Digital Commons Network^™

Restituting Nazi-Looted Art: Domestic, Legislative, And Binding Intervention To Balance The Interests Of Victims And Museums, Katharine N. Skinner

Vanderbilt Journal of Entertainment & Technology Law

The Nazis engaged in widespread art looting from Holocaust victims, either taking the artwork outright or using legal formalities to effect a transfer of title under duress. Years later, US museums acquired some of these pieces on a good-faith basis. Now, however, they face lawsuits by the heirs of Holocaust victims, who seek to have the museums return the artwork. Though good title cannot pass to the owner of stolen property under US law, unfavorable statutes of limitations, high financial hurdles, or discovery problems, among other obstacles, bar many of these claimants from seeking recovery. Though some museums have amicably …

Free Agents: Should Crowdsourcing Lead To Agency Liability For Firms?, Erin R. Frankrone

Vanderbilt Journal of Entertainment & Technology Law

Crowdsourcing has emerged as a new production paradigm through which firms outsource traditional employee tasks to an undefined and generally large network of people, the "crowd," in the form of an open call. The relationships between the crowd and the firm vary across different crowdsourcing models and do not represent, either in fact or in theory, the employment or contractor relationships with which the law is familiar. Therefore, the law and the courts are ill-equipped to answer the questions of whether and how liability should attach to firms for the crowd's harmful conduct toward third parties. Agency law is the …

Man Versus Machine Review: The Showdown Between Hordes Of Discovery Lawyers And A Computer-Utilizing Predictive-Coding Technology, Nicholas Barry

Vanderbilt Journal of Entertainment & Technology Law

The discovery process is regularly capturing millions of pages of documents. Electronic storage is making storing documents cheaper and easier. When litigation begins, however, sorting through this massive amount of electronically stored information is costly and time intensive. Keyword searches are a start to managing the growing amount of electronic documents, but the discovery process is still falling behind in efficiency. Predictive coding could change all that.

Predictive coding is capable of solving the time-intensive nature (and resultant growing cost) of processing discovery documents. Predictive coding is faster, cheaper, and more accurate than traditional linear document review, the current "gold …

Wipo And The American Constitution: Thoughts On A New Treaty Relating To Actors And Musicians, Hannibal Travis Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

The World Intellectual Property Organization (WIPO) is seeking to reform U.S. copyright law. The WIPO Treaty on Audiovisual Performances (AV Treaty) would restrict the communication of actors' and musicians' performances without authorization. The treaty would probably make it illegal to display or show clips of performances, or make a movie or YouTube video by transforming or adapting other actors' or musicians' performances, particularly when the original credits and copyright information are dropped. This Article analyzes key provisions of the AV Treaty to ascertain whether they change US law, or merely globalize existing US doctrines. This Article describes the threat posed …

Music And Emotion In Victim-Impact Evidence, Emily C. Green

Vanderbilt Journal of Entertainment & Technology Law

Aristotle famously said that the "law is reason free from passion," and nothing arouses passion better than music. Thus, when victim-impact evidence evolved from simple oral statements to include photographs, video footage, and musical clips, scholars and judges alike expressed concern that music might be too emotional and may make it difficult for the jury to make a rational decision based on logic rather than feeling. Recent scholarship in the field of law and emotion, however, notes that emotions are inevitable in law and further suggests that these emotions can be used constructively in the legal system. Thus, musically induced …

Covering The Spread: An Assessment Of Amateurism And Vulnerability Of Student-Athletes In An Emerging Culture Of Sports Wagering, Caitlin D. Buckstaff

Vanderbilt Journal of Entertainment & Technology Law

Sports gambling is an extremely lucrative, but scrutinized, industry. Athletic organizations contend that any form of sports wagering adversely affects players, teams, and spectators. They argue that intermingling gambling with sports turns spectators into skeptics and taints honest and fair competition. Congress enacted legislation limiting the scope of permissible sports wagering, but this legislation is under attack by many states advocating its repeal. The expansion of legalized sports wagering poses a threat, particularly on collegiate athletics. By definition, college athletes are amateurs. The definition of amateurism forms the foundation for the regulations governing intercollegiate competition. But, this status coupled with …

Sexual Privacy In The Internet Age: How Substantive Due Process Protects Online Obscenity, Jennifer M. Kinsley

Vanderbilt Journal of Entertainment & Technology Law

Obscenity is one of the narrow categories of speech that has historically lacked First Amendment free-speech protection, and courts and scholars alike have wrestled with the indefinable and often unworkable nature of the obscenity test. The advent of the Internet has both intensified and yet potentially resolved these problems. Recent Supreme Court cases, such as Lawrence v. Texas, suggest that sexually explicit expression that falls outside the scope of the First Amendment may nevertheless be entitled to privacy protection under Fourteenth Amendment substantive due process. Yet Lawrence's potential applicability to online obscenity has created tension in lower-court decisions and produced …

Copyright Infringement Of Music: Determining Whether What Sounds Alike Is Alike, Margit Livingston, Joseph Urbinato

Vanderbilt Journal of Entertainment & Technology Law

The standard for copyright infringement is the same across different forms of expression. But musical expression poses special challenges for courts deciding infringement disputes because of its unique attributes. Tonality in Western music offers finite compositional choices that will be pleasing or satisfying to the ear. The vast storehouse of existing public domain music means that many of those choices have been exhausted. Although independent creation negates plagiarism, the inevitable similarity among musical pieces within the same genre leaves courts in a quandary as to whether defendant composers infringed earlier copyrighted works or simply found their own way to a …

From Berne To Beijing: A Critical Perspective, David Lange

Vanderbilt Journal of Entertainment & Technology Law

Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law's Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange's preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated …

Bowman's Beanstalk: Patent Exhaustion In Self-Replicating Technologies, Zachary Loney

Vanderbilt Journal of Entertainment & Technology Law

The breakneck speed of innovation has once again brought uncertainty to the realm of patent law in the form of self-replicating technologies. Traditionally, the doctrine of patent exhaustion has provided a balance between the monopolistic powers of the patent holder and the consumer's freedom to utilize a purchased product without future interference. The rights holder receives compensation from the initial sale and retains the right to make and sell additional goods, while the consumer may use or resell their particular article without concern for additional fees or payments. Self-replicating technology blurs this line because a consumer's use inherently includes the …

Performance Royalties For Sound Recordings On Terrestrial Radio: A Private Solution To A Public Problem, J. P. Urban

Vanderbilt Journal of Entertainment & Technology Law

US copyright law provides for a digital performance right in sound recordings but does not provide for a performance right in sound recordings when broadcast over terrestrial radio. Proponents of this asymmetry posit that the difference relates to the promotional value of terrestrial radio to record labels, but this rationale has eroded in recent years. The recording industry experienced a drastic decline at the turn of the millennium, and record labels have attempted many creative approaches to bridging the profit gap. Major labels and radio conglomerates of late have begun negotiating private contracts that effectively extend the benefits of a …

User-Friendly Licensing For A User-Generated World: The Future Of The Video-Content Market, Joanna E. Collins

Vanderbilt Journal of Entertainment & Technology Law

A picture may say a thousand words, but in today's artistic culture, video is the true king. User-generated remix and mashup videos have become a central way for people to communicate their ideas, to be a part of popular culture, and to bring life to their own artistic visions. Digital technology and the rise of user-generated Internet platforms have enabled professionals and amateurs alike to participate in the creation of web videos, which often incorporate popular content. But this has led to a growing tension between amateur sampling artists and copyright rightsholders. The current video-content-licensing scheme requires individually negotiated contracts …

Decertifying Players Unions: Lessons From The Nfl And Nba Lockouts Of 2011, Nathaniel Grow

Vanderbilt Journal of Entertainment & Technology Law

This Article analyzes the National Football League (NFL) and National Basketball Association (NBA) lockouts of 2011, focusing in particular on the role union dissolution played in each work stoppage. Although the existing academic literature had generally concluded that players unions in the four major US professional sports leagues were unlikely to disband during a labor dispute, the unions in both the NFL and NBA elected to dissolve in response to lockouts by ownership. This Article provides an explanation for why the prior literature misjudged the role that union dissolution would play during the 2011 work stoppages. It argues that previous …

Tax Incentives For Innovation In A Modern Ip Ecosystem, Joshua Chao

Vanderbilt Journal of Entertainment & Technology Law

Technological innovation is a long-recognized catalyst for economic growth in the United States, and its promotion is an important feature of national economic policy, as evidenced by the presence of various tax incentives for innovation in the US Internal Revenue Code. Tax incentives are an important means by which governments can deliver subsidies to promote such innovation. To be effective, however, any system of tax incentives must be tailored for current economic conditions and competitive landscapes. In the current ecosystem of innovation in the United States, this means that, at the very least, the incentives for innovation in the US …

Guantanamo's Greatest Hits: The Semiotics Of Sound And The Protection Of Performer Rights Under The Lanham Act, John Tehranian

Vanderbilt Journal of Entertainment & Technology Law

As Bruce Springsteen and Ronald Reagan, Jackson Brown and John McCain, and Tom Morello and Paul Ryan can attest, the exploitation of creative works for political or commercial purposes that run contrary to artists' ideals can stir passions and trigger lawsuits. Yet for performers who are not authors of the exploited works, there is little meaningful legal relief provided by the federal Copyright Act. Instead, such performers--from featured singers and dancers to actors and other personalities known for their distinctive traits--have leaned on alternative theories for recovery, thereby raising the specter of liability outside of copyright law for such unwelcome …