J385 Final Exam - Winter 2006

---

Deadline: 9:00 a.m. ,Thursday, March 23rd. No late exams will be accepted. If your exam is not in by the deadline and you have not received an extension, you will receive a failing grade of "0" for the final exam. Extensions may be granted only in extreme circumstances. Only Professor Gleason has the authority to grant an extension.

Point Value = 10 questions @ 16 points per question = 160 points

GRADING: We expect complete, concise, organized answers (ONE page should be adequate). You should be able to answer the questions using the book, the J385 Web and Blackboard sites, and lecture notes; however, you are welcomed to use other authorities should you think it worthwhile.

A premium will be placed on accuracy, precision and the application of the appropriate legal standards and concepts to the questions presented. Answers that are "sort of" right will receive few points.

Some of the fact patterns are intended to be ambiguous. In some instances it may be quite possible to reach different conclusions concerning the outcome of a given fact situation. We are most interested in the reasoning you use to reach a conclusion. Put maximum effort into clearing explaining the law and logic you use to reach your conclusion.

The Rules:

You are free to discuss the questions with other members of the class. Friends (especially law students), parents, lawyers and others shall not be consulted.

Once you are ready to write your answers, please do it alone without any help from others. If you have any questions concerning academic integrity, please consult with the professor or the GTFs and look at the links available on the School's Academic Integrity webpage.

Anne, Charlotte and I will be available to discuss general questions about the class material. We will not answer any question directly related to a specific fact situation in the exam, except to clarify the facts. If you have questions, please ask, but we reserve the right to decline to answer.

1. The concept of "fixed in a tangible medium of expression" is a central part of copyright law. Explain the significance of the concept in copyright law and challenges digital media present to it.

2. Singer Larry Large had several hit songs in the 1960s. One of his hit songs, "Down By the Bay,” which he wrote and recorded, was also a hit in the 1980s for a group known as The Bay Blasters. Last year, SellMore Advertising, a San Francisco ad agency created an ad campaign for Bay Candy. As part of the campaign, SellMore wanted to use Large's version of "Down by the Bay." Large refused saying that he didn't want to be associated with a candy commercial. Since SellMore had purchased the rights to use the song from the copyright holder (Large sold the copyright to a music distributor in the 1970s), the agency decided to produce a new version of "Down by the Bay" for the advertising campaign and to give the campaign the "feel" of the 1960s, since that is when the song was first released. When the ads were finished they included a version of "Down by the Bay" sung by a female singer and a back up band that many viewers said, "reminded them of Large's version of the song." When Large saw the ads he was furious because he believed that Bay Candy had appropriated his identity and stolen his song. He filed a lawsuit in California claiming appropriation of his identity and copyright infringement.

a. Will his appropriation claim be successful? YES or NO? Explain your answer.

b. Will his copyright claim be successful? YES or NO? Explain your answer.

3. Sally Scribe is a baseball writer for the San Francisco Fog, an alternative newspaper. She wrote a long (10,000 word) story about the wide spread use of steroids in baseball for her paper. The story was written as if it was a children's story. It was titled "In the Seven-Steroid Woods" and the cast of characters including a bear named Winnie the Phew and a little boy named Barry Robin, who was a famous baseball player. Winnie the Phew was an adviser to Barry Robin and supplied him with nutritional supplements and other performance enhancing products. Other characters include a rabbit, a young pig, a mule, an owl and a kangaroo.
After the story was published, the holders of the copyright for Winnie the Pooh and the other characters created by A. A. Milne brought a copyright infringement suit against the Fog and Sally Scribe. The defendants claim that the story was a parody and therefore it is protected as a fair use.

Will the fair use defense be successful? YES or NO? Explain your answer.

4. The Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) are two examples of federal laws passed in recent years to expand the public's right of access to personal information. True or False? Explain your answer. (Note: In order to fully answer this question you must provide a brief explanation of the relevant aspects of both FERPA and HIPAA and how they affect access to personal information.)

5. The Boomer Golf Company has developed a new process for making golf clubs. The process is controversial because it requires the use of highly toxic bonding chemicals and intense heat to shape clubs and to attach club heads to shafts. The company claims that the process is perfectly safe. Worker advocates and several environmental groups believe that the process is a threat to workers' safety and that the threat of toxic spills at the factory sites creates a significant environmental danger. Several groups critical of the process distributed leaflets in communities with Boomer Golf factories and created BoomerGolfisevil.org, an anti-Boomer website. In response, Boomer Golf distributed press releases asserting that its manufacturing process is perfectly safe and that its factories meet all federal and state standards for the use of toxic chemicals. The company also purchased space in newspapers to run copies of letters from Boomer Golf's CEO making the same claims and put the letters as well as testimonials to factory safety from employees on the company website. None of Boomer Golf's materials included price information about its golf products.

An anti-Boomer Golf advocate, Phil Bogey, has filed a false advertising lawsuit claiming that the company is making false commercial claims about its golf clubs. Bogey argues that Boomer Golf is made representations of fact about its business operations for the purpose of promoting sales of its products. Boomer Golf argues that its speech is protected political speech.

Will Bogey's false advertising suit be successful? YES or NO? Explain your answer.

6. In Central Hudson v. PSC of New York the U.S. Supreme Court established a four-part test to determine constitutional protection for commercial speech. Briefly describe the key changes in the Court's interpretation of that test since Central Hudson.

7. Suds Beer is running an advertising campaign for its new "lite" beer. The tag line for the campaign is "Best Beer on the Face of the Earth." In the ads, football star Freddy Fast, says, "I drink Suds Beer because it tastes great and has fewer calories than any other beer." Frothy Beer, a competitor files a deceptive advertising suit alleging that Suds Beer lacks a reasonable basis for the claims, that they are all false, and that Freddy Fast does not drink Suds. Suds Beer acknowledges that it does not have objective evidence to support any of the claims and asserts the following: (1) None of the claims are material and none require a reasonable basis showing of proof; (2) Freddy Fast's appearance in the ad is not a testimonial, nor is it a material claim.

Identify each of the advertising claims made by the advertiser. Are any of the claims deceptive? If so, why? If not, why not?

8. Vicky Votegetter, a candidate for the Democratic nomination for governor in Oregon, was interviewed on Face Oregon, a regular scheduled news interview program in KWAK-TV in Portland. Following the broadcast, Tom Terrific, a candidate in the Republican primary for governor filed an equal opportunity request with KWAK. The next morning Votegetter appeared in a non-news segment on the Dick and Jane Morning Show on KWAK-FM, to talk about her upcoming performance in a community theater production. Sally Speaks, a candidate for the Democratic nomination filed an equal opportunity request with KWAK-FM.

Will KWAK-TV be required to provide Terrific with an equal opportunity? YES or NO? Explain your answer.

Will KWAK-FM be required to provide Speaks with an equal opportunity? YES or NO? Explain your answer.

9. In a 2003 rule revision, the Federal Communications Commission (FCC) made changes to broadcast ownership rules.
A. What governing document gives the FCC the authority to make these changes?

B. What legal controversy following the 2003 rule changes? Name the case and explain the legal basis asserted for the challenge to the change.

C. What is the FCC required to do as a result of the legal proceedings?

D. Briefly describe currently congressional activity concerning broadcast ownership rules.

10. In FCC v. Pacifica, the U.S. Supreme Court said, "We have long recognized that each medium of expression presents special First Amendment problems.” Briefly explain the significance of this statement to the Court’s analysis of the constitutional protection of speech on the Internet.

Thanks for participating in the class this term. Have a great Spring Break!