Entertainment, Arts, and Sports Law Commons^™

The Lecture Series, Mary Kay Kane

UC Law SF Communications and Entertainment Journal

No abstract provided.

Patent Protection For Computer-Related Inventions: The Past, The Present, And The Future, Nancy J. Linck, Karen A. Buchanan

UC Law SF Communications and Entertainment Journal

Intellectual property protection is important to the United States' economic welfare, in particular to the computer industry. This Article briefly overviews the underlying purpose of the United States' patent laws and the confusion present in the law regarding patent protection for computer software and computer-related inventions. It begins its discussion of this confusion with a review of the history of patent protection for these inventions, characterizing the history as "marked by 'stops and starts.'" The initial "starts" are numerous cases from the Court of Customs and Patent Appeals reversing the Patent and Trademark Office's (PTO's) refusal to issue a patent …

Utilitarian Design Features And Antitrust Parallels: An Economic Approach To Understanding The Funtionality Defense In Trademark Litigation, M. A. Cunningham

UC Law SF Communications and Entertainment Journal

In this Article, the author addresses an issue of continuing significant concern to trade dress owners by examining the impact of a recent Supreme Court decision on the role of the functionality defense in trademark litigation. He traces the development of the functionality doctrine in the courts and identifies the convergence of the principles underlying the doctrine with the competition concerns of antitrust law. The Article concludes with recommendations for ways of employing the economic analysis used in antitrust litigation as an effective tool to resolve disputes over whether a particular combination of design features is functional.

Impact Of The Communications Decency Act Of 1996 On Federal Prosecutions Of Computer Dissemination Of Obscenity, Indecency, And Child Pornography, William P. Keane

UC Law SF Communications and Entertainment Journal

With the passage of the Communications Decency Act of 1996, Congress provided federal prosecutors with a potentially powerful new tool for combating "indecent" communications sent or made available to minors through computer networks. The author offers an early examination of the CDA on the use of computer and computer networks as instrumentalities of federal obscenity, indecency, and child pornography crimes, as well as the possible Constitutional challenges that are likely to emerge. He also outlines anticipated problems with enforcement, proof, and various defense strategies.

Virtual Prostitution: New Technologies And The World's Oldest Profession, David Cardiff

UC Law SF Communications and Entertainment Journal

The various developing technologies that will allow entertainment consumers to receive video on demand will provide increased choice and interactivity. These technologies will also be capable of providing interactive video pornography, thus refocusing the public debate regarding obscene and indecent communications. This Note explores the capabilities of these new technologies, vis-A-vis pornographic communications, in the context of the traditional nuisance-based jurisprudence that has evolved in response to more traditional means of disseminating pornography, and in the context of the various new laws, including the Communications Decency Act of 1996, which are intended to restrict access to, and punish purveyors of, …

Pinning The Blame In Cyberspace: Towards A Coherent Theory For Imposing Vicarious Copyright, Trademark And Tort Liability For Conduct Ocurring Over The Internet, Ian C. Ballon

UC Law SF Communications and Entertainment Journal

Vicarious liability, or the principle that under certain circumstances it is fair and just to hold unrelated third parties liable for conduct which they did not initiate or perhaps even condone, is both a logical outgrowth of, and impediment to, the ongoing rapid expansion of the Internet. Online infringers and tortfeasors may be more likely than others to be effectively "judgment proof," because their conduct was undertaken anonymously, they cannot satisfy a damages award, or they are located beyond the jurisdiction of a convenient and economical U.S. venue for litigation. As a consequence, and as Internet use has increased and …

Regulating Competition In The Information Age: Computer Software As An Essential Facility Under The Sherman Act, David Mcgowan

UC Law SF Communications and Entertainment Journal

This Article examines the application of the antitrust laws to computer software markets, beginning with a discussion of the different economic approaches underlying the antitrust and copyright laws. The Article contends generally that antitrust does not provide the analytical tools necessary to determine the optimal scope of copyright protection. The Article then examines more particularly the increasingly common argument that access to software code-including at least some form of copying-may be an "essential facility" under the antitrust laws. In this regard the Article discusses the analytical confusion surrounding the essential facilities concept and argues that application of the concept should …

The Application Of Securities Laws In Cyberspace: Jurisdictional And Regulatory Problems Posed By Internet Securities Transactions, Kenneth W. Brakebill

UC Law SF Communications and Entertainment Journal

This Note examines the impact of the Cyberspace revolution upon our current American system of securities regulation. The Author discusses several recent technological innovations, including the advent of electronic media to deliver corporate information to investors, the use of the Internet to consummate public stock offerings, and the creation of on-line securities trading systems to match buyers and sellers, and addresses the response of securities regulators to these novelties. In large part, the author will explore the legal uncertainty that has been thrust upon the American courts, federal and state regulators, and investors in light of the growing use of …

Making The World Wide Web Safe For Democracy: A Medium-Specific First Amendment Analysis, Andrew Chin

UC Law SF Communications and Entertainment Journal

The World Wide Web, a vast speech domain that may ultimately swallow all current forms of telecommunications media, presents urgent First Amendment issues. Most significantly, the structure of linked documents on the Web has served to concentrate speech power and impoverish democratic discourse. As extensive surveys by the author and others demonstrate, commercial speech dominates the Web and political discourse on the Web has become balkanized.

Using a quantitative model, it is possible to isolate and identify the characteristics of Web sites that contribute to robust public debate. These findings suggest a range of structural policies that would support the …

At The Interface Of Patent And Trademark Law: Should A Product Configuration Disclosed In A Utility Patent Ever Qualify For Trade Dress Protection, Kevin E. Mohr

UC Law SF Communications and Entertainment Journal

Patent law seeks to advance technological innovation by encouraging invention with a limited-duration monopoly. In return, the inventor discloses his invention, and it becomes free for the public to use upon the patent's expiration. Trademark law seeks to avoid consumer confusion by granting to the trademark owner for an indefinite period a monopoly in the use of the mark in connection with its goods. Where a product is protected by a utility patent and the product owner also seeks to protect the product's shape or design by relying on trademark law, these policies can collide. This can result in the …

Metropolitan Council Of Naacp Branches V. Fcc: Isolated Instance Or De Facto Elimination Of The Cross-Ownership Ban, John E. Schadl

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

The Evening Hours During Pacifica Standard Time, C. Edwin Baker

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

A Historical Perspective On The Protection Of Children From Broadcasting Indecency, Edythe Wise

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

The First Amendment Under Pressure, Daniel Schorr

UC Law SF Communications and Entertainment Journal

No abstract provided.

What Are The Limitations On Freedom Of The Press, Daniel Schorr

UC Law SF Communications and Entertainment Journal

No abstract provided.

The Communications Decency Act And The Indecent Indecency Spectacle, David Kushner

UC Law SF Communications and Entertainment Journal

This essay situates the Communications Decency Act in contemporary jurisprudence and our postmodern culture. The author analyzes why both the proscription of indecency in cyberspace and the prescription of television ratings are unconstitutional. More importantly, the essay argues that cyberspace must be viewed as a post modern spectacle. The production forces of late capitalism have commodified sex and violence, making them the principal fruits of desire in cyberspace. These cultural urges, in conjunction with the convergence of telecommunications technologies, render the CDA and like forms of censorship fundamentally unenforceable. The essay concludes by suggesting the serious implications for First Amendment …

The Shirts Off Their Backs: Colleges Getting Away With Violating The Right Of Publicity, Vladimir P. Belo

UC Law SF Communications and Entertainment Journal

The popularity of college athletics is at an all-time high in the United States. Colleges and universities have capitalized on the enthusiasm through marketing merchandise aimed at taking advantage of the growing popularity. Recently, colleges have begun using the popularity of individual student-athletes by marketing clothing featuring uniform numbers of high-profile players on their tiams. This Note examines this latest trend in college sports merchandising.

This Note suggests that the marketing of this type of merchandise may violate student-athletes' common law and statutory rights of publicity. This Note chronicles the development of right of publicity law, concluding that a college …

Blood Money: When Media Expose Others To Risk Of Bodily Harm, Sandra Davidson

UC Law SF Communications and Entertainment Journal

This Article explores application of negligence law to media that expose others to a foreseeable risk of bodily harm or death. Negligence suits are an increasing risk to the media. Several such cases are winding through the judicial system. Braun v. Soldier of Fortune and Hyde v. City of Columbia stand as precedents for media liability.

Besides surveying negligence cases brought against media, this Article explores the related areas of strict liability and incitement, which have not yet resulted in media liability. It also discusses the availability of bomb recipes on the Internet and asks whether increased dangers to physical …

Seeing Beyond The Smoke And Mirrors: A Proposal For The Abandonment Of The Commercial Speech Doctrine And An Analysis Of Recent Tobacco Advertising Regulations, Scott Joachim

UC Law SF Communications and Entertainment Journal

This Note examines the Supreme Court's struggles both in defining commercial speech and identifying the parameters of the commercial speech doctrine. The author analyzes a series of Supreme Court cases and concludes that the doctrine rests on an ill-defined notion of commercial speech and on illusory assumptions regarding the distinctions between commercial speech and more highly protected discourse such as political speech. The author concludes that the Court should abandon the commercial speech doctrine and provide commercial speech the full protections enjoyed by political speech. The Note next outlines President Clinton's and the FDA's recent tobacco advertising regulations and analyzes …

Hilton Davis And Jury Trials,, William Alsup, Carolyn Wiggin

UC Law SF Communications and Entertainment Journal

Congress' creation of the Court of Appeals for the Federal Circuit in 1982 led to a boom in patent litigation that has continued into the 1990's. As this boom has continued, the role of juries in patent infringement cases has been criticized, with commentators suggesting jury bias in favor of patent holders. In particular, critics of patent infringement jury trials have argued that the doctrine of equivalents favors plaintiffs by allowing juries too much discretion in finding a patent infringement when there has been no literal infringement.

In 1995, the Federal Circuit's decision in Hilton Davis Chemical Co. v. Warner-Jenkinson …

The Copyright Term Extension Act: Is Life Plus Seventy Too Much, Jenny L. Dixon

UC Law SF Communications and Entertainment Journal

The Copyright Term Extension Act, if enacted, will increase the term of copyright protection to include the life of the author plus seventy years. Proponents of this legislation argue that such an increase is necessary for the United States to remain competitive in international intellectual property matters. This Note examines that proposition in light of the United States copyright tradition, the international copyright agreements currently in effect, and the negative impact the extension could have upon users of the public domain.

Caught In The Web: Entrapment In Cyberspace, Jennifer Gregg

UC Law SF Communications and Entertainment Journal

Cyberspace presents a new forum for criminal activity, including the distribution of child pornography. Law enforcement has responded with creative undercover techniques to catch on-line pedophiles and other lawbreakers. But who is policing the police? This Note applies existing entrapment law to police deception in this novel setting, discusses the current state of the law, and demonstrates that the judicially created doctrine is inadequate to curb police abuses. It suggests that legislative action is needed to modify entrapment law to accommodate the special aspects of cyberspace, and identifies the threshold issues which such legislation must address.

Introduction Of Daniel Schorr, Betty Medsger

UC Law SF Communications and Entertainment Journal

No abstract provided.

Contractual Rules And Terms And The Maintenance Of Bargains: The Case Of The Fledgling Writer, Blake D. Morant

UC Law SF Communications and Entertainment Journal

A writer enters into an agreement with a publisher who is obligated to disseminate the writer's creative work. This contract often contains clauses such as indemnity provisions which seemingly protect the publisher from liability for marketing the work by shifting the risks of publication precipitously to the writer. Both parties accept this provision for disparate reasons: the writer, particularly a novice in this bargaining area, accedes to these risks either because of ignorance of the clause and its possible consequences, or a perceived lack of choice on her part; the publisher demands indemnification from the writer in the presumed belief …

Diversity And Minority Stereotyping In The Television Media: The Unsettled First Amendment Issue, Patricia M. Worthy

UC Law SF Communications and Entertainment Journal

Racial dissention and divisiveness continue to be among the most destructive and debilitating aspects of our society. Social scientists have raised serious questions about the role that television has played both in increasing the level of violence and intensity of racial disharmony in America. Most findings reveal that ethnic minorities are still negatively stereotyped as "criminals," "dangerous characters," or "clowns." The research literature also suggests that media distortions negatively impact the self-esteem of African- American children and may preclude them from achieving self-actualization or impede their ability to realize their full potential. In response to these and other concerns, the …

The Right Of Publicity Versus Free Speech In Advertising: Some Counter-Points To Professor Mccarthy, Stephen R. Barnett

UC Law SF Communications and Entertainment Journal

Professor J. Thomas McCarthy, in a recently published lecture, has defended recent expansions of the right of publicity and rejected the idea of a free-speech defense that would in some cases protect the unlicensed use of a celebrity's name, likeness, or "identity" in an advertisement. In this "counter-lecture" Professor Barnett focuses on what he sees as the growing conflict between the right of publicity, as embodied in Ninth Circuit decisions such as the Vanna White and Abdul-Jabbar cases and in the Restatement (Third) of Unfair Competition, and free speech in advertising, as protected by the Supreme Court's doctrine of "commercial …

Markman And Hilton Davis, The Federal Circuit Strikes And Awkward Balance: The Roles Of The Judge And Jury In Patent Infringement Suits, Jason Scully

UC Law SF Communications and Entertainment Journal

The Court of Appeals for the Federal Circuit recently rendered two decisions which represent a compromise between increasing the power of the judge and maintaining a role for the jury. This Note. with reference to studies in juror comprehension and improved trial techniques, explores whether the court struck an appropriate balance.

Vara's First Five Years, Simon J. Frankel

UC Law SF Communications and Entertainment Journal

This article addresses the background, provisions, and brief history of the Visual Artists Rights Act of 1990 (VARA), a federal law protecting the "moral rights" of visual artists. These non-economic rights, which give artists some control over their creations even after the works are sold, have a long history in continental Europe, but are a recent import to the United States. After American courts declined to recognize such rights under common law earlier in this century, approximately a dozen states enacted laws protecting the rights of creators of "fine art." These statutes generally protect the artist's right of integrity-to protect …

The Case For Color-Blind Distress Sales, Michael E. Lewyn

UC Law SF Communications and Entertainment Journal

Under the Federal Communications Commission's "distress sale" policy, a broadcaster whose license has been designated for a revocation hearing, or whose renewal application has been designated for hearing, may assign the license to an FCC-approved minority enterprise at a discount price before the hearing. Under recent Supreme Court precedent restricting the use of race-conscious federal measures, the distress sale policy may soon be declared unconstitutional.

If the distress sale policy is declared unconstitutional, the FCC has two significant alternatives. First, the FCC may abolish the distress sale policy altogether. Second, the FCC may create a color-blind distress sale policy which …

Return To Hot Wheels: The Fcc, Program-Length Commercials, And The Children's Television Act Of 1990, Allen K. Rostron

UC Law SF Communications and Entertainment Journal

In the Children's Television Act of 1990, Congress directed the FCC to address the problem of "program-length commercials" aimed at children. Such programs, essentially thirty-minute ads for toys and other products, proliferated during the 1980s as the FCC deregulated children's television. In response to the Children's Television Act, the FCC adopted a policy that purported to address the problem, but actually avoided facing it. In its rule-making proceeding, the FCC disregarded Congress' concerns, misconstrued the issue presented, and mischaracterized the ineffective policy adopted as consistent with FCC rulings of the 1960s and 1970s. The need continues for a more effective …