BRC 319 ESSAY EXAM 4
2 essay questions (50 points each). Answer each question thoroughly and completely. Please
provide your name with the response. Save the file as YOURNAMEESSAY4.doc
FOR THE ESSAY THE BEST WAY TO ANSWER THEM IS BY USING THE F.I.R.A.C.
MODEL FOR EACH ISSUE. YOU WILL ANSWER THEM IN PARAGRAPH FORM BUT
THE WILL BE:
In this case, the state law does not allow Doc Brown to carry a concealed weapon in public. The
law is an outright ban on having weapons in the metropolitan area. The government argues that
this is to combat high crime rates. (facts) The issue is whether Doc Brown’s Second Amendment
rights were violated.(issue)Pursuant to D.C. v. Heller (2008) and McDonald v. Chicago (2010),
the right to bear arms is a fundamental right, thus the state law must survive strict scrutiny by a
government showing of a compelling interest which is substantially served by the law.
Additionally, the law must be the least restrictive alternative (narrowly tailored). (rule)
Though the public safety (high crime rates) is a compelling state interest, the law is not narrowly
tailored as it is an outright ban. There are other less restrictive alternatives such as hiring more
police, gun-free zones, permits, etc. (analysis)Because the law did not survive strict scrutiny, it is
unconstitutional. Therefore, Doc Brown’s rights were violated and he wins the case (conclusion).
GOOD LUCK- JZ
PLEASE ONLY USE CASES AND LAWS THAT WE HAVE DISCUSSED IN THE BOOK
OR THE POWERPOINTS. PLEASE CITE ALL CASES, POWERPOINT SLIDES OR
TEXTBOOK PAGE NUMBERS THAT YOU USE.
THIS TEST PRESUMES COMMON LAW [CASE LAW] OR FEDERAL LAW- NOT STATE
LAWS.
1) CHOOSE EITHER 1 OR 2.
2) CHOOSE EITHER 3 OR 4.
GOOD LUCK- JZ
CHOOSE EITHER #1 OR #2
1. After retiring from the NFL in 2012, Donovan McNabb returns to New York State in 2018 and
runs for U.S. Senator’s office. As a result, a local Syracuse broadcast station has some concerns
about its programming:
1. The station covers McNabb’s press conference where he declares his candidacy.
2. It sells airtime to McNabb’s old teammates who want to show their support for the candidate.
3. It sells airtime to Mr. McNabb for political commercials to be aired at 7 p.m.
4. It replays old SU Football game including games Mr. McNabb played in.
Mr. McNabb’s opponent, Peter Pleasance contacts the stations and wants similar airtime as Mr.
McNabb and wants it for free. What must the broadcast station do on all four accounts in order to
be in compliance with telecommunications acts?
2. Jimmy is a ‘huge’ fan of Harry Potter. He has all the books and all the movies. He
decides to:
1)
Give his copy of the first book to his friend Yolanda;
2)
To make a copy of the second movie and upload it onto Youtube;
3)
Create his own fee-based membership fansite that is a “Harry Potter Primer”
telling people all about the franchise; and
4)
In art class, Jimmy paints the Harry Potter character in an abstract style [similar to
to a Picasso painting], which he posts onto his Facebook page.
Jimmy is sued by all those that hold copyrights on Harry Potter. What will be the legal
ramifications for Jimmy on the four “uses”? Go through each one of the ‘uses’ and
describe the plaintiff’s arguments and any possible defense available to Jimmy.
CHOOSE EITHER #3 OR #4
3. In class we discussed the issue of disparate legal tests for corporate speech. What do
you think the legal test should be for corporate speech?
1)
2)
3)
4)
Should commercial advertising be treated differently than political advertising?
Where would you place public relations?
What level of protection should each of the three types of speech receive?
How would you differentiate between the three?
Please explain and defend each of your answers.
4. Since the inception of the internet, there has been a general concern about the sexual
content that is readily available. In response, Congress has attempted to pass several laws
to regulate indecency and obscenity on the internet.
1)
Where do we currently stand with regulation of sexual content on the internet?
2)
How does it compare/contrast to indecency regulation on other media (print,
cable, broadcast, etc.)? [Be specific].
3)
How should indecency regulation across the media be changed, if at all? [Please
defend your answer either way.]
SUNY OSWEGO
Department of Communication Studies
BRC 319 Media Law
Jason Zenor J.D.
INTELLECTUAL PROPERTY
Chapter 14
Intellectual Property
Protects Personal Property Right against
Exploitation
Who?
What?
When?
How Long?
Course of Action?
Why?
Intangible property…
“property that a person cannot touch or hold
or lock away for safekeeping”
Intangible property is protected by:
Copyright
Patents
Trademarks
Plagiarism
Patents:
Constitution gives explicit Congress
authority to protector inventors
Can protect:
Inventions with utility
Design
Asexually produced plants
Trademarks:
A word, symbol or device--or combination of any
or all of these--that differentiates one company
from another’s products or services
Examples:
Kleenex, Jacuzzi, Google (Facial tissue, Hot Tub,
Online Search)
Shape (Coke bottle)
Slogans (I’m loving it!)
Telephone numbers (1-800-888-8888)
Domain Names (Amazon.com)
Four main functions:
Trademarks and service marks:
Identify a seller’s product and distinguishes it
from others
“Signifies that all goods bearing the mark come
from single sources”
“Signifies all goods bearing mark are of equal
quality”
Work as an advertising tool
Protecting a trademark:
Owner’s responsibility to use it or lose it
Don’t allow others to use it generically:
Yo-yo
Aspirin
Escalator
Federal Dilution Trademark Act (1996)
Blocks use of trademarks on dissimilar products as
well as similar ones
Adult Novelty Store called Victor’s Secret
Calling your toy store Berger King?
Architecture firm using the golden arches as a ™?
What about a antifreeze bottle that uses red and white
script (similar to Coke)?
Does not apply if used in news report,
commentary, satire, forms of expression
Trademark Registration
Apply to Patent and Trademark Office:
Must be registered for protections
Research usage
Fee
Use TM, SM, ®
First user holds rights to symbol, word or
phrase
Protection can last forever
Plagiarism:
Taking another’s ideas, thoughts and words and
using them as your own
More common in mass media than copyright,
trademark infringement
Can be found in:
Sermons
Speeches
Stories
Professional harm versus legal trouble
Copyright law:
Protects “all original works of authorship
fixed in tangible medium of expression”
Not original, not tangible- then not protected
Statutory protection, largely federal (last
large overhaul was in 1976)
Not forever--time limitations
SCOTUS: Federal Law Preempts
Copyright Law:
Statute of Anne 1710
U.S. Constitution Art. I Sec. 8
1790 Act (14 years +14 years)
1886 Berne Convention
1909: Extended to 28 + 28
1976: Extended to 50 years plus life
1998: Extended to 70 years plus life
What can be copyrighted?
All works: books, magazines, music,
concerts, literary, plays, art, photos, comics,
movies, shows, lectures, architecture…
What is protected?
Right of reproduction of the work
Right of preparation of derivative works
Right of public distribution of the work
Right of public performance of the work
Right of public display of work
Right of public digital performance of a
sound recording
What can’t be copyrighted?
Trivial matters
Ideas
Utilitarian goods--can’t copyright a lamp,
but can copyright design
Methods, systems, mathematical principles,
formulas, equations
Government Publications
What is original?
Author is responsible for creation of the work:
Court transcription?
A Christmas parade?
A telephone book?
A database with facts in ABC order?
An interview with Osama Bin Laden?
A Speech?
Joint Authors have joint copyright ownership
Misappropriation…
Or unfair competition
Common law
Intended to prevent:
• someone from “trying to pass his or her work off as
the work of someone else, and”
• From “trying to pass of the work of someone else as
his or her own work”
Associated Press Case (1919)
Work for hire?
Created as part of job function
Test whether its an employee or independent
contractor
Copyright owned by employer for 95 years
from publication or 120 years from creation
(which ever is shorter)
Length of copyright protection?
Worked created before 1/1/78:
Total of 95 years
Retroactive to 1923
‘Happy Birthday’ will be in the public domain in 2030?
Work created after 1/1/78:
Life of creator, plus 70 years
Or 95 years if corporation
‘Rehab’ will be in the public domain in 2080?
Eldred v. Ashcroft (2003)?
Public domain?
After copyright expires, it can be used by anyone
for any purpose
Classical Music
Fairy Tales
Shakespeare
But an original derivative of it might receive
separate copyright protection
1976 Copyright Law:
‘Fair Use’ is a statutory defense
In assessing fair use, courts should consider:
Purpose/character of use
Nature of the copyrighted work
Amount and substantiality of part used in
relation to copyrighted work as a whole
Effect of the use on potential market for or
value of the copyrighted work
Purpose and character of use?
News Story
Criticism and comment
Parody
Teaching
Scholarship and research
Educational fair use copying:
Is it less than 1,000 words?
Was there time to get permission?
Did it occur more than twice in a term?
Limited number of copies from a single
author?
Did it carry copyright notice?
Was it a substitute for purchasing original
work? Cost more than actual copying cost?
Nature of copyright work?
Is copyrighted work still available for
purchase?
Is it a consumable work?
Is it informational or creative?
Is it published or unpublished?
Amount of work used?
Heart of the original work?
Whether paraphrased or quoted directly,
Percentage more important than numbers
Effect of use on market?
Often given considerable weight
Plaintiff must establish adverse economic
impact:
Directly
Derivative creation
Copyright notice:
U.S. historically ignored international
copyright law
1989: U.S. signed Berne Convention
© sign helps but not necessary
U.S. Copyright Office in Library of
Congress
Statutory damages
Infringement Test:
Violation of exclusive rights of the
copyright holder:
1) Is the copyright valid?
• Does not have to be registered, just an original work
that is copyrightable.
2) Defendant have access to plaintiff’s work prior
to alleged infringement?
• Reasonable Possibility- not fool proof evidence
Infringement Test
3) Are two works substantially similar?
• Objective: Similar Plots, Characters, Settings…
• Subjective: Reasonable person would be confused
Freelancing:
Publisher can buy, among other things:
All rights
First serial rights
First North American serial rights
Simultaneous rights
One-time rights
Defenses
First Amendment?
Derivatives and Artistic Relevance Test
SNL, Weird Al, Sampling
Did not know it was copyrighted?
Mitigate damages
Defenses
First Sale Doctrine
MGM v. Grokster (2005)
Digital Millennium Copyright Act of 1998
Cannot circumvent copyright law
ISP is protected if it acts quickly
License
Varying from blanket to specific use
ASCAP, BMI, SESAC - $1 Billion Industry
At the end of the day?
Damages
Proven: Profits Lost
Statutory: $1-$150,000
Restraining order
Impoundment
Criminal action
Registering copyright:
Not needed for protection, but do need to
register before filing a lawsuit, in order to
sue for infringement:
Complete proper registration form
Pay fee
Deposit 2 complete copies of work with
Copyright Office if published; one if
unpublished
SUNY-OSWEGO
Department of Communication Studies
BRC 319 Media Law
Jason Zenor, J.D.
NEWSGATHERING:
CONFIDENTIALITY
Chapter 10:
Protection of News Sources
In this chapter, we will discuss:
Confidentiality and news sources
Constitutional protections
Shield laws
Newsroom searches
Contempt power
Promising confidentiality
Do not routinely offer!
Avoid absolute promises
Corroborate source info with other sources
Promissory estoppel:
Journalists can be sued if they break a
promise of confidentiality
Reporter can be called…
To testify in three kinds of court
proceedings:
Civil lawsuit
Criminal case
Grand jury
Constitutional protection?
Branzburg v. Hayes (1972):
“Citizens are generally not constitutionally
immune from grand jury subpoenas; and
neither the First Amendment nor other
constitutional provisions protect the average
citizen from the disclosing to a grand jury
information that he has received in confidence.”
Shield laws:
31 states and D.C. recognize a limited
privilege to refuse to testify in legal
proceedings:
Who can use the shield law?
What kinds of info is protected?
Qualifications that might apply?
Chance of court …
Recognizing a reporter’s privilege is:
Greatest in civil cases
Lowest in grand jury situations
Newsroom searches:
Zurcher v. Stanford Daily (1978):
“under existing law a warrant may be issued to
search any property if there is reason to believe
that evidence of a crime will be found”
Newsroom searches:
Privacy Protection Act of 1980:
Work products generally requires a subpoena
Documentary products generally requires a
subpoena
Contempt power:
Can protect rights of litigants
Can be used to vindicate:
The law
Authority of the court
Power of the judge
SUNY-OSWEGO
Department of Communication Studies
BRC 319 Media Law
Jason Zenor, J.D.
PREJUDICIAL
PRETRIAL
PUBLICITY
Chapter 11:
Free Press/Fair Trial
In this chapter, we will discuss:
Impact of media on fair trial
Judicial remedies: voir dire, change of venue,
continuance, admonition to jury, sequestration
Restrictive orders to control publicity
6th Amendment
“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district where in the crime shall have been
committed…”
Media impact on fair trial…
Can saturate community with true or false
reports of:
Confessions
Test results
Defendant’s criminal past or character
Witness credibility
Public opinion
Impact?
Does pre-trial publicity have an adverse effect on
a fair trial?
Not always
Meta-analysis of studies: mixed and questionable
It has an effect: Commitment principle; Filter
Not insurmountable
Other effects
• CSI Effect
• Mean World Index
• Use of Technology in the Courtroom
Who can serve as a juror?
A person whose opinions, if they have any,
can be reasonably put aside when evidence
suggests so;
A person whose assurances of impartiality,
in the context of the publicity surrounding
the case, are believable
Judgment is Predetermined: No
Traditional judicial remedies:
Jury
Voir dire
Change of venue
Change of veniremen
Continuance
Admonition
Sequestration
Gag Orders
Press and Participants
Voir dire:
Potential jurors are questioned before they
are impaneled
Challenges for cause
• Unlimited; cannot be prejudicial
Peremptory challenges
• Limited
Change of venue:
Relocation of a trial to a new location where
a jury of impartial citizens can be found
$$$
Another option: change of veniremen (the
importation of an impartial jury)
$$
Continuance:
A judge can delay the start of a trial to give
the effects of the pretrial publicity a chance
to fade
Right to a speedy trial?
Admonition to the jury:
“Do not discuss this case or any criminal matter
among yourselves or with anyone else. Do not
permit anyone to discuss such subjects with you or
in your presence….Do not read, view, or listen to
any report in a newspaper, radio, or television on
the subject of this trial or any other criminal trial.
Do not permit anyone to read about or comment
on this trial or any criminal trial to you or in your
presence.”
Washington State Court System
Sequestration:
Can be ordered by judge or--in some states- is required by law
Jury is forcibly kept isolated
OJ Simpson trial jurors in first trial were
sequestered almost as long as he was in jail
$$$$
How about social media?
Restrictive orders:
Allow judges to control the kind and
amount of information published about a
trial
GAG ORDERS
Sheppard v. Maxwell (1966):
Supreme Court held trial judges responsible
for protecting defendant’s right to fair trial
from the effects of prejudicial pretrial
publicity
1966-1976: Reported 175 Gag Orders (40
on the press)
Gag orders aimed at press
Gag Order on the press is essentially a prior
restraint
What do we know about constitutionality of
prior restraints?
Gag orders aimed at press:
Nebraska Press Association v. Stuart (1976):
There must be intense, pervasive publicity
No alternative measures will mitigate the effects of this
intense, pervasive publicity
A restrictive order will be effective in shielding
potential jurors from prejudicial publicity
Strict Scrutiny Test for Gag Orders of the Press
Clear & Present Danger to the 6th Amendment
Rarely used; almost always overturned
Gag orders aimed at participants:
Since a prior restraint against the press
should be the exception rather than the rule,
many courts have attempted to give the
press nothing to report
Press Access Law- OK?
Attorneys have sued under Free Speech
Once revealed, cannot stop publication
SUNY-Oswego
Department of Communication Studies
BRC 319 Media Law
Jason Zenor, J.D.
COURT PROCEEDINGS
Chapter 12:
Free Press/Fair Trial
In this chapter, we will discuss:
Closed proceedings
Sealed documents
Bench-Bar-Press Guidelines
Frustration with publicity:
Supreme Court has said press could not be
stopped from publishing information they
had gathered
But, it had not addressed issue of access to
that information
Other precedent said that government
institutions could always block access
Access to criminal trials?
The first question to come to the courts was
about access to criminals trials being closed
Access to criminal trials?
Richmond Newspapers v. Virginia (1980):
Our system presumes an open criminal trial
And the First Amendment prohibits judges
from summarily closing the courtroom
Open to public and press
But, SCOTUS did leave room open to the
possibility
• Strict Scrutiny Test
Juvenile proceedings?
In 20+ states, juvenile criminal proceedings
are open, although press are sometimes
asked to not reveal juvenile’s name
Some states close off family law
proceedings
Juvenile proceedings
Globe Newspapers v. Superior Court (1982)
Massachusetts state law requiring closure
during testimony of juvenile sex offense victim
Court found it to be unconstitutional
• Compelling state interest?
• No empirical evidence
Sexual assault cases?
Supreme Court has ruled state can close
trial during victim’s testimony in attempt to
protect victim
Does press access make it any worse?
Other attempts to protect victim’s identity
have been ruled unconstitutional
Must be case-by-case basis
Pretrial proceedings?
Press-Enterprise v. Riverside Superior
Court I (1984)
Supreme Court said voir dire must be open to
public and press
Pretrial proceedings?
Press-Enterprise v. Riverside Superior
Court II (1986)
Supreme Court said that public and press had to
be allowed in preliminary hearings
It can be closed only if substantial probability
that fair trail will be prejudiced by publicity,
and then
That there are not reasonable and effective
alternatives to closure
Press-Enterprise Test:
1. Is the hearing presumptively open?
Has it historically been open?
Will public/press access contribute positively
to judicial process?
Press-Enterprise Test:
1.
Is it historically open?
PROBABLY YES
Pretrial detention hearings
Bail hearings
Plea hearings
Sentencing hearings
Attorney disciplinary hearings
Civil cases
NO
Grand Jury
Military Tribunals
Undercover Cops
Press-Enterprise Test:
2. If someone seeks to close presumptively
open proceeding, must:
Show overriding interest that will be harmed
Privacy or Fair Trial
And that there is substantial probability that it
will be harmed
Press-Enterprise Test:
3. If substantial probability is established,
then judge considers:
If there are reasonable alternatives to closure,
which is to be the last option considered
Continuance, Change of Venue, Change of
Venire, Admonition, etc.
Press-Enterprise Test:
4. If there are no alternatives, then judge
must:
Narrowly tailor closure so First Amendment
rights to attend hearing are minimally
compromised
Close as little as possible
Press-Enterprise Test:
5. Judge must make evidentiary findings to
support his decision and make factual
record that can be evaluated by appellate
court.
-This is for the appeal that is certain to follow
Press-Enterprise Test
Basically:
1. Is the proceeding historically open?
• No-remains closed
• Yes- then Strict Scrutiny Test
2. Compelling State Interest
3. Least Restrictive Alternative
4. Judge must take copious notes
Presumptively open documents:
Those filed in pretrial proceedings
Presentencing and post-sentencing reports
Plea agreements
Search warrants
Indictments
Supporting affidavits
Jury information:
Split on whether to reveal names, addresses
even after conclusion of trial:
Privacy issues
Safety issues
OJ Jurors were hounded; some became
celebrities
When faced with closure:
Journalists should:
Contact supervisors immediately
Make formal objection to closure
Ask judge to delay closure until attorney arrives
Access to audio/video evidence:
While the presumption is in favor of access,
courts can ask:
Are transcripts already available?
Will broadcast enhance public understanding of
historical, public event?
Would defendant’s fair trial rights be
compromised?
Tapes admitted into evidence?
Cameras in the Courtroom
Lindburgh Baby
Estes v. Texas (1965)
Cameras in a courtroom were disruptive,
violating defendant’s right to a fair trial
Chandler v. Florida (1981)
Mere presences of cameras in courtroom, or the
broadcasting of portions of trial, is not
presumptively prejudicial
Cameras in the courtroom:
Cameras in federal courts is coming
Supreme Court? Not Yet
All states allow cameras in trial and
appellate courts; 8 do not allow in trial
courts
Some require advance permission
Some require participant agreement
Some do not permit photos of jurors
Does it matter?
Meta-analysis
Academic studies
• Increases nerves of witnesses
• Causes increased showmanship
Government studies
• Self-reporting studies
• Anecdotal evidence
Older studies? Cell phones, You-tube, ATMs, etc.
Bench-Bar-Press Guidelines:
In 24 states, cooperation between the press
and the court has yielded more open judicial
process
Do not report on:
•
•
•
•
•
Existence of a confession
Content of a confession
Opinions on guilt/innocence
Results of lab tests
Opinions of witness credibility
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