Law Commons^™

From The Editor, Steven Lopez Editor

Vanderbilt Journal of Entertainment & Technology Law

Two years ago, thirty-six law students embarked on an uncertain journey to create a new law journal-a legal publication that would fuse creative form with engaging content. The result, the Vanderbilt Journal of Entertainment & Technology Law & Practice, you hold in your hands.

The Changing Role Of Agents In Professional Basketball, Bappa Mukherji

Vanderbilt Journal of Entertainment & Technology Law

This Article will discuss the status of agents for NBA players after the adoption of the new collective bargaining agreement (the "1999 Agreement"). First, this Article will summarize the relevant provisions of the prior collective bargaining agreement (the "1996 Agreement") and illustrate how application of these provisions led the owners to declare a lockout. Next, it will review key provisions of the 1999 Agreement. It will conclude by discussing how the new CBA and the recent consolidation in the sports representation business will affect agents.

A Journey Through Olympic Drug Testing Rules: A Practitioner's Guide To Understanding, Jill Pilgrim, Kim Betz

Vanderbilt Journal of Entertainment & Technology Law

While many top U.S. Olympic-caliber athletes have been drug tested throughout their careers, few truly understand the drug testing process. The ever-changing rules and regulations, as well as the increase in the number of doping control programs have proven to be confusing and sometimes inconsistent, despite appearing to assist in the fight against doping in sport. Many organizations cannot interpret their own rules, nor do they fully understand the jurisdictional issues that arise with respect to every sample taken, until they are caught in a crisis. This Article attempts to untangle the web of rules and regulations and provide athletes, …

Tomorrow Never Dies: The Protection Of Fictional Characters Under The Federal Trademark Dilution Act, Kristen Knudsen

Vanderbilt Journal of Entertainment & Technology Law

A number of different protections are available for fictional characters under intellectual property law. These have traditionally included copyright, trademark, and unfair competition, or some combination thereof. Another avenue of protection can be found in state dilution statutes, which prohibit unauthorized uses of characters that could harm their reputations, such as by "blurring" their ability to indicate one source, or by "tarnishing" their commercial value. This harm may occur even where there is no likelihood of public confusion, and even where the use is on a noncompeting good. Many commentators have criticized state dilution theories, however, as contravening the purposes …

Publication, Musical Compositions, And The Copyright Act Of 1909: Still Crazy After All These Years, Michael B. Landau

Vanderbilt Journal of Entertainment & Technology Law

The copyright clause of the United States Constitution empowers Congress "to promote the Progress of Science and useful Arts, by Securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The purpose of copyright law is to strike a balance between the public's desire to have free access to information and authors' rights to protection of their private works. Common law copyright somewhat reflects this balance by providing the author with perpetual protection until first publication. Federal copyright law, however, with its more limited duration for protection, better balances these competing interests. Once …

Of Black Holes And Decentralized Law Making In Cyberspace, David G. Post

Vanderbilt Journal of Entertainment & Technology Law

MAPS, the primary focus of this tale, is a California non-profit limited liability company. It coordinates a kind of group boycott by Internet service providers (ISPs) for the purpose of reducing the flow of what is commonly called "spam"- unsolicited bulk e-mail. It operates, roughly, as follows. The managers of MAPS create and maintain what they call the "Realtime Blackhole List" (RBL), which consists of a long list of Internet addresses. They place on the RBL any Internet address from which, to their knowledge, spam has originated. They also place on the RBL the address of any network that allows …

Sender Beware: The Discoverability And Admissibility Of E-Mail, William Decoste

Vanderbilt Journal of Entertainment & Technology Law

This Note will explore the current body of jurisprudence concerning the discoverability and admissibility of e-mail in both the civil and criminal contexts. Beginning with a brief explanation of the relevant forms of information technology and electronic communication, it will examine the common misconceptions that fuel the ongoing imprudent use of e-mail. It will then trace the development of the case law, from the foundational cases that first confronted electronic evidence to recent precedent specifically addressing the various forms of contemporary e-mail. Federal statutory law regulating the acquisition and use of electronic communications will also be discussed. This Note will …

Pay For Play: An Old Tactic In A New Environment, Douglas Abell

Vanderbilt Journal of Entertainment & Technology Law

Promotional strategies involving payola --the payment of cash, drugs, or any other consideration to radio stations and their employees in exchange for airplay-- are generally illegal under federal law. Theoretically, these laws prohibit only undisclosed payola practices. Payola scandals of the late 1980s, however, illustrate that such practices have not ended. In fact, the Telecommunications Act of 1996 (the "Act") created an environment in which pay-for-play, a disclosed and fully legal form of payola, could thrive. The possibility of returning to practices reminiscent of illegal payola has, however, sparked debate as to whether record labels should ever pay radio stations …

First Amendment & Goal: High School Recruiting And The State Actor Theory, David W. Dulabon

Vanderbilt Journal of Entertainment & Technology Law

After hearing the arguments of both sides, the District Court for Middle Tennessee held that the recruiting rule violates the First Amendment, making the sanctions imposed by the TSSAA on Brentwood Academy void and unenforceable. On appeal, the Sixth Circuit failed to address the First Amendment issue due to its holding that the TSSAA did not constitute a state actor for constitutional law purposes. The Sixth Circuit concluded that the TSSAA's actions are not fairly attributable to the state of Tennessee. The court also noted that Brentwood Academy's purely voluntary association with the TSSAA prevented the private high school from …

How To Can Spam, Gary Miller

Vanderbilt Journal of Entertainment & Technology Law

Receiving unsolicited commercial email, also known as "Spam," is like receiving junk mail, postage due. Spam shifts the cost of advertising from the advertiser to the consumer. This imposes enormous costs on Internet Service Providers (ISPs) and their customers. The Spam problem cries out for a legislative solution, and that is why I introduced H.R. 2162, the "Can Spam Act." The source of the Spam moniker for unsolicited commercial e-mail is apparently attributed to an annoying song in a Monty Python skit. In the skit, actors dressed like Vikings sing the word "Spam" over and over again, becoming louder and …

Guarantying A Hit (Or Miss): Understanding The Completion Guaranty Business In Hollywood, James W. Coupe

Vanderbilt Journal of Entertainment & Technology Law

Titanic was. So was Waterworld. Heck, even The Adventures of Baron Munchausen was. Blockbusters? No. Oscar winners? Wrong again. Yet these three films do share one unfortunate characteristic-- each of these pictures was over budget, drastically in some cases. Although caused by different forces and cured by different individuals, each film eventually forced someone to pay a great deal of money unexpectedly. Like many unforeseen expenses, these too can be insured against. Enter stage right, a completion guaranty company.

Any and all film productions financed by non-producer third parties should have a completion guaranty. In the most fundamental terms, a …

Don't Sell Out, Sell Bonds: The Pullman Group's Securitization Of The Music Industry, Hewson Chen

Vanderbilt Journal of Entertainment & Technology Law

Securitization is the selling of debt to investors. In general, securitization converts future income streams like credit card receivables or auto loan payments to present in-pocket cash. Notably, this transformation from future income to current wealth gives the issuer of the security immediate access to cash at less cost than other financing methods such as bank loans. In the 1970s, this technique was applied to the housing industry, and since then, securitization has evolved into greater varieties of income streams, including medical insurance, typhoon insurance, and unused airline tickets. The application of securitization in the entertainment industry, however, remains largely …

The Wrong Tool For The Right Job: Are Commercial Websites Places Of Public Accommodation Under The Americans With Disabilities Act Of 1990?, Patrick Maroney

Vanderbilt Journal of Entertainment & Technology Law

The text of the ADA does not support such an extension. The interpretative canons of "noscitur a sociis" and "ejusdem generis" dictate that "places of public accommodation" refer exclusively to physical facilities. The canons also sufficiently resolve any possible statutory ambiguities, thereby foreclosing the opportunity for contrary agency interpretations. Although the intentionally broad purpose and design of the ADA make the statute an attractive avenue for advocates of online expansion, that same purpose and design limit the ADA to physical facilities. This note addresses the issues in two parts. First, it presents the arguments just listed. Second, it recognizes the …

The Hollywood Shuffle: Protecting Film Investors, Mark Litwak

Vanderbilt Journal of Entertainment & Technology Law

In Los Angeles, the city of a thousand stories, many tales are told by financiers who complain they have been cheated by producers or distributors. As would be expected in any industry grossing about seven billion dollars annually at the domestic box office, the movie business attracts more than its fair share of disreputable characters. The glamour of the business ensures a steady stream of star-struck investors motivated by non-financial concerns. This combination of the unsavory and inexperienced often produces hand-shake deals made without the proper investigation and due diligence. Consequently, experienced investors often refuse to even consider film-related investments. …

Planning For The Future: Using Child Support Trusts To Prepare Both Father And Child For Life After Professional Sports, Thomas C. Quinlen

Vanderbilt Journal of Entertainment & Technology Law

The issue of professional athletes siring children out of wedlock was first thrust into the national conscience in an article in Sports Illustrated in May 1998. The SI piece was followed by several newspaper articles in various cities around the country, but like most hot news topics, it was quickly forgotten as the nation moved on to more pressing issues. This Note aims to revisit this issue with an eye towards practical and legal resolution of this pervasive problem, suggesting ways that lawyers and agents can establish child support trusts to represent their clients' interests and provide the best result …

From The Editor, Steven Lopez - Editor

Vanderbilt Journal of Entertainment & Technology Law

Welcome to the second issue of The Vanderbilt Journal of Entertainment Law & Practice. As always, we have blended legal scholarship, readable style, and engaging design to create a publication that we hope is as informative as it is entertaining. In the areas of Music, Internet, Film/TV, and Sports, you'll hear from scholars, practitioners, students, and even a United States Congressman on issues that are timely, compelling, and relevant, to life and practice. We'd like to thank the professional and student writers whose sleep- less nights and deadline-driven efforts made this publication possible. We also owe a great debt of …

Fighting The Phantom Menace: The Motion Picture Industry's Struggle To Protect Itself Against Digital Piracy, S. E. Oross

Vanderbilt Journal of Entertainment & Technology Law

Digital technology, combined with the influence of the Internet, represents an increasingly dangerous threat to the protection of copyrights in the global marketplace. Industries like Hollywood with business models based primarily on selling and/or licensing intellectual property have much to lose if that protection falters.

Jack Valenti, the president of the MPAA, knows this all too well. In recent testimony before the House Subcommittee on Telecommunications, Trade and Consumer Protection of the Commerce Committee, he described how the growing availability of certain digital technology could turn online piracy into the bane of the motion picture industry. Noting that Internet pirates …

Concerts: Rated Or Raided? First Amendment Implications Of Concert-Rating, Deborah Cazan

Vanderbilt Journal of Entertainment & Technology Law

This Note examines the constitutionality as well as practicality of two different concert-rating statutes. San Antonio ordinance 61,850, the first attempt at concert-rating, has never been challenged constitutionally. This Note asserts that if the ordinance were challenged, the Court would find it constitutionally valid on its face, despite the possibility of unconstitutional applications. However, some unconstitutional consequences remain. The second statute examined is one recently proposed by Senator Shugars in the Michigan state legislature. Like the San Antonio ordinance, this Note concludes that Senate Bill 239 would also withstand a constitutional challenge.

This Note examines the history and structure of …

Truckin' In Style Along The Avenue: How The Grateful Dead Turned Alternative Business And Legal Strategies Into A Great American Success Story, Brian C. Drobnik

Vanderbilt Journal of Entertainment & Technology Law

That the Grateful Dead were "different" undoubtedly is true on a broad social level. But it is not so easy to ascertain how they were different in the business and legal aspects of their enterprise. The ephemeral nature of their approach stems from the fact that they conducted their affairs within and alongside the world of statutes and contracts and yet provided themselves with a great degree of independence from that world. This Note will comment on the Dead's perspective on and their ultimate rejection of many of the business and legal strategies traditionally ascribed to in the industry. After …