Chapter Overview

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.

Similarly, trademark law protects branding such as product names, advertising slogans, movie and book titles, and cartoon characters. How patent law protects inventions is not discussed at length in this chapter because it generally falls outside the law of mass communication. Patent, trademark, and copyright statutes all are categorized as intellectual property law. Generally, intellectual property laws – particularly patent and copyright statutes – are intended to encourage creativity. Ensuring that people will benefit financially from their creations encourages them to continue being creative. If people could use others’ intellectual creations without permission, there would be no financial incentive to write, paint, or invent.

A copyright is an exclusive legal right protecting intellectual creations from unauthorized use. Copyright law balances the creator’s right to restrict the use of his or her work and society’s belief that some uses should be allowed without the creator’s permission. The backbone of U.S. copyright law is the Copyright Act of 1976. In 1998, Congress adopted the Digital Millennium Copyright Act to incorporate the Internet and digital media more squarely into copyright law.

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.”

In addition to understanding what copyright protects, students should understand the rights that a copyright holder possesses and what copyright infringement is. A copyright plaintiff must prove the work is protected by a valid copyright, the plaintiff owns the copyright, the copyright is registered with the Copyright Office and either there is evidence the defendant directly copied the work or that the infringer had access to the copyrighted work and the two works are substantially similar.

The primary infringement defense is fair use, a test that courts use to determine whether using another’s copyrighted material without permission is legal or an infringement. Fair use also applies to trademarks.

A trademark is a word, name, symbol, or design used to identify a company’s goods and distinguish them from similar products other companies make.

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 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.


I. Copyright

  1. The Development of U.S. Copyright Law
  2. The 1976 Copyright Act
    1. The Works Copyright Protects
    2. Copyright Ownership
    3. Copyright Protection
    4. Copyright Law Limitations
    5. Transferring Copyrights
    6. Copyright Duration
  3. Proving Copyright Infringement
    1. Contributory Infringement
  4. Copyright Infringement Defenses: Fair Use
    1. The Purpose and Character of the Use
    2. The Nature of the Copyrighted Work
    3. The Amount and Substantiality of the Portion Used
    4. The Effect on the Plaintiff’s Potential Market
  5. The DMCA and Safe Harbor Protections
  6. Music, the Internet, and File Sharing

II. Trademarks

  1. Distinctiveness Requirement
  2. Registering a Trademark
  3. Domain Names
  4. Trademark Infringement
  5. Trademark Infringement Defenses