Law Commons^™

Visual Arts And The Law: A Bibliography, Part Ii, Gail I. Winson

UC Law SF Communications and Entertainment Journal

No abstract provided.

Attention K Mart Shoppers: In K Mart Corp. V. Cartier, Inc. The Supreme Court Granted District Courts Jurisdiction In Gray Market Disputes, Thomas H. Wolfe

UC Law SF Communications and Entertainment Journal

Overshadowed by the more controversial substantive questions raised by the gray market problem has been the issue of jurisdiction over gray market cases. In K Mart Corp. v. Cartier, Inc, the U.S. Supreme Court decided that the federal district courts, and not the Court of International Trade, have jurisdiction over gray market cases. The Court held that the statute controlling gray market importation cannot be considered an embargo, as that word was intended to be used by Congress. The author argues that the Supreme Court misinterpreted Congress' intent when Congress granted the Court of International Trade jurisdiction over cases involving …

Alternatives To The Fairness Doctrine: Structural Limits Should Replace Content Controls, Christopher A. Hilen

UC Law SF Communications and Entertainment Journal

The abolition of the Fairness Doctrine by the Federal Communications Commission provides an opportunity to reexamine the way in which broadcasters are encouraged to offer programming on controversial issues of public importance. The author outlines alternatives to the Fairness Doctrine and subjects each to a Fair Treatment Test, which requires that the alternative 1) guarantee that the public will receive programming on controversials of importance to it, and 2) provide full first amendment rights to broadcasters. The author concludes that a structural approach to broadcast regulation, under which stricter crossownership limits than presently exist are imposed on broadcasters, offers the …

The Search For Consistency In Constitutional Defamation Law, Elmer Gertz

UC Law SF Communications and Entertainment Journal

Since the U.S. Supreme Court's historic ruling in New York Times v. Sullivan, the law of defamation has been developed largely by the Supreme Court with constitutional protections, removed from common law or statutory development by the states. The author, the plaintiff in the leading defamation case of Gertz v. Robert Welch, Inc., traces the constitutionalization of the law of defamation. The author argues that the Supreme Court decisions since New York Times have been inconsistent and have resulted in the localization of constitutional protection, such that the result in a given defamation case depends on the state in which …

Rediscovering Traditional Tort Typologies To Determine Media Liability For Physical Injuries: From The Mickey Mouse Club To Hustler Magazine, John L. Diamond, James L. Primm

UC Law SF Communications and Entertainment Journal

Confusion exists in the courts over when to impose liability on media defendants for physical injuries. While media defendants are regularly subjected to claims of defamation, invasion of privacy, and sometimes intentional infliction of emotional distress, claims of liability for physical injuries caused by media publication have most often been rejected over concern about infringing on first amendment protection. The authors argue that courts have inappropriately denied liability by failing to differentiate among kinds of media liability cases and by failing to analyze them as they would similar tort cases. The proper differentiation of these cases would insure against diminution …

Comments On International Video Piracy - A Review Of The Problem And Some Potential Solutions, John D. Maatta, Lorin Brennan

UC Law SF Communications and Entertainment Journal

Since the introduction of videocassettes, video piracy has become a problem of international proportions. The authors summarize the various types of video piracy and discuss anti-piracy actions taken by governments and film associations. The authors explore possible solutions to the piracy problem, including an international registration system called a "Carnet de Passage."

Only The News That's Fit To Print: Student Expressive Rights In Public School Communications Media After Hazelwood V. Kuhlmeier, Christopher J. Palmero

UC Law SF Communications and Entertainment Journal

Free expression rights guaranteed to high school students vary widely across America. High school student journalists' first amendment rights were drastically curtailed recently by the United States Supreme Court in Hazelwood v. Kuhlmeier, but California has enacted a statute giving substantial free speech protection to public school students. The author analyzes legal standards articulated by the U.S. Supreme Court, the California legislature, and California courts, applying both federal and California standards to a variety of student expressive media. The author concludes that both standards could be improved by requiring schools to adopt written guidelines and suggests criteria for such guidelines.

The Copyrightability Of Computer Program Screen Displays, Laurie Zeeb Kullby

UC Law SF Communications and Entertainment Journal

Copyright protection for computer programs has traditionally centered on the computer program itself. Recently, a debate has developed in the computer industry as to whether copyright protection should be expanded to cover the audiovisual screen displays generated by the programs. The author traces the development of the current law on this issue and distinguishes it from video game copyright law, in which the screen display has always been the primary object of copyright protection. The author concludes that computer program screen displays should not be registered separately, but instead should be protected under the copyright of the underlying computer program.

Piracy And Gray Markets, Robert W. Steele

UC Law SF Communications and Entertainment Journal

The author discusses parallel imports or "gray market goods" in the context of the federal trademark laws, the regulations promulgated by the Customs Service and its enforcement of these regulations. In the recent United States Supreme Court case, K Mart Corp. v. Cartier, Inc., the author argued on behalf of K Mart. In this speech, the author discusses and rebuts the arguments made by his opponent, the Coalition to Preserve the Integrity of American Trademarks (COPIAT) and contends that parallel imports are advantageous to the American consumer and necessary in any effort to reduce the foreign trade deficit. He concludes …

The Sports Lawyer's Duty To Avoid Differing Interests: A Practical Guide To Responsible Representation, Robert E. Fraley, F. Russell Harwell

UC Law SF Communications and Entertainment Journal

As in the legal profession generally, lawyers in the sports representation area face numerous potential conflicts of interest in representing athletes and other sports personalities. The author maintains that, despite the pervasiveness of these ethical concerns, it is possible for a sports lawyer to maintain vigorous representation of multiple clients, as well as to "reasonably believe' that such interests will not "materially interfere" with the lawyer's "independent professional judgment." The author suggests that sports lawyers may avoid these conflicts if, following a full disclosure of all multiple interests, they obtain the knowing consent from their multiple clients, thereby narrowing the …

In The Ordinary Course Of Business: The Legal Limits Of Workplace Wiretapping, Martha W. Barnett, Scott D. Makar

UC Law SF Communications and Entertainment Journal

The use of telecommunications monitoring and recording devices in the workplace has generated considerable controversy. The authors untangle the interlocking web of federal and state laws that limit the extent to which private businesses may engage in workplace wiretapping, using the laws of Florida as a paradigm of state regulation. In particular, the authors' analysis of cases which interpret federal and Florida wiretapping statutes indicates that courts often take dissimilar approaches to resolve workplace wiretapping issues. The authors also discuss FCC and state public service commission regulations, as well as the effect of a proposed federal "beeper bill." In conclusion, …

The Fact/Opinion Distinction In Libel, Timothy W. Gleadon

UC Law SF Communications and Entertainment Journal

Following Gertz v. Robert Welch, Inc., state and federal courts struggled to develop guidelines to distinguish fact from opinion in libel law. While the existing guidelines have resulted in broader constitutional protection of opinion statements, they do not constrain ad hoc judicial interpretation of text as either fact or opinion. This article examines the fact/opinion distinction from both a communication and a legal perspective and argues that the use of an interdisciplinary approach to the fact/opinion question exposes fundamental problems with the existing guidelines. The author concludes that for opinion to have adequate constitutional protection, context should be used as …

What Is A Newspaper Under California's Retraction Statute - Enquiring Minds Want To Know, Catherine M. Bump

UC Law SF Communications and Entertainment Journal

California Civil Code section 48a limits recovery in defamation suits against newspapers to special damages, unless the plaintiff has unsuccessfully demanded a retraction from the media defendant The seminal case on this issue, Burnett v. National Enquirer, Inc., failed to provide a clear test of what constitutes newspaper status. The author argues that the resulting uncertainty has precipitated a chilling effect on media. In addition, the author contends that modern libel litigation rarely fulfills plaintiffs' objectives and that a broader retraction statute would be a step toward better serving both plaintiffs and defendants in libel cases.

Women's International League For Peace And Freedom, Fresno Branch V. City Of Fresno: Free Speech Access To Transit Cars Under The California Constitution, Lisa F. Graul

UC Law SF Communications and Entertainment Journal

In Women's International League for Peace and Freedom, Fresno Branch v. City of Fresno, a California court of appeal held that under the California Constitution the area within a public bus is not a public forum. Although the court purported to act under the California Constitution, its ruling instead followed the reasoning of a factually similar United States Supreme Court case, which based its ruling on the first amendment to the U.S. Constitution. This note argues that a different outcome should have been reached, based on the case law interpreting the California Constitution's unique "liberty of speech" clause.

Cable Franchising And The First Amendment: Preferred Problems, Undesirable Solutions, Daniel L. Brenner

UC Law SF Communications and Entertainment Journal

The right to construct a cable system has usually been granted to a sole franchisee based on competitive bidding. A series of lawsuits in the 1980's has argued that exclusive grants violate the first amendment rights of excluded, would-be operators. This Article examines the issue as framed by the U.S. Supreme Court's decision in City qf Los Angeles v. Preferred Communications, Inc., concluding that its instruction for a factual examination of a city's justification for exclusive licensing will be mostly unproductive. It concludes that exclusive franchising provided for by Congress in the 1984 Cable Act does not generally violate the …

Obtaining Early And Effective Relief Against Trademark Counterfeiting, Neil A. Smith

UC Law SF Communications and Entertainment Journal

Counterfeiting has become a worldwide industry which generates over a billion dollars worth of business in the U.S. The author traces the development of court-created remedies for trademark counterfeiting, which include temporary and preliminary injunctions, temporary restraining orders (TROs), orders for production and inspection of records and inventory, and seizures of counterfeit merchandise by U.S. Marshalls. Recently, courts have expanded these remedies to include ex parte TROs, granted without notice to the alleged counterfeiter, and sometimes without knowledge of the identity of the counterfeiter, and seizure of counterfeit goods by the plaintiff or the plaintiff's attorney. The author also discusses …

Some Revisions Of A Gray Market Decalogue: A Response To Messrs. Lewin And Steele, William H. Allen

UC Law SF Communications and Entertainment Journal

The author, who represented the Coalition to Preserve the Integrity of American Trademarks (COPIAT), in the recent United States Supreme Court case, K Mart Corp. v. Cartier, Inc., rebuts the arguments in favor of parallel importation made by Nathan Lewin and Robert W. Steele. The author argues that the Customs Service regulations interpreting section 529 of the Tariff Act of 1930 are incompatible with the Act itself and make no economic sense. He contends that there are policy and legal arguments for enforcing section 526 as written, not as the Customs Service has interpreted it, thereby prohibiting parallel importation. Although …

Piracy And Gray Markets In The European Economic Community, Richard L. Moxon

UC Law SF Communications and Entertainment Journal

This Article summarizes the establishment and principal purposes of the European Economic Community (EEC) and selected provisions of the Treaty of Rome. The author analyzes the inherent shortcomings of the provisions of the Treaty as they apply or fail to apply to piracy and counterfeiting of various goods, services and labor within the EEC. The author concludes that counterfeit goods and piracy will continue to be a substantial problem in the EEC absent increased cooperation among the member countries and the development of a common policy designed to deal with these issues.

Emerging Gray Market Balance: A Global Perspective On Solutions For The Nineties, Timothy P. Rumberger

UC Law SF Communications and Entertainment Journal

Significant harms attend both the unrestrained influx of parallel imports and their blanket exclusion. In light of the recent United States

Supreme Court decision in K Mart Corp v. Cartier, Inc., the author examines the causes, symptoms and competing interests of consumers, manufacturers, domestic trademark owners and gray market importers. This Note considers the contemporary legislative, Judicial and executive approaches toward balancing these interests. The author suggests a solution to capture the benefits of parallel imports while effectively eliminating the dangers by means which fairly allocate the policy burdens on those who enjoy the benefits.

Daily Herald Co. V. Munro: 9th Circuit Strikes Down Limits On Election Day Broadcast Of Exit Polls, David J. Cowan

UC Law SF Communications and Entertainment Journal

The broadcast of east coast presidential voting returns before the polls have closed in western time zones has led two western states to enact legislation limiting the media's access to polling places on election day. Proponents of such statutes argue that allowing the media to obtain exit poll data and project the winners before the polls close discourages voters and leads to skewed election results. In Daily Herald Co. v. Munro, the 9th Circuit held that the State of Washington's poll closing statute violated the first amendment if its purpose was to prevent broadcasting of early election returns. The author …

The Supreme Court's Decision In Hustler Magazine V. Falwell: The Demise Of Intentional Infliction Of Emotional Distress For Public Figures, Hollie Their

UC Law SF Communications and Entertainment Journal

The author analyzes both the Fourth Circuit and the U.S. Supreme Court decisions in Hustler Magazine v. Falwell. After comparing and contrasting both decisions, the author concludes that the courts should apply the actual malice standard to claims of intentional infliction of emotional distress when a public figure brings an independent cause of action.

New Concepts Of Contract Liabilities In College Sports: Member Institutions V. The National Collegiate Athletic Association, Kenneth L. Shropshire

UC Law SF Communications and Entertainment Journal

"Big time" college sports are governed by the National Collegiate Athletic Association (NCAA). This private association has the ability to make decisions that can have a devastating financial impact on member institutions. This Article examines the contractual relationship between the NCAA and member institutions and maintains that an award of punitive damages may be appropriate in certain contract breach situations.

The Chilling Effect Of Overprotecting Facutal Narrative Works, Jee Hi Park

UC Law SF Communications and Entertainment Journal

In Salinger v. Random House, Inc., the Second Circuit Court of Appeals implicitly broadened the scope of an author's copyright protection. The author reviews the background doctrines of copyright law and examines their application in recent cases. The author concludes that Salinger and its progeny have caused uncertainty in defining the threshold of copyrightability and asserts three reasons to reverse the court's decision.

Where Will The Buck Stop On California Penal Code Section 330: Solving The Stud-Horse Poker Conundrum, Michael Pierce Singsen

UC Law SF Communications and Entertainment Journal

In California, while it is legal to gamble at the game of draw poker, it is unlawful to play other types of poker, including stud and hold'em. The source of this curious distinction is an 1885 amendment to California Penal Code § 330, which specifically forbids the game of "studhorse poker." One hundred years later, the courts are wrestling with the scope and meaning of this statutory prohibition of a game which is undefined and no longer played by that name. The focus of the dispute is whether the popular game of hold'em poker is outlawed. The author traces the …

May It Rest In Peace: Public Interest And Public Access In The Post-Fairness Doctrine Era, Richard E. Labunski

UC Law SF Communications and Entertainment Journal

Until it was abolished by the Federal Communications Commission in 1987, the Fairness Doctrine was the clearest symbol of broadcasting's "second-rate" first amendment status. This Article traces the history and demise of the Fairness Doctrine and urges Congress to abandon current efforts to enact the Doctrine into law. The author proposes, instead, a system of access that provides broadcast journalists with the full first amendment protection they have long sought, and at the same time protects and enhances the public's interest in broadcasting.

Ideological Exclusions: A Prior Restraint Analysis, Daniel M. Torrence

UC Law SF Communications and Entertainment Journal

The McCarran-Walter Act gives the State Department and the Immigration and Naturalization Service the power to deny visas to visiting foreigners because of their political beliefs. The author argues that excluding foreigners in this way prevents U.S. citizens from exchanging ideas and information with these excluded people, thus infringing the constitutional rights of citizens. Because the first amendment includes a right to receive information and ideas, regardless of their source, the author contends that these ideological exclusions under the authority of the McCarran-Walter Act are unconstitutional.

Advertiser Liability: Soldier Of Fortune Cases Take Deadly Aim At Publishers, Neil L. Shapiro, Karl Olson

UC Law SF Communications and Entertainment Journal

Publishers traditionally have enjoyed immunity from tort liability in running other parties' advertisements. Two recent suits against Soldier of Fortune magazine, arising from the publication of ads for mercenaries, have proved an exception to this rule. In this Commentary, the authors review the law and urge that negligence alone is an insufficient basis on which to impose liability upon a publisher for running another's ad. Rather, the authors argue that liability should be imposed only when the ad promotes a likelihood of lawless conduct which, in turn, creates a substantial risk of serious bodily harm.