Entertainment, Arts, and Sports Law Commons^™

Copyright's Deficit: Technology, Modern Consumer Preferences, And The Music Marketplace, Taylor A. Collins

Pace Intellectual Property, Sports & Entertainment Law Forum

While it is clear, and arguably has been for the last five years, that paid subscription streaming is the future of the music industry, the law has failed to keep pace with “modern consumer preferences and technological developments in the music marketplace.” The Music Modernization Act of 2018 (MMA), which amends the U.S. copyright law, 17 U.S.C., is Congress’s effort to keep pace with the music industry by fixing our cumbersome and inefficient music licensing system. The MMA is a step in the right direction, but it falls short of Congress’s goal. Focusing on Title I of the MMA—the Music …

Good Initiative, Bad Judgement: The Unintended Consequences Of Title Ix's Proportionality Standard On Ncaa Men's Gymnastics And The Transgender Athlete, Jeffrey Shearer

Pace Intellectual Property, Sports & Entertainment Law Forum

Title IX fails to provide the tools or guidelines necessary to equalize opportunities for all student athletes in the collegiate setting despite the government’s continuous effort to explain the law. This failure is because judicial precedent has largely developed around the binary proportionality test of compliance. Title IX was originally intended to equalize educational opportunities for male and female students in order to remedy past discrimination in our society. However, the application of Title IX has frequently created fewer opportunities in athletics due to the unintended relationship between the proportionality standard and the social phenomenon that is the commercialization of …

America's Newest Boogeyman For Deviant Teen Behavior: Violent Video Games And The First Amendment, Joseph C. Alfe, Grant D. Talabay

Pace Intellectual Property, Sports & Entertainment Law Forum

Are violent video games harming America’s youth? Is it possible a series of interconnected circuit boards can influence children (or even adults) to become, themselves, violent? If so, how should our society-- and government-- respond?

To properly answer this last query, violent video games must be viewed through the lens of the First Amendment. Simply put: do games depicting grotesque acts of depravity so profound as to negatively influence the psyche warrant the full constitutional protections ordinarily guaranteed under the mantle of free speech and expression? Are these guarantees without limit? If not, how far may the government go in …

The Problem Of Modern Monetization Of Memes: How Copyright Law Can Give Protection To Meme Creators, Mark Marciszewski

Pace Intellectual Property, Sports & Entertainment Law Forum

Some legal questions answered in this article on the horizon for the courts and lawyers is how should courts apply copyright law to popular media made by small scale creators and shared on the internet, otherwise known as "memes."

Part II of this article will focus on validity of potential copyright protection in internet memes. It will start by describing the increased monetization surrounding memes and how this monetization calls for greater interest for meme creators to protect their work. It will then describe the merits of individual copyright interests in internet memes.

Part III of this article will focus …

Fair Use And First Amendment: Without Fair Use, What Would You Freely Speak About?, Adam Blaier

Pace Intellectual Property, Sports & Entertainment Law Forum

The question this paper tries to answer is: Without fair use, what would you freely speak about? This paper will seek to demonstrate that the Copyright Clause’s Fair Use doctrine, and the First Amendment are cousins who help each other, rather than enemies sworn to destroy each other as some believe. First I will give a brief overview and history of each doctrine. Next I will speak about three areas where I believe fair use and the First Amendment cross paths extensively. These areas are: (1) school/education; (2) social media and news; and (3) sports images/broadcasting. Finally, I will demonstrate …

Ufc Fighters Are Taking A Beating Because They Are Misclassified As Independent Contractors. An Employee Classification Would Change The Fight Game For The Ufc, Its Fighters, And Mma, Vincent Salminen

Pace Intellectual Property, Sports & Entertainment Law Forum

The current state of affairs in the sport of mixed martial arts (MMA) is overwhelmingly in favor of the companies promoting the fights and not in favor of the athletes actually putting their health and lives at risk. This article looks at the Ultimate Fighting Championship (UFC) and how it classifies its fighters as independent contractors rather than employees, even though it treats the fighters more like employees. This article addresses issues fighters are having with the current classification and then examines how the fighters could be classified as employees. Finally, the article will address what an employee classification would …

Split Chords: Addressing The Federal Circuit Split In Music Sampling Copyright Infringement Cases, Erik J. Badia

Pace Intellectual Property, Sports & Entertainment Law Forum

This Note offers a comprehensive analysis of the current circuit split regarding how the de minimis doctrine applies to music sampling in copyright infringement cases. Since the Sixth Circuit's 2005 landmark decision in Bridgeport Music Inc. v. Dimension Films, critics, scholars and even judges have dissected the opinion and its bright line rule of “get a license or do not sample.” In May 2016, the Ninth Circuit issued its opinion in VMG Salsoul v. Ciccione. The Ninth Circuit explicitly declined to follow Bridgeport, holding that analyzing a music sampling copyright infringement case requires a substantial similarity analysis, including applying a …

Expanding The Sports Broadcasting Act Of 1961 To College Athletics, Kelsey Pincket

Pace Intellectual Property, Sports & Entertainment Law Forum

This Note will begin by exploring the history and evolution of antitrust law surrounding sport including the limited application of the Sports Broadcasting Act. An introduction of the Sports Broadcasting Act and a discussion of the portions of the act that are in need of more inclusive language will follow. This Note will then examine the current competitive imbalance in collegiate athletics and emphasize the Supreme Court’s recognition as to the importance of maintaining competitiveness in the NCAA. Finally, the expansion of Sports Broadcasting Act through explicit regulation to immunize the NCAA, as one league with a single unity of …

Wrigley Field, The Trademark, Benjamin J. Welch

Pace Intellectual Property, Sports & Entertainment Law Forum

This paper is about the theory of applying the law of trade dress and all the protections that come with it to stadiums, specifically to Wrigley Field, home of Major League Baseball’s Chicago Cubs. Trade dress is the version of trademark reserved for the packaging, design, or color of products. If the packaging, design, or color possesses the ability to identify the source or creator of the product, then it can create a possessory interest in the product’s creator for that style of packaging, design of the product, or color used. This possessory interest is used to protect the reputation …

Sony, Cyber Security, And Free Speech: Preserving The First Amendment In The Modern World, Conrad Wilton

Pace Intellectual Property, Sports & Entertainment Law Forum

Reprinted from 16 U.C. Davis Bus. L.J. 309 (2016). This paper explores the Sony hack in 2014 allegedly launched by the North Korean government in retaliation over Sony’s production of The Interview and considers the hack’s chilling impact on speech in technology. One of the most devastating cyber attacks in history, the hack exposed approximately thirty- eight million files of sensitive data, including over 170,000 employee emails, thousands of employee social security numbers and unreleased footage of upcoming movies. The hack caused Sony to censor the film and prompted members of the entertainment industry at large to tailor their communication …

Copyrightability Of Music Compilations And Playlists: Original And Creative Works Of Authorship?, Marc A. Fritzsche

Pace Intellectual Property, Sports & Entertainment Law Forum

Music compilations and playlists have a common nucleus of an act of gathering songs and ordering them. Their selection and arrangement can be decisive of the success and therefore can be valuable. And here is where the legal issues about their ownership arise: Are music compilations and playlists protectable under the regime of Copyright Law? This article will discuss the legal and practical issues connected with that question. Thereby, it will consider the United States, Europe in general and also the United Kingdom and Germany in particular. The individual legal systems and statutes will be analyzed, as well as the …

The Chicago Cubs From 1945: History’S Automatic Out, Harvey Gilmore

Pace Intellectual Property, Sports & Entertainment Law Forum

Since 1945, many teams have made it to the World Series and have won. The New York Yankees, Philadelphia/Oakland Athletics, and St. Louis Cardinals have won many. The Boston Red Sox, Chicago White Sox, and San Francisco Giants endured decades-long dry spells before they finally won the World Series. Even expansion teams like the New York Mets, Toronto Blue Jays, Kansas City Royals, and Florida Marlins have won multiple championships. Other expansion teams like the San Diego Padres and Texas Rangers have been to the Fall Classic multiple times, although they did not win. Then we have the Chicago Cubs. …

Ncaa – An Overview Of Socioeconomic Status’S Impact On College Athletes, And The Regulations And Impact That Can Revolutionize The Amateurism World, Bryan Kelly

Pace Intellectual Property, Sports & Entertainment Law Forum

This article will begin with a review of the rules and regulations concerning the likeness of athletes, and amateurism status used by the NCAA. It will also shed light on several key cases including: Oliver v. NCAA, Keller v. NCAA, and O’Bannon v. NCAA. After that, a discussion of how one’s socioeconomic status further illustrates that the ongoing problem with the current NCAA amateurism system. Finally, this paper will present suggestions for solving the current issues with the NCAA amateurism system, and provide different alternatives that the NCAA could take to revolutionize the world of amateurism, while remaining profitable.

Class Certification Issues: In Re: National Football League Concussion Injury Litigation, Jessica Leigh Hawley

Pace Intellectual Property, Sports & Entertainment Law Forum

This paper will discuss whether the prerequisites of the Federal Rules of Civil Procedure, Rule 23, were properly applied in the certification of the class in the NFL Concussion Injury Litigation, with an emphasis on typicality. Discussion will begin with the general rule of class actions and drafter’s intent when the rule was enacted. It will then discuss the major amendment to the rule and the purpose of the amendment with a focus on typicality, and clarify the standard for the typicality requirement with a discussion of the United States Supreme Court decision in Amchem v. Georgine. The discussion then …

Pwnd Or Owned? The Right Of Publicity And Identity Ownership In League Of Legends, Adam Levy

Pace Intellectual Property, Sports & Entertainment Law Forum

E-sports is a new and growing form of entertainment, where gamers at the peak level of their skill compete for prestige and prizes. The contracts these athletes have are evident of a problem within the legal field of the right of publicity: there are few, if any, protections for individuals who want to license their right of publicity. The growth of E-sports has shown us the caveat emptor approach taken by courts does not adequately protect the licensee from having their privacy intruded upon. Adopting a set of standards for licensing the right of publicity would protect the privacy of …

The Wrong Of Publicity, Albert Vetere

Pace Intellectual Property, Sports & Entertainment Law Forum

The right of publicity has been, since at least 1977, a recognized concept. It was used, much like the other areas of intellectual property law to protect what a person had worked hard to create, in this case the concept of themselves. Their creativity in making themselves known and in having an "act" was worth protecting. However, the right of publicity has drastically changed since its conception. What is has become in the past almost forty years is a strange amalgamation of concepts, protected by laws that were never meant to be used to protect it in the first place. …

The Celebrity Behind The Brand International Protection Of The Right Of Publicity, Eliana Torres

Pace Intellectual Property, Sports & Entertainment Law Forum

Part I of the article provides an overview of the right of publicity and its history. It presents the importance of this right, particularly for celebrities, and it focuses on the influence of the entertainment and sports industries in a global economy. Then, it analyzes the major differences in level of protection, scope and length, starting with the United States. Then it uses the standard in the United States and compares it with the protection offered in 22 selected jurisdictions based on a survey report by Kenyon & Kenyon titled Getting the Deal Through. Then, it addresses potential challenges to …

3d Printing And Healthcare: Will Laws, Lawyers, And Companies Stand In The Way Of Patient Care?, Evan R. Youngstrom

Pace Intellectual Property, Sports & Entertainment Law Forum

Today, our society is on a precipice of significant advancement in healthcare because 3D printing will usher in the next generation of medicine. The next generation will be driven by customization, which will allow doctors to replace limbs and individualize drugs. However, the next generation will be without large pharmaceutical companies and their justifications for strong intellectual property rights. However, the current patent system (which is underpinned by a social tradeoff made from property incentives) is not flexible enough to cope with 3D printing’s rapid development. Very soon, the social tradeoff will no longer benefit society, so it must be …

True Criminal?: An Analysis And Discussion Of The Crimes Committed By Detective Rustin Cohle In Season One Of Hbo’S Mini-Series True Detective, Kevin J. Cimino

Pace Intellectual Property, Sports & Entertainment Law Forum

The purpose of this Article is to identify and discuss the numerous laws that Cohle broke during the course of the eight episodes – each episode is discussed separately in Sections II through IX. Here, an extremely important point needs to be made – this Article is not intended to pinpoint exactly how many laws that Cohle would likely be convicted of violating; rather, as is the case generally in the legal profession, many of the actual offenses and charges would be subject to prosecutorial discretion and therefore reasonable minds may disagree with the exact charge. To the extent possible, …

“Finding The 'Public' In 'Public Disrepute” – Would The Cultural Defense Make A Difference In Celebrity And Sports Endorsement Contract Disputes? - The Case Of Michael Vick And Adrian Peterson, Toni Lester

Pace Intellectual Property, Sports & Entertainment Law Forum

This article will explore this issue by engaging in case studies of the Vick and Peterson scandals to see what would have happened had the two men taken their claims against Nike to court. Part One will discuss the cases in more depth and elaborate on how they might be viewed through the lens of cultural relativity theory and the cultural defense. Part Two will elaborate on what morals clauses are and the legal standards courts use to enforce them. In addition to examining the Mendenhall decision, several other court cases will be discussed, each of which places differing levels …

Keynote Address: A Sure Bet? The Legal Status Of Daily Fantasy Sports, Marc Edelman

Pace Intellectual Property, Sports & Entertainment Law Forum

Today, I will provide an overview of the legal status of “daily fantasy sports” and explain why the legality—or illegality—of the industry is not a sure bet. I will begin by providing a brief background of the origins of fantasy sports, and then turn to the impact of technologies such as the Internet, and the legal status of these games under both federal and state laws. I will conclude by discussing the recent efforts to regulate “daily fantasy sports” through the courts and legislation

Gotham Skylines: The Intersection Of Scènes À Faire And Fictional Facts In Comic Books, Graphic Novels, And Their Derivative Works, Gavin M. Strube

Pace Intellectual Property, Sports & Entertainment Law Forum

In just a decade and a half since the modern superhero film exploded onto the scene, the comic books and graphic novels that have long been the very definition of a fringe or niche interest, have morphed into a multi-billion dollar film, television and video game empire. The two main players in this industry, Marvel and DC, are owned by juggernauts in the entertainment industry. More importantly, some of these characters have been around for over three-quarters of a century. Readers keyed into intellectual property law, particularly copyright, should begin to see the issue. The copyright protection on these characters …

Wide Right: How Isp Immunity And Current Laws Are Off The Mark In Protecting The Modern Athlete On Social Media, Dominick J. Mingione

Pace Intellectual Property, Sports & Entertainment Law Forum

“[Y]our tranny looking dad is a disgrace to American football,” “I would rape the shit out of her,” and “[The] [B]ears are easier than you on prom night,” are just a sampling of some of the alarmingly harassing tweets received by Chloe Trestman between the night of November 9, 2014 and November 10, 2014. Who is Chloe Trestman, and what could she have possibly done to warrant such abuse? Chloe’s father is Marc Trestman, the head coach of the Chicago Bears. And the twitter vitriol, or “twitriol,” directed toward Chloe was in response to the Bears’ blowout loss to their …

Transforming “Transformative Use”: The Growing Misinterpretation Of The Fair Use Doctrine, Caile Morris

Pace Intellectual Property, Sports & Entertainment Law Forum

Starting in late 2012, and continuing into late 2013, the United States District Court for the Southern District of New York wreaked havoc on the traditional interpretation of the copyright infringement defense known as “fair use.” Two cases stemming from the advent of the Google Books Project are Author’s Guild, Inc. v. HathiTrust and Author’s Guild, Inc. v. Google, Inc. These cases adopted a controversial interpretation of the fair use defense, codified in 17 U.S.C. § 107, when each case determined that the mass digitization of thousands of books constituted fair use merely because the digitization was what is known …

The Night Is Dark And Full Of . . . Family Law?: California Law And Marital Presumption In Game Of Thrones, Rebecca Rosen

Pace Intellectual Property, Sports & Entertainment Law Forum

The television show Game of Thrones has developed a tremendous following in recent years. The show takes place primarily in the fictional state of Westeros, a feudal society that mirrors many of the legal structures of medieval England. As such, many of the laws and customs of Westeros seem antithetical to the beliefs and values of modern viewers. In an attempt to posit a more just outcome following the death of Westeros’ king (the action which springboards the primary power struggle), this Article applies California law to the disposition of King Robert’s property. Shockingly, this Article finds that California’s marital …

Pace Intellectual Property, Sports & Entertainment Law Forum, Volume 5, Issue 1, Spring 2015

Pace Intellectual Property, Sports & Entertainment Law Forum

The staff of PIPSELF has worked diligently this year in selecting and preparing original and appealing articles concerning emerging issues in the fields of intellectual property, sports, and entertainment law for this issue. We welcome our readers to send comments and feedback: e-mail us at pipself@law.pace.edu, visit our Twitter @PIPSELF, or ‘like’ us on Facebook at “Pace Intellectual Property, Sports & Entertainment Law Forum.”

Protecting A Celebrity’S Child From Harassment: Is California’S Amendment Penal Code § 11414 Too Vague To Be Constitutional?, Michelle N. Robinson

Pace Intellectual Property, Sports & Entertainment Law Forum

This Note will describe a brief history of the legal attempts to restrict the paparazzi and the legislative history behind A.B. 3592 and its amendment, S.B. 606. The bills are controversial and have received a significant amount of criticism, due to the fact that they restrict speech by essentially prohibiting paparazzi, known for their harassing behavior, from taking pictures of the children of celebrities. The Note will conclude with an analysis utilizing the void-for-vagueness doctrine of whether the bill is in violation of the First Amendment.

The Copyright Infringement Test: A New Approach To Literary Misappropriation In Film, Rikki Bahar

Pace Intellectual Property, Sports & Entertainment Law Forum

This Note argues that courts’ emphasis on the ordinary observer test to prove illicit copying in film is misguided. The ordinary observer test relies on whether the accused work captures the total feel of the copyrighted work, but overlooks an essential aspect of unlawful appropriation and copyright law – the idea that only particular elements of a work are copyrightable. If a jury is exposed to expert testimony regarding probative similarity before making their evaluation, it is unlikely they will forget such evidence when evaluating the illicit copying.

A better test for infringement would be one that allows the ordinary …

Let’S Talk About Sex: How Societal Value Evolution Has Redefined Obscenity, Kamilah Mitchell

Pace Intellectual Property, Sports & Entertainment Law Forum

This Note seeks to examine the evolution of sex and sexuality in the media, by critically examining how the prevalence of sex and more recently the prevalence of topics and issues related to sexuality in television, literature, electronic media, and art have and continue to impact societal views and notions on obscenity. This Note will also examine the Miller test for obscenity, and the long term effects of societal value evolution on the application of the Miller test. This Note concludes by positing that at some point, the line between what is deemed sexually offensive and what is socially acceptable …

Cash From Chaos: Sound Recording Authorship, Section 203 Recapture Rights And A New Wave Of Termination, Hector Martinez

Pace Intellectual Property, Sports & Entertainment Law Forum

The thesis of this Article is that under an exclusive recording agreement entered into in the United States between a record label and recording artist on or after January 1, 1978, any key member of recording artist that signed the recording contract is a bona fide author of a sound recording for purposes of claiming standing in order to effectuate a termination of transfer of grant under Section 203 of the 1976 Copyright Act.

Part I will summarize the history of sound recordings as copyrightable subject matter. Part II will examine record industry custom and practice as it relates to …