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 …

Is The Biggest Offer The Best Offer?, Alyssa Croft

Pace Intellectual Property, Sports & Entertainment Law Forum

Many people strive to be professional athletes because of the respect and accomplishment it receives. You make a lot of money, it can be glamorous, you are in commercials and magazines, and sometimes even movies. However, there are some things people do not think about when it comes to professional athletes. One of the biggest is taxation! There are so many different things athletes must think about and do because of taxes so they can take home the most amount of money possible. Athletes must be careful about who they hire to help them with their taxes because they want …

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 …

With Major Professional Sports Franchises On Their Way Into Las Vegas, The Problems With The Professional And Amateur Sports Protection Act (Paspa) Need To Be Addressed, Anthony J. Sanfratello

Pace Intellectual Property, Sports & Entertainment Law Forum

This note will set out to prove why PASPA is no longer effective and why reform is needed. With the state of New Jersey leading the fight, change is on the horizon. First, the history of gambling laws in the United States will be covered. Next, the legal and other supplemental arguments for and against PASPA will be discussed. Additionally, the pivotal role that each major professional sports league plays in the arguments for and against reform, with specific focus on professional teams moving to Las Vegas, will be examined. Lastly, the current state of gambling laws in this country …

Fourth & Inches: Marking The Line Of Athletes’ Free Speech (A Colin Kaepernick Inspired Discussion), Ryan J. Mcginty

Pace Intellectual Property, Sports & Entertainment Law Forum

This note addresses the ongoing controversial stance that was ignited when Colin Kaepernick refused to stand for the playing of the national anthem in protest of what he deems are wrongdoings against African Americans and minorities in the United States. The scope of this note does not surround Kaepernick himself, but rather the professional NFL football player in general. Specifically, players are entitled to the full rights of free expression and free speech as human beings and public figures, up and until the line where that right is abused on the field or “on the job,” thereby threatening an increase …

The Justice Of Unequal Pay In The Ufc: An In-Depth Analysis Of The Fighters’ Antitrust Class Action Lawsuit Against The Ufc And The Misplaced Support Of The Proposed Muhammad Ali Expansion Act, Hunter Sundberg

Pace Intellectual Property, Sports & Entertainment Law Forum

In 2016, the Ultimate Fighting Championships (“UFC”) set the record for the largest sale in sports history. The UFC, the primary promotion company of the once fringe sport of mixed martial arts (“MMA”) had matured into a mammoth 4 billion dollar promotion, but not without some growing pains. The league is replete with controversy, mostly dealing with disgruntled athletes over compensation. Athletes of the UFC feel that they are being financially exploited and they may be correct. The athletes are choosing different routes to remedy their pay disparities but they are misguided.

The first course of action chosen by the …

Who Got Away With Murder? An Analysis And Discussion About The Death Of Sam Keating In Season 1 Of Abc’S “How To Get Away With Murder”, Katelyn Squicciarini

Pace Intellectual Property, Sports & Entertainment Law Forum

This article will address the individuals present in the home and the events surrounding the death of Sam Keating to see if anyone actually got away with murder. The remainder of the article will outline the details surrounding Sam’s death and will address the Felony Murder Rule and accomplice liability. The point of this article is not to make determinative decisions of how a court would rule. Rather, this will address the characters in question based on relevant case law and the Pennsylvania Code of Crimes. The individuals and potential charges would be subject to prosecutorial discretion and reasonable minds …

The Need For Strict Morality Clauses In Endorsement Contracts, Caysee Kamenetsky

Pace Intellectual Property, Sports & Entertainment Law Forum

The increasing significance of morality clauses seems to directly correlate with the increase of social media platforms and avenues to live-stream events, including but not limited to Facebook, Snapchat, Instagram, and Twitter. News of an athlete’s behavior can go viral in a matter of seconds. This leads company brands to seek broader terms in their morality clauses to allow them to disassociate themselves from the athlete. However, this is not always fair to the athlete, who might not have any idea that their personal-life choices could lead to the end of an endorsement contract.

How Organizing Collegiate Student-Athletes Under The National Labor Relations Act With The Ncaa As A Joint Employer Can Lead To Significant Changes To The Student-Athlete Compensation Rules, Andrew Gruna

Pace Intellectual Property, Sports & Entertainment Law Forum

This paper will provide an overview of how National Labor Relations Board cases of Northwestern University and Browning Ferris combined with the analysis presented in the National Labor Relations Board General Counsel Memorandum GC 17-01: General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context could impact the laws behind unionization, the contracts of university athletes, and, ultimately through contract negotiations, reintroduce the discussion regarding compensation of student-athletes.

Gamblization: The Rise Of Sports Gambling And The Need To Repeal Paspa, Alex Lowell

Pace Intellectual Property, Sports & Entertainment Law Forum

The National Gambling Impact Study Commission, in its final report to Congress, estimated American’s bet as much as $380 billion per year on sports, making it by far the largest form of illegal wagering, and that report was released in 1999. With the growth of the Internet and technology, there is no doubt that these staggering figures are far larger today. Based on the current structure, 99% of sports gambling continue to operate untaxed and unregulated in defiance of state and federal law. The time has come for the United States to repeal the Professional and Amateur Sports Protection Act …

Nba-Age Restrictions: Should The Nba Follow In The Footsteps Of Major League Baseball?, Bryan Kelly

Pace Intellectual Property, Sports & Entertainment Law Forum

This paper will discuss the outlook of current NBA prospects and the development of age restrictions. It will also shed light on several key cases and Collective Bargaining Agreements including: Wood v. National Basketball Association, and Denver Rockets v. All Pro Management, Inc. and the NBA CBA. After that, an analysis of Sherman Antitrust Law and current case law concerning age restrictions in sports, and analyze the possibility for age-restrictions to be argued through the court system. Finally, this paper will look into the NBPA’s duty of representation towards NBA prospects and how the NBPA can take ideas from a …

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