DobsonHW6CH8graded

Name:BrandonDobson
Law 406 audio creative property.wma
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 ANEXPRESSION (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?
An original compilation of existing work that can also be copyrighted is
calledcollective works p. 324 . An example of this would be 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 passedand what were the challenges to it?
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=NS1
Why 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?

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.html
Do you think our copyright laws are too antiquated? Is sampling transformational in
your opinion?
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
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.

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 speechin front of thousands cause the speechto be in the public
domain and the copyright lost? Explain.
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 4
limitations 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.html
You 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.
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 injunction
against 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
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 product
c. Fanciful phrases---NIKE
d. 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:
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
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
Beerwas not the sort of product that should in any way be related to the University of
Georgia. The beer cans bore the disclaimer “Not associatedwith 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
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
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.html
What 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_promot
ing_their_face_book_of_sex?utm_source=maestro&utm_medium=email&utm_campaign=t
ech_monthly Do you think Facebook has a sound case? Why or why not?

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 recycling
c. Using the iconic McDonald’s golden arches for a Hot Dog stand in Manhattan
d. 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
+2
4. 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.
+2
5. 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.
+2
7. Which of the following would NOT be subject to being copyrighted?
a. Mickey Mouse cartoon character
b. James Bond, Secret Agent 007
c. Einstein’s 𝐸 = 𝑚𝑐2
d. A photo of the Grand Canyon
+2
8. 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.
+2
9. 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 seclusion
c. Defamation
d. Public Disclosure of private facts
+2
10. 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 fee
b. Trademark it and license its use to Hallmark for a fee
c. Either of the above
d. Neither of the above. It’s generic.
+2
11. 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

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