Entertainment, Arts, and Sports Law Commons^™

The Trouble With T-Shirts: Merchandise Bootlegging In The Music Industry, Andrew E. Clark

UC Law SF Communications and Entertainment Journal

Merchandise bootlegging is a serious problem in the music industry. Since potential profits are enormous and the bootleggers' costs of doing business are negligible, a host of entrepreneurs have entered the bootlegging business and are reaping millions of dollars of illicit profits. Artists and licensed merchandisers through legal efforts have helped to alleviate the problem but additional action is required. The author examines bootlegging and analyzes the theories upon which legal actions have been based. In concluding that the current remedies are inadequate, the author proposes legislative solutions that will result in effectively protecting the rights of artists and licensed …

Fcc Regulation And Other Oxymorons: Seven Axioms To Grind, Erwin G. Krasnow, Harry F. Cole, William E. Kennard

UC Law SF Communications and Entertainment Journal

This article takes a light-hearted, yet pointed, look at the regulatory policies of the FCC. In particular, the authors discuss seven regulatory axioms that seem to have plagued the Commission in keeping up with communications technology. If the Commission were willing to discard these "antediluvian" maxims, there is hope that the Commission can adapt to the electronic media. To this end, the authors suggest seven modern axioms to replace those that the Commission presently follows.

Voir Dire: Is There A Consitutional Right Of Access, Kathleen A. Kelly

UC Law SF Communications and Entertainment Journal

The United States Supreme Court has ruled upon the public's constitutional right to attend criminal trials in Richmond Newspapers, Inc. v. Virginia, and the right to attend preliminary hearings in Gannett Co. v. DePasquale. This note analyzes whether there is a constitutional right of access to voir dire. The note explores the distinction between trial and pretrial events and the historical practice and structural purpose of voir dire. The author suggests that voir dire be considered under the Gannett analysis. Accordingly, the author concludes that there is no constitutionally guaranteed right to attend voir dire.

Constitutional Limitations On Libel Actions: A Bibliography Of New York Times V. Sullivan And Its Progeny, 1964-1984, Frank G. Houdek

UC Law SF Communications and Entertainment Journal

No abstract provided.

The Selig Case And Amortization Of Player Contracts: Baseball Continues Its Winning Ways, S. Barksdale Penick

UC Law SF Communications and Entertainment Journal

Over the years professional sports teams have enjoyed special treatment under the law. In the mid-1970's, however, there was a general tightening of the tax treatment of sports teams. This note examines the Tax Reform Act of 1976 and recent court decisions which have tried to determine the proper allocation of cost to player contracts purchased with a sports franchise. Although no accurate method of allocating cost has yet been found, the author concludes that the court in Selig v. United States went too far in permitting significant amortization deductions for owners of baseball teams and that this extreme extension …

The Disabled Student Athlete: Gaining A Place On The Playing Field, Kathleen De Santis

UC Law SF Communications and Entertainment Journal

Historically, students with physical or mental impairments were barred from participating on school sports teams because school officials feared that these disabled students faced a greater risk of serious injury than their non-handicapped peers. The author examines recent student challenges to athletic disqualification decisions and concludes that the equal protection clause and section 504 of the Rehabilitation Act provide effective means for combatting handicap discrimination in school athletics.

Protecting And Regulating Commercial Speech: Consumers Confront The First Amendment, Barbara Burnett

UC Law SF Communications and Entertainment Journal

Although courts have determined the necessity of regulating commercial speech, first amendment considerations also require commercial speech be accorded a certain amount of protection from regulation. Preventing false and deceptive advertising is the express goal of such regulation. The author suggests a functional analysis approach be applied to commercial speech to determine the extent of first amendment protection due. Functional analysis would break down commercial messages into those that are factually verifiable and those that are subjective. The author suggests this approach would be the first step to providing a standard by which messages may be evaluated for constitutional protection.

The Reexamination Of Cable Television's Compulsory Licensing Royalty Rates: The Copyright Royalty Tribunal And The Marketplace, Dale N. Hatfield, Robert Alan Garrett

UC Law SF Communications and Entertainment Journal

This article examines the compulsory licensing royalty rates which the Copyright Revision Act of 1976 imposed on cable operators. The authors assert that changing conditions in the cable industry have eliminated the original need for a strict royalty schedule, and that the Copyright Royalty Tribunal, in its discretion, should adopt new rates which reflect those reasonably charged in the marketplace. The authors additionally argue that Congress itself should use this marketplace approach to amend the statutory rates applied to distant signal programming retransmitted by cable.

Workers' Compensation Insurance For Entertainment Loan-Out Corporations, Edward Branigan, Bruce M. Stiglitz

UC Law SF Communications and Entertainment Journal

This article is an insightful discussion of the factors a California "loanout" corporation must weigh in determining what type of workers' compensation coverage, if any, it should purchase. Certain "loan-out" corporations may, according to statute, elect not to purchase coverage. Corporations so electing assume numerous risks in not purchasing coverage and may have unexpected liability to injured persons. The authors point out certain, less expensive, coverage plans may be appropriate for some "loan-out" corporations in lieu of complete or no coverage. They also reveal several ways that a "loan-out" corporation may avoid liability if it purchases partial coverage or does …

What's Entertainment - An Inquiry Into The Educational And Amusing Aspects Of Educational Play Parks, Jennifer J. Martin

UC Law SF Communications and Entertainment Journal

An innovative type of amusement park offering a blend of education and entertainment is emerging throughout the country. The author discusses whether these educational play parks should be considered as educational facilities or amusement parks for state and local amusement tax purposes. The focus of the discussion is the examination of the terms "education" and "amusement." The author analyzes the impact of the ruling in Big Mama Rag, Inc. v. United States, and the issues in the dispute between the first educational play park, Sesame Place, and the township of Middleton.

Don't Make Waves: Am Stereophonic Broadcasting And The Marketplace Approach, Mark Peyton Schreiber

UC Law SF Communications and Entertainment Journal

This note discusses AM stereophonic broadcasting and examines the FCC's approach for the implementation of this new service. The selection of the technical standard for AM stereo was left to market forces after the Commission found itself unable to choose one proposal to be the standard. The author demonstrates why this approach is inappropriate. Of the remaining regulatory avenues available, the author feels the FCC should revise the evaluation process to more accurately reflect the differences among the proposed standards. From this fresh comparison, one should be selected to be the AM stereo standard. The Kahn proposal appears to be …

Subliminal Projection: History And Analysis, Thomas Albert Bliss

UC Law SF Communications and Entertainment Journal

This article examines subliminal projection, the process whereby information is transmitted to one's subconscious without one's knowledge, as it applies to audio-visual media. The author outlines the psychological basis for the process, then describes the various techniques that have been devised for exploiting the process. A detailed history of experimental and nonexperimental applications is followed by a discussion of the responses by lawmaking, regulatory and programming bodies to those applications and the process in general. The author argues that, lacking statutory bases for prevention of the use of subliminal projection, the most appropriate tort theory on which to base an …

Journalists' Interference With Police: The First Amendment, Access To News And Official Discretion, Kent R. Middleton

UC Law SF Communications and Entertainment Journal

A journalist at a news scene, such as the site of a car accident with trapped victims, may be denied access by police officer who believes the journalist's presence will hinder his performance. In such situations, the journalist's interest in access to obtain news and the officer's interest in performing official duties are in conflict. This conflict is analyzed in the author's discussion of New Jersey v. Lashinsky where a news photographer refused to leave a news scene at an officer's request and was prosecuted and convicted for interference. The author argues that the New Jersey Supreme Court improperly upheld …

Copyright Protection For Video Games, Computer Programs And Other Cybernetic Works, Marilyn A. Brody

UC Law SF Communications and Entertainment Journal

Computer software is an increasingly important form of intellectual property. Continued investment and development depends on patent or copyright protection, but as Apple v. Franklin demonstrates, courts disagree as to the appropriateness of such protection. Consistent application of the law based on a clear understanding of the underlying technologies is essential. Against this background, and using concepts from cybernetics and information theory, a specialized form of copyright is suggested as the appropriate protection mechanism.

Video Game Regulation And The Courts, Linda Sue Dobb

UC Law SF Communications and Entertainment Journal

Local governments have traditionally used anti-gambling, licensing and curfew statutes to control the presence of pinball machines, pool halls and bowling alleys within their communities. This note analyzes the recent use of similar statutes to limit the number of video games, the location of video arcades and the ownership of amusement centers. It concentrates on the constitutional challenges by owners of video devices to anti-gambling, licensing and curfew statutes as applied to these games. The rights of property owners, youths and games players of all ages are examined as courts decide whether "Pac-Man," 'Space Invaders" and "Asteroids" are entitled to …

Metromedia V. San Diego Iii: Content Regulation, Commercial Speech, And The California Supreme Court's Recent Billboard Decision, Steven Saxton

UC Law SF Communications and Entertainment Journal

In Metromedia v. San Diego III, the California Supreme Court laid to rest San Diego's billboard ordinance, rejecting guidelines set forth by the United States Supreme Court for curing the ordinance's constitutional defects. This note examines the reasons for the California court's decision. The author analyzes the various uses of "content neutrality" in first amendment adjudication, and traces the influence of content neutrality principles on the development of commercial speech doctrine. In turn,this analysis is applied to the Metromedia cases to explain the inconsistencies among them.

Trade Screening Laws: A Survey And Analysis, Thomas A. Bartasi

UC Law SF Communications and Entertainment Journal

For years, movie distributors have used "blind bidding," a licensing method under which an exhibitor bid and negotiated sight unseen, for the right to exhibit a motion picture. This article presents a comprehensive survey of state statutes, known as "trade screening laws," which have attempted to make the licensing process more open and fair. By examining the restrictions and prohibitions contained in the various statutes, this survey is directed at assisting legislators who seek to enact or revise trade screening laws.

The Danger Of Illusion: A Critique Of Safety Regulations In The Television And Motion Picture Industry, Shawn M. Christianson, S. Claire Soper

UC Law SF Communications and Entertainment Journal

Numerous accidents on movie sets in recent years have heightened concern over how the entertainment industry is protecting the safety of its actors and crews. This note explores statutory remedies and intra-industry safety regulations available to minimize the dangers and concludes they are inadequate. The authors suggest specific legislation which would require safety monitors on the set, more careful control of explosives, and higher monetary penalties for safety violations.

Simon Geller And The Comparative Renewal Process: What's Good For Gloucester, Frances C. Lindemann

UC Law SF Communications and Entertainment Journal

The Federal Communications Commission (FCC) employs a "comparative renewal process" in determining which of two mutually exclusive applicants should be granted a broadcasting license. This note examines the controversial method used in awarding licenses by focusing on the case of Simon Geller, the first instance in which the FCC failed to renew an existing broadcasting license when challenged by a new applicant. It considers the factors weighed in the comparative renewal process, questions whether they were accurately applied in the Geller case, and discusses whether the comparative renewal process really protects the "public interest."

What Does Negligence Mean In Defamation Cases, Marc A. Franklin

UC Law SF Communications and Entertainment Journal

Ten years have passed since the Supreme Court decided Gertz v. Robert Welch, Inc. and introduced "fault" analysis into defamation cases. The author examines how the courts have approached the determination of a defendant's fault in the years since Gertz. He further reviews recent statistical data and insurance trends, and analyzes the impact that the emergent negligence standard has had on libel litigation.

The Athlete As Public Figure In Light Of Gertz V. Robert Welch, Inc., Or Torts In Sports: The Role Of The Courts, Richard M. Wise

UC Law SF Communications and Entertainment Journal

Recognizing the need for a systematic treatment of the public figure doctrine in relation to professional athletes, this article examines the tension between first amendment rights of free speech and the athlete's right to privacy. The author presents a brief history on the law of defamation and analyzes the differences between limited and general public figures. Supporting a flexible framework of analysis, he proposes close scrutiny of the mitigating factors of time and audience. Only then, he concludes, will the courts be able to protect both the constitutional guarantees of free speech and the athlete's personal interest in his reputation.

Spotlight On The Jury: Trial Publicity And Juror Privacy, Susan L. Greenberg

UC Law SF Communications and Entertainment Journal

The note examines the current law regarding media coverage of jury trials and the effect of such publicity on the privacy rights of jurors. The author proposes that the competing rights of jurors and the media be balanced in order that jurors' privacy rights may be protected without excluding the media from the courtroom.

The Courts In Broadcast Regulatory Policy-Making, Lawrence D. Longley, Erwin G. Krasnow, Herbert A. Terry

UC Law SF Communications and Entertainment Journal

In the early decades of broadcast regulation, the regulatory process was dominated by (and largely restricted to) three major participants--Congress, the Federal Communications Commission (FCC), and the industry itself. This balance of forces has now been altered by the increased involvement of three new participants in broadcast regulatory policy making the public, in the form of citizen groups; the White House, by means of special advisory bodies, appointment powers, budgetary control, and active communication-oriented divisions of Cabinet level agencies; and the courts, in the form of judicial opinions prescribing and precluding FCC policy initiatives. These three new activist participants in …

Control Of, And Access To, On-Line Computer Data Bases: Some First Amendment Issues In Videotex And Teletext, Henry Beck

UC Law SF Communications and Entertainment Journal

Information stored in centralized data banks is now accessible by home computer over telephone and cable networks, and through over-the-air broadcasting. The proprietors of these data banks may be said to "publish" their information each time an end-user retrieves information from their data bases. If taken seriously, this concept of "electronic publication" raises important first amendment questions.

After a brief introduction to the nature of the new medium, this article discusses some of the first amendment issues involved in access to stored information bases and the "mirror image" problem of controlling such stored information. Because many of the potential first …

Federal Preemption Of State Obscenity Law Applied To Broadcasting, William Hanks, Steve Coran

UC Law SF Communications and Entertainment Journal

With the expansion of cable and free-air subscription television into more markets, interstate transmission by satellite and by broadcasting have frequently included R-rated movies. This increases the likelihood that states will apply obscenity laws and other laws related to program content to television programming. This article argues that state obscenity laws applied to broadcasting are preempted by federal law. There are several grounds for concluding that Congress intended to preempt: (1) the Communications Act empowered the FCC to establish a nationwide telecommunications system, and it is probable that state obscenity laws would conflict with each other and with federal broadcast …

Cable Television Secured Financing, Robert G. Weiss, Alan G. Benjamin

UC Law SF Communications and Entertainment Journal

Lenders financing cable television construction and operation commonly use the cable television system itself as collateral. This article focuses on the documentation requirements and the legal impediments to realization of anticipated cash flow. Documentation includes the security agreement and the financing statement; this article also examines documentation in relation to the municipal franchise. Legal impediments include rate controls, recent developments in antitrust law and competition from alternative technological systems such as subscription television, direct broadcast satellite, multipoint distribution service, satellite master antenna television, low power television and home view networks.

People Ex Rel. Gow V. Mitchell Brothers: California Gropes For A Civil Obscenity Standard, Peter F. Frost

UC Law SF Communications and Entertainment Journal

Recent years have seen an increase in the number of civil nuisance actions to restrain the exhibition of obscenity. Authorities have split over whether civil or criminal procedural standards should govern such actions. The California Court of Appeal, in People ex rel. Gow v. Mitchell Brothers Theatre, has addressed some of these issues. The author examines the court's reasoning regarding the appropriate remedies and standard of proof in such actions. In addition, the author addresses the propriety of a jury trial, concluding that a jury trial should be a matter of right in the determination of obscenity.

Mississippi's Prohibition Of Alcoholic Beverage Advertising: A Constitutional Analysis, Charlotte K. Ito

UC Law SF Communications and Entertainment Journal

Mississippi prohibits alcoholic beverage advertising to further its interest in promoting temperance. This note applies the first amendment commercial speech standard to the advertising ban and concludes that the alcoholic beverage advertising ban is an unconstitutional restraint of free speech. Further consideration of the interplay between the first and twenty first amendments indicates that to the extent that the ban violates first amendment interests, it is unsupported by the twenty first amendment.

Feature Film Secured Financing: A Transactional Approach For Lender's Counsel, Robert G. Weiss, Alan G. Benjamin

UC Law SF Communications and Entertainment Journal

The authors describe the legal techniques that can be used by a secured lender's counsel to reduce the risks attendant upon the interim financing of feature films. The authors tell counsel how to accomplish the essential and inter-related tasks of (1) defining, perfecting and protecting a security interest in the feature film and related collateral; (2) assuring timely and on-budget delivery of the feature film; and (3) assuring receipt of promised presale advances used to "take out" the interim lender.

Copyright Infringement: An Argument For The Elimination Of The Scenes A Faire Doctrine, Don M. Tamura

UC Law SF Communications and Entertainment Journal

This note deals with a relatively obscure aspect of copyright law-the scones a faire doctrine. In recent years it has gained popularity as a defense for potential infringers. The note first discusses the background of copyright law and the elements of a copyright infringement action. Then, two major theories and a procedural methodology are outlined before the scones a faire doctrine is defined and analyzed. After comparing the doctrine with the established theories of copyright protection, the author concludes that the doctrine is seriously flawed and conflicts with the other theories.