Entertainment, Arts, and Sports Law Commons^™

Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey

Faculty Scholarship

This short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. …

Authors And Machines, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Machines, by providing the means of mass production of works of authorship, engendered copyright law. Throughout history, the emergence of new technologies tested the concept of authorship, and courts in response endeavored to clarify copyright’s foundational principles. Today, developments in computer science have created a new form of machine, the “artificially intelligent” (AI) system apparently endowed with “computational creativity.” AI systems introduce challenging variations on the perennial question of what makes one an “author” in copyright law: Is the creator of a generative program automatically the author of the works her process begets, even if she cannot anticipate the contents …

Existential Copyright And Professional Photography, Jessica Silbey, Eva Subotnik, Peter Dicola

Faculty Scholarship

Intellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual …

A "Bad Rap":R. V. Skeete And The Admissibility Of Rap Lyric Evidence, Ngozi Okidegbe

Faculty Scholarship

The use of accused-authored rap lyric evidence is no longer rare in Canadian criminal proceedings. Adduced by Crown prosecutors, rap lyrics written or co-written by an accused are increasingly used in criminal trials as evidence of the accused’s intent, knowledge, motive, identity, or confession to the commission of the specific offence charged. The practice is not without controversy. The introduction of an accused’s artistic work in the form of rap lyrics at trial engages trial fairness concerns. Without a keen awareness of the social and cultural context that produces rap music, trial actors risk inflating their probative value and underestimating …

When Popular Culture And The Nfl Collide: Fan Responsibility In Ending The Concussion Crisis, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Intellectual Property As Seen By Barbie And Mickey: The Reciprocal Relationship Of Copyright And Trademark Law, Jane C. Ginsburg

Faculty Scholarship

Some years ago, caselaw on trademark parodies and similar unauthorized “speech” uses of trademarks could have led one to conclude that the law had no sense of humor. Over time, however, courts in the US and elsewhere began to leaven likelihood of confusion analyses with healthy skepticism regarding consumers’ alleged inability to perceive a joke. These decisions did not always expressly cite the copyright fair use defense, but the considerations underlying the copyright doctrine seemed to inform trademark analysis as well. The spillover effect may indeed have been inevitable, as several of the cases in which the fair use defense …

All Quiet In The Western (European Football) Front: Regulation Of Football In The European Continent, Petros C. Mavroidis

Faculty Scholarship

Regulation of football in Europe is, absent some piecemeal interventions (like sharing of TV rights) largely non-existent. This is the case, because the de facto regulator (UEFA, Union Européenne of Football Associations) has no mandate to comprehensively address on its own competitive balance, the focal point of football, and, in more general terms, sports regulation. Various aspects of competitive balance are part and parcel of antitrust law. European Union (EU) law thus, comes into the frame, since this is the body of law regulating antitrust in the European continent. The European Union, nevertheless, has no mandate to regulate football comprehensively, …

"Free Speech, First Amendment, And New Media For Cons And Festivals" From Pop Culture Business Handbook For Cons And Festivals, Jon Garon

Faculty Scholarship

This article is part of a series of book excerpts from The Pop Culture Business Handbook for Cons and Festivals, which provides the business, strategy, and legal reference guide for fan conventions, film festivals, musical festivals, and cultural events.Although most events are organized by private parties, the location of these events in public venues and the crowd management issues involving free speech make First Amendment and free speech issues a critical component of event management. This excerpt provides a framework for understanding the legal and security issues involving free speech at public events.

"Revenues And Expenses For Cons And Festivals" From The Pop Culture Business Handbook For Cons And Festivals, Jon Garon

Faculty Scholarship

This article is part of a series of book excerpts from The Pop Culture Business Handbook for Cons and Festivals, which provides the business, strategy, and legal reference guide for fan conventions, film festivals, musical festivals, and cultural events.When organizing a festival or Con, the economic model used to develop the event will drive many of the key decisions. If one accepts that the designing of the Con is a form of building a complex game for the attendees, then the Con economy will define many of the structural design choices which will come later in the planning. These chapters …

"The Reel Story: Film Festivals And Markets" From The Pop Culture Business Handbook For Cons And Festivals, Jon Garon

Faculty Scholarship

This article is part of a series of book excerpts from The Pop Culture Business Handbook for Cons and Festivals, which provides the business, strategy, and legal reference guide for fan conventions, film festivals, musical festivals, and cultural events.There may be between three thousand and four thousand film festivals running this year. Compared to fewer than 750 feature films that are released theatrically during the year, the overwhelming number of film festivals make this experience somewhat unique within the Con culture. A film festival attracts its audience in order to highlight the best work it can showcase and to recognize …

"The Theories Underlying The Con Environment" From The Pop Culture Business Handbook For Cons And Festivals, Jon Garon

Faculty Scholarship

This article is part of a series of book excerpts from The Pop Culture Business Handbook for Cons and Festivals, which provides the business, strategy, and legal reference guide for fan conventions, film festivals, musical festivals, and cultural events.Content from Cons and festivals dominate U.S. pop culture. The conventions serve as launching pads for new artists, entrepreneurs, and innovators. The smaller versions of these events create space to develop fan fiction, allow new artists to expose their work to interested audiences, and provide an entry point for new creative enterprises. As a cultural event and platform for expression, these events …

Clear Statement Rules And The Integrity Of Labor Arbitration, Stephen F. Ross, Roy Eisenhardt

Faculty Scholarship

Under the common law, employment contracts are submitted to civil courts to resolve disputes over interpretation, breach, and remedies. As an alternative, parties in labor contexts can agree to resolution by an impartial arbitrator, whose decision is reviewed deferentially by judges. Where employees are subject to rules of a private association, they are often contractually obligated to submit their claims to an internal association officer or committee; the common law provides for judicial review more limited than a civil contract but more searching than is the case for an impartial labor arbitrator. Recently, the National Football League and its players …

Clarifying The Clear Meaning Of Separability, Shyamkrishna Balganesh

Faculty Scholarship

Speaking of the Copyright Act of 1909, noted copyright scholar Benjamin Kaplan had this to say about the role of judges therein:

[T]he statute, like its predecessors, leaves the development of fundamentals to the judges. Indeed the courts have had to be consulted at nearly every point, for the text of the statute has a maddeningly casual prolixity and imprecision throughout....

Judges, however, who in recent times have inclined against brutality, have run the risk of appearing slightly ridiculous in their tortuous interpretations.

The Copyright Act of 1976 was designed to avoid this imprecision and overt reliance on judicial creativity. …

Euro-Yearnings? Moving Toward A "Substantive" Registration-Based Trademark Regime, Jane C. Ginsburg

Faculty Scholarship

In Alan Jay Lerner’s lyric, Professor Henry Higgins laments: "Why can’t a woman be more like a man?" Professor Rebecca Tushnet’s provocative article in effect urges that a U.S. trademark should be more like a European Union trademark, at least with respect to the relationship of registration to substantive protection. The article convincingly exposes the current incoherence in U.S. trademark law – a hybrid between “procedural” and “substantive” registration regimes, in which the traditional emphasis on use-based trademark rights undermines the business-planning benefits that flow from registration.

Before elaborating on the similarities between Tushnet’s suggested reforms of U.S. trademark law …

Speaking From The Grave. Should Copyright Listen?, Jessica Silbey

Faculty Scholarship

Should authors be able to control the use of their work after they die? It’s a question that touches deep personal and public concerns. It resonates with longstanding debates in literary studies over the “death of the author” and “authorial intent,” and is an issue that Professor Eva Subotnik tackles in her latest article, Artistic Control After Death (forthcoming in the Washington Law Review).

Currently, U.S. copyright expires 70 years after the author’s death so that control of an author’s copyrights extends far into the future. Long after an author creates a work, often decades after publication and the work’s …

Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French

Faculty Scholarship

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most …

Fair Use And The New Transformative, Brian Sites

Faculty Scholarship

No abstract provided.

Inequality, Discrimination And Sexual Violence In Us Collegiate Sports, Erin E. Buzuvis, Kristine Newhall

Faculty Scholarship

While college athletics attract thousands of participants and millions of fans each year, examination of United States college athletics reveals a pattern of inequality, discrimination and abuse, which operates to foreclose women's access and suppress women's interest in athletic participation and leadership. This Chapter examines three gender related issues of integrity in college athletics: gender discrimination in athletic participation and opportunity; barriers to leadership for women coaches and administrators; and the relationship between athletics and sexual violence at college and universities. The Chapter also identifies a number of remedies that can mitigate these problems involving the Department of Education, Congress, …

Parody And Fair Markets, Jessica Silbey

Faculty Scholarship

In December 2011, the UK Intellectual Property Office commissioned the Centre for Intellectual Property Policy and Management at Bournemouth University to research the effects of parody on copyrighted works. Do parodies harm the market for the underlying work? How might we measure the economic effects of parody, as incentive depressors or engines?

UK copyright law does not contain an exception specifically covering parodies. The authors of the study perceive the UK copyright law as one of the most restrictive in seven jurisdictions surveyed (US, Canada, Australia, France, Germany, Netherlands, UK) with regard to parodies. By commissioning this research, the UK …

Art Resale Royalty Options, Herbert I. Lazerow

Faculty Scholarship

Proposed federal law requires payments from the reseller of art to an artist when her work is resold. They can be conceptualized as a substitute for copyright royalties or for the profits of a joint venture between the artist and the collector. Application is analyzed by art type, especially multiples, place of sale, and nationality or residence of the seller, buyer, intermediary or artist, and by what constitutes a sale in a world of leases, exchanges, gifts, bequests, charitable donations, loans and casualty losses. If the base is gross sales price, is that the amount the seller receives, the amount …

The Rise And Fall Of Bad Judge: Lady Justice Is No Tramp, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Disruption And Deference, Olivier Sylvain

Faculty Scholarship

Online video streaming applications enable users to watch over the-air broadcast programs at any time and almost on any device. As such, they challenge the pertinence of traditional video distribution law and the broadcast network system on which it is based. Congress enacted the Transmit Clause of the 1976 Copyright Act to resolve the high-stakes tussle between broadcasters and cable providers. But, today, that provision is ill-suited to resolving whether unauthorized streaming infringes on broadcasters’ copyright to perform works publicly. Its scope is ambiguous enough that judges across the country were notably divided on whether it reaches online video distribution—that …

A Rapid Reaction To O'Bannon: The Need For Analytics In Applying The Sherman Act To Overly Restrictive Joint Venture Schemes, Stephen F. Ross, Wayne Desarbo

Faculty Scholarship

This Article reviews the recent and highly publicized district court decision holding that NCAA rules, which bar student-athletes from any compensation for image rights, violated the Sherman Act, and that big-time athletic programs could lawfully agree among themselves to limit compensation to $5,000 annually in trust for each athlete upon leaving school. This Article briefly discusses why the decision correctly found the current rule to be illegal, but also details why, under settled antitrust law, the critical question of how much compensation would significantly harm consumer appeal for college football and basketball is a question better left to marketing science …

A Strategic Legal Challenge To The Unforeseen Anticompetitive And Racially Discriminatory Effects Of Baseball’S North American Draft, Stephen F. Ross, Michael James Jr.

Faculty Scholarship

Major League Baseball (MLB) has honored a single player by retiring his number for every club. Absent special commemorations, no player will wear the number “42” in honor of the man who broke the color barrier to become the first African American to play major league baseball in the modern era: Jackie Robinson. MLB has also honored a single player—chosen from nominees from each individual club—by presenting an annual award for humanitarian service in his name; that honoree is Roberto Clemente. However, the sad reality is that if a fifteen-year-old Jackie Robinson were growing up today in South Pasadena, California, …

Athletic Compensation For Women Too? Title Ix Implications Of Northwestern And O'Bannon, Erin E. Buzuvis

Faculty Scholarship

The NCAA has been relying on Title IX requirements to defend its polices prohibiting compensation for college athletics; it argues that paying athletes in revenue sports, coupled with the commensurate obligation under Title IX to pay female athletes, would be prohibitively expensive.

As a response to the NCAA’s argument, the Author seeks to advance two positions: first, that Title IX would, as argued by the NCAA, require payment of female athletes using some measure of equality; and second, that it is not Title IX that renders the prospect of athlete compensation cost prohibitive, but rather, the fact that college athletics …

Is Music The Next Ebooks? An Antitrust Analysis Of Apple's Conduct In The Music Industry, Alexa Klebanow, Tim Wu

Faculty Scholarship

Over the last twenty years, two waves of technological change have transformed the way people purchase and listen to music. First, digital downloads displaced physical sales of albums. More recently, digital downloads, once the primary way to gain access to digital music, have come to be challenged by streaming services. Apple, a leader in the digital download market with iTunes, has engaged in various strategies to meet the challenge. This Note specifically focuses on two types of conduct: Apple’s pressure on labels to enter into exclusive license agreements, also known as windowing, and Apple’s pressure on the market to abandon …

Barriers To Leadership In Women's College Athletics, Erin E. Buzuvis

Faculty Scholarship

Today there is an enormous gender disparity among collegiate head coaches and athletic administrators in the United States. Women fill less than a quarter of head coach and athletic director positions in college athletics and are even minorities among coaches of women's teams. Few other professions are as impervious to gender integration. Leadership in college athletics is, in the words of one scholar, one of the "few male bastions remaining," which raises the question: Why are women so starkly underrepresented in leadership positions within college athletics? There is no easy answer, but rather a variety of factors that exclude, deter, …

We (Still) Need To Talk About Aereo: New Controversies And Unresolved Questions After The Supreme Court's Decision, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Recent judicial interpretations of U.S. copyright law have prompted businesses to design technologies in ways that enable the making and transmission of copies of works to consumers while falling outside the scope of the owner's exclusive rights. The archetypal example is Aereo Inc.'s system for providing online access to broadcast television, which the Supreme Court has now ruled results in infringing public performances by Aereo.

In previous work we urged the Court to develop a principled reading of the transmit clause focusing on the particular use rather than on the technical architecture of the delivery service (Giblin & Ginsburg, "We …

Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media, Meg Penrose

Faculty Scholarship

This paper takes a closer look at the First Amendment rights of college athletes to access social media while simultaneously participating in intercollegiate athletics. The question posed is quite simple: can a coach or athletic department at a public university legally restrict a student-athlete's use of social media? If so, does the First Amendment provide any restraints on the type or length of restrictions that can be imposed? Thus far, neither question has been presented to a court for resolution. However, the answers are vital, as college coaches and athletic directors seek to regulate their athletes in a constitutional manner.

How Copyright Law May Affect Pop Music Without Our Knowing It, Peter K. Yu

Faculty Scholarship

Commissioned for a symposium on copyright law and the creation of music, this article explores five questions about popular music that can be illuminated by greater insights into copyright law and the music business. Why do popular songs usually last for fewer than five minutes? Why are professional songwriters dissatisfied with Pandora and Spotify? Why can we bring European CDs back to the United States? Why can't YouTube videos be created with ASCAP/BMI licenses? Are digital downloads sales or licenses? And as a bonus: Why did the royalty rate for sheet music stay at seven cents per copy?

It is …