Intellectual Property Law Commons^™

Regulating Slate Mailers: Consumer Protection Or First Amendment Infringement, Carol Federighi

UC Law SF Communications and Entertainment Journal

Slate mailers are part of the biennial political process in California. Forprofit enterprises that endorse candidates and issues for a price are big business in California. Despite regulations requiring that slate mailer organizations comply with extensive disclosure measures, many mailers remain deceptive. This note describes the deceptive practices of some slate mailers, discusses current regulation of the business, and analyzes the constitutional implications of regulating protected speech. The author argues that, despite the highly protected nature of political speech, the regulations will survive constitutional challenges, and with minor changes, will provide a model for other states.

Legislating Canned Performances, Janet Boessenecker

UC Law SF Communications and Entertainment Journal

Do people have the right to know whether a concert will feature prerecorded music? Is legislative action needed to protect consumers from another Milli Vanilli-type fraud? A number of states have answered "yes" by introducing legislation to mandate a disclosure on concert advertisements or tickets. This note evaluates the necessity of such legislation in light of current popular music practices and existing law. The author concludes that disclosure laws are unnecessary and would be ineffective as well.

Docudramas: The Legality Of Producing Fact-Based Dramas - What Every Producer's Attorney Should Know, Jacqui Gold Grunfeld

UC Law SF Communications and Entertainment Journal

This article provides a practical guide for the attorney whose client produces fact-based television movies, whether the producer chooses to use resource material from the public domain or obtain rights. The article analyzes the historical development and current state of the personality and property rights that need to be considered; discusses the impact of Son of Sam laws; examines the provisions to be included in rights acquisition agreements; and explores protective measures that can help to minimize the risk of litigation.

The Current State Of Moral Rights Protection For Visual Artists In The United States, Amy L. Landers

UC Law SF Communications and Entertainment Journal

Works of art have been recognized by Congress to embody more than a physical object; rather, these works can be seen to represent the artist's personality. The Visual Artists Rights Act, which codifies moral rights protection in the United States, provides legal recourse for artists whose works have been altered or destroyed in violation of this principle. During the past ten years, several states have also enacted moral rights legislation. This Note explores the current state of moral rights in the United States, with an emphasis upon those states where both federal and state moral rights statutes exist.

Legal Protection For Computer Programs, 1980-1992: A Bibliography Of Law-Related Materials, James E. Duggan

UC Law SF Communications and Entertainment Journal

No abstract provided.

Advertising Injury: Getting The Most Out Of Your Insurance Policy, David P. Brooks

UC Law SF Communications and Entertainment Journal

This article examines recent cases dealing with insurance coverage for intellectual property matters. State and Federal courts in California have recently held that companies that purchase comprehensive general liability insurance policies may be entitled to coverage under the "advertising injury" clause for claims involving unfair competition, copyright infringement, patent infringement, and possibly even trademark infringement. The article examines common insurance policy forms and concludes that advertising injury coverage should be made available to policyholders on a broader scale.

Protein Pharmaceuticals: Altering The Scope Of Product Patents To Accomodate Recombinant Dna Technology, Bret Field

UC Law SF Communications and Entertainment Journal

As recombinant DNA technology has evolved into a prominent tool to synthesize new products in the pharmaceutical industry, courts have been faced with novel infringement issues involving the scope of patents granted to protein pharmaceuticals. This note analyzes the way courts have interpreted the scope of product patents granted to purified product of nature inventions and recombinantly synthesized products. The note highlights the current problems with the judiciary's interpretation of the Patent Act. The note then discusses a better approach to the infringement issues, an approach based on the Food and Drug Administration's procedure when faced with analogous issues raised …

Copyrights And Background Music: Unplug The Radio Before I Infringe Again, Paul Warenski

UC Law SF Communications and Entertainment Journal

The 1976 Copyright Act entitles copyright owners of musical works to compensation for public performances of their songs. Congress carved out several exemptions in the 1976 Act, however, one of which is section 110(5). Section 110(5) denies compensation to copyright owners for transmissions made on radio or television equipment that is comparable to equipment used in private homes. Thus, under section 110(5) the small business owner who listens to a portable radio during business hours need not pay copyright licensing fees to every musician featured on the radio. This note examines the origin, content, and legislative history of the section …

The Right Of Reply To The Media In The United States - Resistance And Resurgance, Jerome A. Barron

UC Law SF Communications and Entertainment Journal

What is the present status of rights of reply and access in the United States? Although there is still no formal right of reply to the print media, efforts continue to create a right of reply to defamatory attack and to enact vindication statutes. Recent developments such as television talk shows and call-in radio demonstrate a renewed interest by the public in reply and access. There is a public effort to leap over the media and to participate directly in the opinion process. These developments are exemplified by the presidential campaigns of Ross Perot and Bill Clinton. Finally, the public …

The Uniform Defamation Act: Is Too Much Being Asked Of The Press In The Quest For Libel Law Reform, Ben Dunlap Jr.

UC Law SF Communications and Entertainment Journal

The Uniform Law Commissioners are preparing to begin debate on the most sweeping changes to libel law since New York Times v. Sullivan. The proposed Uniform Defamation Act, if adopted by the full commission in August 1993 and enacted by state legislatures, would introduce an action for vindication as a non-damages remedy for the aggrieved subjects of defamation. The Act would also attempt to codify many areas of libel law that heretofore have primarily been left to development in the courts. This article examines the central features of the Uniform Defamation Act and how its enactment might affect the current …

Copyright Protection For Audiovisual Works In The European Community, Anne Moebes

UC Law SF Communications and Entertainment Journal

The European Community's copyright laws have been constantly changing in recent years to respond to the dramatic increase in the demand for and supply of audiovisual works. These laws have become necessary because of the increased risk of piracy in conjunction with the Community's continuing efforts toward Community harmonization. This article explores the scope of copyright protection of audiovisual works, the limitation of copyright protection as embodied in the Community "exhaustion" doctrine, and the impact of the Community's harmonization efforts.

A Rose By Any Other Name: Trademark Protection Of The Names Of Popular Music Groups, Barbara Singer

UC Law SF Communications and Entertainment Journal

As the economic value of the names of popular music groups has burgeoned, courts have increasingly been forced to grapple with the complex issues of trademark ownership and infringement of those group names. This article examines those complex issues and sets forth criteria to assist courts as they struggle to resolve them. The article first explores the trademark and contractual methods available for establishing ownership of a popular music group's name. Next, the article examines the manner in which an infringement is determined under the principles of trademark law both in the absence of and the presence of contractual allocations. …

The Trouble With Confidential Sources: A Criticism Of The Supreme Court's Interest-Group View Of The First Amendment In Cohen V. Cowles Media Co., Patrick M. Garry

UC Law SF Communications and Entertainment Journal

For the last several decades, confidential sources have been a controversial media law issue. During the 1970s, the press argued that the press clause of the First Amendment conferred the freedom to maintain the confidentiality of its sources. According to this argument, only such a freedom would insure that the press could adequately perform its newsgathering role. In the recent case of Cohen v. Cowles Media Co., however, the press found itself somewhat on the other side of the argument. It unsuccessfully argued to the Court that the First Amendment precluded any liability for breaking a promise of confidentiality to …

The Right To Misquote, Marta Stanton

UC Law SF Communications and Entertainment Journal

This article explores whether the First Amendment protects journalists who materially alter quotations from liability for defamation. The journalist's right of freedom of speech and the speaker's rights came in direct conflict in the case of Masson v. New Yorker Magazine, which provides the touchstone for this article. The author addresses the meaning of actual malice in the context of altered quotations and the journalist's responsibility to respect the meaning of quotation marks. This article concludes that a journalist who materially alters a quotation has gone too far and has acted with knowledge of falsity or reckless disregard for the …

Miss Saigon: Casting For Equality On An Unequal Stage, Mabel Ng

UC Law SF Communications and Entertainment Journal

In the summer of 1990, Actors' Equity Association tried to bar an awardwinning European actor from playing the role of a Eurasian in the Broadway production of Miss Saigon. In the controversy that raged, the theatrical world found itself afire with an issue that had simmered for decades: the practice of producers and directors casting white actors in racial and ethnic minority roles and their reluctance to consider ethnic actors for such roles. This note discusses the controversy surrounding Miss Saigon, the notion of non-traditional casting, artistic freedom versus affirmative action, and ways in which the theater might at last …

Gambling And The Law - Update 1993, I. Nelson Rose

UC Law SF Communications and Entertainment Journal

The largest, fastest growing, most quickly changing area of entertainment law is legal gambling: last year more than $304 billion was bet legally in the United States. Changes in government policies, from complete prohibition, to grudging permission, to active promotion, have led to a classic nationwide speculative bubble. The nation's leading expert on gambling law explores the recent explosion of legal gambling, including riverboat casinos that need not have engines or crews; "video lottery terminals," video poker machines run by state governments; and the largest table game casino in the world, owned by Native Americans in Connecticut. The article explores …

How Valid Are U.S. Criticisms Of The Japanese Patent System, Michael Todd Helfand

UC Law SF Communications and Entertainment Journal

This article reviews and addresses criticisms that have been leveled against the Japanese patent system by U.S. businesses and the government. It begins by exploring the operations, history, and cultural background of the Japanese patent system, and drawing contrasts with the system employed by the United States. From there, it introduces and analyzes the validity or invalidity of the criticisms most commonly raised. While a definitive answer is not possible for all criticisms, this article concludes that a number of criticisms are more selfserving than constructive, and several of the most important criticisms do not address aspects of the patent …

The 1992 Cable Act: Just The Beginning, Nicholas W. Allard

UC Law SF Communications and Entertainment Journal

The 1992 Cable Act completely overhauls the legal rules governing the television marketplace, and its substantive impact will be felt for many years. The Act's complex, interrelated, and often intentionally vague provisions revise the rules pertaining to cable television, broadcast television, new television technologies such as DBS and wireless cable, the regulatory roles of the FCC and local franchise authorities, and the rates cable customers will pay. Its enactment marks the beginning of a new regulatory era whose legal features will be further defined by several FCC rulemakings, pending lawsuits, and additional legislation in the 103d Congress. The article traces …

Employee Disclosures To The Media: When Is A Source A Sourcerer, Terry Morehead Dworkin, Elletta Sangrey Callahan

UC Law SF Communications and Entertainment Journal

Whistleblowing as a form of organizational control is being fostered by the judiciary and legislators. Yet these decisionmakers generally do not view the media as an appropriate whistleblowing recipient. This point was brought into sharp focus when Procter & Gamble persuaded law enforcement agencies to investigate the source of information leaked by "current and former P&G managers" to the Wall Street Journal. Armed with alleged violations of a state trade secrets statute, the corporation and the government effectively bypassed legal protections extended both to whistleblowers and to reporters who refuse to identify their confidential sources. This article evaluates whistleblowing to …

Privacy In Telecommunications - A California Perspective, Mary Mack Adu, Gretchen Dumas

UC Law SF Communications and Entertainment Journal

This article focuses on the policy and legal issues that are before state and federal agencies regarding informational privacy in telecommunications. For example, how does one reconcile the interests of, on the one hand, individuals and businesses who believe they have a right to "informational privacy" and, on the other hand, the demands of business to use this "personal information" to promote commercial activity and the demands of the public that it have full access to information that affects the public good. The article then examines the state of the law of privacy in California and specifically the California Public …

Let Technology Counteract Technology: Protecting The Medical Record In The Computer Age, Terri Finkbine Arnold

UC Law SF Communications and Entertainment Journal

The medical record contains information about the most intimate details of our personal lives. Reliance on the computer by both private health care providers and the government to store, access, and manipulate medical information has increased dramatically in the last decade. The development of a national health care delivery system will utilize computer technology to automate and standardize the medical record even further. Current law and regulations are inadequate to meet the potential for misuse and abuse created by the computerization of medical information. This note explores the development of the computerized medical record and the likely future direction of …

Authorship And The Concept Of National Cinema In Spain, Marvin D'Lugo

Cardozo Arts & Entertainment Law Journal

No abstract provided.

With Malice Toward None: A New Look At Defamatory Republication And Neutral Reportage, James E. Boasberg

UC Law SF Communications and Entertainment Journal

The common law has not looked favorably upon republishers of defamatory material, believing that "one who republishes a libel adopts it as his own." Starting from the fair report privilege and moving to the wire service defense and neutral reportage, courts have gradually carved out niches of protection for republishers. This Article first analyzes the wire service defense and proposes that it should be expanded to cover republished stories about public and private figures from reliable publications. After examining the history of neutral reportage, this Article then proposes a new constitutional privilege: Media defendants may rely on the privilege of …

Structural Implications Of Telephone Content Regulation: Lessons From The Audiotex Controversy, Patrick O'Neill

UC Law SF Communications and Entertainment Journal

Audiotex is a mass communication service provided through the telephone network. As such, it may be a forerunner of an era of convergence in which information services may be considered under both mass communication and common carrier law. This Article examines some of the problems that arise from the application of first amendment principles to a medium of common carriage, especially the extent to which carriers may make editorial decisions concerning the content of information services.

Simplified Syndication For Stage And Screen: A Proposal For Modifying Securities Laws For The Financing Of Theater And Film Production, Thomas A. Cohen

UC Law SF Communications and Entertainment Journal

Theater and film producers are hampered in their fundraising efforts by inconsistent and irrelevant securities laws. At the same time, investors are not adequately protected by the current disclosure requirements, which are costly and uninformative. Public policy in general, and New York practice in particular, support affirmative changes in this situation. This Note proposes uniform laws and guidelines, specifically adapted to stage and screen, that should be adopted by the SEC, the NASAA, and the individual states.

The Discretionary Award Of Attorney's Fees Under The Copyright Act, Elden Dale Golden

UC Law SF Communications and Entertainment Journal

Title 17, section 505 of the United States Code allows a court, in its discretion, to award reasonable attorney's fees to the prevailing party in cases that arise under the Copyright Act. This Article focuses on the single issue of when the court should exercise this discretion. With no guidance from the statute or legislative history as to what the bounds of "discretion" are in this province, five circuits have adopted comprehensive yet conflicting standards. The law in these circuits, as well as the developing law in the remaining eight circuits, is discussed and analyzed.

Preventing The Misappropriation Of Identity: Beyond The Right Of Publicity, Seth E. Bloom

UC Law SF Communications and Entertainment Journal

The appropriation of an individual's name or likeness without that individual's consent subjects defendants to civil liability under the tort law doctrine known as the "right of publicity." While, as originally formulated, the doctrine protected only a person's name or likeness from misappropriation, in recent years the right of publicity has been substantially expanded to broadly protect against the misappropriation of one's "identity." While the original formulation of the doctrine may have been unnecessarily restrictive, expanding the protection afforded by the right of publicity to include characteristics beyond merely name or likeness carries its own dangers of foreclosing a substantial …

Rose Is In Red, Black Sox Are Blue: A Comparison Of Rose V. Giamatti And The 1921 Black Sox Trial, Michael W. Klein

UC Law SF Communications and Entertainment Journal

When Cincinnati Reds manager Pete Rose received his banishment from Major League Baseball in 1989, after he was accused of betting on his own team, comparisons were immediately drawn to the Black Sox, the eight members of the White Sox who were banned from the game for allegedly throwing the 1919 World Series in return for payoffs from gamblers. Such comparisons are incomplete without an understanding of the legal settings of both incidents. This Note examines the judicial deference given to decisions of the Commissioner of Baseball and considers such deference in conjunction with Major League Baseball's unique exemption from …

Researching The Law Of Sports: A Revised And Comprehensive Bibliography Of Law-Related Materials, Frank G. Houdek

UC Law SF Communications and Entertainment Journal

No abstract provided.

Allocating Spectrum Through The Use Of Auctions, Terrence J. Schroepfer

UC Law SF Communications and Entertainment Journal

This article provides an overview of auctions and proposes a bidding format for use in a potential spectrum auction. An auction is a mechanism designed to recreate the competitive market when competition is hindered by a limited number of participants or a lack of pricing information. Although supporters of spectrum auctions frequently point to the potential revenue generation from a sale of spectrum, most economists support auctions because, if implemented in accordance with economic theory, they enhance economic efficiency.

The author proposes a sealed second-bid format for use in any potential spectrum auction. This format protects against collusion through the …