not, why should I register it? How much does it cost and what must be done to register it? Will registration protect me against unauthorized use worldwide, or just in the U.S.?

1) ANSWER (5 POINTS): 5 Good!

You do not have to register your copyright to have protection. However, there are reasons that you should register your copyright such as: “registration establishes a public record of the copyright; before and infringement suit can be filed in court, registration is necessary for works of U.S. origin; And If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and the facts stated in the certificate.” To paper file a registration it costs $65.00 to file online it costs $35.00 with both methods having a filing fee of $50.00. To register you must complete an application form, pay a non-refundable filing fee, and pay a nonreturnable deposit (as previously mentioned). Registration does not protect against unauthorized use internationally.

A. Characteristics 1. PROTECTED WORK AS AN EXPRESSION (P. 321-2)

Copyright protects “original works of authorship” that are fixed in “a tangible form of expression.” Rights begin at the moment of “fixation.” What are the 7 categories of expression that the Federal copyright act protects? Give an example of each one.

2) ANSWER (5 POINTS): 5

- Literary works such as fiction, textbooks, and even computer programs- Musical works, including accompanying words such as music compositions and lyrics- Dramatic works, including accompanying music such as theatrical plays or television scripts- Pantomimes and choreographic works such as dance routines- Pictorial, graphic, and sculptural works such as cartoon characters like Mickey Mouse- Motion pictures and other audiovisual works such as movies like Man of Steel- Sound recordings such as songs on the radio or original music in commercials

2. ORIGINALITY (P. 322-244)In addition to a work being reduced to a tangible medium of expression, must be original. The work does not have to be novel, first of its kind, etc., just original. An original compilation of existing work can also be copyrighted. What is it called and give an example?

3) ANSWER (5 POINTS): 2

An original compilation of existing work that can also be copyrighted is called derivative workcollective works p. 324 . An example of this would be the musical West Side Story which is a derivative work based on Shakespeare’s Romeo and Juliet. Reader’s Digest anthology

3. TANGIBLE MEDIUM (P. 325)The 1976 Act provides copyright protection for all works “fixed in any tangible medium now known or later developed.”

4. OWNERSHIP (PP.326-29) Who owns a copyright? The author who creates the copyrighted work owns the copyright. Joint ownership is also recognized if the work is created by more than one person (p. 328). In such cases it is wise to have a collaboration agreement to govern how the copyright will be owned and managed. Ownership allows the owner to

make copies of the work distribute copies of the work perform the work publicly (such as for plays, film, or music) display the work publicly (such as for artwork, or any material on the internet or TV) make “derivative works” (including making modifications, adaptations or other new uses

of a work, or translating the work to another media)

No publication or registration required in order to perfect copyright ownership rights. Ownership rights are secured automatically when work is fixed in tangible medium. Copyright is notice no longer required (since 1989), although it can be attached: ©. Owners can sue for infringement, of the unauthorized use.

Explain the concept of “Work Made for Hire.” Who owns the copyright in such cases? What was at issue in Community for Creative Non-Violence v. Reid and what did the court decide?

4) ANSWER (5 POINTS): 5 good!

Work for Hire means the person creating is an employee of someone else. If the creator of a work is acting as an employee of the person paying for it, then copyright ownership resides automatically with the employer, unless there is an agreement to the contrary. An example is a staff reporter who writes as an employee of a newspaper. The issue in the Community for Creative Non-Violence v. Reid case was the meaning of employment in regards to the Work for Hire doctrine. The Supreme Court had to decide whether a sculptor who was hired by CCNV was an employee or an independent contractor. The Court decided that the sculptor was in fact an independent contractor because he worked in his own studio in another city, supplied his own tools, he was retained for only two months, he had absolute freedom to control his work schedule, and CCNV was not in a position to supervise the work closely.

Copyright lasts for the life of the author plus 70 years, or 95 years for non-author copyright holders (see chart p. 331). What is the Mickey Mouse amendment? Why did Disney want the legislation passed and what were the challenges to it?

5) ANSWER (5 POINTS): 5 Good!

The Mickey Mouse amendment, also known as the Sonny Bono Copyright Term Extension Act, was a bill to extend copyright terms by twenty years. Disney wanted the legislation passed because characters such as Mickey Mouse and goofy were nearing the end of their copyright protection terms. Once the bill was enacted in 1998 a group of publishers challenged the constitutionality of the law. The plaintiffs claimed that the law’s longer copyright terms exceeded what the Constitution’s copyright clause meant by “limited times,” that it did not promote future creativity as intended by the Constitution, and that it also violated the First amendment rights of those that would/could otherwise make use of the works. The Supreme Court upheld the law in Eldred V. Ashcroft in 2003.

Read this recent news item. http://www.cnn.com/2011/SHOWBIZ/celebrity.news.gossip/05/28/marilyn.monroe.mystery/index.html?iref=NS1Why is there concern over the possibility over a legal claim to these pictures? Why wouldn’t the owner of the negatives be the owner of the copyright? Could someone else own the copyright?

6) ANSWER (5 POINTS): Excellent!!!! 5

There is a concern over the possibility of a legal claim to these Marylyn Monroe photo negatives found at a garage sale in an envelope, because the photographer of the pictures under copyright law owns the pictures not the owner of the negatives. Copyright ownership is entirely distinct from ownership of the physical object that embodies a copyrighted work. For example, courts have held that when the writer of a letter sends the letter to another person, the recipient becomes the owner of the physical piece of paper, but absent an agreement to the contrary, the writer typically retains copyright ownership over the contents. Also, since the picture was taken around 1950 they have a copyright duration of 95 years if renewed after the 28th year. So it is possible that the original photographer still owns the copyright even 60-70 years later.

5. INFRINGEMENT AND LICENSING

An infringement is any violation of the exclusive rights of a creator, unless there is a defense such as fair use. You can make an infringing copy by direct copying or through copying substantial elements of a copyrighted work in any medium.

Visit: http://www.benedict.com/Audio/Vanilla/Vanilla.aspx . This clip (click on Queen’s and then Vanilla Ice’s) demonstrates sampling, or taking a small piece of a preexisting piece of music and using the sample to create or enhance a different, new piece of music. Copyright law allows only the copyright holder of a work of art to make derivative works or changes in the original work. Music has two separate copyrights, the copyright of the musical composition and the copyright of the sound recording (see p. 340-42 for a discussion of music licensing). Sampling can violate both copyrights, so an artist like Vanilla Ice should obtain the permission of those copyright holders before using the original song or master. The process of getting that permission is known as clearing the sample. A federal appeals court in a 2004 case stated, "Get a license or do not sample." Here is an example of a licensing agreement: http://fpamediaserver.wcu.edu/~burke/Law230_lisencingK.pdf

Like the article speculated, Vanilla Ice probably settled. If there had been a lawsuit who would have won? Do you think his song infringed on Bowie’s copyright or was it transformative?

7) ANSWER (5 POINTS): 5

If there had been a lawsuit Queen and David Bowie would have won. Vanilla ice’s song most definitely infringed on Bowie’s copyright. He used the most noticeable sound in “Under Pressure” for his own song “Ice Ice Baby” without permissions from the copyright holder.

Watch this video about sampling as a separate art form. http://fpamediaserver.wcu.edu/~burke/CopyrightCriminals.htmlDo you think our copyright laws are too antiquated? Is sampling transformational in your opinion?

8) ANSWER (15 POINTS): 13

Yes, our copyright laws are too antiquated. Like the video says, our copyright for music has a lot of antiquated assumptions of what musical creativity is that doesn’t cover modern technology. As the video says, it is cheaper and easier to cover an entire song than it is to use 3 seconds of someone’s song. That doesn’t make reasonable sense. No, I think Sampling is not transformational in my opinion. Transformational works are legal for fair use without licensing. It has to serve some productive, publicly beneficial, “transformative” purpose not only entertainment. It should also not be commercial in nature. The artists in this video, De La Soul including someone named Biz Markie sampled many different songs in their music. This included many copyrighted works such as a song by the Turtles or Gilbert O’Sullivan as mentioned in the video. In the video the hip hop artists didn’t get these cleared they said for whatever reason and because they thought it wasn’t necessary for such things as a skit. Their use was definitely not transformative. It was for entertainment and commercial purposes. That’s ok—can still be transformative –like Koons but for music The video also says that Biz Markie was parodying O’Sullivan’s song, but it probably was not a Fair Use of it, because of the substantiality of copying.

B. Limitations on Copyright Ownership/ Defenses to Infringement

1. FAIR USE (PP. 347-54) The Copyright Act contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Fair Use is a defense to claim of copyright infringement, that is, an exception in the copyright law that allows you to use someone else’s copyrighted material without their permission. In evaluating whether or not a use is “fair” courts will consider:

Purpose and Character of Use The more editorial the use and the less commercial the use, the more likely it is to be “fair”

Nature of Copyrighted Work The more informational the use and the less creative the use, the more likely it is to be “fair”

Amount and Substantiality of Use Consider the quantity of the use (less is best)* and the quality of the use (if it’s not the “heart” of the work, more likely to be considered fair)

Economic Effect of Use on the Market Does it hurt the copyright holder’s ability to profit?

* Should use no more of the work than is necessary to illustrate the desired point. Courts will consider whether or not the alleged infringement is in fact transformative. Consider this case:

An artist, Blanch, created a photograph entitled “Silk Sandals” as part of an editorial six-page article entitled “Gilt Trip” about metallic makeup that appeared in Allure Magazine. Koons copied, scanned and superimposed the legs, feet and Gucci sandals from the photograph, and incorporated them into a collage, which he then gave to his assistants to make the painting “Niagara” (another Koons case is mentioned p. 335).

Was there an infringement or a fair use? What did the court decide and why? http://theartlawblog.blogspot.com/2006/10/koons-wins.html

9) ANSWER (5 POINTS): 5

Koon’s use of the legs was/is fair use. The court also decided that his use was fair use because it was “highly transformative.” Koons only used the legs in his picture, changed the colors and the position while putting them with 3 other pairs of legs on a different background, Koon’s use does not interfere with Blanch’s ability to profit.

How about a tattoo? Read about a controversy that almost delayed a much-anticipated sequel:http://abcnews.go.com/Business/hangover-tattoo-lawsuit-shines-light-copyright-laws/story?id=13669298

Can a tattoo be copyrighted? If protected, do you think the Fair Use defense is applicable here? Why or why not? Apply the 4 factors from the chart.

10) ANSWER (5 POINTS): 5

Yes, a tattoo can be copyrighted. It is a work of art owned by the artist. The movie maker’s use is commercial not editorial, as the movie’s purpose is to make money, but they also aren't selling tattoos that will compete with the artist. Secondly, it is more of a creative use than an informational use. Third, the quantity of the tattoos use is not at the heart of the movie. It is only a minor joke I think, as I have not seen the movie. Lastly, as hinted above, it doesn’t hurt the copyright holder’s ability to profit. In fact it probably increases it. Good! So by theses four factors I think the movie would be granted a fair use, specifically the latter two factors.

2. PARODY (PP. 354-55) The Supreme Court has held that parody is a form of comment and criticism that may constitute a fair use of the copyrighted work being parodied. A work has been treated as parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic work (it is also a defense to trademark infringement, see II. below).

Dabba Don Video: From Adult Swim’s Harvey Birdman, attorney—it’s an opening spoof on the Sopranos: http://www.youtube.com/watch?v=lKonw1dwCV0

3. PUBLIC DOMAIN The statutory protection is not in perpetuity--copyrights expire. Remember the length of protection is the life of the author plus 70 years, or 95 years for non-author copyright holders. Such works then return to the public domain and can be used without restriction or licensing. Examples include Shakespeare’s plays and other classic works of art and literature, as well as art.

Whistler's Mother, is an 1871 oil-on-canvas painting by American-born painter James McNeill Whistler. In a photo-shoot of Cycle 5 of America's Next Top Model, contestant Jayla Rubenelli was instructed to pose in a modernized version of the painting as an ad for Olay Quench lotion. Whistler’s Mother is in the public domain. If it was not, what other argument could be made to argue that the copyright was not infringed?

11) ANSWER (5 POINTS): 3 .5 (transformative like Koons)

It could be argued that the photo was not infringed because it does not interfere with Whistler’s ability to make a profit, and because it is using very subtle things to make it comparable to the famous painting.

Would delivering a speech in front of thousands cause the speech to be in the public domain and the copyright lost? Explain.

12) ANSWER (5 POINTS): 5

For copyright protection to apply, the original work of authorship must be fixed in a tangible medium. The work must be embodied on paper, film, tape, computer disk, or other medium such that the work can be reproduced. So no, there would not be a copyright unless it was given from tangible notes or videotaped. However, even without copyright the speech maker would still be protected by the law of commercial appropriation which could prevent unauthorized people from commercially marketing the comments under the speaker’s name.

C. Digital Millennium Copyright Act (p. 357-59)

Digital Millennium Copyright Act of 1998 creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities. It creates 4limitations on liability for copyright infringement by online service providers:

Transitory communications; System caching; Storage of information on systems or networks at direction of users; Information location tools

So is YouTube liable if copyrighted clips are uploaded? Viacom sued Google (owner of YouTube) over copyright infringement. View this clip concerning the controversy and describe the debate: http://fpamediaserver.wcu.edu/~burke/ViacomSuesYoutube.htmlYou do you think won and why?

13) ANSWER (10 POINTS): 8.5

YouTube is not liable unless they refuse to remove infringing content. After viewing the clip above, I think that Google would have won the case because they were doing exactly what was required of them as a host site in the statute regarding infringing content posted by third party users online.

Peer-to-Peer Piracy (pp. 359-61)Digital deliver caused a lot of controversy because of the ease with which copies could be made and shared. The two principle cases in this area are Napster and Grokster. Discuss briefly the 2 cases and their holdings.

14) ANSWER (5 POINTS): 5 good!

In the first case, 18 record companies sued Napster for infringement. They said that Napster users were blatantly infringing copyrights by digitally reproducing and distributing music without a license. And Napster should be liable, because it knowingly encouraged and assisted this illegal activity by its users. The Court of Appeals upheld a preliminary injunctionagainst Napster. The court first noted that in the vast majority of instances users were indeed infringing on copyrights and were not engaged in fair use. Users were downloading music for personal entertainment, not a socially productive purpose, and the free downloading had a harmful effect on the music owners’ potential market. It also said that Napster itself would likely be charged with contributory infringement because it controlled the system. After this decision Napster shut down.

On the other hand, in the Grokster case where a similar suit was filed, but with the difference being a decentralized design of software, where Grokster had no actual knowledge of their users’ acts of infringement. The created the broad legal question, as stated by the Court, was under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for copyright infringements by other persons using the product. The Court held that Grokster could be liable for their users’ infringing acts. Contrary to the precedent case of Sony v. Universal Studios where VCR manufacturer were not secondarily liable for infringement because evidence showed the main use of the VCR was “time-shifting” TV programs, a fair use. The predominant use of Grokster software was infringing, and the companies were not mere bystanders.

II. Trademark A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others (™), or, for example, Business Ready®. A service mark is the same as a trademark,

except that it identifies and distinguishes the source of a service rather than a product (SM). Trademarks are registered and protected under federal law. In order to be legally protected it must be used in the context of business/commerce (pp. 365-66).

Visit the Department of Commerce’s Trademark and Patent Office website: http://www.uspto.gov/. Describe what someone must do to register a trademark

15) ANSWER (5 POINTS): 5

To register a trademark you must identify your mark format, identify the goods/services to which the mark will apply, search the USPTO database to be sure that no one else is already claiming trademark rights in a particular mark through a federal registration, identify the proper basis for filing a trademark application, and then finally file the application online (fee). The USPTO will then review the application, request more information if necessary, and then ,if all is well, publish the trademark.

A. Protection 1. INFRINGEMENT (PP. 366-67)

An infringement of a trademark occurs when a trademark is used without authorization. Typically, infringement only occurs if the products are similar or related so that there is a likelihood of confusion in the minds of the consumers. Trademark owners must protect against such infringement through legitimate use of the mark and through federal trademark registration on the Principal Register ® under the Lanham Act. A registered trademark is exclusive after 5 years, but can be challenged in first 5 years.

2. REGISTRATION UNDER THE ACT PROVIDES: constructive notice to the public of the registrant's claim of ownership of the mark; a legal presumption of the registrant's ownership of the mark and the registrant's exclusive

right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;

the ability to bring an action concerning the mark in federal court; the use of the U.S registration as a basis to obtain registration in foreign countries; and the ability to file the U.S. registration with the U.S. Customs Service to prevent

importation of infringing foreign goods.

B. Distinctiveness (p. 364) 1. CATEGORIES OF DISTINCTIVENESS ELIGIBLE FOR PROTECTION

a. Suggestive of the product’s characteristics— e.g., Penguin refrigerators, "LA" for a low alcohol beer marketed by Anheuser-Busch (the Stroh Brewery Company introduced "Schaefer LA," also a low alcohol beer, and the court enjoined the company’s use)

b. Arbitrary---existing phrases used arbitrarily in association with a productc. Fanciful phrases---NIKEd. Descriptive---may or may not be entitled to protection, depends on use. Phrases that

are merely descriptive can become trademarks only if they acquire a secondary

meaning distinctive of the applicant’s goods, e.g., American Airlines, Philadelphia cream cheese

2. CANNOT BE GENERIC OR COMMON DESCRIPTIVE

E.g., Miller Lite Harley-Davidson— the term “hog” in the description of products v. symbol Harley-

Davidson bar-and-shield trademark. The term “hog” comes from “Harley Owners’ Group.” Motorcycle owners and dealers referred to cycles as hog and its use has become generic. But using a symbol deceptively similar to the Harley-Davidson shield would be an appropriation.

Give 3 more examples of valid trademarks that currently exist:

16) ANSWER (5 POINTS): 5 good!

Three+ examples of valid trademarks that currently exist are Google, the Apple logo of an apple with a bite out of it, McDonald’s arches, and Kentucky Fried Chicken’s image of Colonel Sanders.

What about this recent controversy: http://www.foxnews.com/politics/2011/05/25/navy-seals-fights-mickey-mouse-trademark/?intcmp=obnetwork. What are the issues specifically, and how would you decide?

17) ANSWER (5 POINTS): 4.5—taking it doesn’t have to be exact—discuss the likelihood of confusion angle

After reviewing this recent controversy concerning Disney and The Navy SEALs applying for similar trademark names, Disney’s being “SEAL team 6” and The Navy SEAL’s being “ SEAL Team,” I have decided that it would work out fine for both parties to be awarded their trademark names. I don’t feel as though it would be confusing to consumers because they are two totally different organizations. However, if it came down to a choice and/or brought to court, I would hope that Disney back out and allow The Navy SEALs to be awarded their name.

C. Dilution (pp.367-68) Dilution can occur either when unauthorized use of a mark "blurs" the "distinctive nature of the mark" or "tarnishes it." Likelihood of confusion is not necessarily required, although the text of the statute requires a showing of actual dilution, rather than a likelihood of dilution. Where the marks are not identical, the mere fact that consumers mentally associate a user’s mark with a famous mark is not sufficient to establish actionable dilution. Tarnishing is not a necessary consequence of mental association.

Victor and Cathy Moseley own and operated an adult-toy, gag gift and lingerie shop named “Victor’s Little Secret.” The lingerie chain Victoria’s Secret sued. Federal law provides that “the owner of a famous mark” is entitled to injunctive relief (stop the use) against

another person’s commercial use of a mark if that use “causes dilution of the distinctive quality” of the famous mark. The record in this case showed that although the army officer who saw the "Victor's Secret” advertisement did make the mental association with "Victoria's Secret," he did not form any different impression of “Victoria’s Secret.” What did a unanimous U.S. Supreme Court decide? Was there infringement? http://www.law.cornell.edu/supct/html/01-1015.ZO.html

18) ANSWER (5 POINTS): 5 Good!

A unanimous U.S. Supreme Court decided that there was no evidence of dilution in this case. Justice Steven says that “there is a complete absence of evidence of any lessening of the capacity of the Victoria's Secret mark to identify and distinguish goods or services sold in Victoria's Secret stores or advertised in its catalogs”. To me there was infringement, because Victor’s little secret is very close to Victoria’s secret and they are both in similar industries of lingerie.

The University of Georgia Athletic Association (UGAA) brought suit against beer wholesaler Bill Laite for marketing Battlin’ Bulldog Beer. The UGAA claimed that the cans infringed its symbol for its athletic teams. The symbol, which depicted an English Bulldog wearing a sweater with a G and the word BULLDOGS on it, had been registered as a service mark. Soon after the beer appeared on the market, the university received telephone calls from friends of the university who were concerned that Battlin’ Bulldog Beer was not the sort of product that should in any way be related to the University of Georgia. The beer cans bore the disclaimer “Not associated with the University of Georgia,” although it was relatively inconspicuous on an individual can and was not visible on a six-pack. Was there an infringement? http://bulk.resource.org/courts.gov/c/F2/756/756.F2d.1535.84-8179.html

19) ANSWER (5 POINTS): 5

In the case of UGAA v. Laite there was an infringement. Laite used UGAA’s Mascot/Symbol in school colors on his Beer after being denied permission from the school. This would cause consumer confusion and possibly affect the school’s reputation.

http://www.huffingtonpost.com/2011/11/28/chick-fil-a-eat-more-kale_n_1116695.html?icid=maing-grid7%7Cmain5%7Cdl1%7Csec1_lnk3%7C116142 In your reasoned opinion, is Bo Muller-Moore in violation of Chick-fil-A‟s trademark? Now consider: http://money.cnn.com/2011/11/18/smallbusiness/tootsie_roll_footzy_roll/index.htm?iid=GM In your reasoned opinion, is Footzyrolls in violation of Tootsie Rolls‟ trademark? Which case for infringement is stronger—that of Chick-fil-A or Tootsie Rolls? Why?

20) ANSWER (5 POINTS): 5 Good

I do not think that Bo Muller-Moore is in violation of Chick-fil-a’s trademark. Kale and Chicken sandwiches are very dissimilar businesses. There is little likelihood consumers would confuse kale with chicken. Also, the phrase “eat more” is a very generic, common phrase not applied in a unique way. Footzyrolls on the other hand probably is in infringement of Tootsie rolls copyright. Tootsie Roll is a very distinct trademark that give no clue to the product it represents, chocolate cylinder shaped candy. Footzyrolls sounds almost exactly the same as tootsie rolls with a few letters changed for the purposes of trying to avoid infringement. The case for infringement is definitely stronger in the case of Tootsie Rolls.

D. Parody Law protects trademarks against dilution, but not against parody because arguably there is no likelihood of confusion or blurring of the distinctiveness of the mark. Sometimes, however, it is hard to draw a line between parody and infringement.

Louis Vuitton brought suit to enjoin sale of a small polyester chew-toy, shaped roughly like a handbag, that bears a monogram that parodies the French luxury goods retailer’s famous “monogram canvas mark.” The Chewy Vuiton toys are decorated with geometric doo-dads that mimic Louis Vuitton’s four-pointed-star designs, and feature an interlocking CV logo in place of the famous interlocking LV logo. Vuitton, a French luxury fashion house, sells its monogrammed handbags (for between $995 and $4,500) only from licensed Louis Vuitton stores or department store boutiques. Haute Diggity Dog, which is based in Las Vegas, Nevada, also makes parody chew toys called Chewnel No. 5 (Chanel No. 5), Furcedes (Mercedes), Jimmy Chew (Jimmy Choo), Dog Perignonn (Dom Perignon),

Sniffany & Co. (Tiffany & Co.), and Dogior (Dior). How did the federal appeals court hold? Was there dilution/infringement? Do you agree with the ruling? Why or why not? http://pacer.ca4.uscourts.gov/opinion.pdf/062267.P.pdf

Chewey Vuiton dog bed

21) ANSWER (5 POINTS): 5

The Federal Courts ruled in favor of Haute Diggity Dog saying that the chew toys were successful paradies of the designer handbags. There was not any dilution/infringement. I do agree with the ruling because the chew toys do not weaken the quality in any way of the Louis Vuitton Handbags, and are cute mimics of them. In fact I find Haute Diggity Dog’s business idea very clever!

Fox News filed suit asserting that a book by liberal satirist Al Franken violated its trademarked slogan, "fair and balanced." Fox was seeking an injunction to halt distribution of Franken's book, "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right." View a short (and entertaining) documentary clip on the incident: http://fpamediaserver.wcu.edu/~burke/Fox_vs_Franken.htmlWhat was the outcome of the lawsuit? Why did the judge rule the way he did? Do you agree with his decision? Why or why not?

22) ANSWER (15 POINTS): 15 woo-hoo!!!!

The outcome of the lawsuit was that Fox's application for a temporary restraining order against Al Franken’s book being released because it used the term fair and balanced was denied. In the video, the judge said the lawsuit was "wholly without merit, both factually and legally”. Also, that there would be no likelihood of confusion that consumers will be misled that Fox or Bill O'Reilly are sponsors of the book. The judge said that “fair and balanced” was a weak and unlikely trademark. For proof that I watched the video, and in hopes of not losing massive points like every other question I have attempted with a video in this course, it shows Franken

commenting on his encounter with O’Reilly and clips from the O’Reilly factor where he said things such as he guarantees he would win a duel 120 years ago if Franken accused him of lying. Franken says in the video that he knows that in America satire is protected speech and neither he nor his publishers is worried about Fox’s threats to sue. John Stewart’s comedic point about Fox attempting to trademark the very common, non-distinct terms “fair and balanced” is hilarious. He says jokingly tries to trademark many other similar common English words for himself. That part of the film helps to understand why the suit failed. Lastly, it was interesting to see the Judges point of view of Bill O’Reilly portraying him on the show as protecting child pornographers. It ends with him saying the 1st amendment gives O’Reilly the right to do that. I totally agree with Judges Decision and for the same reasons. Fox news did the same satirical concept in their books, Fair and Balanced was a generic term, yes and they were just trying to find a way to win the suit.

E. Vigilant protection Remember, while federal law protects trademarks, the government does not police infringement or dilution cases. It is up to the holder of the mark to bring a lawsuit to protect the federally granted right of exclusion. Also, it’s not the case that once something is trademarked it’s always trademarked. If the mark becomes generic or diluted, it’s lost. So holders must be vigilant in policing infringement. Examples of lost trademarks--Bayer Aspirin, thermos, cellophane Examples of trademarks in jeopardy: Kleenex TISSUES/Sanka BRAND coffee/Xerox

COPIER

What is the purpose of the ad depicted on p. 369 (Exhibit 8.5)

23) ANSWER (5 POINTS): 4

The purpose of the ad depicted on page 369 is advertising to remind communications professionals and consumers of the proper use of certain trademarks. To prvent them from becoming generic—like aspirin

F. Trademarks and Domain Names (pp. 369-71) The registration of domain names is permitted under trademark law, e.g., “amazon.com”, “priceline.com.” With the advent of the Internet, a problem arose with respect to Cybersquatters, people who establish domain names that are identical and confusing, or use famous person’s name in the hopes of selling the site for a ransom. In 1999 Congress passed the Anti-Cybersquatting Consumer Protection Act, which prohibits cyber squatting, provides injunctive relief, provides for forfeiture of the domain name and provides for attorneys’ fees and costs. The legislation also provides a safe harbor for reasonable grounds to believe name use was a fair use.Discuss this recent controversy that involves the Cybersquatting law:http://www.abajournal.com/news/article/facebook_sues_adult_internet_companies_promoting_their_face_book_of_sex?

utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly Do you think Facebook has a sound case? Why or why not?

24) ANSWER (5 POINTS): 5

Facebook sued several affiliated Internet companies for using the phrase “Face Book of Sex” to promote their adult networking service. They operate Facebookofsex.com and affiliated websites in a “blatant attempt” to capitalize on the Facebook name doing what is called cybersquatting. One of the defendant sites, FriendFinder humourously responded back saying that Facebook is infringing its rights by using the term “friend finder” within its site. Yes, I think Facebook has a sound case based on the passing from Congress that in 1999 enacted the anticybersquatting Consumer Protection Act (ACPA). It created a new form of civil action that may be filed against persons who, in “bad faith,” register domain names identical to or confusingly similar to an existing, distinctive trademark.

G. Better than Suing for Commercial Appropriation!! (see p. 185 to review) We learned in Chapter 5that the privacy tort of Commercial Appropriation can be used to protect one’s name, likeness, image, etc. from be exploited for another person’s commercial advantage. Another option (instead of suing for the usurpation of one’s name, image, likeness, etc.) is to just trademark it and license its use! Make some $$ upfront because it could be that suing someone who is insolvent after the fact gets you nothing! A celebrity may be willing to license the use you desire for a fee. For example, Michael Buffer is known for the slogan Let’s Get Ready to Rumble http://www.youtube.com/watch?v=WvufFwdqMzg: “By trademarking his catchphrase, Buffer has generated over $400 million in revenue, selling the rights to music, video games, merchandise and while making personal appearances. His business venture is so successful, Buffer doesn't even have to say his catchphrase to make money. He makes more from the trademark than he does announcing in the ring.”http://abcnews.go.com/GMA/Weekend/lets-ready-rumble-meet-man-catchphrase/story?id=9022704&page=2%20

Multiple Choice (2 points) +20

1. In determining whether or not the use of a copyrighted work is a fair use the factors courts consider are:

a. The purpose and character of the use, such as if the use is of a commercial nature or instead is for nonprofit educational purposes

b. The nature of the use of the copyrighted work, whether it is for informational purposes only or instead a creative use

c. The amount and substantiality of the portion used in relation to the copyrighted work as a whole, in other words whether a small or large portion was used

d. The economic effect of the use upon the potential market of the copyrighted work, that is, will the use hurt the holder’s ability to generate money.

e. All of the above +2

2. Which of the following would be NOT be a violation for a protected trademark’s status?

a. Selling a novelty “pet perfume” called “Timmy Holedigger” b. Using the phrase “Just Do it” for an ad campaign for recyclingc. Using the iconic McDonald’s golden arches for a Hot Dog stand in Manhattand. Using the slogan “this Bud’s for you” to sell roses

3. Which of the following statements is FALSE?

a. A copyright is an intangible right granted by federal statute to the author or originator of certain literary or artistic productions.

b. A copyright registration with the federal government is required for the right to exist. c. Copyright protection lasts for the life of the author plus 70 years.d. There are usually no copyright infringement concerns for classical music performances

(Bach, Mozart) because such works are in the public domain+24. Under copyright law, parody:

a. Is a form of comment and criticism that may constitute a fair use of the copyrighted work.

b. Is shielded from claims for infringement if its aim is to comment upon or criticize a prior work by appropriating elements of the original.

c. Both of the above. d. Neither of the above. Parody always constitutes copyright infringement.

+25. Max plots a new Batman adventure, carefully and skillfully imitating the art of DC

Comics to create an authentic-looking Batman comic. Can Max publish the comic without liability?

a. No. because while the idea of a superhero crime-fighter attired in tights and cape is not copyrightable, the particular way in which an idea is expressed (Batman) is protected under federal law and may not be freely used by others.

b. No, because when the form or expression of an idea is reproduced without permission, an infringement of occurs.

c. No, because the reproduction does not have to be exactly the same as the original nor reproduced in its entirety to constitute such an infringement.

d. All of the above. e. None of the above. Fair use is a defense.

+2

6. A brewer identified its beers with the words "Honey Brown." Beer can be either lager or ale. Brown ale is brewed with the addition of honey. If the brewer’s beer is brown ale, would the phrase “Honey Brown” constitute a trademark?

a.No, because the phrase is generic since those words describe any beer in the traditional category of "brown ale."

b. Yes, because the phrase is descriptive and there is no indication of a secondary meaning.

c.No, because the phrase is fanciful.d. No, because the phrase is arbitrary.

+27. Which of the following would NOT be subject to being copyrighted?

a. Mickey Mouse cartoon characterb. James Bond, Secret Agent 007c. Einstein’s E=m c2 d. A photo of the Grand Canyon

+28. The Palin family lawyer filed applications to the United States Patent and Trademark

Office to trademark "Sarah Palin®." Which of the following statements is true concerning her application?

a. The proposed trademark application must show that her name will be used in a commercial context.

b. If she is successful in securing a trademark it would prevent others from using it to sell shoddy, unapproved merchandise or "official" candidate memorabilia.

c. Both of the above. d. Neither of the above. Names can never be trademarked.

+29. Hallmark sold birthday cards with a cartoon of a waitress serving a plate of food to a

patron. A photo of Paris Hilton's face was pasted on the cartoon's body. Hilton tells the customer, “Don’t touch that, it’s hot.” The customer asks, “What’s hot?” Hilton responds, “That’s hot.” The inside of the card reads “Have a smokin’ hot birthday.” Hilton sued, alleging that Hallmark was selling the birthday cards without her permission and ripped off her appearance as a waitress in an episode of her reality television show "The Simple Life." For what tort should she sue?

a. Commercial appropriation b. Intrusion into seclusionc. Defamationd. Public Disclosure of private facts

+210. Instead of suing for that tort, how else could Paris legally protect her signature phrase?

a. Copyright it, and license its use to Hallmark for a feeb. Trademark it and license its use to Hallmark for a fee

c. Either of the aboved. Neither of the above. It’s generic.

+211. Which of the following statements is FALSE?

a. The U.S. Constitution gave Congress power to grant copyrights and patents for limited time periods to authors, who could enjoy the exclusive right to their respective creative endeavors for that period of time, free from infringement.

b. In A&M Records, Inc. v. Napster, Inc., the Ninth Circuit found Napster liable for its users' copyright infringement with respect to peer-to-peer file sharing.

c. The attempt by Congress in 1998 to extend the copyright term another twenty years beyond what the 1976 legislation provided was ruled unconstitutional by the Supreme Court as a violation of the Constitution’s mandate which limits Congressional authority to grant protection.

d. Copyright law protects original works of authorship that are fixed in a tangible form of expression, and protects those works from the moment of fixation, not registration.

+2