Entertainment, Arts, and Sports Law Commons^™

The First Amendment As A Check On Copyright Rights, Alan E. Garfield

UC Law SF Communications and Entertainment Journal

Parties are increasingly raising the First Amendment as a potential limit on the scope of copyright rights. However, courts have traditionally found that copyright law already incorporates First Amendment interests, as it precludes protection of ideas and allows for the "fair use" of expression. This article addresses the issue of whether there needs to be additional First Amendment restraints. The author focuses on the broader principles of the First Amendment, and whether copyright law fully incorporates those principles. The author then discusses two recent cases, Worldwide Church of God v. Philadelphia Church of God and Los Angeles Times v. Free …

Trade Secrets, The First Amendment And The Challenges Of The Internet Age, David Greene

UC Law SF Communications and Entertainment Journal

Trade secret owners often come into conflict with the First Amendment rights of free speech and free press when they seek to restrict the publication of their trade secrets by others. Although the Uniform Trade Secrets Act provides some remedies for the unauthorized disclosure of trade secrets, First Amendment principles can make it difficult for trade secret owners to obtain such relief, especially when the publisher of the trade secret owes no duty of confidentiality to its rightful owner. Some trade secret owners have argued that trade secrets should be immune from First Amendment scrutiny, but there is no historical …

Legislative Prohibitions On The Enforcement Of Post-Employment Covenants Not To Compete In The Broadcasting Industry, Alice J. Baker

UC Law SF Communications and Entertainment Journal

This article examines covenants not to compete in the entertainment industry. In the first section of the article, the author discusses the common-law doctrine of non-competition agreements and their application in the context of the entertainment industry. Next, the author examines state legislative attempts to limit this type of agreement in the broadcasting industry, including possible justifications for a legislative prohibition on them in the entertainment industry. The author concludes that the costs of blanket prohibition outweigh the benefits of prohibitive legislation, and argues that broadcasting companies and employees should be free to negotiate and enforce postemployment covenants not to …

Fashion Runways Are No Longer The Public Domain: Applying The Common Law Right Of Publicity To Haute Couture Fashion Design, Samantha L. Hetherington

UC Law SF Communications and Entertainment Journal

Under present United States intellectual property law, clothing design is not protected by federal copyright, trademark/trade dress, or patent law. In fact, design piracy is sanctioned, if not encouraged. This article analyzes current intellectual property law and its failure to afford protection for clothing design. The author proposes that the doctrine of the right of publicity or personality could be applied to haute couture.

The Supreme Court And Trade Dress - A Short Comment, William P. Kratzke

UC Law SF Communications and Entertainment Journal

In the last nine years, the United States Supreme Court decided four cases that concern trade dress and the doctrine of functionality. With these decisions, the Court broadened the doctrine of functionality and narrowed the protection available for product configuration. The Court correctly held that the protection for a product's trade dress should not be as high as the protection for its trademark because consumers do not expect trade dress to function as trademarks do in identifying a product and its source. The author concludes that the Court has redefined the protection of trademark interests in these four cases so …

The Domain Name Registration .Bizness: Are We Being Pulled Over On The Information Super Highway, Navin Katyal

UC Law SF Communications and Entertainment Journal

This paper critically analyzes the de facto control over the Domain Name System currently administered by the not-for-profit organization, Internet Corporation for Assigned Names and Numbers ("ICANN"). Specifically, the author addresses the concerns of how ICANN fails to lead in the direction of appropriate Internet governance, and how it directs the Domain Name Registration ("DNR") industry to focus more upon economics, rather than engaging in legitimate issues surrounding trademark disputes created by the DNR.

The Future Of The Concurrent Use Of Trademarks Doctrine In The Information Age, David S. Barrett

UC Law SF Communications and Entertainment Journal

This article focuses on the concurrent use doctrine of trademarks. This doctrine allows different owners to use the same or similar trademarks in business if (1) the junior use is geographically remote to the senior use and (2) the trademark was adopted in good faith. The second element is interpreted differently, with a shrinking minority requiring no actual knowledge and the minority requiring no intent of the junior user to imply his goods are those of the senior user.

The author argues that the internet revolution has created substantial problems with the concurrent use doctrine. The first major issue is …

Pricing Network Elements Under The Telecommunications Act Of 1996: Back To The Future, Salvatore Massa, Mark E. Meitzen, Steve G. Parsons

UC Law SF Communications and Entertainment Journal

This article examines the Telecommunications Act of 1996 and Congress' intent that it encourage new local telephone exchange carriers to enter the local telephone market, thereby increasing competition and reducing consumer cost. The authors give an overview of the Act, and then examine the disputes surrounding how the new carriers should pay for the use of existing network facilities under it. The authors argue that the Supreme Court should adopt the Eighth Circuit's actual incremental costs approach, because it is based on the expected future costs of an actual market participant, and is therefore more consistent with sound economic principles.

The Webcasting Music Revolution Is Ready To Begin, As Soon As We Figure Out The Copyright Law: The Story Of The Music Industry At War With Itself, Kimberly L. Craft

UC Law SF Communications and Entertainment Journal

No one has yet been able to agree on the meaning of the copyright laws related to webcast licensing and fees or how to define and treat new technological advances, innovations and uses. This article provides background into the history of the copyright law as it relates to music webcasting, including the Digital Performance Right in Sound Recordings Act of 1995 ("DPRA") and the DMCA, explains the various forms of copyright protection held in recorded sound performances and its relation to online transmissions, discusses the history of the complex, legal situation which has resulted, new developments surrounding the proposed Music …

Regulating Sexual Images On The Web: Last Call For Miller Time, But New Issues Remain Untapped, Clay Calvert

UC Law SF Communications and Entertainment Journal

The article suggests that the test for obscene speech under the Miller case should be abandoned because the new technologies and innovations of the World Wide Web present significant difficulties in apply the test in its traditional form. The author recommends alternatives, which would alleviate the problems of applying the Miller test to the Internet. First, he advocates adopting a national community standard. Second, he suggests that a "Web-specific test for obscenity" be created. Part I of the article examines the first high profile case, which exposed the flaws in applying the Miller test to the Internet. Part II discusses …

Digital Performance Royalties: Should Radio Pay?, Bruce H. Phillips, Carl R. Moore

Vanderbilt Journal of Entertainment & Technology Law

We must acknowledge that some questions remain unanswered. Have we entered an era in which record labels, recording artists, record producers, and musicians will finally earn royalties for the public performance of their creations? Will the recent Copyright Office action be a watershed development in United States copyright law? Or will the broadcasters and their well-funded and powerful lobbying arm, the NAB, prevail in the end--if not in the courts, then in Congress? The only clear answer is simply this: not if the RIAA, the record labels' own well-funded and powerful lobbying arm, has anything to do with it. It …

Turning Gray Into Green: Some Comments On Napster, Shubha Ghosh

UC Law SF Communications and Entertainment Journal

File sharing involves a combination of legitimate distribution and illegitimate copying, and the two cannot be separated. The prevailing argument in the Ninth Circuit's Napster opinion, that he infringement is not in the distribution or the sharing, but in the copying, ignores the merger of copying and distribution. This article analyzes the economics of intellectual property, and applies that economic analysis to Napster as an alternative mechanism for the distribution of music. This article suggests that owners of file sharing systems like Napster privatize their economic interests through intellectual property law, by obtaining business method patent protection for file sharing …

Using Technology To Circumvent The Law: The Dmca's Push To Privatize Copyright, Matt Jackson

UC Law SF Communications and Entertainment Journal

The anti-circumvention provisions of the Digital Millennium Copyright Act of 1998 threaten free speech by giving copyright owners extralegal protection for their works. The Act allows a copyright owner to adopt technological measures that may be used to expand control over their works beyond the limits created by the Copyright Act, including the first sale doctrine and fair use. Rather than restricting circumvention technology, lawmakers and copyright owners should focus on infringing conduct. By focusing on such infringing activity, free speech rights will be safeguarded.

Reconstructing First Amendment Doctrine: The 1990s (R)Evolution Of The Central Hudson And O'Brien Tests, Susan Dente Ross

UC Law SF Communications and Entertainment Journal

In this article, the Supreme Court's shifting and expanding approach to intermediate scrutiny of commercial free speech under the First Amendment is examined. The author maintains that the Supreme Court has increased the level of review for content-neutral laws regulating commercial speech, while decreasing the level of review of laws affecting the media. The author argues that these analytical shifts have eroded First Amendment protection for the media, replacing the traditional notion that the media is central to a functioning democracy with the view that the press is simply a powerful, commercial enterprise. The author concludes by contrasting two recent …

Year Of The Living Dead: California Breathes New Life Into Celebrity Publicity Rights, Rhett H. Laurens

UC Law SF Communications and Entertainment Journal

The use of images of deceased actors in film has become increasingly controversial in recent years. Advances in digital imaging technology have made it possible to manipulate these images to such an extent that it will soon be feasible to produce films in which they play leading roles. The lack of legal protections available to the deceased actors' heirs, who want the rights to control the use of the actors' images for both creative and economic reasons, prompted Fred Astaire's widow and other Hollywood celebrities to push for passage of the Astaire Celebrity Image Protection Act. Signed into law in …

Vote-Swapping Over The Internet: Free Speech Or Voter Corruption, Jesse Sisgold

UC Law SF Communications and Entertainment Journal

In Fall 2000, the electoral process and high technology collided in creating an 'update' to the Electoral College. From the slew of websites.

Hung Out To Dry: Clothing Design Protection Pitfalls In United States Law, Anne Theodore Briggs

UC Law SF Communications and Entertainment Journal

The United States' trend toward longer, stronger intellectual property protection has failed to include protection for clothing design. The design of clothing itself lacks protection, while the surface decoration, fabric design, and labels are protected. This article examines current United States intellectual property law and its shortcomings, while discussing why enactment of design legislation fails. The author argues that passage of clothing design protection laws would benefit both United States consumers and clothing designers.

The Irony Of News Coverage: How The Media Harm Their Own First Amendment Rights, Clay Calvert, Robert D. Richards

UC Law SF Communications and Entertainment Journal

This article argues that the First Amendment protection provided to the news media today actually may be harming -- unjustifiably and unnecessarily -- the scope of First Amendment protection given to other sectors of the media, most notably, the Hollywood entertainment industry and non-mainstream journalists. Using the death of Princess Diana and the school shootings at Columbine High School to illustrate a seven-step process that the authors assert gives rise to this disturbing irony, the article contends that high-profile journalistic coverage of these events produced false public perceptions of reality and media culpability - a false perception that the paparazzi …

International Copyright Infringement And The Internet: An Analysis Of The Exisiting Means Of Enforcement, Matthew V. Pietsch

UC Law SF Communications and Entertainment Journal

An aspect of the Internet that contributes to the difficulty in policing copyright infringement is the inherently international nature of the medium. This article will identify some of the more complicated copyright enforcement issues that exist and will also describe some of the current legal devices available to combat international copyright infringement, such as: (1) the Digital Millennium Copyright Act; (2) the European Union Directive on Electronic Commerce; (3) the World Trade Organization and the related Agreement on Trade-Related Aspects of Intellectual Property; (4) the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty; (5) the North American …