Entertainment, Arts, and Sports Law Commons^™

Pop & Perjury: The Irs Valuation War With The Estate Of Michael Jackson, Beckett Cantley, Geoffrey Dietrich

The University of New Hampshire Law Review

When Michael Jackson died unexpectedly in Los Angeles, California, on June 25, 2009, his career and earnings were nearing an all-time low. Plagued by past sexual abuse allegations, scandals, and questionable health, Michael Jackson’s personal finances were purported to be in complete disarray. However, following his unexpected death, the value of his estate, which was reported to be near to nothing, swelled as the world remembered his beloved contributions to the world and began to purchase accordingly. Sales of Michael Jackson’s music began to soar high. The estate’s value soared even higher as it signed licensing agreements and released new …

Barbie In Bondage: What Orly Lobel's Book "You Don't Own Me: How Mattel V. Mga Entertainment Exposed Barbie's Dark Side" Tells Us About The Commoditization Of The Female Body, Ann Bartow

Law Faculty Scholarship

[excerpt] "This review essay reflects upon two of the central claims of [Orly Lobel's book] You Don't Own Me: first, that when companies put their energy and resources into intellectual property litigation rather than innovation, it is a strategy that is likely to fail; and second, that Barbie is a 'lead icon' in the disconnect between women pushing for general equality and those who prefer traditional gender roles for women."

Sports Betting, Federalism And The Constitution, John M. Greabe

Law Faculty Scholarship

[Excerpt] Justice Sandra Day O'Connor has described federalism - how the Constitution divides powers between the federal government and the states - as "perhaps our oldest question of constitutional law."

This past week, the United States Supreme Court returned to this oldest of constitutional questions to strike down a federal law that had prohibited stats from authorizing betting on competitive sporting events.

Baseball And The U.S.-Cuban Diplomatic Relationship: Why Did Baseball Serve As An Ineffective Diplomatic Tool For The United States And Cuba?, Abbygale Sarah Martinen

Honors Theses and Capstones

No abstract provided.

If It’S Broke, Fix It: Fixing Fixation, Megan M. Carpenter

Law Faculty Scholarship

The fixation requirement, once an intended instrument for added flexibility in copyrightability, has become an unworkable standard under modern copyright law. The last twenty-five years have witnessed a dramatic expansion in creative media. Developments in both digital media and contemporary art have challenged what it means to be fixed, and cases dealing with these works reveal how inapposite current interpretations of fixation are for these forms of expression. Yet, getting fixation “right” is important, for it is often the juridical threshold over which idea becomes expression. Thus, we must enable fixation to help define the parameters of creative expression while …

Ip Basics: Copyright In Visual Arts, Thomas G. Field Jr.

Law Faculty Scholarship

This discussion focuses on the needs of free-lance artists, craftspeople, photographers, sculptors and the like.

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Law Faculty Scholarship

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Do You Believe He Can Fly? Royce White And Reasonable Accommodations Under The Americans With Disabilities Act For Nba Players With Anxiety Disorder And Fear Of Flying, Michael Mccann

Law Faculty Scholarship

This Article examines the legal ramifications of Royce White, a basketball player with general anxiety disorder and obsessive compulsive disorder, playing in the NBA. White's conditions cause him to have a fear of flying, thus making it difficult to play in the NBA. This subject is without precedent in sports law and, because of the unique aspects of an NBA playing career, lacks clear analogy to other employment circumstances. This dispute also illuminates broader legal and policy issues in the relationship between employment and mental illness.

This Article argues that White would likely fail in a lawsuit against an NBA …

Function Over Form: Bringing The Fixation Requirement Into The Modern Era, Megan M. Carpenter, Steven Hetcher

Law Faculty Scholarship

This Article examines the ways that contemporary creativity challenges copyright’s fixation requirement. In this Article, we identify concrete problems with the fixation requirement, both practically and in light of the fundamental purpose and policy behind copyright law, and argue for a change that would amend the fixation requirement to better function in the modern era.

Specifically, we conclude that a fair appraisal of the justifications for the fixation requirement provides little, if any, rationale for fixation except to the extent that fixation helps to separate idea from expression in determining the “metes and bounds” of creative expression. Recent case law …

The Aftermath Of Aftermath: The Impact Of Digital Music Distribution On The Recording Industry, Michael Mccubbin

The University of New Hampshire Law Review

[Excerpt] “This article will address the impact the shift from hard-copy recordings to digital music distribution has had on the recording industry. Specifically, it will apply F.B.T. Productions v. Aftermath Records, which correctly held that a label’s relationship with third-party-digital-music-providers is that of licensor-licensee, to the modern music industry. Based on this holding, record labels need to reconsider their relationships with artists, and create new business models that rely on licensing music, rather than the traditional sale-based distribution model. The decision in Aftermath will lead to increased royalties for artists in the Digital Age. This article will analyze the impact …

Copyright Law And Pornography, Ann Bartow

Law Faculty Scholarship

The government can and should stop providing financial incentives in the form of copyright protection for the production and distribution of pornographic works that cause direct harms, such as child pornography, revenge pornography, crush pornography and filmed sexual abuse. The Article proceeds in five parts. Part I provides an overview of the relationship of copyright law to pornography. Copyright law, viewed in a certain light, plays a structural role in the commoditization of sex and sexual images. In most jurisdictions in the United States, buying and selling sex is illegal, but when sex-for-hire is fixed in a tangible medium of …

Billy-Bob Teeth Saves Porn Star: Coping With Defective Work-For-Hire Registrations, Thomas G. Field

The University of New Hampshire Law Review

[Excerpt] “This paper begins by briefly reviewing statutory provisions that determine initial copyright ownership, govern title transfers, establish requisites to infringement litigation, and bar untimely suits.

It then examines Billy-Bob Teeth and Jules Jordan Video and explains how, in the latter case, the Ninth Circuit applied rationales adopted by the Seventh Circuit in the former case to overturn a JMOL unfavorable to an "adult film" star.

The third part of the paper reviews use of the copyright statute of limitations to resolve competing ownership claims.

The last part of the paper, flagging important differences between § 201(b) and § 204(a), …

Drawing A Line In The Sand: Copyright Law And New Museums, Megan M. Carpenter

Law Faculty Scholarship

Over the last twenty years, audience attendance at museums, galleries, and performing arts institutions in the United States has decreased dramatically. Major museums and galleries are considering ways to add engaging and meaningful value to the user experience with technology, from incorporating user-generated content to creating multimedia installations billed as “collaborative” works.

In 2010, the Dallas Museum of Art’s Coastlines: Images of Land and Sea exhibition featured landscapes from 1850 to the present, as well as a sound installation composed by students and faculty in the Arts and Technology program at the University of Texas at Dallas, which played on …

Antitrust, Governance, And Postseason College Football, Michael Mccann

Law Faculty Scholarship

This Article examines the compatibility of the Bowl Championship Series (“BCS”) with federal antitrust law and the appropriateness of the federal government using its formal and informal powers to encourage a new format for postseason college football. The Article begins by examining the legality of the BCS under Sections 1 and 2 of the Sherman Antitrust Act. It then discusses the appropriateness of government actors concerning themselves with, and expending taxpayer dollars on, the scheduling of college football games. The Article concludes by offering possible changes to the scheduling structure of postseason college football, with an emphasis on voluntary, efficiency-promoting …

Taking Away An Artist’S “Get Out Of Jail Free” Card: Making Changes And Applying Basic Contract Principles To California’S Talent Agencies Act, Gregory Albert

The University of New Hampshire Law Review

[Excerpt] “From its predecessors dating back to 1913 to the current version, the California Talent Agencies Act of 1978 (“TAA” or “the Act”) has aimed to protect artists from talent agents who would take advantage of them. The Act originally prohibited agents from “sending artists to ‘house[s] of ill fame’ or saloons, or allowing ‘persons of bad character’ to frequent their establishments.” By requiring talent agents to have a license, “the Act establishes detailed requirements for how the licensed talent agencies conduct their business, including a code of conduct, submission of contracts and fee schedules to the state, maintenance of …

The Nba And The Single Entity Defense: A Better Case?, Michael A. Mccann

Law Faculty Scholarship

This Article will explore the relationship between the National Basketball Association, its independently-owned teams, and associated corporate entities, including the Women’s NBA, NBA Properties, NBA Developmental League, NBA China, and single entity analysis under section 1 of the Sherman Act. Section 1 chiefly aims to prevent competitors from combining their economic power in ways that unduly impair competition or harm consumers, be it in terms of raised prices, diminished quality, or limited choices. Single entities are exempt from section 1 because they are considered “one,” rather than competitors, and thus their collaboration does not implicate anticompetitive concerns.

In American Needle …

American Needle V. Nfl: An Opportunity To Reshape Sports Law, Michael Mccann

Law Faculty Scholarship

This Feature will explore American Needle, Inc. v. NFL and its potential impact on professional sports in the United States. In August 2008, the United States Court of Appeals for the Seventh Circuit held that the National Football League (NFL) and its teams operate as a “single entity” for purposes of apparel sales. Because a single entity cannot conspire with itself, it cannot violate Section 1 of the Sherman Act, which prohibits concerted action that unreasonably restrains trade. The U.S. Supreme Court recently granted a writ of certiorari and will review American Needle in its 2009-2010 Term. As this Feature …

Justice Sonia Sotomayor And The Relationship Between Leagues And Players: Insights And Implications, Michael Mccann

Law Faculty Scholarship

This Essay examines U.S. Supreme Court Justice Sonia Sotomayor’s important role in shaping U.S. sports law. As a judge on the U.S. District Court for the Southern District of New York and later on the U.S. Court of Appeals for the Second Circuit, Sotomayor authored opinions that resolved two major sports law disputes: whether Major League Baseball (“MLB”) owners could unilaterally impose new labor conditions on MLB players during the 1994 baseball strike and whether Ohio State University sophomore Maurice Clarett was obligated to wait three years from the completion of high school to become eligible for the National Football …

Bloodsucking Copyrights, Ann Bartow

Law Faculty Scholarship

Some bloodsuckers live off the life-sustaining fluids of involuntary hosts and leave behind diseases or venom. Fleas, ticks, bedbugs, and mosquitoes are all bloodsuckers that are best avoided. Others, like the leech, suck blood in ways that can be very helpful to a host, promoting blood flow and healing. Vampires are fictional, sentient bloodsuckers that have populated various entertainment genres for centuries. Copyrights, too, can suck blood metaphorically in productive and destructive ways, or simply suck, period, when they senselessly impede free-flowing veins of information. And though they are not (yet) immortal, copyrights last a very long time. In Copyright’s …

The Rhetoric Of Predictability: Reclaiming The Lay Ear In Music Copyright Infringement Litigation, Austin Padgett

The University of New Hampshire Law Review

[Excerpt] “Some things cannot be described. This is the theory that recent literary criticism has placed as its cornerstone. Philosopher-critic Roland Barthes identified this trend in his Mythologies, stating that critics often “suddenly decide that the true subject of criticism is ineffable, and criticism, as a consequence, unnecessary. Unfortunately, this view has become singular within the legal academy whenever an author discusses music copyright infringement analysis. It seems that scholars fear the thought of trusting a jury with such an “ineffable” subject as music and must propose alternatives, such as expert testimony, specialized courts, or mechanical analysis, that will diminish …

Pornography, Coercion, And Copyright Law 2.0, Ann Bartow

Law Faculty Scholarship

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their …

Copyright Law And Pornography: Reconsidering Incentives To Create And Distribute Pornography, Ann Bartow

Law Faculty Scholarship

As it moved into the mainstream in the 1970s and early 1980s, pornography obtained copyright protections through judicial fiat, rather than as a result of legislative action. This essay explains how pornography came to be eligible for copyright protections, discusses the social and legal effects of this change, and raises questions about the propriety of according pornography the full benefits of copyright law without taking into account the harms that pornography production can inflict on subordinated or coerced "performers."

Why Hollywood Does Not Require “Saving” From The Recordkeeping Requirements Imposed By 18 U.S.C. Section 2257, Ann Bartow

Law Faculty Scholarship

Attorney Alan R. Levy recently published an article in The Yale Law Journal Pocket Part entitled "How 'Swingers' Might Save Hollywood from a Federal Pornography Statute." So eager was Levy to "save Hollywood" from having to keep records to verify that performers engaging in actual sexually explicit conduct are legally adults, that he grossly distorted the meaning and effect of 18 U.S.C. Section 2257. Ironically, while exaggerating the negative impact of Section 2257, he simultaneously underestimated the problematic nature of a different statutory provision potentially requiring record keeping for performers who engage in simulated sexual conduct. This essay discusses truths …

Expanding Preferential Treatment Under The Record Rental Amendment Beyond The Music Industry, Ryan G. Vacca

Law Faculty Scholarship

In January 2007, the Sixth Circuit Court of Appeals decided Brilliance Audio, Inc. v. Haights Cross Communications, Inc. and answered a lingering question concerning the Copyright Act that had persisted for over twenty years. The court decided whether the protections offered to the music industry under the poorly drafted Record Rental Amendment of 1984 also extended to audiobooks and other non-musical works. This Act deprives owners of items such as tapes and compact discs from renting those items to others without the consent of the copyright owners of the recorded song and the written lyrics and music - a right …

Legality Of Age Restrictions In The Nba And Nfl, Michael Mccann, Joseph S. Rosen

Law Faculty Scholarship

This essay examines age eligibility rules in the National Football League (NFL) and the National Basketball Association (NBA), offers analysis of related antitrust and labor law issues, and shares perspective on underlying policies. As a matter of background, the NFL and the NBA are the only major sports organizations that prohibit players from entrance until a prescribed period after high school graduation. Major League Baseball, the National Hockey League, NASCAR, professional tennis, professional golf, and professional boxing have no such rules. Individuals can also partake in professional acting, theater, music, and other entertainment professions without satisfying a period after high …

It’S Not About The Money: The Role Of Preferences, Cognitive Biases And Heuristics Among Professional Athletes, Michael Mccann

Law Faculty Scholarship

Professional athletes are often regarded as selfish, greedy, and out-of-touch with regular people. They hire agents who are vilified for negotiating employment contracts that occasionally yield compensation in excess of national gross domestic products. Professional athletes are thus commonly assumed to most value economic remuneration, rather than the love of the game or some other intangible, romanticized inclination.

Lending credibility to this intuition is the rational actor model, a law and economic precept which presupposes that when individuals are presented with a set of choices, they rationally weigh costs and benefits, and select the course of action that maximizes their …

The Reckless Pursuit Of Dominion: A Situational Analysis Of The Nba And Diminishing Player Autonomy, Michael Mccann

Law Faculty Scholarship

This Article examines required genetic testing of NBA players from a situational vantage point, integrating socio-psychological, legal, and ethical analyses. The core argument may be expressed as follows: required genetic testing of NBA players appears consistent with a broader and largely deleterious agenda by the NBA to control players. Since implementation of the rookie wage scale in 1995 through the recent imposition of a paternalistic player dress code, the NBA has increasingly usurped player autonomy. The NBA's capacity to do so largely rests in its adroit manipulation of the situational influences that influence fans and media. For instance, because of …

Social Psychology, Calamities, And Sports Law, Michael Mccann

Law Faculty Scholarship

This Article examines the role of situational pressures, fundamental attribution errors, and legal frameworks in how professional sports actors respond to the threat and occurrence of calamities. Both natural and manmade threats to American health are likely to rise over the next decade. Such threats may include catastrophic weather, natural disasters, terrorist attacks, and communicable disease pandemics. In response to these threats, professional sports leagues, professional athletes, fans, and media might engage in unprecedented behavior. Consider, for instance, increasingly-devastating weather patterns, and how they might animate leagues to relocate franchises to cities with more favorable forecasts. The same outcome might …

Clarett V. National Football League: Defining The Non-Statutory Labor Exception To Antitrust Law As It Pertains To Restraints Primarily Focused In Labor Markets And Restraints Primarily Focused In Business Markets, Ronald Terk Sia

The University of New Hampshire Law Review

[Excerpt] “Contemporary sports have seen an influx of young talent opting for a chance at playing in the big leagues earlier at the expense of obtaining higher education. Many dream of playing professional sports—dreams often prohibited by player eligibility rules. In situations where the restraints are not argued to have been protected by non-statutory labor exception, antitrust law has been seen to set its talons into eligibility rules. […]

Federal antitrust law and national labor law set forth two conflicting policies that have created a periodic drama for sports fans concerned that their favorite sports will suffer a cataclysmic court …

Illegal Defense: The Irrational Economics Of Banning High School Players From The Nba Draft, Michael Mccann

Law Faculty Scholarship

Each year, the National Basketball Association (NBA) conducts its annual entry draft (NBA Draft), which is the exclusive process by which premiere amateur players gain entrance into the NBA. To the dismay of many commentators, a number of drafted players will have just completed their senior year of high school. Routinely, these players are dismissed as immature, unprepared, and ill-advised, even though most will sign guaranteed, multi-million dollar contracts before their college educations would have begun. In stark contrast to popular myth, this Article finds that players drafted straight out of high school are not only likely to do well …