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.

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.)

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 property 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/circs/circ1.cfm)

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. A derivative must be different from the original and contain new additions (minor changes are not sufficient). Examples include translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations. Copyright permission must be obtained before producing derivative works. Derivative works can be copyrighted independent of the original work.

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.

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

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.

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.

PRELIMINARY INJUNCTION: see INJUNCTION

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 a 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.