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Full-Text Articles in Entertainment, Arts, and Sports Law

Fair Use Avoidance In Music Cases, Edward Lee Jul 2018

Fair Use Avoidance In Music Cases, Edward Lee

Boston College Law Review

This Article provides the first empirical study of fair use in cases involving musical works. The major finding of the study is surprising: despite the relatively high number of music cases decided under the 1976 Copyright Act, no decisions have recognized non-parody fair use of a musical work to create another musical work, except for a 2017 decision involving the copying of a narration that itself contained no music (and therefore might not even constitute a musical work). Thus far, no decision has held that copying musical notes or elements is fair use. Moreover, very few music cases have even ...


Doping Appeals At The Court Of Arbitration For Sport: Lessons From Essendon, David Mahoney May 2018

Doping Appeals At The Court Of Arbitration For Sport: Lessons From Essendon, David Mahoney

Boston College Law Review

In recent years, there has been an increase in the growth of the sports industry globally. With it has come the growth of global sports arbitration. The Court of Arbitration for Sport (“CAS”), created in part because of the increase in sport-related arbitration, is designed to promote efficiency and uniformity in the resolution of disputes. Despite the noteworthy objectives of the CAS, recent developments, such as the supplement scandal surrounding the Essendon Football Club of the Australian Football League, highlight the pressure that endures between individual athletes and sport governing bodies. This pressure is especially clear in instances where athletes ...


Playing A Man Down: Professional Sports And Stadium Finance—How Leagues And Franchises Extract Favorable Terms From American Cities, Nicholas Baker Jan 2018

Playing A Man Down: Professional Sports And Stadium Finance—How Leagues And Franchises Extract Favorable Terms From American Cities, Nicholas Baker

Boston College Law Review

In an era of unprecedented profitability, expansion, and popularity of American professional sports leagues, it seems outrageous that cities and municipalities across the United States would continue to subsidize the funding of new stadiums for wealthy sports franchises. Yet despite the economic obstacles facing many of these cities and municipalities, the gratuitous public funding of stadiums across the United States persists. This reality stems from the extraordinary bargaining power that professional sports franchises maintain over the cities in which they are located. Indeed, threating to relocate a franchise brings forth a litany of cities that are ready and willing to ...


From Student-Athletes To Employee-Athletes: Why A "Pay For Play" Model Of College Sports Would Not Necessarily Make Educational Scholarships Taxable, Marc Edelman Sep 2017

From Student-Athletes To Employee-Athletes: Why A "Pay For Play" Model Of College Sports Would Not Necessarily Make Educational Scholarships Taxable, Marc Edelman

Boston College Law Review

In recent years, numerous commentators have called for the National Collegiate Athletic Association (“NCAA”) to relax its rules prohibiting athlete pay. This movement to allow athletes to share in the revenues of college sports arises from the belief that college athletes sacrifice too much time, personal autonomy, and physical health to justify their lack of pay. It further criticizes the NCAA’s “no pay” rules for keeping the revenues derived from college sports “in the hands of a select few administrators, athletic directors, and coaches.” Nevertheless, opponents of “pay for play” contend that several problems will emerge from lifting the ...


A Long-Awaited Reboot: The Fifa Scandal And Its Repercussions For Football’S Governing Body, Matthew B. Dicenso Apr 2017

A Long-Awaited Reboot: The Fifa Scandal And Its Repercussions For Football’S Governing Body, Matthew B. Dicenso

Boston College International and Comparative Law Review

On May 21, 2015, Swiss authorities raided the annual congressional meeting of the Fédération Internationale de Football Association, ultimately arresting seven FIFA executives on charges of corruption. The product of a three-year Federal Bureau of Investigation case, the Swiss raid and accompanying Department of Justice indictment was the first step in addressing what authorities describe as enduring and systemic corruption within football’s governing body. In addition to casting a shadow over the world’s most beloved sport, the FIFA scandal highlighted the international organization’s lack of accountability and, most notably, its dire need for change. Although the February ...


“Hurdling” Gender Identity Discrimination: The Implications Of State Participation Policies On Transgender Youth Athletes’ Ability To Thrive, Kayla L. Acklin Apr 2017

“Hurdling” Gender Identity Discrimination: The Implications Of State Participation Policies On Transgender Youth Athletes’ Ability To Thrive, Kayla L. Acklin

Boston College Journal of Law & Social Justice

The number of students, in grades kindergarten through high school, who identify as transgender has steadily increased during the last decade. These students seek the same opportunities as their cisgender peers, but are often denied participation in athletic activities because of their non-conforming gender-behavior. Currently, there is no federal law governing transgender participation in sports, which has resulted in an inconsistency among state athletic associations’ participation policies; the vast majority of states restricts participation. These states are limiting transgender students’ ability to receive the benefits that sports provide. To solve this inconsistency and provide equal opportunity for transgender students, this ...


The Puzzle Of Deflategate: Private Agreements And The Possibility Of Biased Justice, Alfred C. Yen Apr 2017

The Puzzle Of Deflategate: Private Agreements And The Possibility Of Biased Justice, Alfred C. Yen

Boston College Law School Faculty Papers

In this Article, I study the implications of National Football League Management Council v. National Football League Players Association, the recent decision in which the United States Court of Appeals for the Second Circuit dealt New England Patriots star quarterback Tom Brady a stinging defeat in his so-called "Deflategate" case against the National Football League ("NFL"). I do so because, although most of the court's opinion follows well-established doctrine, a crucial portion of decision quickly glosses over important unanswered questions about federal arbitration law and the enforceability of pre-dispute arbitration agreements that contemplate the appointment of an evidently partial ...


Get Your Own Street Cred: An Argument For Trademark Protection For Street Art, Danielle Crinnion Jan 2017

Get Your Own Street Cred: An Argument For Trademark Protection For Street Art, Danielle Crinnion

Boston College Law Review

Street art is visual art created in public spaces, many times at the behest of the communities in which the work is created. It is a derivative of graffiti, which is the illicit marking of public locations, usually on buildings or train cars. Retailers’ appropriation of street art and graffiti is becoming commonplace, causing confusion in the market. As a result, street artists have filed an increasing number of copyright and trademark infringement lawsuits to protect their intellectual property rights. There is a debate regarding whether these artists are entitled to trademark protection given the expressive nature of their marks ...


Free Speech & Disparaging Trademarks, Ned Snow Nov 2016

Free Speech & Disparaging Trademarks, Ned Snow

Boston College Law Review

Speech law has silenced trademark. In In re Tam, the Federal Circuit ruled that the First Amendment requires Congress to grant trademark protection for disparaging speech. More specifically, the Federal Circuit held unconstitutional the provision of the Federal Lanham Act that denies trademark protection for marks that disparage. The Federal Circuit’s ruling, however, is not the final word on the issue. The Supreme Court has agreed to hear the Tam case. This Article argues against the Federal Circuit decision. As illustrated by the five different opinions from the en banc panel, the complexities of speech law easily lead to ...


Challenging The 2013 Rule Implementing Regulations On Oversnow Vehicle Use In Yellowstone National Park, Brian Bieschke May 2016

Challenging The 2013 Rule Implementing Regulations On Oversnow Vehicle Use In Yellowstone National Park, Brian Bieschke

Boston College Environmental Affairs Law Review

In 2013, the National Park Service (“NPS”) promulgated a new rule to regulate the use of snowmobiles and snowcoaches in Yellowstone National Park during the winter months. The innovation and development of such “oversnow” vehicles increased park visitors’ access to Yellowstone’s majestic wonders throughout winter. Unfortunately, because such vehicles emitted noise and air pollution and created safety hazards, their unfettered use throughout the winter season posed an ever-increasing threat to the natural integrity of Yellowstone and to visitors. To mitigate the negative effects of oversnow vehicles on Yellowstone, the NPS began restricting their use by placing fixed limitations on ...


Fair Use, Notice Failure, And The Limits Of Copyright As Property, Joseph P. Liu May 2016

Fair Use, Notice Failure, And The Limits Of Copyright As Property, Joseph P. Liu

Boston College Law School Faculty Papers

If we start with the assumption that copyright law creates a system of property rights, to what extent does this system give adequate notice to third parties regarding the scope of such rights, particularly given the prominent role played by the fair use doctrine? This essay argues that, although the fair use doctrine may provide adequate notice to sophisticated third parties, it fails to provide adequate notice to less sophisticated parties. Specifically, the fair use doctrine imposes nearly insuperable informational burdens upon the general public regarding the scope of the property entitlement and the corresponding duty to avoid infringement. Moreover ...


A New Chapter In Antitrust Law: The Second Circuit's Decision In United States V. Apple Determines Hub-And-Spoke Conspiracy Per Se Illegal, Erin Garrity Apr 2016

A New Chapter In Antitrust Law: The Second Circuit's Decision In United States V. Apple Determines Hub-And-Spoke Conspiracy Per Se Illegal, Erin Garrity

Boston College Law Review

On June 30, 2015, in United States v. Apple, Inc., the U.S. Court of Appeals for the Second Circuit held that Apple’s agreements with five publishing companies violated the Sherman Act. With Apple as a retailer and the publishers as manufacturers, the agreements between the two groups were vertical. This classification is significant because in 2007 in Leegin Creative Leather Products v. PSKS, Inc., the Supreme Court held that all vertical agreements should be analyzed under the rule of reason. Rather than looking at the structure of the agreements, however, the Second Circuit focused on the type of ...


Jurisdictional Haze: Indiana And Washington’S Unconstitutional Extensions Of The Postmortem Right Of Publicity, Robert Rossi Jan 2016

Jurisdictional Haze: Indiana And Washington’S Unconstitutional Extensions Of The Postmortem Right Of Publicity, Robert Rossi

Boston College Law Review

Long after they die, cultural icons such as Elvis Presley, Marilyn Monroe, and Jimi Hendrix continue to earn millions of dollars annually. Despite the tremendous amount of money earned by marketing the images of certain late celebrities, the laws conferring and governing the postmortem right of publicity are varied and often unpredictable. In most states, the right to profit from the image of a deceased person depends entirely upon the law of the jurisdiction in which the deceased was domiciled at the time of death. Certain state legislatures, however, have passed statutes conferring this right on persons domiciled outside of ...


Court-Side Seats? The Communications Decency Act And The Potential Threat To Stubhub And Peer-To Peer Marketplaces, Matthew Feuerman Jan 2016

Court-Side Seats? The Communications Decency Act And The Potential Threat To Stubhub And Peer-To Peer Marketplaces, Matthew Feuerman

Boston College Law Review

In 1996, Congress passed section 230 of the Communications Decency Act, which provides broad immunity to websites from vicarious liability for the content produced by its users. Despite this broad immunity, a website will be liable for its user’s content when it is deemed to be an “information content provider” itself. In 2008, in Fair Housing Council of San Fernando Valley v. Roommates. Com, LLC, the Ninth Circuit Court of Appeals held that a website is an information content provider and thus loses immunity when it “materially contributes to the alleged unlawfulness” of the content. Although most courts have ...


The Art Of Atonement: How Mandated Transparency Can Help Return Masterpieces Lost During World War Ii, Lucia Foulkes May 2015

The Art Of Atonement: How Mandated Transparency Can Help Return Masterpieces Lost During World War Ii, Lucia Foulkes

Boston College International and Comparative Law Review

Sixty years after the end of World War II much of the artwork looted or forcibly sold during the war has yet to be returned to its rightful owners. One of the primary problems encountered by individuals pursuing claims is that it is difficult to locate the necessary documentation on provenance. Organizations with information on a piece’s history, museums in particular, often have a disincentive to share information that could assist in an heir’s claim. A mandatory reporting requirement, for government and museum officials with unique access to information on provenance, would counterbalance that reluctance, and address the ...


Real Accountability: The Ncaa Can No Longer Evade Antitrust Liability Through Amateurism After O’Bannon V. Ncaa, Michael T. Jones May 2015

Real Accountability: The Ncaa Can No Longer Evade Antitrust Liability Through Amateurism After O’Bannon V. Ncaa, Michael T. Jones

Boston College Law Review

On August 8, 2014, in O’Bannon v. National Collegiate Athletic Association, the U.S. District Court for the Northern District of California held that the NCAA’s restriction on compensating student-athletes for the use of their names, images, and likenesses violated the Sherman Act. The court ruled against the NCAA despite a long history of judicial deference grounded in preserving the amateur and educational nature of the NCAA. The NCAA has appealed the decision. Despite annual revenues approaching $1 billion, the NCAA claims its amateur and educational fundamentals distinguish its product from commercialized professional sports. This Comment argues that ...


“Wire” Circuit Courts Split On Cable Piracy: The Fifth Circuit Examines Federal Telecommunications Law In J&J Sports Productions, Inc. V. Mandell Family Ventures, Brian Fleming May 2015

“Wire” Circuit Courts Split On Cable Piracy: The Fifth Circuit Examines Federal Telecommunications Law In J&J Sports Productions, Inc. V. Mandell Family Ventures, Brian Fleming

Boston College Law Review

On May 2, 2014, in J&J Sports Productions, Inc. v. Mandell Family Ventures, LLC, the U.S. Court of Appeals for the Fifth Circuit overturned the lower court’s decision and held that section 605 of the Communications Act of 1934 does not apply to the unauthorized reception of cable wire transmissions originating as radio communications. The Fifth Circuit joined the Seventh and Third Circuits in maintaining that section 553 of the Communications Act of 1934 exclusively regulates this unauthorized reception after analyzing the legislative history and congressional intent behind the federal regulation. The Second Circuit, alternatively, has ruled ...


Fda Regulation Of Adult Stem Cell Therapies As Used In Sports Medicine, Mary Ann Chirba, Berkly Sweetapple, Charles Hannon, John Anderson Feb 2015

Fda Regulation Of Adult Stem Cell Therapies As Used In Sports Medicine, Mary Ann Chirba, Berkly Sweetapple, Charles Hannon, John Anderson

Boston College Law School Faculty Papers

In sports medicine, adult stem cells are the subject of great interest. Several uses of stem cells are under investigation including cartilage repair, meniscal regeneration, anterior cruciate ligament reconstruction, and tendinopathy. Extensive clinical and basic science research is warranted as stem cell therapies become increasingly common in clinical practice. In the United States, the Food and Drug Administration (FDA) is responsible for regulating the use of stem cells through its “Human Cells, Tissues, and Cellular and Tissue-Based Products” regulations. This report provides a brief overview of FDA regulation of adult stem cells. Several common clinical case scenarios are then presented ...


A Call To The Bullpen: Alternatives To The Morality Clause As Endorsement Companies’ Main Protection Against Athletic Scandal, Andrew Zarriello Jan 2015

A Call To The Bullpen: Alternatives To The Morality Clause As Endorsement Companies’ Main Protection Against Athletic Scandal, Andrew Zarriello

Boston College Law Review

High-profile scandals in the sports world, exemplified by Lance Armstrong and Tiger Woods, expose endorsement companies to financial and reputational risks. Endorsement contracts today rely on morality clauses to mitigate this risk of exposure, which unduly restricts a company’s response to an athlete’s misconduct. Clawback clauses, on the other hand, provide companies with a mechanism to fully protect their investment in the employee or sponsored athlete. This Note discusses the practicality of introducing clawback clauses into athletic endorsement contracts. Although many factors inhibit endorsement companies from implementing clawback clauses into endorsement contracts, more beneficial alternatives exist that companies ...


A Sustainable Music Industry For The 21st Century, Aloe Blacc, Irina D. Manta, David S. Olson Jan 2015

A Sustainable Music Industry For The 21st Century, Aloe Blacc, Irina D. Manta, David S. Olson

Boston College Law School Faculty Papers

This essay argues that the current system of music licensing must be completely overhauled. At this time, songwriters are paid a mere pittance when their work is played through Internet streaming services. The paper traces the evolution of compulsory licensing from the early 20th century, when Congress put this system in place due to concerns over the monopolization of the player piano industry, to today. This essay shows how the separation between copyrights for compositions as opposed to public performances contributed to blanket licensing through royalty-collecting organizations like ASCAP and BMI, which — together with government intervention into pricing based on ...


Betting On State Equality: How The Expanded Equal Sovereignty Doctrine Applies To The Commerce Clause And Signals The Demise Of The Professional And Amateur Sports Protection Act, Michael Welsh May 2014

Betting On State Equality: How The Expanded Equal Sovereignty Doctrine Applies To The Commerce Clause And Signals The Demise Of The Professional And Amateur Sports Protection Act, Michael Welsh

Boston College Law Review

In recent years, the U.S. Supreme Court revived the long-dormant equal sovereignty doctrine, which states that the federal government cannot enact legislation that renders states unequal in power, dignity, and authority. Although the doctrine historically applied only in the context of states entering the Union, in the 2013 case Shelby County v. Holder, the Supreme Court broadened the doctrine’s scope, holding that the doctrine applied to all disparate treatment of states. As such, the revived equal sovereignty doctrine leaves federal statutes—such as the Professional and Amateur Sports Protection Act (“PASPA”), which prohibits state-sanctioned casino sports gambling in ...


An Equal Playing Field: The Potential Conflict Between Title Ix & The Massachusetts Equal Rights Amendment, Christopher Marquis Apr 2014

An Equal Playing Field: The Potential Conflict Between Title Ix & The Massachusetts Equal Rights Amendment, Christopher Marquis

Boston College Journal of Law & Social Justice

In 2012 the Department of Education received a complaint claiming that the Massachusetts Interscholastic Athletic Association’s (“MIAA”) policy of allowing boys to try out for girls’ field hockey constituted a violation of Title IX. This federal statute prohibits discrimination in educational institutions on the basis of sex. This Note looks at the common roots of Title IX and the decision of the Massachusetts Supreme Judicial Court that allowed boys’ participation in field hockey. It then examines Title IX as it applies to the MIAA field hockey policy and determines that the Massachusetts Policy does not, in and of itself ...


Meaningful Journalism Or "Infotainment"? The Failure To Define The Public Interest In Axel Springer Ag V. Germany, Kathryn Manza Feb 2014

Meaningful Journalism Or "Infotainment"? The Failure To Define The Public Interest In Axel Springer Ag V. Germany, Kathryn Manza

Boston College International and Comparative Law Review

Although American courts provide wide discretion for freedom of the press, the Convention for the Protection of Human Rights and Fundamental Freedoms ensures that the right to privacy enjoys equal footing with freedom of expression in Europe. When navigating the grey areas between these two frequently opposing rights, the European Court of Human Rights allows private information about a public figure to be published only to the extent the information contributes to the public interest. In Axel Springer AG v. Germany, the court missed a valuable opportunity to provide a clear standard for what the public interest encompasses. Although the ...


The Beijing Treaty On Free Expression: How Stopping Digital Piracy May Cost The World Free Expression, Michael A. Shinall Feb 2014

The Beijing Treaty On Free Expression: How Stopping Digital Piracy May Cost The World Free Expression, Michael A. Shinall

Boston College International and Comparative Law Review

The Beijing Treaty on Audiovisual Performances grants, for the first time, international rights to performers to protect their work in an audiovisual medium. This is a step forward in protecting audiovisual media from international piracy or infringement, but comes at a cost. While performers’ economic rights are kept in check by fair use defenses (favored uses designed to promote the creation of new works) performers’ moral rights from the Beijing Treaty contain no counterbalancing defense. This Comment argues that without this counterbalancing defense, performers may assert these moral rights against other artists unchecked, consequently chilling the free expression that copyright ...


Virtual Property, Virtual Rights: Why Contract Law, Not Property Law, Must Be The Governing Paradigm In The Law Of Virtual Worlds, Christopher J. Cifrino Jan 2014

Virtual Property, Virtual Rights: Why Contract Law, Not Property Law, Must Be The Governing Paradigm In The Law Of Virtual Worlds, Christopher J. Cifrino

Boston College Law Review

Virtual worlds such as World of Warcraft and Second Life have recently exploded in popularity. As users of these worlds acquire virtual assets, conflicts inevitably arise. These conflicts are currently resolved through the terms of End User License Agreements (“EULAs”) between users and developers. Many commentators, however, criticize EULAs as being too one-sided and argue for courts to acknowledge traditional common law property rights in virtual property. These arguments invoke three theoretical justifications for virtual property rights: Lockean labor theory, personhood theory, and utilitarianism. This Note argues that each of these theories is a poor fit for virtual property, and ...


Keeping Public Use Relevant In Stadium Eminent Domain Takings: The Massachusetts Way, Steven Chen May 2013

Keeping Public Use Relevant In Stadium Eminent Domain Takings: The Massachusetts Way, Steven Chen

Boston College Environmental Affairs Law Review

As the sports industry has grown into a multi-billion dollar enterprise, cities have increasingly faced the decision of whether to fund expensive stadium projects to attract or keep franchises. These projects commonly include using public funds and the government’s eminent domain power under the Public-Use Clause of the Fifth Amendment. Unlike traditional public uses such as infrastructure and utilities, multi-purpose stadiums present a unique challenge for courts. The Second Circuit in Goldstein v. Pataki handled the public-use analysis by allowing any amount of traditional public-use justification to shield a stadium project from pretext challenges. This Note argues that by ...


Frankly, My Dear America, We Don’T Give A Damn: Comparing Chinese And European Trade Barriers To American Audiovisual Works And The American Response, Shalia Sakona May 2013

Frankly, My Dear America, We Don’T Give A Damn: Comparing Chinese And European Trade Barriers To American Audiovisual Works And The American Response, Shalia Sakona

Boston College Law Review

For Hollywood film studios, strict Chinese regulations controlling the importation and distribution of foreign audiovisual works within China have made the Chinese audiovisual market as impenetrable as the Great Wall. Recently, in China—Measures Affecting Trading Rights, the World Trade Organization (WTO) ordered China to relax its barriers to foreign films. China has yet to comply with the order, causing ongoing protest by the United States. Meanwhile, the United States has long tolerated Television Without Frontiers, a European Union (EU) Directive that imposes local content quotas that restrict the amount of non-European programming aired on television. This Note compares the ...


Prisoners Of Fame: How An Expanded Use Of Intrusion Upon Psychological Seclusion Can Protect The Privacy Of Former Public Figures, David Libardoni May 2013

Prisoners Of Fame: How An Expanded Use Of Intrusion Upon Psychological Seclusion Can Protect The Privacy Of Former Public Figures, David Libardoni

Boston College Law Review

Public figures who no longer receive attention in the public sphere have had enormous difficulty regaining the privacy rights they once had. When it comes to limiting the discussion of their personal affairs, both the First Amendment and the common law invasion of privacy torts make no distinctions between former public figures and those currently involved in public affairs. This Note proposes an expanded use of the invasion of privacy tort for unreasonable intrusion upon seclusion to protect the privacy of these “prisoners of fame.” Although the tort is primarily understood to protect individuals from intrusions into physical spaces, this ...


Not Quite Filling The Gap: Why The Miscellaneous Expense Allowance Leaves The Ncaa Vulnerable To Antitrust Litigation, Drew N. Goodwin May 2013

Not Quite Filling The Gap: Why The Miscellaneous Expense Allowance Leaves The Ncaa Vulnerable To Antitrust Litigation, Drew N. Goodwin

Boston College Law Review

Throughout its history, the National Collegiate Athletic Association (NCAA) has been repeatedly accused of violating antitrust law in a range of different ways—restricting television broadcasts, limiting coaches’ salaries, and capping the amount of athletic scholarships. Most recently, in the case of White v. NCAA, a class of plaintiffs argued that the NCAA’s artificial limitation on student-athlete compensation violated antitrust law. Although this case settled before trial, it represented a major victory for student-athletes. The NCAA is now considering a proposal— the Miscellaneous Expense Allowance (“MEA”)—that would raise the NCAA’s artificial cap on athletics-related financial aid by ...


Holding Back The (Crimson) Tide Of Trademark Litigation: The Eleventh Circuit Shields Works Of Art From Lanham Act Claims In New Life Art, Nicholas Macri Mar 2013

Holding Back The (Crimson) Tide Of Trademark Litigation: The Eleventh Circuit Shields Works Of Art From Lanham Act Claims In New Life Art, Nicholas Macri

Boston College Law Review

On June 11, 2012, in University of Alabama Board of Trustees v. New Life Art, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that the Lanham Act does not apply to works of art that include others’ trademarks as long as the use of the trademark is artistically relevant to the underlying work and does not explicitly mislead consumers into believing that the trademark holder endorsed or sponsored its use. In so holding, the Eleventh Circuit provided clarity to artists as to what types of trademark uses are permitted in their works. This Comment argues that ...