Antitrust and Trade Regulation Commons^™

The Shifting Economics Of Influencer Sponsorship Disclosures, Uri Y. Hacohen

Cardozo Arts & Entertainment Law Journal

Conventional wisdom holds that disclosing influencer sponsorship diminishes advertising's effectiveness by triggering consumer skepticism. Responding to this perceived transparency gap, regulators have adopted mandatory disclosure regimes to address a perceived market failure: the divergence between private commercial incentives and the public interest in transparency. This Article challenges that assumption. Drawing on a large-scale social media experiment (N=600), it demonstrates that disclosures not only increase consumers' recognition of advertising but also improve their attitudes toward both influencers and brands, while significantly boosting their willingness to share promotional content. These empirical results are further supported by a comprehensive synthesis of the emerging …

Seeing Is Believing? Deepfakes In Financial Markets, Hadar Y. Jabotinsky, Michal Lavi

Cardozo Arts & Entertainment Law Journal

An AI-powered tool recently mimicked Warren Buffett's image and voice so convincingly that even his own family could have been deceived. This striking example highlights the transformative potential of voice cloning and deepfakes. This innovative technology leverages artificial intelligence (AI) to create hyper-realistic audio and video content. By blurring the boundaries between authenticity and synthetic creation, deepfakes make it possible to fabricate moments that never occurred. Recent advancements in AI and user-friendly software have made deepfakes more accessible andfurther contributed to the proliferation of deepfakes, enabling even individuals with minimal technical skills to produce compelling deepfakes at little to no …

Duped: The Implications Of The Proliferaiton Of Superfake Luxury Goods And What Consumers May Not Have Considered, Riann Colbert

Cardozo Arts & Entertainment Law Journal

The proliferation of "Superfake" luxury goods, which are high-quality counterfeit items nearly indistinguishable from authentic products, poses significant challenges to trademark law, consumer protection, and the broader economy. These items, often sold through e-commerce platforms, not only undermine legitimate businesses but also expose consumers to health risks, support organized crime, and perpetuate environmental harm. The note advocates for enhanced legal frameworks and consumer education to mitigate these issues.

"The Gift Of A Golden Voice": Shaping The Right Of Publicity To Protect Performers From A.I. Abuses, Sebastian Saavedra

Cardozo Arts & Entertainment Law Journal

The note explores the evolving nature of the right of publicity, a unique area of intellectual property and privacy law that protects individuals' control over their likeness and persona. It examines the challenges posed by emerging technologies, particularly AI-generated content, and advocates for a balanced approach that integrates elements from trademark and copyright law while respecting First Amendment rights. The analysis emphasizes the need to protect performers' rights to their public image without undermining established legal frameworks.

Can Commercials Be Art? An Analysis Of Intellectual Property Preawareness In The Barbie Era, Shreya Kalidindi

Cardozo Arts & Entertainment Law Journal

The note examines the evolution of advertising, particularly native advertising, and critiques the inadequacy of current regulatory frameworks in addressing its deceptive potential. It highlights how modern advertising practices, such as product placement in films like Barbie, blur the line between commercial speech and artistic expression, challenging the Federal Trade Commission’s (FTC) ability to protect consumers. The analysis argues that strengthening existing regulations is insufficient and advocates for empowering consumers to make informed decisions, as the legal system struggles to keep pace with innovative advertising strategies.

Jack Daniel's And The Unfulfilled Promise Of Trademark Use, Stacey Dogan, Jessica Silbey

Cardozo Arts & Entertainment Law Journal

The article examines the Supreme Court's decision in Jack Daniel's v. VIP Products and its implications for the use of trademarks in artistic and expressive works. The Court's ruling established a "trademark use" doctrine, distinguishing between uses of trademarks as a designation of source for goods and non-trademark, expressive uses. While the decision does not overturn the Rogers v. Grimaldi test, it creates uncertainty in applying Rogers to expressive works, leading to inconsistent lower court decisions and threatening First Amendment protections for creative uses of trademarks.

Keynote Address: Adjudicating Art, Amy Adler

Cardozo Arts & Entertainment Law Journal

The keynote address critiques the Supreme Court's decision in Andy Warhol Foundation v. Goldsmith for its flawed approach to interpreting the meaning of art in copyright law, particularly in the context of fair use. It argues that courts are ill-equipped to determine the meaning of art, as art often resists reduction to discrete messages or meanings. The Court's reliance on visual analysis and its failure to provide clear guidance on how to assess meaning exacerbate these problems, leading to confusion in lower courts and potentially stifling artistic expression.

(In)Dependence Day: Why The Modern Streaming Industry Requires Modern Antitrust Enforcement, Samuel Kahn

Cardozo Arts & Entertainment Law Journal

The note argues that the contemporary streaming industry, dominated by a few major platforms, mirrors the pre-Paramount era's anticompetitive practices, necessitating a reexamination of antitrust laws to address oligopolistic structures, protect independent creators, and ensure consumer access to diverse content. It contends that the repeal of the Paramount Decrees and the failure of current antitrust frameworks to adapt to the streaming industry's unique challenges have allowed media giants to grow unchecked, stifling competition and innovation.

Deceptive By Nature: A Model For Regulating Native And Embedded Advertising In The Contexts Of Children's Audiences, Zach Cihlar

Cardozo Arts & Entertainment Law Journal

The note advocates for enhanced regulatory measures to protect children from deceptive native and embedded advertising in digital media. It emphasizes the need for the Federal Trade Commission (FTC) to expand its regulatory framework to classify such advertising as deceptive, leveraging existing laws like the Federal Trade Commission Act (FTCA) and the Children's Online Privacy Protection Act (COPPA). The proposed model suggests a combination of stricter regulations, parental involvement through technology, and strengthened self-regulatory mechanisms to address the challenges posed by modern advertising formats.

Introductory Remarks, Carly Rothstein

Cardozo Arts & Entertainment Law Journal

This introductory remark explores the implications of recent Supreme Court decisions in Bad Spaniels and Andy Warhol on intellectual property law, focusing on the evolving landscape of copyright and trademark protections. It highlights the challenges and opportunities these rulings present for balancing artistic expression, cultural norms, and legal frameworks. The symposium serves as a platform for scholars and practitioners to discuss these developments and their broader impact on IP law and policy.

Panel 2: Trademark Law, Stacey Dogan, Christine Haight Farley, Jessica Silbey, Rebecca Tushnet, Felix Wu

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Why Courts Should Not Interpret The Meaning Of Art, Amy Adler

Cardozo Arts & Entertainment Law Journal

The article argues that courts are ill-equipped to interpret the meaning of art, particularly in fair use cases, as seen in the Supreme Court's decision in Warhol Foundation v. Goldsmith. The Court's reliance on determining the meaning of art exacerbates confusion and inconsistency in fair use jurisprudence, highlighting the need for alternative approaches that avoid judicial interpretation of artistic meaning.

Why The Supreme Court Rejected The Prospect Theory Of Copyright Scope, Michael W. Carroll

Cardozo Arts & Entertainment Law Journal

In Google LLC v. Oracle America, Inc. ("Google v. Oracle"), and again in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith ("Warhol"), the parties and various amici presented the Court with a variety of arguments about the relationship between a copyright owner's right to make derivative works from a protected work and a user's right to make fair uses of that same work. At bottom, these arguments were about the proper, or even optimal, scope of copyright.

This Essay argues that these arguments were instead grounded in a form of "prospect theory" of copyright scope that …

Keynote Address, Andrew Zimbalist

Cardozo Arts & Entertainment Law Journal

The article examines the evolution of name, image, and likeness (NIL) policies in college athletics, highlighting the legal, economic, and educational implications of allowing college athletes to profit from their NIL. It argues that while recent legal cases and state legislation have expanded NIL rights, the lack of enforceable guardrails has created a chaotic system dominated by booster collectives, exacerbating financial and equity issues in college sports. The analysis critiques the NCAA's ineffective oversight and advocates for congressional intervention to establish a national framework addressing these challenges.

Pay No Attention To The Influencer Behind The Curtain, Eliza Logan

Cardozo Arts & Entertainment Law Journal

The note argues that the Federal Trade Commission (FTC) must strengthen its regulation of social media influencers, particularly on platforms like Instagram, due to their significant influence on consumer behavior and the potential for deceptive marketing practices. It emphasizes that influencers should be held accountable similarly to advertising agencies, as their unique ability to build trust and authenticity with followers makes their endorsements more impactful than traditional advertising.

The Ftc's "Made In America" Enforcement Policy Is Too Stringent For Small Businesses To Comply With, Jamie Cutler

Cardozo Arts & Entertainment Law Journal

The note argues that the Federal Trade Commission's (FTC) "Made in America" policy is overly stringent and disproportionately burdensome for small businesses. The policy requires products labeled as "Made in America" to contain "all or virtually all" parts and processing from the U.S., a standard that is often ambiguous, economically prohibitive, and misaligned with consumer perceptions. The note contends that this strict enforcement creates a "Hobson's choice" for small businesses, making it infeasible for them to comply without suffering financial harm or reputational damage. It advocates for lowering the threshold to allow more flexibility, which would support small businesses, promote …

Should The Ncaa Be Subject To Title Ix?, Sarah Allen

Cardozo Arts & Entertainment Law Journal

The note argues that the National Collegiate Athletic Association (NCAA) should be held accountable under Title IX of the Education Amendments of 1972, despite its current exemption, due to its significant role in college athletics and the persistent gender disparities in treatment of male and female athletes. It advocates for overturning the Supreme Court's decision in NCAA v. Smith to bring the NCAA under Title IX purview.

Panel 1: Race, Gender & Equity, Len Elmore, Jo Potuto, Kassandra Ramsey, Felix Wu

Cardozo Arts & Entertainment Law Journal

The article discusses the evolution of Name, Image, and Likeness (NIL) rights in college athletics, focusing on the challenges these rights present for race, gender, and equity. It highlights the need for legal and regulatory reforms to address disparities in NIL opportunities and ensure equitable treatment of student-athletes.

Nil Collectives - Title Ix's Latest Challenge, Kassandra Ramsey

Cardozo Arts & Entertainment Law Journal

The article explores the intersection of Name, Image, and Likeness (NIL) Collectives and Title IX, arguing that while NIL Collectives are not directly subject to Title IX, colleges and universities must ensure these organizations comply with Title IX to maintain gender equity. Schools are responsible due to their federal funding and their promotion of these collectives, necessitating guidelines, education, and audits to prevent disparities in opportunities for male and female athletes.

The Supreme Court's Decision In Ncaa V. Board Of Regents: Did The Ncaa Really Misread It So Badly?, John Wolohan

Cardozo Arts & Entertainment Law Journal

Today, college athletes like LSU gymnast Olivia Dunne and Alabama quarterback Bryce Young can earn hundreds of thousands of dollars a year from social media and product endorsements. However; it was only a couple of years ago that the National Collegiate Athletic Association (NCAA) declared University of Central Florida football player Donald De La Haye ineligible to play because he refused to stop monetizing his videos on YouTube, thereby losing his scholarship. The purpose of this paper is to examine the impact the Supreme Court's 1984 decision in NCAA v. Board of Regents has had in the NCAA, going from …

Ambushing Nil Restrictions: How Nil "Conflict Language" Policies Conflict With The First Amendment, Sam C. Ehrlich, Neal C. Ternes

Cardozo Arts & Entertainment Law Journal

The article argues that state NIL (Name, Image, and Likeness) laws and institutional policies restricting college athletes from signing sponsorship deals conflicting with school sponsors infringe upon athletes' First Amendment rights. These restrictions, often broad and imprecise, fail to meet constitutional standards, particularly under the Central Hudson test for commercial speech, and risk being struck down as unconstitutional prior restraints.

Opening Remarks, Christopher J. Buccafusco, Matthew Vernace

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Autumn Is Coming: A Novel Liability Theory That May Kill Pharmaceutical Evergreening, Uri Y. Hacohen

Cardozo Arts & Entertainment Law Journal

Pharmaceutical evergreening-attempts by brand-name manufacturers to leverage patent rights to artificially extend legal protection for drugs-is among the most pressing and unresolved public policy challenges of our time. On July 14, 2021, in Sanofi et al. vs. Unipharm Ltd., the Israeli Supreme Court adopted a novel and internationally unprecedented legal policy to combat the evergreening pandemic. By using its equitable powers, the Israeli court empowered a generic manufacturer, Unipharm, to claim on behalf of the public interest the wrongly obtained monopoly profits that a brand-name manufacturer, Sanofi, obtained by improperly leveraging its improvement patent to impair generic market entry. This …

Strengths And Weaknesses Of Notice And Consent Requirements Under The Gdpr, The Ccpa/Cpra, And The Fcc Broadband Privacy Order, Scott Jordan

Cardozo Arts & Entertainment Law Journal

We compare the notice and consent requirements of the three recent privacy regulations that are most likely to serve as the starting points for the creation of a comprehensive consumer privacy bill in the United States: the European General Data Protection Regulation, the Calfornia Consumer Privacy Act/California Privacy Rights Act, and the Federal Communications Commission's Broadband Privacy Order. We compare the scope of personal information under each regulation, including the test for identifiability and exclusions for de-identified information, and identify problems with their treatment of de-identified information and of pseudonymous information. We compare notice requirements, including the level of required …

Opening Remarks, Anna Antonova, Michael Burstein

Cardozo Arts & Entertainment Law Journal

The article celebrates the 75th anniversary of the Lanham Act, reflecting on its enduring influence on trademark law while addressing its evolution in response to new legal and technological challenges. It highlights the symposium's exploration of the Act's history, its adaptation to modern issues such as internet-related disputes and First Amendment concerns, and its continued relevance in shaping intellectual property law. The piece also underscores the role of the Cardozo Arts & Entertainment Law Journal as a leading platform for scholarly discourse in intellectual property and related fields.

Panel 1: The Scope And Strength Of Trademark Law, Megan K. Bannigan, Leah Chan Grinvald, Theodore H. Davis Jr., Mark P. Mckenna, Felix Wu

Cardozo Arts & Entertainment Law Journal

The article examines the evolution and effectiveness of the Lanham Act, focusing on its impact on trademark law. It discusses how the Act's original goals, such as providing notice of trademark rights and ensuring uniformity in a national commerce context, have been partially met due to the lack of mandatory registration and judicial interpretations that have expanded trademark protections beyond initial intentions. The panelists highlight the tension between the procedural nature of the Act and the substantive changes introduced by courts, leading to both underenforcement and overenforcement issues.

Entertainment Consolidation, Content Monopolies, And The Future Of Information, Emily Faro

Cardozo Arts & Entertainment Law Journal

The acquisition of 21st Century Fox by The Walt Disney Company has raised significant antitrust concerns, as it exemplifies the challenges of modern media consolidation. This horizontal merger has substantially increased Disney's market power, particularly in the entertainment industry, leading to potential anticompetitive effects. The note argues that current U.S. antitrust laws, primarily designed to address historical monopolies, are inadequate in handling the complexities of contemporary media mergers, which often involve both horizontal and vertical integration. The analysis emphasizes the need for updated legal frameworks to consider the broader, long-term impacts of such mergers on competition and innovation.

Is It Really A #Ad? An Increase In Rising Influencers Posting Fake Sponsored Content, Amanda Guzman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

"Gigi, Over Here!": Celebrity Use Of Copyrighted Paparazzi Photographs, Dylan B. Reich

Cardozo Arts & Entertainment Law Journal

The note argues that celebrities should have limited rights to use paparazzi-taken photos of themselves, balancing their rights with those of photographers. It proposes that non-commercial use by celebrities could be permissible under certain legal doctrines.

Trademark Enforcement And Statutory Incentives, Leah Chan Grinvald

Cardozo Arts & Entertainment Law Journal

The combination of the recent U.S. Supreme Court case, Romag Fasteners v. Fossil Group, Inc., and the diamond anniversary of the Lanham Act provides good grounds to reflect on how trademark enforcement and statutory incentives have evolved through the years. Although enforcement of one's trademarks through the use of the courts can be traced back to England in the 1790s, trademark litigation and other enforcement activities have exploded, in relative terms, since the enactment of the Lanham Act in 1946. Although not subject to an easy empirical correlation, this trend suggests that the statute has had an impact on increasing …