Entertainment, Arts, and Sports Law Commons^™

When Broader Is Better: Interpreting The Computer Fraud And Abuse Act When Employees Exceed Authorization To Access Data, Daniel J. Cohen

Cardozo Arts & Entertainment Law Journal

The note advocates for a broader interpretation of the phrase "exceeds authorized access" under the Computer Fraud and Abuse Act (CFAA). It argues that this interpretation should encompass both accessing information without authorization and misusing information that was initially authorized. The author contends that this broader view aligns with Congress's intent to prevent the misuse of computer systems, ensuring the CFAA remains an effective tool against computer crimes.

"If You Can Afford Me": Reconceptualizing Expert Testimony Offered To Calculate Music Copyright Damages, Amanda Inglesh

Cardozo Arts & Entertainment Law Journal

The note argues that expert testimony in music copyright infringement cases often leads to unreliable damages calculations and undue prejudice, undermining the fairness and balance intended by copyright law. It advocates for stricter evidentiary standards and the use of neutral, court-appointed experts to address these issues and ensure that damages awards align with the purpose of copyright law, which is to compensate creators without stifling artistic creativity.

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.

The Fourth Amendment At The Border, Daniel Farrell

Cardozo Arts & Entertainment Law Journal

The note addresses the tension between the Fourth Amendment protections against unreasonable searches and the border search exception, focusing on electronic devices. It argues that despite the border exception, which allows warrantless searches, electronic devices should be treated differently due to the vast personal data they contain. The author advocates for a uniform standard requiring probable cause for invasive searches of electronic devices at the border to balance privacy rights with national security concerns.

The Secrets Behind Reality Television Shows And Their Unconscionable Contracts, Stephanie Rimberg

Cardozo Arts & Entertainment Law Journal

The note argues that reality television show contracts are often unconscionable due to the significant imbalance of power between producers and participants. These contracts frequently classify participants as independent contractors, despite their integral role in the show, and include provisions that are procedurally and substantively unfair, such as disclaimers of liability and arbitration clauses. The author contends that these contracts violate California contract law and public policy, advocating for participants to be reclassified as employees and for contracts to be amended to protect their rights.

Extraterritorial Damages In Patent Law, Thomas F. Cotter

Cardozo Arts & Entertainment Law Journal

In 2018, the Supreme Court in WesternGeco LLC v. ION Geophysical Corp. held that the owner of a U.S. patent could recover its lost profit on sales it would have made outside the United States, but for the defendant's violation of 35 U.S.C. § 271()(2) a rarely used provision of the Patent Act that prohibits, subject to certain conditions, the export of patented components for combination abroad. The Court left open the question of whether owners also can recover extraterritorial damages resulting from the (much more common) setting in which the defendant is accused of an initial act of making, …

Inside The Bellotti Court, William E. Lee

Cardozo Arts & Entertainment Law Journal

The article examines the legal and historical connections between the Supreme Court's decisions in Bellotti v. Federal Communications Commission and Citizens United v. Federal Election Commission, emphasizing how Bellotti laid the groundwork for Citizens United. It argues that Justice Powell's opinion in Bellotti was pivotal in establishing that corporations have First Amendment rights to engage in political speech, a principle later expanded in Citizens United. The article critiques the narrative that Powell solely favored corporate interests, highlighting his broader concerns about government overreach in regulating speech. It also explores the implications of these rulings on campaign finance …

Constitutive Choices: Section 230 And First Amendment Values Versus Fosta And President Trump's Executive Order, Scott Memmel, Christopher Terry

Cardozo Arts & Entertainment Law Journal

In 2018, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) produced the first category of speech not provided immunity by Section 230 of the Communications Decency Act. This first cut against Section 230 was followed by President Donald Trump's May 2020 executive order aimed at limiting the legal protections for social media companies. Both of these actions represent a new battle over old ideas about protecting expression. This Article uses Paul Starr's "Constitutive Choices" model to suggest that Section 230 represents a legacy of laws and regulations designed to foster free speech and access to information. …

The Ordinary Authors Of The Bureau Of New Plays: Copyright And Reallocating Authority In The American Theatre (1936-1949), Brent Salter

Cardozo Arts & Entertainment Law Journal

This Article examines the brief history of the Bureau of New Plays, a nonprofit enterprise funded in 1936 by seven major Hollywood film studios and administered by the Theatre Guild's Theresa Helburn, to identify and develop talented young American playwrights. A study of the Bureau of New Plays provides a window into the authority that playwrights, and particularly younger writers, exercised over the work they created. In one respect, the establishment of the Bureau of New Plays complemented American copyright's general trajectory toward the expansion of the rights of the individual author, and in the context of the theatre the …

An Estate Plan For Kanye West, Thomas E. Simmons

Cardozo Arts & Entertainment Law Journal

One inventory item in megastar Kanye West's vast portfolio of assets merits a unique sort of care and safeguarding his right ofpublicity. The right ofpublicity is a property interest which represents the commercial value of a celebrity's name, image, and likeness. In some states, including California, the right survives the celebrity's death and is freely alienable and devisable. A protective arrangement, such as a trust, is often pursued to impose postmortem use and transferability restrictions on property that has particular importance to the testator. This Article proposes a noncharitable purpose trust as a means by which Kanye West's right of …

Post-Etherdelta: Clarifying Liabilities For Cryptocurrency Exchanges And Market Participants, Robert Sistoso

Cardozo Arts & Entertainment Law Journal

The rise of cryptocurrencies has led to the development of both centralized and decentralized exchanges, which face significant regulatory challenges under U.S. securities laws. The SEC has applied the Howey test to determine whether tokens qualify as securities, and its enforcement actions, such as against EtherDelta, highlight the need for clarity on the liabilities of developers, operators, and users in decentralized systems. The article advocates for the SEC to refine its regulatory approach to balance investor protection with the promotion of innovation in blockchain technology.

Fashion's Brand Heritage, Cultural Heritage, And The Piracy Paradox, Felicia Caponigri

Cardozo Arts & Entertainment Law Journal

This Article explores the role that heritage has on our understanding of the appropriateness of intellectual property protection for fashion designs in light of Christopher Sprigman and Kal Raustiala's seminal work in The Piracy Paradox. At times, heritage seems to both reinforce Sprigman and Raustiala's argument that fashion thrives in a low-IP regime and, at other times, heritage challenges that argument. Taking Italian fashion design as a case study, this Article considers the intersection of brand heritage, cultural heritage, and intellectual property law and makes three central observations. First, that fashion designs reflecting brand heritage thrive in a low-IP …

Where Code Is Chaos: Content Platforms And Algorithmic Incentives, Amy L. Landers

Cardozo Arts & Entertainment Law Journal

This Article considers the intersection of the piracy paradox in the context of the attention economy, the algorithmic behavior of content platforms, and intellectual property's incentive theory. This inquiry is framed by a micro-history of a micro-dispute between two micro-celebrities about a color-block sweatshirt design of debatable originality. Because purchases are largely made to engage and support the creator as interactive communication, the arguments for legal protection for influencer merchandise are weak. Therefore, this field appears to be an ideal space for the operation of the piracy paradox.

This conclusion might be persuasive if anti-copying norms or other considerations minimized …

Fashion, Models, And Intellectual Property, Andres Sawicki

Cardozo Arts & Entertainment Law Journal

In this Article, I revisit the impact of Professor Kal Raustiala and Professor Christopher Sprigman 's landmark article, The Piracy Paradox. Their work identified an empirical anomaly that was difficult to explain in light of the standard justification for intellectual property rights: although IP law does not grant meaningful exclusivity in novel fashion designs, the fashion industry invests significant resources developing those novel designs. To account for this anomaly, The Piracy Paradox shifted the focus from the supply side of innovation to the demand side. The standard justification emphasized that innovators face threats of copying that they cannot easily mitigate; …

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.

From A Circuit Split To A District Split: Amending Copyright Lawsuits After Fourth Estate Public Benefit Corporation V. Wall-Street.Com, Llc, Habeeb Sheikh

Cardozo Arts & Entertainment Law Journal

The note examines the legal implications of the Supreme Court's decision in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, which resolved a circuit split by adopting the "registration approach" for copyright lawsuits. This approach requires a copyright registration to be granted by the Copyright Office before a lawsuit can be filed. The article argues that lower courts are now divided on whether plaintiffs can amend their complaints to include newly registered copyrights after the initial filing, and it advocates for allowing such amendments to ensure fairness and efficiency in the judicial process.

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 …

Registration And Federalization: 75 Years Of The Lanham Act, Mark P. Mckenna, Brittany Von Rueden

Cardozo Arts & Entertainment Law Journal

The Lanham Act, enacted 75 years ago, aimed to enhance notice and uniformity in trademark law, primarily through improved registration processes. However, its goals were only partially met. While it successfully federalized trademark law, it fell short in emphasizing registration due to court interpretations that allowed enforcement of unregistered marks, leading to a more complex and expanded scope of trademark protection.

Mark Talk, Alexandra J. Roberts

Cardozo Arts & Entertainment Law Journal

The article argues that trademark law should evolve to incorporate "mark talk"—consumer discussions and usage of trademarks on social media and online platforms—as a key factor in determining secondary meaning. Traditional methods, such as advertising expenditures and sales data, are critiqued for their limitations in the digital age. The author advocates for updating legal frameworks to reflect contemporary consumer interactions, emphasizing that mark talk provides direct evidence of consumer perception and a mark's distinctiveness. However, courts and the USPTO have been slow to adopt these modern approaches, highlighting a disconnect between legal practices and the realities of digital communication.

The Final Chapter Of The 200-Year-Old Story?: A Comment To Professor David Rudenstine, Samantha Anderson

Cardozo Arts & Entertainment Law Journal

The article argues that the British Museum's claim to the Parthenon Marbles is based on questionable evidence, with the key document, the firman, neither found nor recorded in Ottoman archives. This suggests the legal basis for ownership is weak and potentially fraudulent, undermining the museum's legitimacy.

Comment On Trophies For The Empire: A New York Perspective On Greek Claims To The Parthenon Sculptures At The British Museum, Raymond J. Dowd

Cardozo Arts & Entertainment Law Journal

The article argues that Greece has a strong legal case for the return of the Parthenon Marbles from the British Museum, particularly if issues like statutes of limitations and sovereign immunity are overlooked. It suggests that under New York law, Greece would likely succeed and encourages Greece to pursue legal action, potentially through a declaratory judgment in Greek courts to resolve the legal dispute and influence public opinion.

Trophies For The Empire: The Epic Dispute Between Greece And England Over The Parthenon Sculptures In The British Museum, David Rudenstine

Cardozo Arts & Entertainment Law Journal

The article challenges the British Museum's claim to the Parthenon sculptures, arguing that the evidence undermines the legality and ethics of their acquisition. It asserts that Lord Elgin's removal of the sculptures was unauthorized and involved bribery, and that the British Museum's defense relies on flawed historical interpretations and misrepresentation of key documents. The article concludes that the moral and legal arguments increasingly favor the repatriation of the sculptures to Greece.

Comment On Trophies For The Empire By David Rudenstine, Lawrence M. Kaye

Cardozo Arts & Entertainment Law Journal

The article presents a comprehensive analysis of the dispute over the Parthenon Sculptures, arguing that Lord Elgin's removal of the sculptures was unlawful and that their retention by the British Museum is morally indefensible. It advocates for the repatriation of the sculptures to Greece based on legal, cultural, and ethical grounds.

David Rudenstine Takes A New, Close Look At The Centuries-Old Debate Over The Parthenon Sculptures, Thomas R. Kline, Olga Symeonoglou

Cardozo Arts & Entertainment Law Journal

David Rudenstine challenges the British Museum's claim that Lord Elgin had permission to remove the Parthenon Sculptures, arguing that historical evidence, including discrepancies in key documents, undermines this claim. He posits that the lack of valid permission and evolving attitudes towards cultural restitution strengthen the case for returning the sculptures to Greece.

Comment On Trophies For The Empire: The Epic Dispute Between Greece And England Over The Parthenon Sculptures In The British Museum By David Rudenstine, Michael Mccullough

Cardozo Arts & Entertainment Law Journal

The article challenges the British Museum's legal and moral justifications for retaining the Parthenon Marbles, arguing that the key historical documents cited to legitimize Lord Elgin's removal of the sculptures do not provide valid authority. The analysis concludes that the British Museum has misrepresented the facts surrounding the acquisition and that its continued possession lacks a legal or ethical basis. The article advocates for the repatriation of the Marbles to Greece, emphasizing considerations of fairness and justice.

A New Standard For Right Of Publicity Protection For Statistics In The Era Of Daily Fantasy Sports And Legalized Sports Betting - A Critique Of Daniels V. Fanduel And A Revival Of An Economic-Based Rationale To Protect Athletes' Property Rights, Mark Conrad

Cardozo Arts & Entertainment Law Journal

The Indiana Supreme Court's unanimous decision in Daniels v. FanDuel, addressing whether the use of an athlete 's name and statistical information is subject to a right ofpublicity, has the potential to serve as a persuasive precedent-and formidable obstacle-in future sportsrelated legal matters. Specifically, in rejecting the plaintiff's claim, the court ruled that publicly available statistical information used in a daily fantasy sports game is protected speech under a statutory "newsworthy value" exemption found in the state's right of publicity law. The panel also determined that the use of athletes'names and images are protected as well. On the surface, …

Table Of Contents - Cardozo Arts & Entertainment Law Journal, Vol. 38, Iss. 2

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Patent Fraud By Design, Mordechay Sorek, Miriam Marcowitz-Bitton, Yotam Kaplan

Cardozo Arts & Entertainment Law Journal

Patent law is supposed to offer property-right protection to inventors in order to promote and incentivize innovation. Yet current patent law doctrine effectively incentivizes patentees to defraud the patent office, allowing them to secure undeserved legal protection. What is worse, once such protection is fraudulently obtained, patentees can use it to stop downstream innovation, harm competitors, and charge supracompetitive prices to consumers. The current patent system generates all of these harms because it offers strong legal protection while failing to impose equally strong sanctions against those who attempt to abuse it. Indeed, the current system rarely sanctions patentees who have …

Breaking With Convention: The Conceptual Failings Of Scènes À Faire, Robert Kirk Walker

Cardozo Arts & Entertainment Law Journal

According to the scenes a faire doctrine, the standard or stock elements in an expressive work cannot, by themselves, support a copyright infringement claim. Like the idea/expression dichotomy and the merger doctrine, scenes a faire is intended to limit the scope of what authors may claim as their exclusive property and, in doing so, to promote the continued health of the public domain. Just as you can't hold copyright in an idea, you also can't copyright a standard dramatic convention or literary device. However unlike its doctrinal siblings, scenes a faire has received little attention from legal scholars, and courts …