Law Commons^™

Function Over Form: Bringing The Fixation Requirement Into The Modern Era, Megan M. Carpenter, Steven Hetcher

Law Faculty Scholarship

This Article examines the ways that contemporary creativity challenges copyright’s fixation requirement. In this Article, we identify concrete problems with the fixation requirement, both practically and in light of the fundamental purpose and policy behind copyright law, and argue for a change that would amend the fixation requirement to better function in the modern era.

Specifically, we conclude that a fair appraisal of the justifications for the fixation requirement provides little, if any, rationale for fixation except to the extent that fixation helps to separate idea from expression in determining the “metes and bounds” of creative expression. Recent case law …

A Possibility Of The Korean Wave Renaissance Construction Through K-Pop: Sustainable Development Of The Korean Wave As A Cultural Industry, Yeojin Kim

UC Law SF Communications and Entertainment Journal

In the era of the "digital road," Korean popular music ("K-Pop") has disseminated into every part of the world. In fact, South America, the farthest continent from Korea, goes wild for K-Pop, and the craze moves on to other continents naturally. Without Koreans having to recommend K-Pop, if listeners of K-Pop around the world believe that K-Pop has some charm, they absorb the trend and pass the music on to others. It has now come to the point where government agencies, the press, and entertainment management companies do not need to promote K-Pop because foreigners are consuming K-Pop feverishly on …

Rereading A Canonical Copyright Case: The Nonexistent Right To Hoard In Fox Film Corp. V. Doyal, Shane D. Valenzi

UC Law SF Communications and Entertainment Journal

Do copyright owners have the right to hoard their creative works? The right to exclude on an individual basis is the keystone of copyright law, yet using copyright protection to prevent all public access to a work runs counter to the very premises upon which copyright law is based. This right to exclude the world from use of a creative work-referred to as the right to "hoard" by Justice O'Connor in Stewart v. Abend, is commonly traced to a Lochner-era tax case: Fox Film Corp. v. Doyal. This article examines the right to hoard and its origins in Fox Film, …

The Fcc And Ancillary Power: What Can It Truly Regulate, Matthew Eller

UC Law SF Communications and Entertainment Journal

This article will examine the turbulent history of section 629 of the Telecommunications Act, including its adoption and amendments, its claims as to "plug & play" devices, and the effects of the recent EchoStar Satellite LLC v. FFC holding. This article will begin with a brief history of section 629 and its proposed purpose, then discuss the industry's first attempt at industry-wide standards-first with CableCARD technology, then its successor, AllVid technology. This article will then analyze the purpose and history of the FCC's ancillary jurisdiction, the holding in the newly decided EchoStar Satellite LLC v. FCC, and the possible future …

Authorship Atomized: Modeling Ownership In Participatory Media Productions, Elisabeth S. Aultman

UC Law SF Communications and Entertainment Journal

The aim of this article is to posit a solution, grounded in legal realism, for the practical issues that arise when copyright law and content monetizers encounter a work (or perhaps more accurately, a series of interdependent works) with an unprecedented number of people who could ostensibly assert authorship over some element of the content.

Bag Men And The Ghost Of Richard Jewell: Some Legal And Ethical Lessons About Implied Defamation, Headlines, And Reporting On Breaking Criminal Activity From Barhoum V. Nyp Holdings, Clay Calvert, Daniel Axelrod, Sarah Papadelias, Linda Riedemann

UC Law SF Communications and Entertainment Journal

This article analyzes and explores the complex issues of libel by implication and defamatory meaning raised in the ongoing libel suit of Barhoum v. NYP Holdings. The case pivots on the New York Post's "BAG MEN" cover that ran on April 18, 2013, and featured a large photo of two men cleared of wrongdoing in connection with the Boston Marathon bombing. This article, which compares and contrasts Barhoum to decisions such as Kaelin v. Globe Communications Corp. and Stanton v. Metro Corp., also examines the possible impact of the New York Post's tiny front-page disclaimer. Furthermore, this article considers how …

Legal And Economic Challenges To The Business Model Of The Television Industry, John B. Meisel

UC Law SF Communications and Entertainment Journal

Gaining access to content is critically important for entrance into the television industry; this is a necessary input to become a viable competitor against incumbent video industry players. However, incumbents have the ability and incentive to withhold programming that discourages potential competitors from entering the market. Entrants, built up over a long period of time, confront a symbiotic relationship between traditional content providers and incumbent content distributors. Access to video programming or access in the format (i.e., online) that a viewer chooses is in high demand. This demand is evident by an increasing number of legal, technological, economic, and political …

Rethinking Online Privacy Litigation As Google Expands Use Of Tracking: Giving Meaning To Our Online Browsing And The Federal Wiretap Act, Filip Babic

UC Law SF Communications and Entertainment Journal

This note will argue that Google's new privacy policies violate the Wiretap Act as amended by the Electronic Communication Privacy Act. The Wiretap Act provides a cause of action against anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." The Wiretap Act, originally drafted to prevent eavesdropping on telephone conversations, requires interception of the contents of communication and not merely the circumstances surrounding the communication. As Google's practices have made it easier for users to characterize their searches as the "contents of communication," the Wiretap …

Runaway Film And Television Production: Carrots, Sticks, & International Tax Reform, Paul Battista

UC Law SF Communications and Entertainment Journal

"Runaway" film and television production is a public policy issue that has been targeted for reform with the goal of its eradication, a goal that has not been achieved. The discussion has framed the issue as one relating to international trade policy and labor policy, and as a result proposals to eradicate the problem have been focused on these areas. This article takes the position that runaway film and television production is an international tax law issue that should be examined within the framework of U.S. international tax policy. In general, the U.S. international tax laws require reform because they …

Market Structure And Political Law: A Taxonomy Of Power, Zephyr Teachout, Lina M. Khan

Faculty Scholarship

The goal of this Article is to create a way of seeing how market structure is innately political. It provides a taxonomy of ways in which large companies frequently exercise powers that possess the character of governance. Broadly, these exercises of power map onto three bodies of activity we generally assign to government: to set policy, to regulate markets, and to tax. We add a fourth category – which we call "dominance," after Brandeis – as a kind of catchall describing the other political impacts. The activities we outline will not always fit neatly into these categories, nor do all …

Field Of Dreams: Is The Movie Site's Commercialization A Dream Plan With Significant Benefits Or A Nightmare Script With Crippling Effects?, Michael J. Mcgraw

Texas A&M Journal of Property Law

This Comment will detail the field’s powerful attraction, discuss and analyze the applicable zoning laws and governing case law associated with comparable property disputes in relation to the present facts, praise the use of tax rebates to help subsidize the project, and assert that the public sector could have established even further requirements for the private business to meet before receiving such substantial public funds.

Nigeria And Mali: The Case For Repatriation And Protection Of Cultural Heritage In Post-Colonial Africa, Elizabeth A. Klesmith

Notre Dame Journal of International & Comparative Law

Writing in early 2013, Elizabeth A. Klesmith explores the challenges of African nations in protecting their cultural heritage in the post-colonization era. She identifies two major challenges to the preservation of African cultural heritage: the multi-billion dollar global trade in illicit heritage and, in certain parts of Africa, the threat of destruction of cultural treasures during bouts of sectarian violence. Klesmith discusses these challenges utilizing case studies concerning the cultural treasures of Nigeria and Mali. In the case of Nigeria, the country is striving to reacquire artifacts looted from the Benin Kingdom in the late nineteenth century and recently purchased …

The International War Against Doping: Limiting The Collateral Damage From Strict Liability, Thomas W. Cox

Vanderbilt Journal of Transnational Law

The World Anti-Doping Agency (WADA) and the World Anti-Doping Code are largely considered the model for an effective and well-coordinated antidoping regime. This model has allowed numerous sports and various countries to secure the same rules for domestic and international athletes. Within this regime, strict liability for prohibited substances stands as the "cornerstone." Strict liability has allowed antidoping officials to prosecute doping violations through an effective testing regime. However, this principle occasionally implicates innocent athletes with no intention of performance enhancement. This Note proposes that WADA modify its criteria for including substances on the Prohibited List and suspend strict liability …

Adapt Or Die: Aereo, Ivi, And The Right Of Control In An Evolving Digital Age, Johanna R. Alves-Parks

Loyola of Los Angeles Entertainment Law Review

The advent of the Internet has had a great effect on the production, distribution, and consumption of television programming. The Supreme Court granted certiorari to ABC, Inc. v. Aereo, Inc. and will now review the issue of unlicensed digital distribution of copyrighted programming in its Spring 2014 term. This Comment will first briefly examine the origins and interconnection between television and digital media, culminating in a discussion of the repercussions of allowing unlicensed over-the-top retransmissions of network broadcast programming to continue to stream over the Internet. It will then examine the decisions in WPIX v. IVI, Inc., ABC, Inc. v. …

Green Monsters: Examining The Environmental Impact Of Sports Stadiums, Thomas J. Grant Jr.

Villanova Environmental Law Journal

No abstract provided.

No Hiding The Ball: Medical Privacy And Pro Sports, Michael K. Mcchrystal

Marquette Sports Law Review

No abstract provided.

The Transgender Student-Athlete: Is There A Fourteenth Amendment Right To Participate On The Gender-Specific Team Of Your Choice?, Krista D. Brown

Marquette Sports Law Review

No abstract provided.

Fumbling The First Amendment: The Right Of Publicity Goes 2-0 Against Freedom Of Expression, Thomas E. Kadri

Michigan Law Review

Two circuits in one summer found in favor of college athletes in right-of-publicity suits filed against the makers of the NCAA Football videogame. Both panels split 2–1; both applied the transformative use test; both dissenters predicted chilling consequences. By insisting that the likeness of each player be “transformed,” the Third and Ninth Circuits employed a test that imperils the use of realistic depictions of public figures in expressive works. This standard could have frosty implications for artists in a range of media: docudramas, biographies, and works of historical fiction may be at risk. This Comment examines the tension between the …

On Aereo And "Avoision", Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Avoision describes conduct which seeks to exploit 'the differences between a law's goals and its self-defined limits' – a phenomenon particularly apparent in tax law. This short paper explains how the technology company Aereo utilised avoision strategies in an attempt to design its way out of liability under US copyright law. The authors argue that existing formulations encourage such strategies by applying differently depending on how the transaction is structured, resulting in a wasteful devotion of resources to hyper-technical compliance with the letter rather than meaning and purpose of the law.?

Lessons From The Nba Lockout: Union Democracy, Public Support, And The Folly Of The National Basketball Players Association, Matthew Parlow

Oklahoma Law Review

By most accounts, the National Basketball Players Association (NBPA)—the union representing the players in the NBA—conceded a significant amount of money and other contractual terms in the new ten year collective bargaining agreement (2011 Agreement) that ended the 2011 NBA lockout. Player concessions were predictable because the NBA’s economic structure desperately needed an overhaul. The magnitude of such concessions, however, was startling. The substantial changes in the division of basketball-related income, contract lengths and amounts, salary cap provisions, and revenue sharing rendered the NBA lockout—and the resulting 2011 Agreement—a near-complete victory for the owners. Several interpretations have been offered to …

We Need To Talk About Aereo: Copyright-Avoiding Business Models, Cloud Storage And A Principled Reading Of The "Transmit" Clause, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Businesses are exploiting perceived gaps in the structure of copyright rights by ingeniously designing their technologies to fulfill demand for individual access through a structure of personalized copies and playback engineered in ways intended to implicate neither the public performance nor the reproduction rights. The archetypal example is Aereo Inc.’s system for providing online access to broadcast television. Aereo allows users to tune into individual antennae to stream TV to themselves, near-live, online. Aereo’s activities look a lot like the retransmission of broadcast signals, an activity which Congress has made very clear must result in remuneration for rightholders. However, Aereo’s …

League Ownership Of Teams, Conflicts Of Interest, And Personnel Exchanges, Lewis Kurlantzick, B.J. Pivonka

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Unreasonable Access: Disguised Issue Advocacy And The First Amendment Status Of Broadcasters, Kerry L. Monroe

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Copyright And The Tragedy Of The Common, Tracy Reilly

Tracy Reilly

In his 1968 article, The Tragedy of the Commons, biologist Garret Hardin first described his theory on the ecological unsustainability of collective human behavior, claiming that commonly held real property interests would not ultimately be supportable due to the competing individual interests of all who use the property. In the legal field, Hardin’s article is frequently cited to support various theories related to real property and environmental law issues such as ownership, redistribution of wealth, pollution, over population, and global warming. Most scholars claim that a tragedy of the commons does not exist in intellectual property-related goods due to the …

The Technological And Business Evolution Of Machine Based Gambling In America, Darren Prum, Carlin Mccrory

Darren A. Prum

Machine Based Gambling has become a major source of revenue to many states across the country that need the money but face obstacles to raising taxes within their jurisdiction. The figures are startling with the Commonwealth of Pennsylvania’s cut at over $1.456 Billion in 2011, which exceed the next closest state by $500 million. In addition, there are more than twice as many slot machines available to the public than ATMs. The benefits of machine based gaming has allowed many governments to revitalized tourism locations, make some Native Americans economically self-sufficient, and save horse and dog race tracks from closing …

Gamechanger: Ncaa Student-Athlete Likeness Litigation And The Future Of College Sports, Maureen A. Weston Prof.

Maureen A Weston

In re NCAA Student-Athlete Name & Likeness Licensing Litigation is a consolidated lawsuit that arose principally from two federal lawsuits filed in California in 2009 against the NCAA, EA, and the CLC: Keller v. Electronic Arts, Inc., and O’Bannon v. National Collegiate Athletic Ass’n. These cases attack the practice of using the names, images, and likenesses (NIL) of student-athletes in broadcasts and rebroadcasts of games, DVDs, photos, video games, etc., without compensation to the athletes. This Article examines the implications of the challenges raised in In re NCAA Student-Athlete Name & Likeness Licensing Litigation on the future of amateurism, the …

Promises To Keep? Coaches Tubby Smith, Jimmy Williams And Lessons Learned In 2012, Adam Epstein, Henry Lowenstein

Adam Epstein

The primary purpose of this article is to explore the 2012 legal decision that stemmed from an employment-related fiasco in 2007 when Coach Orlando Henry “Tubby” Smith first formed his staff at UM and asked coach Jimmy Williams from Oklahoma State University to join him as an assistant coach. Smith’s offer, however, proved not to be a legally binding offer, at least according to the Minnesota Supreme Court, because Smith apparently did not have the authority to make the offer in the first place. In fact, Jimmy Williams was declared by the Minnesota Supreme Court majority to have been sophisticated …

"Show Me The Money!"-Analyzing The Potential State Tax Implications Of Paying Student-Athletes, Kathryn Kisska-Schulze, Adam Epstein

Adam Epstein

On March 26, 2014, the Chicago district (Region 13) of the National Labor Relations Board (NLRB) ruled that Northwestern University football players qualify as employees and can unionize and bargain collectively, a decision which contravenes the National Collegiate Athletic Association’s (NCAA) core principle of amateurism. Shortly after, Northwestern University filed an appeal with the NLRB in Washington, D.C. to quash the prior Region 13 decision. This case has added fuel to the longstanding debate over whether student-athletes should be paid. Amidst arguments both for and against supporting the pay-for-play model from a purely compensatory stance, there has been minimal focus …

Lessons From The Nba Lockout: Union Democracy, Public Support, And The Folly Of The National Basketball Players Association, Matthew J. Parlow

Matthew Parlow

The Potential Unintended Consequences Of The O'Bannon Decision, Matthew J. Parlow

Matthew Parlow