Glossary

APPEAL: to seek review by a higher court of a lower court’s decision.

ARTISTS RIGHT ACT OF 1990: an artist who creates an original work of visual art has the right to thwart any destruction or alteration to that work.

BAD FAITH: intent to deceive or mislead in order to gain advantage; violation of basic standards of honesty when dealing with others.

BREACH OF CONTRACT: failure to perform any material term of a contract (written or oral) without a legal excuse.

CAPTIVE AUDIENCE: a person or group of people forcibly subjected to view or hear expression in the use of public facilities or places where they are reasonably unable to avoid seeing or hearing the expression.

CERTIORARI: an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given case for review.  This is mostly used in regards to the U.S. Supreme Court granting a petitioner the right to have their case heard before the court.

CHILLING EFFECT: the idea that vague and overly broad rules regulating speech are likely to result in people censoring themselves, even censoring acceptable speech, since they cannot be sure whether their speech is illegal or not.

COMMUNITY STANDARDS TEST: one prong of the Miller obscenity test that uses the prevailing opinions of the community to determine whether something is obscene for purposes of the law. (See MILLER OBSCENITY TEST.)

CONSPIRACY: n. An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose.  Conspiracy is a separate offense from the crime that is the object of the conspiracy.  A conspiracy ends when the unlawful act has been committed or (in some states) when the agreement has been abandoned. A conspiracy does not automatically end if the conspiracy’s object is defeated.

CONTENT-BASED CONSIDERATIONS: factors based on the subject matter of the work or material weighed before formulating a decision or opinion.

CONTENT-BASED REGULATIONS: regulations on speech that prohibit some categories of expression while allowing others. In contrast, viewpoint-based regulations restrict expression because of the regulator’s favoring of one opinion or side of an issue over another. For example, a ban on the publication of confidential information is content-based; however, a ban on all picketing except that by labor unions is viewpoint-based. (See Content/Viewpoint Neutrality)

CONTENT-NEUTRAL REGULATIONS: content-neutral regulations apply to all categories of speech and do not expressly prohibit any particular subject matter of expression.

COPYRIGHT: a right in an original work that gives the holder of that right the exclusive right to control the reproduction, distribution, and other use of the original work, including the right to make new works derived from the original work. The Copyright Act is the body of law that grants such rights. (For more information go to http://www.copyright.gov)

DAMAGES: Damages is the term used to describe monetary awards that a judge will grant to a prevailing party. There are a several different types of damages:

  • Actual damages (also called compensatory damages): money awarded to compensate for an actual loss, e.g. a judge awards a plaintiff $83 (the cost of a monthly metrocard) in actual damages, because he proved the defendant did not return his metrocard
  • Nominal damages: a very small sum of money awarded to the prevailing party as a matter of principle to show that the loss or harm suffered was technical rather than actual., e.g. a judge awards a plaintiff $1, because he proved the defendant pushed him – even though he did not suffer any medical injuries
  • Punitive damages: money sometimes awarded to a plaintiff that exceeds actual damages in order to punish the defendant and/or deter certain behavior, e.g. a judge awards a plaintiff an additional $5,000 because he wanted to punish the defendant for spitting on the plaintiff in the courtroom and to deter such conduct in the future

DECENCY: decency standards have been upheld in broadcast media and public telephone services, justified by the argument that such communication services enter every home and are part of the everyday life of children. Indecency in broadcasting is defined as “the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs.” Decency has not been legally defined in the visual arts context. (See also OBSCENITY)

DECLARATORY JUDGMENT: a judgment of the court that determines the parties’ rights and obligations without ordering action or awarding damages; often sought by a party to protect itself prospectively from liability. (See JUDGMENT)

DE MINIMIS: A copyright infringement claim is de minimis if the use of the copyrighted material is unsubstantial: the amount of copyrighted material used is extremely small and the copyrighted work is not recognizable.

DERIVATIVE WORKS: a work based on another work that must be different from the original and contain new additions (minor changes are not sufficient) and can be copyrighted independent of the original work. Examples include translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations. Copyright permission must be obtained before producing derivative works to avoid copyright infringement if the original work is still under copyright.

 

DISCRETIONARY ACTS: those acts performed in one’s official capacity that allow for the use of judgment rather than adherence to a strict rule. Discretionary acts are subject to a low standard of review for only their arbitrariness or capriciousness. In contrast, nondiscretionary acts, which are required to be performed in a particular manner, are subject to higher standards of review such as whether or not the act was objectively reasonable or not).

DISMISSAL (MOTION TO DISMISS): termination of a claim when, on the face of the complaint, the complainant is not entitled to legal relief. That is, the law does not provide a remedy for the alleged harm under the facts alleged to be true.

DUE PROCESS: the idea, encapsulated in the Fifth and Fourteenth Amendments, that neither the federal or state and local governments may deprive one of life, liberty, or property without appropriate legal procedures and safeguards. The essential elements of due process vary depending on what is specifically at stake; generally, it includes the provision of notice to the parties involved, an opportunity for both sides to be heard, and an independent decision-maker.

ENDORSEMENT TEST: Justice Sandra Day O’Connor modified the Lemon Test with the endorsement test. This modified test determines that an action is unjustifiable if its (1) purpose or ( 2) effect is to send a message that a certain religion is preferable (see LEMON TEST).

ENJOIN: to legally restrain the exercise of a certain action or compel a certain act by way of an injunction (see INJUNCTION).

ESTABLISHMENT CLAUSE: part of the First Amendment of the Bill of Rights in the U.S. Constitution that gives citizens the freedom to exercise their religion free from government interference. Text: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

EXPRESSION: see SPEECH.

FACIALLY: see PRIMA FACIE

FAIR USE (PROVISION OF THE FEDERAL COPYRIGHT ACT): doctrine originating in the common law under which one’s liability for use of another’s intellectual property is excused where liability would otherwise result (e.g., the owner has not consented to use of the work). A four-part test determines whether the use is “fair” under the Federal Copyright Act. This doctrine also applies to trademark and anti-dilution law. (See Copyright and Fair Use)

FIRST AMENDMENT: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.”

FIRST SALE DOCTRINE: (17 U.S.C. §109(a)) a person who legally acquires a copyrighted work can use the work for commercial purposes

GOVERNMENT INTEREST: the government’s motivation for taking action or enforcing a law. There are different levels of government interest

  • Legitimate government interest: the government has sufficient reason to act, e.g. issuing parking tickets
  • Significant government interest: the government’s reasons for action are convincing, but not necessarily essential, e.g. avoiding public riots
  • Compelling government interest: the government’s reasons for action are necessary and outweigh an individual’s constitutional rights, i.e. national security

INFRINGEMENT: an act that is in violation of one’s intangible rights, such as one’s copyrights, trademarks, and privacy rights. The Federal Copyright Act governs copyright infringement, e.g. copying the owner’s work without permission. (Link to 17 USCS §§ 106, 602.)

INJUNCTION: a court order to stop or prevent an action or to compel a party to do something.

  • PERMANENT INJUNCTION: An injunction granted after a final hearing on the merits of a case; typically the injunctive relief granted is permanent, but not necessarily.
  • PRELIMINARY INJUNCTION: a temporary court order requiring or preventing a particular action before the court has fully heard a case.
  • PROSPECTIVE INJUNCTIVE RELIEF: a court will issue an injunction before hearing the merits of the case when not doing so would lead to irreparable harm and make meaningless any judgment in favor of the party requesting prospective injunctive relief.
  • TEMPORARY RESTRAINING ORDER/INJUNCTION: an emergency order by the court forbidding a party from taking some action, pending a more complete hearing of the matter by the court. Often the order is initially issued without the court hearing from the party against whom it is issued, and typically expires within days unless a hearing for a preliminary injunction where both parties can be heard has been held.

INTERMEDIATE SCRUTINY: see SCRUTINY.

IRREPARABLE HARM (OR INJURY): damage that, once inflicted, cannot be adequately measured or compensated by money in the eyes of the law – which may or may not be the case in reality.

JUDGMENT (FINAL): a court’s final order in a case determining the rights and obligations of the parties in a case. Judgment should be distinguished from the oral or written opinion rendered by the court justifying its judgment, as well as the process for enforcement of the court’s judgment.

JURISDICTION: the court’s power over the parties and to rule with respect to the subject matter of an action. Courts may have general or limited jurisdiction depending upon the various authorities under which they are established and regulated (such as state and federal constitutions and statutes).

LEMON TEST: (Lemon v. Kurtzman, 403 US 602, 612-613 (1971)): a test to determine whether an action of the government violates the Establishment Clause. The test determines that the Establishment Clause is not violated if
(1) the government’s action has a non religious purpose; (2) the predominant effect of the action does not promote or impede religion; (3) does not cause much confusion between the relation between government and religion. (See: ENDORSEMENT TEST)

MILLER OBSCENITY TEST: the Miller test determines whether material is obscene and thus not protected speech under the First Amendment by assessing (a) whether the average person applying contemporary community standards would find that the material as a whole would appeal to the prurient interest; (b) whether the material depicts an actual or simulated sexual act in a patently offensive manner; and (c) whether the material, taken as a whole, lacks serious literary, artistic, political, or scientific value. 

NOMINATIVE USE: using a trade dress or a trademark as a point of reference to one’s own product.

NOMINATIVE FAIR USE: Nominative use becomes nominative fair use when (1) plaintiff’s product would not be identifiable without the use of the trademark, (2) use only as much of the trademark as is necessary to identify the plaintiff’s product, (3) the user does not do anything to suggest sponsorship by the trademark owner.

OBJECTIVE OBSERVER: a disinterested observer without bias or prejudice.

OBSCENITY: see MILLER OBSCENITY TEST, which defines obscene speech.

OVERBROAD: an overbroad regulation restricts more expression than is necessary to meet the regulator’s goal and may have a chilling effect on permissible speech. (See CHILLING EFFECT)

PARODY: parody is when one artist satirizes the work of another for the purpose of commenting or criticizing that original work, and not only for the purpose of commenting or criticizing society in general. Parody is a valued form of fair use that is protected under copyright law.

PLEA BARGAIN: an agreement between prosecutors and a defendant to plead guilty instead of going to trial in exchange for a sentence lighter than the one that the defendant would get if he were convicted in court.

PRELIMINARY INJUNCTION: see INJUNCTION

PRIMA FACIE: at first look

PRIOR RESTRAINT: prior restraints, or governmental restrictions of speech before it is actually expressed, are prohibited by the First Amendment except in very limited circumstances.

PROTECTED SPEECH: see SPEECH

PUBLIC DOMAIN: when a copyright or a patent does not protect an artistic or literary work or invention it is said to be in the public domain and can be used by anyone without liability for infringement.

PUBLIC FORUM: a public forum is an area traditionally open to assembly and debate by the public, such as a park, town meeting hall, or sidewalk. A regulation of speech in a public forum must pass strict scrutiny: it must be narrowly tailored to serve a significant government interest while leaving open adequate alternate channels of communication.

  • DESIGNATED PUBLIC FORUM: property that has been specifically opened by the state for expressive activity by the general public. Speech restrictions in designated fora are subject to strict scrutiny, as such restrictions are subject to strict scrutiny in traditional public forums.
  • LIMITED PUBLIC FORUM: public property that has been opened for a limited purpose, such as use for certain subjects and by classes of speakers. Restrictions on speech in a limited public forum are upheld if they are viewpoint-neutral and reasonable in light of the purpose of the forum.
  • NONPUBLIC FORUM: private or government-owned property that is not traditionally open to the public for expressive activity. Regulations of a nonpublic forum are subject to the most relaxed standards of review by the courts.

 

QUALIFIED IMMUNITY: a doctrine protecting government officials from lawsuits unless their actions violate clearly-established rights of which a reasonable official would have known.

RATIONAL REVIEW: see SCRUTINY

REASONABLE PERSON: the standard often used to determine whether someone acted wrongfully. The reasonable person acts sensibly, and takes proper but not excessive precautions.

RELIANCE PARTIES: people who depended on a fact or status. Often the people will have acted on the basis of this dependence.

REPRODUCTION: for a work to be a reproduction: (1) Its producer must have access to the original copyrighted work; (2)There must be a substantial similarity between the original work and the reproduction; (3)The original work must be duplicated or imitated by the reproduction.

RIGHT TO PRIVACY: the right of a person and their property to be free from unjustifiable public scrutiny or exposure.

RIGHT OF PUBLICITY: the right of a person to control the use of his or her name or likeness and to prevent others from using it for commercial purposes.

SCRUTINY:the umbrella term used by the courts for the different levels used by them to evaluate the constitutionality of regulations that single out certain categories of expression.

STRICT SCRUTINY: Under this test the government must show (1) a compelling government interest in the regulation; and (2) the regulation is narrowly tailored to achieve that interest, while leaving open adequate alternate channels of communication.

  • INTERMEDIATE SCRUTINY: Under this test the government must show (1) an important government interest in the regulation; and (2) the regulation is substantially related to achieving that interest.
  • RATIONAL REVIEW: Under this test the government must show (1) a legitimate governmental interest in the regulation; and (2) the regulation is rationally related to achieving that interest.

SECONDARY LIABILITY: indirect liability which arises when a party materially contributes to, facilitates, induces, or is otherwise responsible for directly infringing acts carried out by another party.

SEIZURE: the taking of property or the taking of a person for arrest or investigation.

SINGLE PUBLICATION RULE: In a libel suit, a plaintiff can only bring one claim against a publisher for each mass publication, not a claim against each issue in the mass publication..

SPEECH: Constitutionally protected speech does not only include spoken words, but also includes other forms of expression such as painting, sculpture, performance, film, theatre, etc.

  • PROTECTED SPEECH: speech that is protected from government censorship and/or regulation to one extent or another depending upon the nature of the speech and the nature of the regulation.
  • UNPROTECTED SPEECH: speech that may be subject to complete prohibition and unfettered regulation by the government. The five categories of unprotected speech are obscenity, fighting words, fraudulent misrepresentation, advocacy of imminent lawless behavior, and defamation.

STANDING (TO SUE): Standing is a party’s right to make a legal claim. In order to have standing to sue, a plaintiff must show that he has suffered actual injury as a result of the defendant’s conduct, and that there is a constitutional or statutory regulation addressing the defendant’s behavior.

STANDING TO SUE: see STANDING.

STATE ACTION:an action that is either taken directly by the government or bears such a significant connection to the government that it can be attributed to it. State action is subject to scrutiny by the courts to ensure that it does not violate one’s constitutional rights.

STATUTE OF FRAUDS: requires contracts to be in writing in regard to: (1)marriage; (2)sale of land; (3)actions by the executor of a will (4) the sale of goods over $500; (4)acts of a guarantor and (5) agreements that cannot be performed within a year

STATUTE OF LIMITATIONS: the maximum period of time following an event when one can bring a law suit. Once this period of time lapses, the law suit can no longer be brought.

STRICT SCRUTINY: see SCRUTINY.

SUBSTANTIAL SIMILARITY: to prove copyright infringement, a plaintiff must show copying and improper appropriation. Substantial similarity between two works- either in the quantity or quality of expression- is evidence of improper appropriation.

SUMMARY JUDGMENT (MOTION FOR SUMMARY JUDGMENT): a dispositive judgment made by a judge before trial of the case based upon the evidence prepared by the parties in the case because there are no genuine issues of fact for a jury to decide, and based upon the facts, the law may be applied by the judge alone and judgment rendered.

TEMPORARY RESTRAINING ORDER/INJUNCTION: see INJUNCTION.

TIME, PLACE, AND MANNER REGULATIONS: regulation on speech that specifies the time, location, and way in which it can be expressed. These regulations are permitted as long as they are content-neutral, are narrowly tailored to serve a significant government interest, and leave open alternative channels for communication of the message. (See also Time, Place and Manner Restrictions)

TRADE DRESS: the image and appearance of a product.

TRADEMARK: unique symbols, pictures or words that identify specific products. These unique symbols, pictures, or words are often referred to as the product’s mark.

UNPROTECTED SPEECH: see SPEECH

VAGUENESS: ambiguity. Vague laws fail constitutional scrutiny because they don’t provide people with warning that a certain action is prohibited, and can promote arbitrary enforcement.

VIEWPOINT BASED REGULATIONS: the regulation of expression because of the particular opinion or position that expression supports or rejects. Viewpoint based regulations are unconstitutional. (See also Content-Based Regulations.)

VIEWPOINT DISCRIMINATION: see VIEWPOINT BASED REGULATION.

VIEWPOINT NEUTRAL REGULATIONS: regulation of expression without reference to any of the viewpoints that may be expressed.

These materials are not intended, and should not be used, as legal advice. They necessarily contain generalizations that are not applicable in all jurisdictions or circumstances. Moreover, court decisions may be superseded by subsequent rulings, and may be subject to alternative interpretations. Corrections, clarification, and additions are welcome here.