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2005

Intellectual Property Law

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Articles 61 - 76 of 76

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

Essay – The Author's Name As A Trademark: A Perverse Perspective On The Moral Right Of «Paternity»?, Jane C. Ginsburg Jan 2005

Essay – The Author's Name As A Trademark: A Perverse Perspective On The Moral Right Of «Paternity»?, Jane C. Ginsburg

Faculty Scholarship

The US Supreme Court in its 2003 decision in Dastar v. Twentieth Century Fox, construing the Lanham Federal Trademarks Act, deprived authors of their principal legal means to enforce attribution rights in the US. I have elsewhere criticized the Dastar Court's analysis, and have urged amending the Copyright Act to provide express recognition of the attribution right. This time, however, I propose to reconsider the foundation for the attribution right; I draw on literary and historical sources to supplement legal arguments concerning the meaning of the author's name. I will suggest that, contrary to the usual characterization of ...


Sanitizing The Obscene: Fighting For The Right To Edit Objectionable Film Content, Darcy Williams Jan 2005

Sanitizing The Obscene: Fighting For The Right To Edit Objectionable Film Content, Darcy Williams

Jeffrey S. Moorad Sports Law Journal

No abstract provided.


The Failure Of The Broadcast Flag: Copyright Protection To Make Hollywood Happy, Lisa M. Ezra Jan 2005

The Failure Of The Broadcast Flag: Copyright Protection To Make Hollywood Happy, Lisa M. Ezra

Hastings Communications and Entertainment Law Journal

Digital online piracy of television programming is a growing problem that has the television industry, production studios, and the Motion Picture Association of America searching for a cure. The FCC's planned cure is the "broadcast flag," which requires manufacturers of television equipment to bear the burden of protecting broadcast programming from pirates. The FCC's scheme not only contains several loopholes allowing pirates to circumvent the flag technology, it also protects only a tiny fraction of digital television content, at the cost of consumers. This note explains the ineffectiveness of the "broadcast flag," and suggests an alternate scheme based ...


Why Protect Political Art As Political Speech, David Greene Jan 2005

Why Protect Political Art As Political Speech, David Greene

Hastings Communications and Entertainment Law Journal

Politics and art make for a volatile combination both socially and jurisprudentially. Although the capacity of artistic expression to relay political ideas was one of the driving forces behind the recognition of strong First Amendment rights for artistic expression, governmental officials tend toward the censorious when art communicates too much and "offends" or causes "controversy." Indeed, when art is "public," that is funded or exhibited by a governmental entity, public officials would often prefer that it contain no message at all. This article reviews the evolution of First Amendment protection for artistic expression, discusses why artistic expression is protected by ...


Words Signifying Nothing - The Evolution Of 315(A) In An Age Of Deregulation And Its Effect On Television News Coverage Of Presidential Elections, Colin Vandell Jan 2005

Words Signifying Nothing - The Evolution Of 315(A) In An Age Of Deregulation And Its Effect On Television News Coverage Of Presidential Elections, Colin Vandell

Hastings Communications and Entertainment Law Journal

Focusing on private networks' television news coverage of presidential campaigns, this Note addresses the enactment and rise of Section 315(a) of the Communications Act of 1934 (the equal time rule) and the fairness doctrine that it officially operated in conjunction with for forty years. The Note then turns to the deregulation trend that abolished the fairness doctrine and took much of the bite out of Section 315(a). The Note concludes by examining the rise of ideology-driven and also of marketdriven political coverage that a laxly-enforced Section 315(a) has allowed.


The War Against The Illegal Antiquities Trade: Rules Of Engagement For Source Nations, Jason Mcelroy Jan 2005

The War Against The Illegal Antiquities Trade: Rules Of Engagement For Source Nations, Jason Mcelroy

Hastings Communications and Entertainment Law Journal

This article addresses the problems of retrieving stolen cultural property in a practical manner. Instead of proposing new legislation or changes in the current cultural property regime, this article argues that countries that are source nations for the growing illegal trade in antiquities should better prepare themselves for their retrieval attempts, which in turn gives them a better chance at retrieving them through civil cases. By focusing on settlements and cases won in the United States, the paper submits guidelines by which source nations can be best equipped to prevail in a United States civil suit of replevin.


Leveling The Ip Playing Field: Conditional Waiver Theory And The Intellectual Property Protection Restoration Act, Jason Karasik Jan 2005

Leveling The Ip Playing Field: Conditional Waiver Theory And The Intellectual Property Protection Restoration Act, Jason Karasik

Hastings Communications and Entertainment Law Journal

In 1999 and 2000, a group of federal court decisions ruled that the Eleventh Amendment precludes Congress from holding states and their institutions liable in damages for infringing federal intellectual property protection laws. These rulings have created a marked imbalance in the American intellectual property system, in which states can fully protect their own intellectual property yet freely infringe on the intellectual property rights of others. Private intellectual property owners argue that this imbalance increasingly threatens the health of the American economy. In response, Congressional reformers enacted the Intellectual Property Protection Restoration Act. The legislation uses a conditional waiver scheme ...


Will Mechanicals Break The Digital Machine: Determining A Fair Mechanical Royalty Rate For Permanent Digital Phonographic Downloads, David Kostiner Jan 2005

Will Mechanicals Break The Digital Machine: Determining A Fair Mechanical Royalty Rate For Permanent Digital Phonographic Downloads, David Kostiner

Hastings Communications and Entertainment Law Journal

Digital Downloading has become an exciting distribution model that has made large amounts of music available to consumers for a fraction of the price of a compact disc. However, if the mechanical royalty rate paid to composers for the reproduction of their work remains pegged to a fixed number, fluxuations in the retail price of downloads will either reduce or increase the relative value of the payment. To avoid smaller margins, which could dissuade independent labels from making masters available online, or a disproportionately low mechanical rate, the statutory mechanical royalty should be set as a percentage of wholesale receipts ...


An Earthy Enigma: The Role Of Localism In The Political, Cultural And Economic Dimensions Of Media Ownership Regulation, Paul Cowling Jan 2005

An Earthy Enigma: The Role Of Localism In The Political, Cultural And Economic Dimensions Of Media Ownership Regulation, Paul Cowling

Hastings Communications and Entertainment Law Journal

This article examines the Federal Communications Commission's public interest principle of localism and its role in media ownership regulation, particularly the National Television Station Ownership rule. The article explains the enigmatic concept of localism by approaching it from several angles, including other regulatory spheres, such as banking and antitrust; Canadian nationalism; historical broadcast regulation; federalism; and contemporary debates on media ownership. While * explaining what localism means, the article identifies the territorial impulse behind media ownership regulation and its link with territorial reference points in the self-determination of national and local communities. In doing so, the article constructs a simple ...


Undermining The Initial Allocation Of Rights: Copyright Versus Contract And The Burden Of Proof, Thomas A. Mitchell Jan 2005

Undermining The Initial Allocation Of Rights: Copyright Versus Contract And The Burden Of Proof, Thomas A. Mitchell

Hastings Communications and Entertainment Law Journal

Copyright law is designed to provide authors with incentives to create work. Publishers have usurped these incentives, however, by leveraging their superior bargaining power to contractually require authors to transfer all rights to a work. This Note argues that this problem could be resolved by a shifting the burden of proving that the contract was voluntary, and not coerced, from the author to the publisher. Proving that a contract was not voluntarily entered into forms an affirmative defense for a breach, which places the burden on the author. This Note will show that intellectual property cases are different, because, inter ...


Into The Grey: The Unclear Laws Of Digital Sampling, Bryan Bergman Jan 2005

Into The Grey: The Unclear Laws Of Digital Sampling, Bryan Bergman

Hastings Communications and Entertainment Law Journal

When Congress enacted the 1976 Copyright Act, the musical engineering process of digital sampling was not a common practice, nor explicitly contemplated by the Act. Over the last few decades sampling has become a very common practice. Early court decisions regarding sampling, viewed the practice as stealing; however, these decisions failed to take into account the positive transformative possibilities that sampling provides. Recently, DJ Dangermouse came out with an album entitled The Grey Album that mixed vocal content from the rap artist Jay-Z's The Black Album and musical content from the Beatles' White Album. However, Dangermouse never asked permission ...


The Reporter's Privilege: The Necessity Of A Federal Shield Law Thirty Years After Branzburg, Leila Wombacher Knox Jan 2005

The Reporter's Privilege: The Necessity Of A Federal Shield Law Thirty Years After Branzburg, Leila Wombacher Knox

Hastings Communications and Entertainment Law Journal

To date, thirty-one states and the District of Columbia have enacted shield laws that provide varying degrees of protection to reporters, their sources, and their notes. Several federal lawmakers have publicly considered whether a similar federal law would be appropriate. This note examines the roots of the reporter's privilege, surveys selected state shield laws, and considers the impact of the seminal Supreme Court case in the federal realm.


As A Matter Of Fact, It's A Question Of Law: A Case For De Novo Review Of Likelihood Of Confusion In Trademark Cases, Richard A. Dilgren Iii Jan 2005

As A Matter Of Fact, It's A Question Of Law: A Case For De Novo Review Of Likelihood Of Confusion In Trademark Cases, Richard A. Dilgren Iii

Hastings Communications and Entertainment Law Journal

A stark circuit split mars the consistency of trademark infringement analyses within U.S. Circuit Courts of Appeal; some circuits review likelihood of confusion as a matter of fact, while others review it as a matter of law. This disparity places appellants at a disadvantage in some circuits and unnecessarily hinders the function of appellate courts by constraining their review of a substantially subjective balancing of facts. This Note concludes that although the individual factors indicating a likelihood of confusion are issues of fact, the ultimate issue of likelihood of confusion should be reviewed as a matter of law, allowing ...


Reformulating The On Sale Bar, Frank Albert Jan 2005

Reformulating The On Sale Bar, Frank Albert

Hastings Communications and Entertainment Law Journal

The On Sale Bar has been construed narrowly to require that an invention be ready for patenting and that a commercial offer for sale be made in order for the Bar to apply. Although this approach provides certainty for patent applicants, it potentially increases monopoly profits for patentees by disregarding commercial activity designed to increase demand for an invention that is ready for patenting. This Note concludes that a broader formulation of the On Sale Bar that considers this type of activity is more in line with the relevant underlying policies.


A Bipolar Copyright System For The Digital Network Environment, Alexander Peukert Jan 2005

A Bipolar Copyright System For The Digital Network Environment, Alexander Peukert

Hastings Communications and Entertainment Law Journal

The widespread adoption of peer-to-peer software has allowed for fast, cheap, and easy distribution of content all over the world. Although this technology promises great advances for the global exchange of knowledge, it also greatly threatens copyright owners' interests. This article analyzes possible solutions to this conflict from an international copyright law prospective, considering requirements imposed by TRIPS, The Berne Convention, and The WIPO Copyright Treaty. This article proposes a flexible "bipolar" system, in which authors are allowed to choose between compensation provided by a levy-tax system and protection of their works through digital rights management technology, as a solution ...


Yours For Keeps: Mgm V. Grokster, 23 J. Marshall J. Computer & Info. L. 209 (2005), Max Stul Oppenheimer Jan 2005

Yours For Keeps: Mgm V. Grokster, 23 J. Marshall J. Computer & Info. L. 209 (2005), Max Stul Oppenheimer

The John Marshall Journal of Information Technology & Privacy Law

Millions of people download billions of music files over the Internet, using peer-to-peer ("P2P") services such as Grokster, StreamCast, Morpheus, and Kazaa. This practice has been challenged as violative of copyright and, it has been argued, the magnitude of copyright violations facilitated by P2P services justifies banning the services entirely. This argument has been based on the assumption that most transfers over P2P services violate copyright. The starting point for this discussion is the recent decision of the United States Supreme Court to grant the certiorari petition of Metro-Goldwyn-Mayer Studios et al. to review the Ninth Circuit decision in MGM ...