Entertainment, Arts, and Sports Law Commons^™

The Games People Play: Sega V. Accolade And The Right To Reverse Engineer Software, William S. Coats, Heather D. Rafter

UC Law SF Communications and Entertainment Journal

In Sega v. Accolade, a case involving the legality of reverse engineering of computer software, the Ninth Circuit resolved copyright and trademark issues of first impression. The decision is of great significance for its legal analysis of the fair use doctrine and policies underlying the trademark law. This article provides background information useful to understanding Accolade from a technical and legal perspective. The authors conclude that the decision is consistent with the recent trend among the courts to limit the use of intellectual property laws to stifle competition.

Copyright Registration For Computer Programs And Screen Displays, Nancy H. Lawrence

UC Law SF Communications and Entertainment Journal

This article summarizes the practices of the U.S. Copyright Office for registration of copyright claims in computer programs and screen displays, and touches on some of the new software developments that raise issues relevant to registration.

California Art Legislation Goes Federal: Progress In The Protection Of Artists' Rights, Thomas M. Goetzl

UC Law SF Communications and Entertainment Journal

The author of this article was Program Chair of the Art Law Section meeting at the 1993 annual convention of the Association of American Law Schools. In the article, he briefly reviews state and federal legislative enactments that have affected the visual arts. The author then summarizes the presentations of each of the panelists at the Art Law Section meeting. Finally, the author offers his own comments on the Resale Royalty Report that was prepared by the Copyright Office and submitted to Congress in December 1992.

Droit De Suit: The Artist's Right To A Resale Royalty, Marilyn J. Krestinger

UC Law SF Communications and Entertainment Journal

This article discusses an artist's right to participate in the profits or royalties from the resale or use a work. It briefly traces the right to its European roots, notes the current countries that have an effective resale royalty, and then discusses the status of the right in the United States, summing up the recent report of the U.S. Copyright Office to Congress. The article concludes that if the European Community harmonizes existing droit de suite laws within the Community, then the United States may move in that direction.

California Arts Legislation Goes Federal, Richard Mayer

UC Law SF Communications and Entertainment Journal

The author provides a unique perspective from which to view moral rights and resale royalty legislation-that of an artist. His article relates his personal insights into the inception and enactment of the California Resale Royalties Act, the California Art Preservation Act, and VARA. In doing so, he also explores the issues surrounding resale royalties and moral rights.

Creators Caught In The Middle: Visual Artists Rights Act Preemption Of State Moral Rights Law, Joshua H. Brown

UC Law SF Communications and Entertainment Journal

VARA is the first federal legislation allowing American artists to protect their works' integrity and to be recognized as authors despite the continuing sale or other transfer of their art. Such privileges, known as "moral rights," have been an integral part of European law for over a century, and have been incorporated into many American states' laws within recent years. With the passage of VARA, the moral rights laws of many states became redundant. This note attempts to determine the extent to which VARA preempts state laws, focusing on the New York, California, and Massachusetts statutes.

Home Audio Taping Of Copyrighted Works And The Audio Home Recording Act Of 1992: A Critical Analysis, Joel L. Mckuin

UC Law SF Communications and Entertainment Journal

This Article focuses on the inadequate protection afforded music creators from unauthorized noncommercial home taping of sound recordings. The widespread practice of unauthorized home taping has harmed both the recording industry and society. In an attempt to rectify the problem, Congress enacted the Audio Home Recording Act of 1992 (AHRA). The author argues, however, that AHRA provides record producers with insufficient protection from home copying. This Article addresses the shortcomings of AHRA: (1) the lack of royalties for analog home taping and (2) the lack of performance rights in sound recordings for copyright owners and music performers. It further indicates …

International Film Co-Production Tax And Subsidy Mechanisms, Margaret Moore

UC Law SF Communications and Entertainment Journal

International co-production agreements allow two or more countries to jointly produce films and television programming, thereby gaining tax incentives and national production subsidies. Co-production arrangements have resulted in films such as The Crying Game, Damage, and Prospero's Books.

This Article discusses current international co-production issues from the American producer's perspective. The Article is an exercise in global comparison, culminating in a discussion of the Council of Europe's proposal to standardize co-production rules and arrangements.

The High Cost Of Convenience: Antitrust Law Violations In The Computerized Ticketing Services Industry, Kevin E. Stern

UC Law SF Communications and Entertainment Journal

The advent of computerized ticketing has made the purchase of entertainment tickets more convenient for consumers-but often at a steep cost. Are ever-increasing ticketing service charges the result of antitrust violations or other unlawful business practices as consumers have charged? This Note examines recent class action antitrust lawsuits against the dominant California computerized ticket agencies, entertainment venues and promoters. It summarizes and analyzes the relevant California statutes and case law at issue and concludes there is merit to some, but not all, of the plaintiffs' claims.

Researching The Right Of Publicity: A Revised And Comprehensive Bibliography Of Law-Related Materials, Frank G. Houdek

UC Law SF Communications and Entertainment Journal

No abstract provided.

Software Look And Feel Protection In The 1990s, Jack Russo, Jamie Nafziger

UC Law SF Communications and Entertainment Journal

This article reviews the historical development of "look and feel" copyright protection of computer software, including discussion of decisions favoring broad protection, decisions favoring competitive principles, and decisions taking an analytic approach to software copyright protection. The article also analyzes recent U.S. Supreme Court decisions to explore how the Court may decide the computer software "look and feel" issues, including consideration of how Lanham Act trade dress protection might be applied to protect computer software visual displays.

It Is Time To Put Look And Feel Out To Pasture, Douglas K. Derwin

UC Law SF Communications and Entertainment Journal

The author, who was present at the creation of "Look and Feel," now feels that the time has come to lay the theory to rest, because it is vague, confusing, and promotes overbroad analysis. Instead, he suggests analysis focusing on the different legal standards that apply to different elements in a computer program's user interface.

The Use Of Amateur Videotapes As Evidence In Criminal Prosecutions: Citizen Empowerment Or Little Brother's New Silver Platter, Nicholas R. Mack

UC Law SF Communications and Entertainment Journal

As public access to inexpensive and versatile "camcorders" grows, U.S. courts face a new source of crime evidence. Through a survey of recent examples, including the Rodney King beating, this note addresses the potential of private citizens' videotapes of criminal acts. Videotapes may empower citizens to fight crime safely and legally, as courts will probably receive such videotaped evidence favorably. However, with the increasing means and incentives for "video vigilantism" comes a risk of invasions of privacy, as technology outpaces the law. Limited neither by the Fourth Amendment nor the Electronic Communications Privacy Act of 1986, citizens' videotapes can introduce …

Summary Judgment On Substantial Similarity In Copyright Actions, Julie J. Bisceglia

UC Law SF Communications and Entertainment Journal

This article surveys reported summary judgment and summary adjudication opinions in which courts have ruled on the presence or absence of substantial similarity in copyright actions. Because summary judgment is so frequently granted to moving defendants on this issue, it is suggested that the current tests for substantial similarity are deficient; a different one is proposed.

Shopping For The California Right Of Publicity, Barbara M. Lange

UC Law SF Communications and Entertainment Journal

California accords a celebrity both a statutory and a common law right of publicity. Recent Ninth Circuit decisions, while construing California statutes narrowly, have suggested a scope of California common law protection that is broader than, and different from, that indicated by California state court precedents. This Note summarizes the California statutory right of publicity and the common law right based on state appellate court cases, comparing them to the Ninth Circuit view in Waits v. Frito Lay, Inc. and White v. Samsung Electronics America, Inc. The author concludes that legislative action is necessary to define the scope of the …

What's Wrong With Vara: A Critique Of Federal Moral Rights, Peter H. Karlen

UC Law SF Communications and Entertainment Journal

The Visual Artists Rights Act of 1990 (VARA) may represent the most important artists' rights legislation in the history of the United States. Yet, according to the author, VARA is replete with ambiguities, trouble spots, omissions, and potential problems which will only be resolved in the courts or, preferably, through early legislative amendments. This article analyzes the key portions of VARA dealing with subject matter, ownership, rights, duration, waiver, works in buildings, and preemption. Each area of the statutory text is followed by the author's commentary.

Telecommunications Regulation, Imputation Policies And Competition, Alexander C. Larson, Steve G. Parsons

UC Law SF Communications and Entertainment Journal

This article provides an economic analysis and critique of imputation policies in telecommunications regulation. Imputation is a regulatory policy employed when a vertically integrated (i.e., end-to-end) regulated firm sells intermediate productive inputs in an "upstream" market to its own competitors in an end-user, or "downstream" market. The most common example of this regulatory policy is the imputations of access charges in state telecommunications regulation. It are used to guard against anticompetitive pricing practices and discriminatory pricing (i.e., price squeezes). This article uses regulatory and antitrust economics as well as antitrust case law to examine the efficacy of imputation policies. It …

Add-On Infringements: When Computer Add-Ons And Peripherals Should (And Should Not) Be Considered Infringing Derivative Works Under Lewis Galoob Toys, Inc. V. Nintendo Of America, Inc., And Other Recent Decisions, Edward G. Black, Michael H. Page

UC Law SF Communications and Entertainment Journal

The large and growing installed base of computer products is quickly giving rise to a large secondary market for computer add-ons that add new features to or enhance the performance of primary computer products. This article discusses how copyright doctrines, including the derivative works and fair use doctrines, have been-and should be-applied to computer add-ons. After analyzing the current state of the law under the Ninth Circuit's decision in Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., and other decisions, the authors argue that copyright doctrines should be construed to encourage the use of add-ons that add new features …

Shrinkwrap License Agreements: New Light On A Vexing Problem, David L. Hayes

UC Law SF Communications and Entertainment Journal

Computer software companies rely widely on the use of "shrinkwrap" license agreements. Previous decisions have called into question the general enforceability of these agreements as contracts of adhesion, and the enforceability of specific provisions under policies of federal supremacy. This article analyzes the implications of a more recent decision, Step-Saver Data Systems, Inc. v. Wyse Technology, which focused on the rules of contract formation under the U.C.C. and their application when deciding if a shrinkwrap license governs a transaction at all. The analysis of the case calls into question the legal efficacy of many widespread marketing practices currently used in …

Crime Scene Videotapes: Are Television Techniques Violating The Confrontation Clause, Katharyn Bond

UC Law SF Communications and Entertainment Journal

Videotape presentations in courtroom proceedings are admissible upon the proper foundation of accuracy and faithfulness. Anyone present at the taping of the crime scene may establish the requisite foundation. The admissibility of videotaped evidence is premised on the assumption that the technology itself is neutral and reliable, and that it accurately conveys what is in front of the camera. This note counters the validity of this assumption in the context of crime scene videotapes. Grisly crime scenes are now videotaped by police officers and later used by prosecutors at trial as demonstrative evidence. This note argues that it is the …

Why Can't I Watch This Video Here - Copyright Confusion And Performances Of Videocassettes & (And) Videodiscs In Libraries, J. Wesley Cochran

UC Law SF Communications and Entertainment Journal

The dramatic growth of video resources in library collections in the past twenty years brought with it disagreement between librarians and copyright owners concerning performances of videocassettes and videodiscs in libraries. This article reviews the application of copyright law to performances of videocassettes and videodiscs and describes typical uses of these resources in academic, public, and private libraries. The author then relates the availability of statutory defenses to claims of infringement and concludes that many performances of videocassettes and videodiscs in libraries are permitted by the fair use limitation and the educational exemption found in the Copyright Act of 1976. …

Moral Rights And Real Life Artists, Peter H. Karlen

UC Law SF Communications and Entertainment Journal

Although both moral rights legislation and moral rights litigation have proliferated in recent years, there is still a dearth of published opinions dealing with moral rights issues. This article, derived from the author's extensive experience with moral rights cases, provides an insight into the critical issues in moral rights litigation. The author cites anecdotal information as well as cases that have garnered attention in the art world but did not yield published court opinions.

A Comparison Of State And Federal Moral Rights Protection: Are Artists Better Off After Vara, Edward J. Damich

UC Law SF Communications and Entertainment Journal

VARA, which became effective June 1, 1991, provides the first federal statutory recognition of the moral rights of integrity and attribution for works of visual art. Prior to VARA's enactment, some states, including the art centers of California and New York, had already enacted moral rights statutes. This article compares VARA with state moral rights statutes. It concludes that VARA is clearly an advance since only eleven states have moral rights statutes and not all provide more protection. However, the author suggests that the state statutes, taken as a whole, protect more kinds of works and offer broader protection than …

Cyberspace, The Free Market And The Free Marketplace Of Ideas: Recognizing Legal Differences In Computer Bulletin Board Functions, Eric Schlachter

UC Law SF Communications and Entertainment Journal

Aspects of computers, communications and the media are all present in computer bulletin board technology. Different legal models have been applied to each of these elements when they have been considered individually. The blend of these elements in computer bulletin boards makes it difficult to determine which legal model is appropriate. This Essay takes a holistic approach to the problem, predicated on the belief that any solution to which model is appropriate must retain some of the careful balancing that is part of existing models. The Essay first outlines the contours of the "cyberspace" industry, including the functions of computer …

Florida's Bungee Jumping Regulations: Why Other States Should Take The Plunge, Cindy Oakes

UC Law SF Communications and Entertainment Journal

Bungee jumping burst onto the American recreational scene with amazing momentum. As with many other dangerous recreational activities embraced by thrillseekers in recent years, many states were caught off guard with respect to regulating the sport. The rapid proliferation of bungee operations and the occurrence of several serious accidents highlighted the need for consistent, fair regulatory treatment among the states. The state of Florida has developed a comprehensive and thoughtful set of regulations, which can serve as a model for other states. This Note examines the development of bungee jumping as a popular American activity, explains how Florida's regulations affect …

Suing American Media In Foreign Courts: Doing And End-Run Around U.S. Libel Law, Kyu Ho Youm

UC Law SF Communications and Entertainment Journal

The ever-expanding transnational operations of the American media have resulted in a growing number of libel suits filed against the media in foreign countries. A 'small but disturbing and growing trend' among libel plaintiffs to sue American media abroad is illustrated in Bachchan v. India Abroad Publications, Inc. In the context of the significant implications of the growing number of cross-boarder libel suits against American media in foreign courts and particularly in English courts, this Article examines four questions: (1) What are the similarities and differences, if any, between American and English libel laws?; (2) How have libel cases been …

The Economic Case For The Coexistence Of Monopoly Power And Goodwill In The Cable Television Industry, Joshua G. Genser

UC Law SF Communications and Entertainment Journal

American Courts have pronounced that monopolies cannot have goodwill or that a monopoly's goodwill is of no value, because the monopolist's customers have no choice but to patronize the monopoly firm. This Article argues that this proposition does not withstand theoretical scrutiny. Application of basic economic principles establishes that the value of goodwill to a firm is directly related to the elasticity of demand for that firm's goods or services, but the monopoly power is insufficient, alone, to measure the elasticity of demand. The author also argues that the value of goodwill to a monopolist is also closely correlated with …