Entertainment, Arts, and Sports Law Commons^™

Three Decades Of Supreme Court Copyright Decisions: A Peek Behind The Scenes, Jonathan Band

Joint PIJIP/TLS Research Paper Series

This article discusses the revelations in the case files of eight Supreme Court Justices concerning eighteen copyright-related decisions issued by the Court between 1973 and 2005. The papers show the Court as a profoundly human institution, with the Justices often struggling to craft opinions that could gain the support of a majority. The Justices clearly cared about the copyright merits, but they were also willing to compromise to achieve a certain result. In several cases, the final opinion was anything but inevitable. This was particularly so with Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984), …

Kidfluencer Protection: Illinois’ Attempt At Expanding Its Version Of The Coogan Law., Genevieve Sloan

American University Business Law Review

On July 1, 2024, Illinois enacted pioneering legislation, which expanded its child labor laws to “[m]inors featured in vlogs.” This legislation marks the first successful attempt at protecting the finances of children in the business of social media influencing. Over the past several years, society has started recognizing the dangers of the otherwise lucrative child influencer industry, notably children’s lack of legal entitlement to their earnings.

Accordingly, the Illinois legislation began inspiring similar child labor laws in other states. This Comment analyzes whether Section 95 and Section 100 of Illinois’ Child Labor Law of 2024 maintain parental autonomy and adequately …

Outbid By Technicality: How Streaming Services Weaken Legacy Media’S Matching Rights, Arthur Yolles

American University Business Law Review

Contracts for large-scale media distribution, such as those between sports leagues and broadcasting companies, often include matching rights—rights which guarantee a media distributor the ability to continue distributing content for as long as they can match the bids of third parties. These rights grant media distributors security in their relationships with rights-grantors, and they deliver a more predictable viewing experience for consumers. However, it is not always clear what constitutes a "match."

With the rise of streaming and big tech’s infiltration into legacy media strongholds such as live sports, the need to define a match is increasingly relevant. This Comment …

Copyright In Characters: A Proposal For Reform, Michael W. Carroll

Joint PIJIP/TLS Research Paper Series

The doctrine of character copyright is an eccentricity in copyright law that should either be abandoned or substantially reformed. Originally limited to literary characters, this doctrine decomposes a narrative work in order to recognize characters as works of authorship independent of the narrative works from which they are derived. Claimants generally seek independent protection for characters for three, sometimes overlapping, reasons: (1) to repackage what would otherwise be a weak claim of substantial similarity if comparison were to be made with the work(s) from which the character has sprung; (2) to overcome obstacles posed by prior licensing decisions that have …

Defining “Delineation”: How The Circuit Split On The Delineation Test For The Copyrightability Of Fictional Characters Can Be Fixed, Kurt Bauer

American University Law Review

The standard for the copyrightability of fictional characters needs clarification. Courts have long relied on the delineation test to determine whether a character is sufficiently developed to merit protection separate from its underlying work, yet the circuits diverge on how this test should be applied. The Ninth Circuit’s Towle test relies on overruled precedent, treats characters as static, imposes an originality threshold beyond that required by the Copyright Act, and risks extending protection to inanimate props. In contrast, the Second Circuit has tied delineation more clearly to the Act’s core requirements of originality and fixation, offering a more principled approach. …

Forward Progress: The Rooney Rule And Its Post-Sffa Relevance, N. Jeremi Duru

Scholarly Articles in Law Reviews & Journals

In 2003, the National Football League (NFL), which had long struggled with racial inequity both on and off the field, implemented a policy known as the Rooney Rule, requiring that any league club searching for a head coach interview at least one person of color before making a hire. In the over two decades since, employers of all sorts seeking to increase opportunities for people of color and women have adopted a form of the Rule. Indeed, it has gained traction from coast to coast. Hundreds of American employers utilize the Rooney Rule or a policy derived therefrom. In the …

The Death Of Amateurism: How A Vertical Restructuring Of The Ncaa Could Preserve Its Role As The Governing Body Of Collegiate Athletics, Miles M. Mcdonald

American University Business Law Review

The National Collegiate Athletic Association (NCAA) is struggling to survive as an organizational entity because of near-constant litigation over university and student-athlete rights. As we enter an era of “amateur” sports where student-athletes can earn unrestrained financial compensation for their efforts, the NCAA is struggling to convince stakeholders that it has a worthwhile plan for the everchanging landscape of collegiate athletics. The NCAA retained a purpose as a governing entity when its rules relating to financial inducements and transfer eligibility were enforceable. Now, stakeholders look to separate themselves from the NCAA. To maintain a purpose and survive as the governing …

The Triumph Of Three Big Ideas In Fair Use Jurisprudence, Michael W. Carroll, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

In two recent cases, Google LLC v. Oracle America, Inc. (“Google v. Oracle”), and Andy Warhol Foundation for the Visual Arts v. Goldsmith (“Warhol”), the Supreme Court ratified its 1994 holding that transformative use is the appropriate analytical framework for applying copyright law’s fair use provision. In doing so, the Court withstood significant pressure from industry participants in these cases to change course. This Article argues that the Court’s decisions, which represent one third of the Court’s total merits decisions on fair use, are historic. The principal contribution this Article makes is to demonstrate to courts and parties in future …

A Roadmap To Nil And Taxation, Doron Narotzki, Yariv Brauner

American University Business Law Review

The landscape of college sports has dramatically changed in recent years. What was once considered a place for amateur athletes pursuing education now partially mirrors, at least for some student-athletes, the structure and financial dynamics of professional leagues such as the NFL, NBA, and MLB. However, the collegiate sports ecosystem still remains distinct, shaped by unique regulatory frameworks governed by the NCAA. This article reviews and analyses the implications of these changes, and focuses on the tax considerations surrounding Name, Image, and Likeness (NIL) rights and how the evolving nature of college sports also presents certain tax implications, some of …

Defining "Use In Commerce": The Supreme Court's Evolving Extraterritorial Application Of The Lanham Act, Hannah Lief

American University Business Law Review

On June 29, 2023, the Supreme Court redefined the scope of the extraterritorial impact of the Trademark Act of 1946, also known as the Lanham Act (the “Act”). Overturning the ruling by the Tenth Circuit, the Court narrowed the focus of the Act to solely domestic uses in commerce. While the Court acknowledged that it had interpreted the statute in a manner that granted Congress expansive power over foreign conduct, it stated that the broad language of the Lanham Act does not indicate international application. By instituting newfound principles on congressional authority under the Lanham Act, U.S. trademark registrants can …

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

Scholarly Articles in Law Reviews & Journals

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 would give …

Hollywood's Triple Threat: Writers, Actors, And Antitrust Regulators Take On The Streaming Giants, Remy S. Farkas

American University Business Law Review

In the summer of 2023, Hollywood froze when actors, writers, and crew took to the picket lines. Their gripe: the recent mega mergers by media conglomerates. The Writers Guild Association and Screen Actors Guild American Federation of Television and Radio Artists joined forces to protest recent acquisitions by Disney, Amazon, and Netflix; these companies vertically integrated within the industry, which allowed them to exploit workers, limit content, and raise prices for consumers. In the same summer, the Department of Justice and Federal Trade Commission released Draft Merger Guidelines, which included thirteen new guidelines for evaluating whether a merger violates antitrust …

Regulation Of Football Agents In Europe: A Comparative Law And Economics Analysis, William Bull, Michael Faure

American University Business Law Review

The structure of this contribution is as follows. First, we provide a theoretical framework concerning the need to regulate football agents and the appropriate instruments. Second, we present the evolution of the regulation at the international level of FIFA. This is followed by our examination of the regulatory framework in a few selected European jurisdictions. Lastly, Section V provides a critical comparative analysis, and Section VI concludes.

The Art Of International Law, Hilary Charlesworth

American University Law Review

International lawyers study international law primarily through its written texts—treaties, official documents, judgments, and scholarly works. Critical to being an international lawyer, it seems, is access to the written word, whether in hard copy or online. Indeed, as Jesse Hohmann observes, “the production of text can come to feel like the very purpose of international law.”

How To Get Away With Discrimination: The Use Of Algorithms To Discriminate In The Internet Entertainment Industry, Sumra Wahid

American University Journal of Gender, Social Policy & the Law

In July 2021, Ziggi Tyler posted a video on TikTok, a popular video sharing platform, where he expressed his frustration with being a Black content creator on TikTok. The video showed Ziggi typing phrases such as “Black Lives Matter” or “Black success” into his Marketplace creator bio, which the app would immediately flag as inappropriate content. However, when Ziggi replaced those words with “white supremacy” or “white success,” no inappropriateness warning appeared. Although a TikTok spokesperson responded to the video clarifying that the app had mistakenly flagged phrases without considering word order, Ziggi refused to let an algorithm absolve TikTok …

Trademarks In An Algorithmic World, Christine Farley

Scholarly Articles in Law Reviews & Journals

According to the sole normative foundation for trademark protection—“search costs” theory—trademarks transmit useful information to consumers, enabling an efficient marketplace. The marketplace, however, is in the midst of a fundamental change. Increasingly, retail is virtual, marketing is data-driven, and purchasing decisions are automated by AI. Predictive analytics are changing how consumers shop. Search costs theory no longer accurately describes the function of trademarks in this marketplace. Consumers now have numerous digital alternatives to trademarks that more efficiently provide them with increasingly accurate product information. Just as store shelves are disappearing from consumers’ retail experience, so are trademarks disappearing from their …

It's Not Child's Play: A Regulatory Approach To Reforming American Youth Sports, N. Jeremi Duru

Scholarly Articles in Law Reviews & Journals

Introduction The American youth sports industry has become an economic behemoth, totaling roughly $19 billion in annual revenue. This revenue outpaces National Football League (NFL) revenue by several billion dollars and is more than double the revenue earned by the National Basketball Association and the National Hockey League, combined. The Covid-19 pandemic limited sport on all levels in 2020 and, to a lesser extent, in 2021, and the economic effects thereof will certainly stretch forward into succeeding years. However, as the nation overcomes the virus and children return in full numbers to gyms, fields, tracks, and rinks, youth sports will …

Taxing Sports, John T. Holden, Kathryn Kisska-Schulze

American University Law Review

Sports are no longer mere games. In today’s money-driven culture, they have cultivated into a lucrative business enterprise where everyone—whether professional or amateur; owner or player; coach or spectator—stands to make significant money. Modern sports have also morphed into a landscape encompassing both the traditional athletic events and the more novel esports and daily fantasy sports (DFS) arenas. Across all these physical, digital, and biological spheres, sports revenues are being measured in terms of billions. It thus stands to reason why taxes have become a progressively critical discussion point within U.S. professional and collegiate sports, the video gaming world, and …

The Seal Has Been Lifted: Ncaa And Predominantly White Colleges Must Soon Stop Exploiting Their Black Athletes, Daniel Bartlett

American University Business Law Review

This Comment argues that passing the Amateur Athletes Protection and Compensation Rights Act of 2021 (AAPCA), Fair Pay to Play Act, and similar legislation will allow college athletes to rightfully profit from their names, images, and likenesses and open the door for star athletes to choose HBCUs over traditional Power Five sports programs. Part II of this Comment will explain the legislative and procedural battles student-athletes have faced when arguing against the NCAA for the right to earn compensation. Traditionally the NCAA has avoided compensating its athletes, and courts have avoided tackling the issue. Part III will analyze previous litigation …

Movies To Fall Asleep To: The Antitrust Implications Of Terminating The Paramount Consent Decrees, Isha C. Biswas

American University Business Law Review

This Comment will argue that, while the Consent Decrees seem obsolete in the 21st century when studios own significant numbers of theaters, movies are no longer released one theater at a time like they were in 1948, which implicates relevant antitrust standards. With the prevalence of streaming, termination of the Paramount Decrees would allow streaming giants such as Disney+ and Netflix to monopolize the movie release market through the hybrid release model, impacting future case law and litigation. Part II of this Comment will examine the Paramount case, the consent decrees that resulted from it, and the judicial and congressional …

The Subject Strikes Back: Intellectual Property Law, Visual Pleasure, And Resistance In The Arts, John Tehranian

American University Law Review

In which we discuss self-infringement, monkey selfies, wildlife, Oscar Wilde, (Richard) Prince, Prince (Rogers Nelson), kissing sailors, the metaphor of the hunt, fatwās, the Masters, the male gaze, revenge porn, peeping Toms, surveillance art, nudes at the Met, Rastafarians, celebutantes, Andy Warhol, Jeff Koons, Rockwellian tranquility, and the Three Stooges.

Spider-Man: Work From Home And Retain No Copyright Under The Instance And Expense Test, Shahnoor Kamal Khan

American University Law Review

From Spider-Man to Ms. Marvel, superheroes are beloved by many, but owned by the few. Marvel Entertainment retains the copyright to iconic characters such as these, despite the fact that Marvel’s employees did not create them. These characters were created by freelance artists Jack Kirby, Steve Ditko, and Lawrence Lieber, among others. Yet, the Second Circuit ruled in Marvel Characters v. Kirby that these freelance artists have no claim of copyright over their own masterful works. The Second Circuit relied on the instance and expense test for copyright, as opposed to the Supreme Court’s leading copyright decision, Community for Creative …

Who Killed The Radio Star? How Music Blanket Licensing Distorts The Production Of Creative Content In Radio, Ariel Katz, Eden Sarid

American University Law Review

According to popular and scholarly belief, video killed the radio star. The golden age of radio, culminating in the 1930s and 1940s, was gone with the rise of television in the 1950s and 1960s. In this Article, we advance the claim that television’s role in the “death” of the radio star has been more limited than commonly believed. A major culprit, we argue, is the common licensing practice of musical content for broadcasting, or more precisely, the blanket license issued by copyright collective management organizations (CMOs). By setting a zero marginal price for broadcasting additional songs from the CMO’s repertoire, …

Two Minutes For Unfair Restraint: How The Nhl-Chl Player Transfer Agreement Serves As A Catalyst For Abuse Of Dominance, Alex Dourian

American University Business Law Review

I. INTRODUCTION

The NHL-CHL Player Transfer Agreement (“Agreement”) is an arrangement between the National Hockey League (“NHL”) and Canadian Hockey League (“CHL”). It stipulates that an NHL club must return any CHL player drafted and signed to an NHL entry-level contract (“ELC”) to his CHL club if the NHL club does not retain that player on its active roster at the start of the season. The Agreement applies solely to CHL players ages 18 and 19. Its language limits the ability of these players to play in alternative leagues around the world and thus capture adequate compensation pursuant to their …

Do You Really Know What Happened To Psy?: Controversial South Korean Music Censorship, Min-Soo "Minee" Roh

Legal Writing Competition Winners

This paper was submitted to the Entertainment Law Initiative(ELI)'s The 22nd Annual Entertainment Law Initiative Writing Competition and was recognized by the Recording Academy by a formal letter for admission.

Trapped In The Binary Divide: How Forced Contraceptives Violate The World Anti-Doping Code, Alexandria Adkins

American University International Law Review

No abstract provided.

Raising The Stakes: The Battle Between The First Amendment And Athlete's Publicity Rights In The Wake Of Murphy V. Ncaa, Alexis Nicole Lilly

American University Business Law Review

No abstract provided.

Porn Wars: Serious Value, Social Harm, And The Burdens Of Modern Obscenity Doctrine, P. Brooks Fuller, Kyla P. Garrett Wagner, Farnosh Mazandarani

American University Journal of Gender, Social Policy & the Law

During the 1980s, anti-pornography ideologues—an unlikely alliance of feminist activists and right-wing evangelical Christians—waged an open war against pornography and the anti-censorship feminists who supported legal protection for pornographic works. Following a pivotal defeat of an anti-pornography ordinance in federal court, the ideologies constituted in the so-called “Porn Wars” continued to guide obscenity doctrine. These ideologies have informed lower courts’ understanding of the harms and values associated with sexually explicit content more than constitutional scholars recognize, at least explicitly. Although courts recognize core feminist values such as sexual autonomy and privacy in sexually explicit content, they have built doctrine that …

The Kids Are Alright? The Need For Kidfluencer Protections, Ana Saragoza

American University Journal of Gender, Social Policy & the Law

Introduction

“Maybe guys have your hand on the toy but remember the camera. Leah, I can’t see your face babe, we gotta [sic] see it a little bit.” Nine-year-old identical twins Leah and Ava Clements are comparatively new to influencing, having started at the age of seven. Now at age nine, the twins have over one million followers on Instagram. The twins can earn upwards of ten thousand dollars per sponsored post. The Instagram influencer marketing business is estimated to be valued between five and ten billion dollars. Just as successful are minors who secure equally lucrative sponsorships for product …

Indecency Regulation Of The Fcc And Censorship Law In Republic Korea: Comparison And Contrasts, Min-Soo "Minee" Roh

Upper Level Writing Requirement Research Papers

Regulating music on radio or television is not a straightforward process, as the music is comprised of lyrics of words. On top of the lyrics, any music performance has an additional layer of choreography and dress code. If any individual elements or combined elements is obscene or indecent, the government attempts to regulate broadcasting both music and performance. This leads to regulating general speech on communications and it requires this paper to look into regulation of broadcasting in general and specific examples of music broadcasting regulation on radio and television, particularly, in the United States (“States”) and in Republic of …