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J385 - Final Exam Model Answers |
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J385 - Final Exam Model Answers |
1. No. Neither Thug or Lightfoot will be successful. Pember tells us that "the use of a person's name or likeness in an advertisement for a magazine or newspaper or television program usually is not regarded as an appropriation if the photograph or name has been or will be part of the medium's news or information content." (Pember, p. 247) In Orgeon, the Supreme Court addressed this question in Andersonv. Fisher Broadcasting Cos. (Or. 1986). The court accepted the Booth rule and said that in order to win damages a plaintiff must show that the "picture was either obtained or broadcast in a manner or for a purpose wrongful beyond the unconsented publication itself."
2. No. Kelly will not be successful. Sam's claim is based on similarity of her name, occupation and gender to the character in Book's novel. In order to win her false light suit, Sam must prove that Book not only took her name, but also, took her identity. (Pember, p. 287-88.) While Sam and Fiona Bridget Kelly share the same first and last names and both are lawyers, the similarities end there. The differences in age, type of law practice and middle name clearly distinguish the real Fiona Kelly from the fictional Fiona Kelly. As discussed in class, courts generally require plaintiffs in ficitionalization cases to show very strong similarity between the fictional character and the plaintiff (See Springer v. Viking Press).
3. In order to bring an infringment suit, Flack must register his copyright. (Pember, p. 518) Flack will be able to copyright his proposal; however, given the nature of the proposal – it is a generic marketing and public relations campaign proposal–the copyright will protect only the specific recommendations (i.e. the copyright will not protect the broad outline of the plan which calls for a slogan, corporate sponsors, etc.; however, it will protect the scripts of the television ad).
Flack must show that his proposal is an original work , the defendant had access to it, the defendant copied the work, and that the two works are substantially similar. (Pember pp. 519-525) Hard work or "sweat of the brow" is not enough to show originality (Feist Publications, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340 (1991). He will have to show that the proposal contains new ideas. Flack's proposal taken as a whole should constitute an original work because it is the application of public relations and marketing strategy to a specific problem. There is no question concerning access. Flack gave the proposal to the defendant.
Flack's greatest challenge will be to show substantial similarity between the two works. While the proposal as a whole constitutes an original work, many of the ideas in the proposal cannot be considered original. The slogan, the color scheme, the use of print and television advertising and other generic aspects of a public relations and marketing campaign. (Pember, pp. 495-96) The greatest likelihood for success will be with the advertising pieces.
Yes. Flack will win his suit because the defendant copied his original advertising materials and his proposal. Since the material had not been copied prior to the infringment, he will not be able to win statutory damages (Pember, p. 518, 528).
4. Wally should politely ask RunFast if the company would be willing to discuss giving him permission to use its ads on his website. If not, he should agree to remove the ads from his site. (see, The Holden Server) Presumably Wally assumed that his use of the RunFast ads constituted a fair use. A fair use analysis requires consideration of four elements:
Wally will not be able to defend his use as being a fair use. Absent permission to use the ads, he should shut down the site.
5. KWAK's letter to Loudmouth can be brief:
6. Votegetter raised two separate claims: (1) a Section 315 equal time claim based on the appearance of a candidate's campaign manager on a talk show; and (2) a personal attack claim based on the campaign manager's statements.
(1) The use in question is the appearance of Votegetter's campaign manager. The station will not be required to provide Votegetter with equal time because Section 315 applies only to candidates; however, under the Zapple Rule, the station could be required to provide equal time to her supporters. (Pember, 607). The station will be required to provide time under the Zapple Rule only if the talk show is not considered a bona fide news interview program. Pember tells us that shows such as "Nightline," "Today," "Donahue" and "Geraldo" are all considered bona fide news interview programs. It is likely that a talk show would be in the same category. The station is not in violation of the equal time rule
(2) Votegetter's personal attack claim will also fail. The rule does not apply to attacks by candidates or their spokespersons against other candidates. The station is not in violation of the personal attack rule.
7. FALSE. Advertisers are required to provide substantiation for specific "level of proof" claims, such as "nine out of ten doctors recommend." In addition, they must substantiate less specific "reasonable basis" claims. (Pember, pp. 559-60). Advertisers are required to have substantiation in place before the claim is made. After-the-fact substantiation or a defense of ignorance as to the potential falsity of a claim will not protect an advertiser or an ad agency (lecture).
8. The Acme Computer ad campaign makes broad and vague claims about the performance of their computers and the quality of service provided. GoFast Computers alledges that the Acme ads are deceptive because the consumer cannot just "plug it in and surf the web." In fact, GoFast argues, a 20-page manual is required to set up an Acme Computer. GoFast also argues that Acme's "We're there when you need us," statement promises around-the-clock service at no cost to the comsumer.
Is the Acme tag line likely to mislead the reasonable consumer? (Pember, 552-56) Clearly the tag line is open to interpretation. While one could argue that a reasonable consumer would understand that computer installation is always more complicated than simply plugging in the machine, it could also be argued that "plug it in and serf the web" makes an explicit promise that the product doesn't meet. A reasonable consumer could be mislead by this claim.
The second part of the tag line is even more problematic. The message seems to be that service is readily available and there is no hint of an additional charge for that service. Absent explicit disclaimers that inform consumers of the cost and the hours of service, this claim is likely to mislead.
The agreement recently reached in In the Matter of APPLE COMPUTER highlights the potential dangers for advertisers in this area. While the advertising claims at issue in that case were more specific than in this question, the FTC's complaint highlights the need for care in making claims about performance and support in the computer industry.
The Acme Campaign is deceptive.
