Entertainment, Arts, and Sports Law Commons^™

Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski

Articles

When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies.

The Ncaa's Challenge In Determining Nil Market Value, Meg Penrose

Faculty Scholarship

This Article proceeds in three parts. Part II discusses the changes that NIL has wrought in college athletics. It briefly explains collectives and their impact on NIL. Part III discusses the impossibility of limiting athletes’ “fair market value” given market value depends on what the market is willing to pay. Congress has failed to pass national legislation. Yet the mosaic of state laws is simply unfit to stand in for national legislation. And, following multiple litigation losses, the NCAA cannot be trusted to “value” the athletes themselves. Market value, if one is to be established, must be uniform and assessed …

Signs Of Life: The Current State Of Generative Content And Copyright Protection, Ryan Bickett

AELJ Blog

With the recent rise in Artificial Intelligence (“AI”) and its broadening use by the public, questions have arisen regarding the applicability of copyright law over both the content it sources and creates. While the answers remain unclear as this technology rapidly updates, there have been recent legal developments which will shape how we deal with this content.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 24, 2023. The original post can be accessed via the Archived Link button above.

The Economics Of Medical Patents And The U.S. Government’S Role In Drug Price Negotiations, Eddie Halwani

AELJ Blog

The U.S. government’s recent but unusual push to negotiate drug prices has struck a chord with many Americans, with polls showing a significant, bipartisan majority favoring the action.This action presents an opportunity to appreciate medical patents’ role in spurring innovation forward. Amid changing policies, medical patents shape the accessibility and affordability of care through their impact on drug pricing. Drug prices in the United States are notably high—about 2.4 times those in other developed countries.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 24, 2023. The original post can be accessed via …

The Aftermath Of Murphy V. Ncaa: State And Congressional Reactions To Leaving Sports Gambling Regulation To The States, Ethan Mordekhai

AELJ Blog

In 2018, the Supreme Court ruled in Murphy v. NCAA that the Professional and Amateur Sports Protection Act of 1992 (“PAPSA”) violated the anti-commandeering rule and was therefore unconstitutional. PAPSA had effectively barred states from authorizing sports gambling. The act did not make sports gambling a federal crime, however it did allow professional sports organizations to bring civil actions to enjoin violations. Thus, after the New Jersey legislature authorized sports gambling in 2012, the NCAA brought a federal action to enjoin the law on the ground that it violated PAPSA. The case made its way to the Supreme Court, and …

I Can’T Believe It’S Not Skittles! Broad Summary Of Advertising And Packaging Regulations For Cannabis Dispensaries In New York State, Lauren Woods

AELJ Blog

Newly passed legislation often represents the changing nature of public opinion and societal attitudes. In New York State, for example, the general public’s softening and more accepting view of marijuana consumption was highlighted when the state approved legal marijuana use in a medical setting in 2014. Seven years later, New York State passed the Marihuana Regulation & Taxation Act (“MTRA”) and officially legalized “the possession of adult-use recreational cannabis for all adults over the age twenty-one.” A highlight of the act is how it addresses how the current state of cannabis regulation in the state is suboptimal, and how its …

What Happens When The Public Wants To Remove Public Art? The Second Circuit Weighs In On One Recent Vara Case, Paige Green

AELJ Blog

n 1990, the Visual Artists’ Rights Act (VARA) became a welcome addition to the federal Copyright Act of 1976. VARA was the first time the “moral rights” of an artist were federally protected in the United States. Moral rights are commonly understood to provide attribution to artists and protect the integrity of visual art pieces. Under VARA, this means authors have a right to claim authorship on pieces they create, prevent the use of their name on a work they did not create, and prohibit the destruction of works of “recognized statute” (both intentional and through gross negligence). The law …

Cardozo Aelj Author Interview Series: Seth Warshaw, Class Of 2023, Seth Warshaw

AELJ Blog

The Cardozo AELJ Author Interview Series seeks to give our readers further insight into the Articles and Notes published in the Cardozo Arts & Entertainment Law Journal. In this interview, Seth Warshaw discusses his Note, And a Second Opinion for All… And Anything Else? The Jack Eichel Saga and Issues of Medical Autonomy, which was published in Volume 41, Issue 1.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 10, 2023. The original post can be accessed via the Archived Link button above.

Cardozo Aelj Interview Series: Professor Saurabh Vishnubhakat, Saurabh Vishnubhakat

AELJ Blog

In this interview, Cardozo Professor Saurabh Vishnubhakat discusses what he hopes to bring to Cardozo as the new Director of Intellectual Property and Information Law Program, his professional background, and what drew him to the field of intellectual property.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on September 22, 2023. The original post can be accessed via the Archived Link button above.

Utility, Copyright, And Fair Use After Warhol, Keith N. Hylton

Faculty Scholarship

This paper is a reaction to AWF v. Goldsmith (Warhol), which finds that Warhol’s adaptation of a photograph of Prince, taken by photographer Lynn Goldsmith, is not protected from copyright liability by the fair use defense. The Warhol dissent accuses the majority of being overly concerned with the commercial character of Warhol’s use, while the dissent emphasizes the artistically transformative quality of Warhol’s adaptation. These different approaches provide strong evidence that the theory of fair use remains unclear to the Court. There is a need for a simple positive theory of the fair use doctrine. That need was largely …

Cardozo Aelj Author Interview Series: Scott Semaya, Class Of 2023, Scott Semaya

AELJ Blog

The Cardozo AELJ Author Interview Series seeks to give our readers further insight into the Articles and Notes published in the Cardozo Arts & Entertainment Law Journal. In this interview, Scott Semaya discusses his Note, Name, Image and Likeness: Giving College Athletes the Clearest Guidance to Best Profit off Their NIL, which was published in Volume 41, Issue 2.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on June 6, 2023. The original post can be accessed via the Archived Link button above.

Cardozo Aelj Author Interview Series: Caitlin Muraca, Caitlin Muraca

AELJ Blog

The Cardozo AELJ Author Interview Series seeks to give our readers further insight into the Articles and Notes published in the Cardozo Arts & Entertainment Law Journal. In this interview, Caitlin Muraca discusses her Note, Combating False Election Information in a Section 230 Protected World: to Moderate or Not to Moderate, which was published in Volume 41, Issue 2.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 27, 2023. The original post can be accessed via the Archived Link button above.

Foreword, Jessica Silbey

Faculty Scholarship

Most of us think we are familiar with graffiti – lettering on trains or graphic images on walls that follow us as we walk by. But Enrico Bonadio’s new book on graffiti and street art opens a door to more complex and nuanced worlds of artists and their communities. The focus is on everyday creators of graffiti and street art. Built from nearly 100 interviews and hundreds of hours of observation, the book is filled with the voices of artists and vivid details of their plein air studios and interactions. Also present in the book is the author, who weaves …

Fashion In The Times Of War: The Recent Exodus Of Luxury Brands From Russia And What It Means For Trademark Law, Irene Calboli, Vera Sevastianova

Faculty Scholarship

In February 2022, Russia infamously invaded Ukraine, starting an unprovoked war. As a result, many foreign companies left their Russia-based operations, including most luxury fashion houses. In these remarks, we elaborate on the possible issues that these companies may face regarding the enforcement of their IP rights in Russia, particularly trademark rights, following their departure resulting from the sanctions imposed by Western countries.

At the time of writing, perhaps the most pressing issue is whether luxury fashion houses risk losing their trademark rights in Russia due to their decision to suspend their operations, even though temporarily. An additional issue facing …

Hoosier Athletes Get An Assist From Law Students Through Name, Image And Likeness Initiative, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Student-athletes at Indiana University Bloomington will get an assist from their peers at the IU Maurer School of Law under a new Name, Image and Likeness Initiative through the school’s Center for Intellectual Property Research.

As student-athletes navigate the still-emerging complexities of the NCAA’s new policy surrounding name, image and likeness — also referred to as NIL — they’ll now have a homefield advantage: one of the country’s top intellectual property clinics.

The Fiction Of Nfts And Copyright Infringement, Emily T. Behzadi

Faculty Scholarship

In the first quarter of 2021, the sales of art in the form of Non-Fungible Tokens (“NFTs”) reached over $200 billion dollars. The arrival of NFTs in the mainstream art market has profoundly shaped the way artists exploit their works. This sensational boom has attracted some of the world's biggest names across pop culture and sports, including celebrities such as Snoop Dogg, Paris Hilton, Post Malone, Tom Brady and Rob Gronkowski, to create their own NFT art. Director Quentin Tarantino has also capitalized on this craze through the creation of an NFT collection based on the film Pulp Fiction. However, …

Hip Hop And The Law : Presented By Intellectual Property Law Association 03/31/2022, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Here’S Why It’S Time The Lanham Act Recognizes Personal Brands, Golden Gate University School Of Law

GGU Law Review Blog

The Lanham Act defines and governs trademarks, service marks, and unfair competition, all to protect American consumers from market confusion. Under the Lanham Act, a mark is famous if it is “widely recognizable to the general consuming public of the United States.” When a celebrity brings a claim under the Lanham Act for the unauthorized use of their image, courts may find that the celebrity’s name and image constitute an unregistered trademark, while the celebrity’s persona is the goods or services which the celebrity places into commerce. To analyze the claim, several factors help determine the likelihood of market confusion. …

Intellectual Property And Tabletop Games, Christopher B. Seaman, Thuan Tran

Scholarly Articles

There is a rich body of literature regarding intellectual property’s (“IP”) “negative spaces”—fields where creation and innovation thrive without significant formal protection from IP law. Scholars have written about innovation in diverse fields despite weak or nonexistent IP rights, such as fashion design, fine cuisine, stand-up comedy, magic tricks, tattoos, and sports plays. Instead, these fields rely on social norms, first- mover advantage, and other (non-IP) legal regimes to promote innovation in the absence of IP protection.

As a comparison to these studies, this Article comprehensively analyzes the role of IP law in facilitating innovation in tabletop gaming, including board …

De-Gentrified Black Genius: Blockchain, Copyright, And The Disintermediation Of Creativity, Tonya M. Evans

Faculty Scholarly Works

In a 2016 acceptance speech during the Black Entertainment Television (BET) Awards, actor and activist Jesse Williams used the phrase “gentrifying our genius” to refer to the insidious process of misappropriating the cultural and artistic productions of Black creators, inventors, and innovators. In that speech, he poignantly and unapologetically condemned racial discrimination and cultural misappropriation. This Article chronicles the nefarious history of the creative disempowerment of creators of color and then imagines an empowering future for those who successfully exploit their creations by fully leveraging copyright ownership and transfer termination. To that end, I reference the considerable scholarship of Professor …

When Imitation Is Not Flattery: Addressing Cultural Exploitation In Guatemala Through A Sui Generis Model, Paul Figueroa

Faculty Scholarship

Indigenous Guatemalan weavers are fighting for intellectual property laws that better protect their designs and other cultural expressions. The exploitation and appropriation by local and international companies has negatively affected the weavers’ livelihoods and resulted in culturally inappropriate uses of spiritual and traditional symbols. Adhering to Western ideals of individual creativity and utility, intellectual property laws in most of the world (including Guatemala) are not suited to protect indigenous creations. To address this legal gap, some countries have adopted sui generis legal regimes that align with communal notions of creation, ownership and stewardship found in indigenous knowledge systems. Based on …

What Is Cultural Misappropriation And Why Does It Matter? 03-31-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Copyright And Disability, Blake E. Reid

Publications

A vast array of copyrighted works—books, video programming, software, podcasts, video games, and more—remain inaccessible to people with disabilities. International efforts to adopt limitations and exceptions to copyright law that permit third parties to create and distribute accessible versions of books for people with print disabilities have drawn some attention to the role that copyright law plays in inhibiting the accessibility of copyrighted works. However, copyright scholars have not meaningfully engaged with the role that copyright law plays in the broader tangle of disability rights.

Propertizing Fair Use, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The landmark case of Google v. Oracle, currently pending before the Supreme Court, illustrates why this is problematic. Even if the Court were to rule that Google’s use of Oracle’s Java API’s was fair, the ruling would not protect the numerous parties that developed Java applications for the Android operating system; it would only shelter Google and Google’s particular use. This is not an isolated problem; the per use/per user rule cuts across fair uses of copyrighted …

Charging Bull, Fearless Girl, Composition, And Copyright, Richard H. Chused

Articles & Chapters

No abstract provided.

Enemy Of The People: The Ghost Of The F.C.C. Fairness Doctrine In The Age Of Alternative Facts, Ian Klein

Student Scholarship

The FCC Fairness Doctrine required that all major broadcasting outlets spend equal time covering both sides of all controversial issues of national importance. The Fairness Doctrine remained the standard for decades before it stopped being enforced during the Reagan administration, and was removed from the Federal Register during the Obama administration. Since the Fairness Doctrine’s disappearance, the perception by conservatives and progressives alike has been that major media outlets display overt biases towards one political affiliation or the other. As it becomes harder to determine real news from “fake news,” Americans’ trust in media is at an all-time low. An …

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

Student Scholarship

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 …

Monetizing Infringement, Kristelia García

Publications

The deterrence of copyright infringement and the evils of piracy have long been an axiomatic focus of both legislators and scholars. The conventional view is that infringement must be curbed and/or punished in order for copyright to fulfill its purported goals of incentivizing creation and ensuring access to works. This Essay proves this view false by demonstrating that some rightsholders don’t merely tolerate, but actually encourage infringement, both explicitly and implicitly, in a variety of different situations and for one common reason: they benefit from it. Rightsholders’ ability to monetize infringement destabilizes long-held but problematic assumptions about both rightsholder preferences, …

Minimum And Maximum Protection Under International Copyright Treaties, Jane C. Ginsburg

Faculty Scholarship

This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.

Copyright And Economic Viability: Evidence From The Music Industry, Kristelia García, James Hicks, Justin Mccrary

Publications

Copyright provides a long term of legal excludability, ostensibly to encourage the production of new creative works. How long this term should last, and the extent to which current law aligns with the economic incentives of copyright owners, has been the subject of vigorous theoretical debate. We investigate the economic viability of content in a major content industry—commercial music—using a novel longitudinal dataset of weekly sales and streaming counts. We find that the typical sound recording has an extremely short commercial half-life—on the order of months, rather than years or decades—but also see evidence that subscription streaming services are extending …