Preview Extract
Chapter 6 Intellectual Property
True/False Questions
1) The effect of copying on the plaintiff's commercial market is the least important factor in
determining fair use.
Answer: False
Rationale:
The effect of the use upon the potential market for or value of the copyrighted work is one of
the four factors considered in determining fair use under copyright law, as outlined in Section
107 of the Copyright Act. While it may not always be the most important factor, it is
certainly a significant consideration in assessing fair use.
2) Copyright law does not allow the federal government to own a copyright in works created
by government employees as part of their official duties. Consequently, the American Dairy
Council, a private organization promoting dairy products, does not need permission from the
U.S. Department of Agriculture to post material created by the USDA on the ADC's Web
site.
Answer: True
Rationale:
Works created by federal government employees as part of their official duties are
automatically in the public domain and are not subject to copyright protection. Therefore,
organizations like the American Dairy Council would not require permission to use such
materials.
3) In the Acuff-Rose case, the U.S. Supreme Court ruled that a musical parody that copies the
"heart" of the original work's lyrics can be a fair use.
Answer: True
Rationale:
In Campbell v. Acuff-Rose Music, Inc., the Supreme Court held that a commercial parody of
the song "Oh, Pretty Woman" by the rap group 2 Live Crew constituted fair use, even though
it borrowed heavily from the original song's lyrics. The Court determined that the parody's
transformative nature and its commentary on the original work made it a fair use.
4) Radio stations may use a story from a newspaper as a tip from which a news story can be
developed through independent effort.
Answer: True
Rationale:
The transformation of factual information into a new work, such as a news broadcast based
on a newspaper story, is generally considered fair use under copyright law. As long as the
radio station develops its news story independently and does not simply copy the newspaper
article verbatim, it is likely to be considered fair use.
5) Trademarks are protected only for a period of 70 years.
Answer: False
Rationale:
Unlike copyrights, which have a limited duration, trademarks can potentially last indefinitely
as long as they are actively used and maintained by their owners. There is no fixed term of
protection for trademarks, and they can be renewed indefinitely.
6) To avoid lawsuits over copyright infringement, radio stations negotiate performing rights
licenses from organizations such as ASCAP and BMI.
Answer: True
Rationale:
Performing rights organizations like ASCAP (American Society of Composers, Authors, and
Publishers) and BMI (Broadcast Music, Inc.) provide licenses that allow radio stations to
legally broadcast copyrighted music while compensating the copyright holders for the use of
their works.
7) An alphabetical listing of names in a telephone directory is sufficiently original to be a
copyrightable compilation.
Answer: False
Rationale:
Copyright law protects original works of authorship, but it does not extend to facts, ideas, or
commonly used information. An alphabetical listing of names in a telephone directory lacks
the requisite creativity to be eligible for copyright protection because it represents a
straightforward compilation of factual data.
8) Categorizing businesses in the Yellow Pages is sufficiently original to be a copyrightable
compilation.
Answer: True
Rationale:
While individual listings in directories like the Yellow Pages may not be copyrightable due to
their factual nature, the arrangement and categorization of listings within the directory can
involve sufficient creative expression to warrant copyright protection as a compilation.
9) The Supreme Court in Tasini drew a distinction between digital databases and microfilm
reproduction of a magazine. The Court held that a digital database of previously published
articles constitutes a new use because it does not preserve the articles in their original context.
In contrast, microfilm reproduction preserves the original context. A later court thus ruled
that the National Geographic Magazine did NOT create new uses of freelancers' works when
the magazine reproduced issues of the magazine on CD-ROMs.
Answer: True
Rationale:
In New York Times Co. v. Tasini, the Supreme Court held that the creation of digital
databases containing freelance authors' works constituted a new and separate use of those
works, for which separate permissions and compensation were required. However, the
reproduction of magazines on microfilm, which preserves the original context of the works,
was not considered a new use.
10) The unauthorized posting of a copyrighted sound recording, in its entirety, on a
noncommercial Web site is a fair use as long as users are not charged to access the recording.
Answer: False
Rationale:
Fair use is a flexible doctrine that depends on various factors, including the purpose and
character of the use, the nature of the copyrighted work, the amount and substantiality of the
portion used, and the effect of the use upon the potential market for or value of the
copyrighted work. Posting an entire copyrighted sound recording, even on a noncommercial
website, typically does not qualify as fair use, especially if it undermines the market for the
original work.
11) For human (not corporate) authors, copyright in a work created today will last for 50
years.
Answer: False
Rationale:
Copyright duration for individual (human) authors varies depending on factors such as the
country of origin and the type of work. In many jurisdictions, including the United States,
copyright protection generally lasts for the author's life plus an additional 70 years. The
duration may differ for corporate-authored works or works created under specific
circumstances.
12) When a crew of KBMX-TV tapes fire footage for the 6 o'clock news, copyright in the
tape belongs to the news crew.
Answer: False
Rationale:
In most cases, the copyright for works created by employees within the scope of their
employment typically belongs to their employer, not the individual creators. Therefore, the
copyright in the taped footage would likely belong to KBMX-TV, the employer, rather than
the individual members of the news crew.
13) A news story cannot be copyrighted because it contains newsworthy facts.
Answer: False
Rationale:
While facts themselves cannot be copyrighted, the expression and presentation of those facts
in a news story can be subject to copyright protection. Copyright extends to the originality of
expression, arrangement, and presentation, rather than the underlying facts themselves.
14) The original and main purpose of copyright is to promote creative expression that
benefits society.
Answer: True
Rationale:
Copyright law aims to encourage and reward creative expression by granting authors and
creators exclusive rights to their works for a limited time. By providing creators with
economic incentives and protection for their creations, copyright law seeks to foster a climate
conducive to artistic, literary, and intellectual innovation, ultimately benefiting society as a
whole.
15) Cable operators can transmit to subscribers certain "distant signals," such as WGN and
some independent broadcasts, without permission as long as the cable operators pay royalties.
Answer: True
Rationale:
Cable operators in the United States can retransmit certain distant television signals to their
subscribers under the statutory licensing system established by the Copyright Act. However,
cable operators must comply with specific regulations and pay royalties to copyright holders
for the retransmission of these signals.
16) To be copyrighted, a work must be at least of "moderate quality."
Answer: False
Rationale:
Copyright protection is not contingent upon the quality or artistic merit of a work. As long as
a work meets the criteria for copyrightability, such as originality and fixation in a tangible
medium, it is eligible for copyright protection regardless of its perceived quality.
17) Go magazine violates the copyright of No magazine if the publisher of Go copies the
cover of No in a comparative advertisement calling No "old fashioned" and "out of touch"
with modern readers.
Answer: False
Rationale:
The use of copyrighted material for purposes such as criticism, comment, news reporting, or
comparative advertising may constitute fair use under copyright law. If the comparative
advertisement meets the criteria for fair use, such as being transformative or serving the
public interest, it may not necessarily be considered a copyright violation.
18) Under the fair use doctrine, commentators and critics can discuss and criticize
copyrighted works only if the commentators get permission from the copyright owner.
Answer: False
Rationale:
The fair use doctrine allows for certain limited uses of copyrighted works without the need
for permission from the copyright owner. Commentary, criticism, news reporting, teaching,
scholarship, and research are considered fair use purposes, and individuals engaging in these
activities may use copyrighted material under certain conditions, even without explicit
permission.
19) Fair use permits journalists to copy unlimited amounts of copyrighted work as long as the
journalists assign proper credit to identify the source of the copied work.
Answer: False
Rationale:
While proper attribution is an important factor in fair use analysis, it alone does not determine
whether a particular use qualifies as fair. Fair use is determined by considering multiple
factors, including the purpose and character of the use, the nature of the copyrighted work,
the amount and substantiality of the portion used, and the effect of the use upon the potential
market for the copyrighted work.
20) Works published without copyright notice pass into the public domain within 10 years.
Answer: False
Rationale:
The presence or absence of a copyright notice does not determine whether a work is protected
by copyright. Under current copyright law, works created after March 1, 1989, are generally
protected automatically from the moment of their creation, regardless of whether they bear a
copyright notice. The duration of copyright protection varies based on factors such as the date
of creation and the death of the author, and works do not automatically enter the public
domain after a specific period.
Multiple Choice Questions
1) Original expression is copyrighted as soon as
A) it is registered.
B) notice is "affixed."
C) it is fixed in a tangible medium.
D) only when all of the above conditions are met.
E) None of the above.
Answer: C
Rationale:
Copyright protection automatically applies to original expression as soon as it is fixed in a
tangible medium of expression, such as writing, recording, or saving digitally. Registration
and affixing a copyright notice are additional steps that may provide certain benefits but are
not required for copyright to exist.
2) The Nation magazine lost its fair use copyright case to Harper & Row for several reasons,
including the fact that the Nation
A) scooped Harper & Row's right to first publish the Ford memoirs.
B) published the most interesting revelations in the Ford manuscript.
C) paraphrased between 20 and 30 words from the Harper & Row book.
D) All of the above
E) A and B
Answer: E
Rationale:
The Nation magazine lost its fair use copyright case to Harper & Row primarily because it
published the most interesting revelations in the Ford manuscript before Harper & Row had
the chance to publish them. This undermined the market for Harper & Row's book,
diminishing its value and impacting its commercial potential.
3) To sue successfully for copyright infringement, the plaintiff must establish that
A) the copied work is substantially similar to the original.
B) the copier copied with actual malice.
C) the copier had access to the original work.
D) All of the above.
E) A and C above.
Answer: E
Rationale:
To succeed in a copyright infringement lawsuit, the plaintiff generally needs to demonstrate
that the copied work is substantially similar to the original and that the copier had access to
the original work. Actual malice is not typically a requirement for proving copyright
infringement.
4) Copyright notice for an individual author consists of the following EXCEPT
A) year of publication.
B) name of the "author."
C) the copyright symbol, ©, the word "copyright," or the abbreviation "copr."
D) the name of the publisher.
E) None of the above.
Answer: D
Rationale:
Copyright notice for an individual author typically includes the year of publication, the name
of the author, and the copyright symbol (©), the word "copyright," or the abbreviation "copr."
The name of the publisher is not typically part of the copyright notice for an individual
author's work.
5) The fair use doctrine
A) developed in the common law.
B) was incorporated into the 1976 Copyright Act.
C) is the only defense to copyright infringement.
D) All of the above.
E) A and B only.
Answer: E
Rationale:
The fair use doctrine originated in the common law but was codified and incorporated into
the 1976 Copyright Act. It serves as a defense to copyright infringement but is not the only
defense available in copyright law.
6) If freelancers sign a "work for hire" contract, they give the publisher
A) all publication rights.
B) first publication rights only.
C) publication rights for one year.
D) no publication rights.
E) None of the above.
Answer: A
Rationale:
When freelancers sign a "work for hire" contract, they typically transfer all publication rights
to the publisher, who becomes the legal author of the work for copyright purposes. This
grants the publisher full control over the work's use and distribution.
7) Fair use is
A) a privilege in copyright law gained by newspaper lobbyists specifically for reviewers.
B) a privilege in copyright law to allow society to learn about, and comment upon,
copyrighted works.
C) designed to limit the profits an author may gain from his "exclusive" copyright.
D) A and C.
E) All of the above.
Answer: B
Rationale:
Fair use is a provision in copyright law that permits certain limited uses of copyrighted works
without the need for permission from the copyright holder. It is intended to promote freedom
of expression, criticism, education, and scholarship by allowing for the use of copyrighted
material in certain contexts, such as commentary, news reporting, teaching, and research.
8) The following statements about trademark law are true EXCEPT:
A) Trademark is defined as any word, name, or symbol used by a business to identify and
distinguish its product.
B) Trademark protection can last as long as the trademark is used in commerce.
C) A descriptive phrase is an inherently distinctive mark.
D) A trademark infringes another mark if it confuses consumers.
E) Trademarks used as a generic may pass into the public domain.
Answer: C
Rationale:
A descriptive phrase is not inherently distinctive and typically does not receive trademark
protection unless it has acquired secondary meaning through extensive use and consumer
recognition. In contrast, inherently distinctive marks, such as arbitrary or fanciful terms, are
eligible for trademark protection without the need to establish secondary meaning.
9) Courts consider all EXCEPT the following when determining fair use. The courts consider
whether:
A) The copying is for comment and criticism.
B) The copying will diminish the potential market for the copyrighted work.
C) The copier copies a substantial amount of the original.
D) The original work is of particularly high quality.
E) All of the above are considerations in fair use determinations.
Answer: D
Rationale:
Courts consider multiple factors when determining fair use, including the purpose and
character of the use, the nature of the copyrighted work, the amount and substantiality of the
portion used, and the effect of the use upon the potential market for the copyrighted work.
The quality of the original work is not typically a factor in fair use analysis.
10) Companies that provide the servers and software that allow people to illegally trade and
download copyrighted works have been ruled to be
A) fair users.
B) free riders.
C) contributory infringers.
D) common exploiters.
E) All of the above.
Answer: C
Rationale:
Companies that facilitate or contribute to copyright infringement by providing the means for
individuals to illegally trade and download copyrighted works have been found to be
contributory infringers. Contributory infringement occurs when a party knowingly
contributes to or facilitates copyright infringement by another party.
11) Which of the following sentences, if any, violate a trademark when published in a
newspaper?
A) He spent the evening at the Coin-Operated Laundry.
B) He wrapped the sandwich in cellophane.
C) He ordered a coke at the bar.
D) None of the above infringes a trademark.
E) A and C only.
Answer: C
Rationale:
Option C ("He ordered a coke at the bar.") potentially violates a trademark because "coke" is
a trademarked term for Coca-Cola, a specific brand of soft drink. The use of "coke" in this
context could lead to confusion among consumers and imply an association with Coca-Cola,
thus potentially infringing on the trademark rights of the company. Options A and B do not
involve the use of trademarked terms in a potentially infringing manner.
Essay Questions
1) Students sometimes proclaim, "Let information be free." The argument goes something
like this: It is so easy and inexpensive to acquire and trade information on the Internet, the
information ought to be free. Music and video, too. Those gargantuan music and film
companies have ripped people off long enough, making consumers buy a 15-song CD for $18
in order for buyers to acquire the one song they want. Yet, the Recording Industry of America
sues some of its own customersπeven high school studentsπwho illegally download
copyrighted music and videos.
Regardless of your view, argue on behalf of RIAA, Disney, SONY and other copyright
owners. Tell (1) why widespread free downloading of music and video is not a fair use to the
corporate owners and songwriters, and (2) why copyright owners say society will
benefitπserving the purpose of the copyright lawπif free downloading is stopped.
Answer: The corporate copyright owners have the copyright law on their side because
downloading copyrighted music and videos for free without permission is illegal. There is no
fair use in copying whole copyrighted works without permission and without commenting,
criticizing or transforming the copyrighted work into a new, original work. Unauthorized
copying hurts the present and future market of the copyright owners.
The corporate owners argue they need copyright protection to protect their artists and to
provide an incentive for new creative works, works that will benefit society, thus serving the
central purpose of copyright law. Large-scale producers and distributors depend on royalties
to provide the high-quality artistic expression consumers demand. Creative artists who want
to distribute their works for free are at liberty to do so.
Short Answer and Key Terms
1) Work Made for Hire
Tell why it is important for freelancers to be aware if they sign a contract containing the
phrase "work made for hire."
Answer: Freelancers who sign "work made for hire" contracts give up all rights in their work.
The company buying the work owns all rights in the work, just as if the company employed
the freelancer fulltime.
2) Performing Rights Societies
Why are performing rights societies, such as the American Society of Composers, Authors
and Publishers (ASCAP) and Broadcast Music. Inc (BMI) important to radio stations,
webcasters and copyright owners?
Answer: Performing rights societies are important because they permit radio stations and
webcasters to air copyrighted music without negotiating royalties with each copyright owner,
a process that would be impractically expensive and cumbersome. Performing rights societies
representing copyright holders negotiate performance licenses and collect royalties, allowing
more copyrighted works to be played and royalties collected.
3) Sony Corporation of America v. Universal City Studios (the Betamax case)
Tell the significance of the Betamax case. Is it precedent for students to claim fair use when
downloading copyrighted music and video from the Internet?
Answer: The Betamax case allows householders to copy broadcast television programs in
their entirety for personal, noncommercial use. It is a decision allowing viewers to shift the
time at which they view a program. Betamax is limited to the recording of free broadcasts for
personal use. Such uses do not adversely affect the market for television programs, the Court
said. Betamax is not a precedent authorizing students to download and share copyrighted
music and DVDs from the Internet without paying royalties.
4) Sampling
Some courts have ruled that the copying of musical phrases and sections of pictures in new
works is fair use. Other courts rule that sampling infringes copyright. Briefly argue that
sampling is or is not fair use.
Answer: Is fair use. Sampling is fair useπor should beπbecause the copier takes only brief
excerpts from the original to create a new, original work. The market value of the original
work is not damaged by such minimal borrowing.
Not fair use. Sampling is not a fair useπand shouldn't beπbecause the "new" work is not
original; it is a borrowing of the original work of others, often to the commercial detriment of
the original. That is because the copier often copies the most original musical phrase or visual
frame. Copyright owners have a right to control how essential parts of their original work will
be reused in derivative works.
5) Contributory Infringer
Napster and Grokster have been ruled to be contributory infringers of copyrighted music.
Briefly explain what it means to be a contributory infringer.
Answer: Napster was a contributory infringer because the company provided the servers that
allowed students and others to illegally download and share copyrighted works. Napster
contributed to the illegal copying by encouraging it and providing the means to download
illegally. Likewise, Grokster provided the software and encouraged Netizens to use it for
illegal downloading. Copyright owners want to stop the distributors and enablers of illegal
downloads as well as stopping those who download illegally.
Test Bank for The Law of Public Communication
Kent R. Middleton, William E. Lee
9780205484683
