JOMC 486 FINAL EXAM STUDY GUIDE
Transformative-Use Test - Answer --When a work contains significant transformative
elements it is worthy of First Amendment protection and is less likely to interfere with
the interests protected by right of publicity
-Determining whether a work is transformative involves examining five factors
No-Real-Relationship Test - Answer --Central question is whether the use of the
celebrity's persona is artistically relevant to the defendant's work
-If so, the use is protected, so long as the use does not explicitly mislead the audience
about the plaintiff's role in the defendant's work
Lanham Act Claims - Answer --Federal law allows suits over false or misleading
representations likely to cause confusion or mistake as to a person's "affiliation,
connection, or association" with another's "goods, services, or commercial activities"
-Celebrities who sue for violation of their right of publicity often also sue under the
Lanham Act
Liability for Emotional and Physical Harm - Answer --One is liable for damages for
emotional and bodily harm by extreme and outrageous conduct or intentionally or
recklessly causes severe emotional distress to another
Public Figure Plaintiff - Answer --Where the plaintiff is a public figure and they sue for
intentional infliction of emotional distress, the plaintiff must also prove that the
publication was made with actual malice (meaning the knowledge that it was false or
with reckless disregard of whether it was false)
Injurious Falsehood - Answer --Publisher of a false and disparaging statement that
harms the interests of another is liable for any resulting pecuniary loss if the publisher
intended to harm the other's interest, or recognized or should have recognized that is
was likely to do so, and knew that the statement was false or acted in reckless
disregard of its truth and falsity
Slander of Title - Answer --A publication that disparages another's property right in
land, chattels, or intangible property
Trade Libel - Answer --A publication that disparages the quality of a person's goods,
services, or property
Disparagement - Answer --A statement that is understood to cast doubt upon the
quality of another's land, products, or services and the publisher intends the statement
to cast doubt or the recipient's understanding of it as casting the doubt was reasonable
Pecuniary Loss - Answer --Restricted to direct and immediate loss caused by the
conduct of potential consumers and the expense of counteracting the disparagement
,-Proof of conduct of specific persons or proof that the loss resulted from the conduct of
many persons, none of whom could be identified
-Where loss is shown by the conduct of many, the plaintiff must show the disparaging
statement was widely disseminated, the level of business prior to the publication had
been steady or increasing, there was a sudden decline in business, and other possible
causes can be eliminated
-Proving these elements establishes a presumption of causation
Disparagement and Defamation - Answer --Defamation involved person reputation
-Disparagement involves a person's property or economic interests
-Statements may be both disparaging and defamatory
-To be defamatory, a disparaging statement must allege dishonesty, deception, or other
misconduct
-Criticism of a product alone does not defame the producer
-The plaintiff must prove special damages in all cases
-The plaintiff must prove more than negligence: either knowledge of falsity or reckless
disregard or ill will (intent to harm)
-Publication of trade libel may be enjoined
Competitor's Privilege - Answer --A person may make an unduly favorable comparison
of the quality of his own goods or services with those of a competitor
-A person need not believe that his own things are superior to those of the competitor
-The comparison may not contain false facts regarding the rival's goods or services
Puffery - Answer --Hyperbolic boasting or bluster no reasonable consumer would
believe true or claims of superiority over a competitor's product that consumers
understand are not to be taken literally
Veggie Libel Laws - Answer --Impetus for these laws was an unsuccessful
disparagement suit against "60 Minutes" in 1989
-13 states have such laws
-Have been introduced in NE legislature but never passed
-Cover perishable food products
-Allow suits by any producer of the disparaged product
-Some require defendants to prove truth
-Some require criticism to be based on reliable scientific evidence
-Some don't require common-law or actual malice
-Some allow triple damages
Lanham Act - Answer --Imposes civil liability on anyone who, in connection with goods
and services, causes confusion as to any person's association or approval of such
goods (used in right-of-publicity cases) or misrepresents the nature, characteristics,
qualities, or geographic origins of one's own or another's goods, services, or
commercial activities (used in false advertising cases)
-Elements of action:
-False or misleading statement about defendant's product or another's
, -Actual deception or a tendency to deceive the intended audience
-Statement is disseminated to general public
-Statement is commercial speech
-Deception is material
-Goods or services traveled in interstate commerce
-A likelihood of injury to the plaintiff
Deception by Mock-ups - Answer --A mock-up in advertising is deceptive if it seems to
present evidence, including a test or demonstration that purports to prove a fact or
product feature that is material to induce consumers to buy the product, but which does
not actually prove such fact or product feature
Three Kinds of Mock-Ups - Answer --Mock-ups suggests product has a quality it does
not in fact possess
-Mock-up offered as proof of a product claim but does not actually prove the claim
-Mock-up substitutes for real product without calling attention to itself
FTC - Answer --Composed of 5 members that make policy/final decisions
-They are nominated by the president and confirmed by the Senate
-No more than 3 of the FTC members can be of the same political party
-How the FTC Acts:
-Rule Making
-Resembles what Congress does
-General
-Concerns future conduct
-Adjudication
-Resembles what courts do
-Particular
-Concerns past conduct
Rulemaking vs. Adjudication - Answer --The lines between adjudication and rule
making are blurred
-Some rules may be of such limited applicability as to amount to adjudicative orders
-Some adjudicative proceedings produce decisions of general applicability
FTC Policy on Deceptive Advertising - Answer --A deceptive act or practice must be
likely to mislead consumers (don't have to have evidence of actual deception)
-Who are acting reasonably in the circumstances (what a typical member of a
demographic thinks and how they interpret the ad)
-And who the ad targets
-The act or practice must be material (warranty/safety going to be material in any
instance)
-Some cases where they want intrinsic evidence (i.e. surveys, studies etc..) use that
20% of consumers are taking away false or misleading implication, which is actionable
as a deceptive ad
Transformative-Use Test - Answer --When a work contains significant transformative
elements it is worthy of First Amendment protection and is less likely to interfere with
the interests protected by right of publicity
-Determining whether a work is transformative involves examining five factors
No-Real-Relationship Test - Answer --Central question is whether the use of the
celebrity's persona is artistically relevant to the defendant's work
-If so, the use is protected, so long as the use does not explicitly mislead the audience
about the plaintiff's role in the defendant's work
Lanham Act Claims - Answer --Federal law allows suits over false or misleading
representations likely to cause confusion or mistake as to a person's "affiliation,
connection, or association" with another's "goods, services, or commercial activities"
-Celebrities who sue for violation of their right of publicity often also sue under the
Lanham Act
Liability for Emotional and Physical Harm - Answer --One is liable for damages for
emotional and bodily harm by extreme and outrageous conduct or intentionally or
recklessly causes severe emotional distress to another
Public Figure Plaintiff - Answer --Where the plaintiff is a public figure and they sue for
intentional infliction of emotional distress, the plaintiff must also prove that the
publication was made with actual malice (meaning the knowledge that it was false or
with reckless disregard of whether it was false)
Injurious Falsehood - Answer --Publisher of a false and disparaging statement that
harms the interests of another is liable for any resulting pecuniary loss if the publisher
intended to harm the other's interest, or recognized or should have recognized that is
was likely to do so, and knew that the statement was false or acted in reckless
disregard of its truth and falsity
Slander of Title - Answer --A publication that disparages another's property right in
land, chattels, or intangible property
Trade Libel - Answer --A publication that disparages the quality of a person's goods,
services, or property
Disparagement - Answer --A statement that is understood to cast doubt upon the
quality of another's land, products, or services and the publisher intends the statement
to cast doubt or the recipient's understanding of it as casting the doubt was reasonable
Pecuniary Loss - Answer --Restricted to direct and immediate loss caused by the
conduct of potential consumers and the expense of counteracting the disparagement
,-Proof of conduct of specific persons or proof that the loss resulted from the conduct of
many persons, none of whom could be identified
-Where loss is shown by the conduct of many, the plaintiff must show the disparaging
statement was widely disseminated, the level of business prior to the publication had
been steady or increasing, there was a sudden decline in business, and other possible
causes can be eliminated
-Proving these elements establishes a presumption of causation
Disparagement and Defamation - Answer --Defamation involved person reputation
-Disparagement involves a person's property or economic interests
-Statements may be both disparaging and defamatory
-To be defamatory, a disparaging statement must allege dishonesty, deception, or other
misconduct
-Criticism of a product alone does not defame the producer
-The plaintiff must prove special damages in all cases
-The plaintiff must prove more than negligence: either knowledge of falsity or reckless
disregard or ill will (intent to harm)
-Publication of trade libel may be enjoined
Competitor's Privilege - Answer --A person may make an unduly favorable comparison
of the quality of his own goods or services with those of a competitor
-A person need not believe that his own things are superior to those of the competitor
-The comparison may not contain false facts regarding the rival's goods or services
Puffery - Answer --Hyperbolic boasting or bluster no reasonable consumer would
believe true or claims of superiority over a competitor's product that consumers
understand are not to be taken literally
Veggie Libel Laws - Answer --Impetus for these laws was an unsuccessful
disparagement suit against "60 Minutes" in 1989
-13 states have such laws
-Have been introduced in NE legislature but never passed
-Cover perishable food products
-Allow suits by any producer of the disparaged product
-Some require defendants to prove truth
-Some require criticism to be based on reliable scientific evidence
-Some don't require common-law or actual malice
-Some allow triple damages
Lanham Act - Answer --Imposes civil liability on anyone who, in connection with goods
and services, causes confusion as to any person's association or approval of such
goods (used in right-of-publicity cases) or misrepresents the nature, characteristics,
qualities, or geographic origins of one's own or another's goods, services, or
commercial activities (used in false advertising cases)
-Elements of action:
-False or misleading statement about defendant's product or another's
, -Actual deception or a tendency to deceive the intended audience
-Statement is disseminated to general public
-Statement is commercial speech
-Deception is material
-Goods or services traveled in interstate commerce
-A likelihood of injury to the plaintiff
Deception by Mock-ups - Answer --A mock-up in advertising is deceptive if it seems to
present evidence, including a test or demonstration that purports to prove a fact or
product feature that is material to induce consumers to buy the product, but which does
not actually prove such fact or product feature
Three Kinds of Mock-Ups - Answer --Mock-ups suggests product has a quality it does
not in fact possess
-Mock-up offered as proof of a product claim but does not actually prove the claim
-Mock-up substitutes for real product without calling attention to itself
FTC - Answer --Composed of 5 members that make policy/final decisions
-They are nominated by the president and confirmed by the Senate
-No more than 3 of the FTC members can be of the same political party
-How the FTC Acts:
-Rule Making
-Resembles what Congress does
-General
-Concerns future conduct
-Adjudication
-Resembles what courts do
-Particular
-Concerns past conduct
Rulemaking vs. Adjudication - Answer --The lines between adjudication and rule
making are blurred
-Some rules may be of such limited applicability as to amount to adjudicative orders
-Some adjudicative proceedings produce decisions of general applicability
FTC Policy on Deceptive Advertising - Answer --A deceptive act or practice must be
likely to mislead consumers (don't have to have evidence of actual deception)
-Who are acting reasonably in the circumstances (what a typical member of a
demographic thinks and how they interpret the ad)
-And who the ad targets
-The act or practice must be material (warranty/safety going to be material in any
instance)
-Some cases where they want intrinsic evidence (i.e. surveys, studies etc..) use that
20% of consumers are taking away false or misleading implication, which is actionable
as a deceptive ad
