Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Chapter Overview
Chapter 11: Intellectual Property
The law protects people’s personal property, whether tangible (such as a computer or a
car) or intangible (such as singing a new song before writing it down on paper or
recording it). If a person writes a magazine article, it is against the law to take that
content without permission. The law protects what is written on the paper – the author’s
expression of his or her ideas. No one but the author may publish that article unless the
writer consents. Nor may the article be made into a movie or used in any other way
without the author’s permission. Copyright law considers the article “intangible property”
and gives the article legal protection.
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Copyright protects literary works, musical works, dramatic works, choreographic works,
pictorial, graphic and sculptural works, motion pictures and other audiovisual works,
sound recordings, and architectural works. In 2017, the Supreme Court added elements of
clothing design to the list of copyrightable works. In a 6-2 decision, the Court held that
design features in clothing could be eligible for copyright protection if those features are
perceived as a work of art separate from the “useful article.”
The federal Lanham Act protects trademarks from infringement. Under the Lanham Act,
trademark confusion occurs when the mark is likely to cause consumer confusion in the
commercial marketplace. The common law protects unregistered marks within the
geographic area where they are used. Marks may be words, designs, colors, and other
devices identifying the source of products or services. A trademark will be protected only
if it is distinctive. Distinctiveness ranges from strongly distinctive to merely descriptive
and generic. Merely descriptive and generic marks cannot be protected. A mark must be
registered with the U.S. Patent and Trademark Office (PTO) to have protection under the
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Lanham Act. Registering is a complex process, and marks may be rejected for a variety
of reasons.
Section 2(a) of the Lanham Act prevents the PTO from registering a mark that is
considered immoral, disparaging or deceptive. These kinds of trademarks are often
referred to as disparaging marks. In 2017, the U.S. Supreme Court considered whether
the Lanham Act’s ban on disparaging trademarks violates the First Amendment.
One form of trademark infringement is dilution, which is defined as using a famous
trademark in a way that disparages the mark or diminishes its effectiveness. Trademark
defenses can include tacking and fair use. Trademark tacking allows a trademark owner
to slightly alter a trademark without abandoning ownership of the original mark. The
Supreme Court said juries should decide questions of tacking. Courts accept the fair use
defense if the defendant used the mark to describe its goods and not as a trademark. Also,
the use cannot cause customer confusion.
Outline
I. Copyright
a. The Development of U.S. Copyright Law
b. The 1976 Copyright Act
i. The Works Copyright Protects
ii. Copyright Ownership
iii. Copyright Protection
iv. Copyright Law Limitations
v. Transferring Copyrights
vi. Copyright Duration
c. Proving Copyright Infringement
i. Contributory Infringement
d. Copyright Infringement Defenses: Fair Use
i. The Purpose and Character of the Use
ii. The Nature of the Copyrighted Work
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
iii. The Amount and Substantiality of the Portion Used
iv. The Effect on the Plaintiff’s Potential Market
e. The DMCA and Safe Harbor Protections
f. Music, the Internet, and File Sharing
II. Trademarks
a. Distinctiveness Requirement
b. Registering a Trademark
c. Domain Names
d. Trademark Infringement
e. Trademark Infringement Defenses