Intellectual Property Law Commons^™

Validity Of Post-Employment Non-Compete Covenants In Broadcast News Employment Contracts, Jon H. Sylvester

UC Law SF Communications and Entertainment Journal

Post-employment non-compete covenants are problematic on both economic policy and individual rights bases. Such convenants are prevalent in the broadcast news industry, where enforcement is inconsistent and unpredictable largely because of the "unique services" rationale. The author argues that the problem of enforceability should be addressed statutorily.

Pressing California Shield Law On Criminal Defendants: A Weighting Game, Amy R. Bach

UC Law SF Communications and Entertainment Journal

Both the California Constitution and Evidence Code provide journalists with "shield" law protection that allows them to avoid contempt citations for failing to answer subpoenas. This protection allows them to ensure source confidentiality and is integral to the newsgathering process. However, it clashes with the federal constitutional guarantee that criminal defendants may subpoena information for their defense. This Note examines the controversy that arises when a criminal defendant seeks access via subpoena to the same information a reporter seeks to protect. The author proposes a revised approach to supplant currently inadequate standards for resolving such controversies.

Aural Sex: Has Congress Gone Too Far By Going All The Way With Dial-A-Porn, Heidi Skuba Maretz

UC Law SF Communications and Entertainment Journal

Dial-a-Porn continues to be a multimillion dollar industry in this country. Amendments in 1988 to the federal statute governing Dial-a-Porn resulted in a complete prohibition of all obscene and indecent recorded phone messages. The Supreme Court is expected to rule on the constitutionality of this statute for the first time in July 1989 in Sable Communicatios v. FCC. This Note discusses the statute in its current and pre-amendment forms and analyzes Second and Ninth Circuit decisions attempting to balance the competing interests concerning Dial-a- Porn. The author argues that the current statute is unconstitutional and should be struck down in …

A Suggested Approach To The First Amendment Issues Involved In Broadcast Regulation, Jonathan D. Blake, Debora L. Osgood

UC Law SF Communications and Entertainment Journal

The debate over the first amendment justification for broadcast regulation has become heatedly polarized between the print-model, "look, Ma, no hands" theory of broadcast regulation and the public ownership/ public trustee model. This debate has assumed an even greater urgency this year because of the appointment of Alfred Sikes as the new Chairman of the Federal Communications Commission (FCC) and because of Congress' heightened interest in, and intense scrutiny of, the FCC's treatment of broadcast regulatory issues. In this article, the authors suggest that the FCC's traditional spectrum allocation responsibilities provide an appropriate and constitutionally defensible starting point for developing …

Punitive Damages In Libel Cases After Browning-Ferris, P. Cameron Devore, Marshall J. Nelson

UC Law SF Communications and Entertainment Journal

The award of punitive damages in libel cases has been a topic of constitutional debate ever since the United States Supreme Court imposed first amendment restrictions on state libel laws in 1964. More recently, the constitutionality of punitive damages has been challenged in non-libel cases under the eighth and fourteenth amendments. Last year, in Browning-Ferris Industries of Vermont v. Kelco Disposal, Inc., the Supreme Court held that punitive damages are not prohibited by the eighth amendment but expressly reserved the fourteenth amendment issue for later consideration. This Article examines Browning- Ferris in light of the Court's prior treatment of punitive …

Adam Smith Assaults Ma Bell With His Invisible Hands: Divesture, Deregulation, And The Need For A New Telecommunications Policy, Paul Stephen Dempsey

UC Law SF Communications and Entertainment Journal

In this article, the author provides a comprehensive legal, political, economic, and social analysis of the divestiture and partial deregulation of America's communications giant, AT&T. He reviews the three legal regimes that now oversee the telecommunications industry-the Federal Communications Commission, the state regulatory commissions, and Judge Harold Greene. After analyzing the costs and benefits of divestiture and deregulation, the author proposes congressional adoption of specific statutory solutions to the problems that have emerged. It is argued that the Federal Communications Act of 1934 should be updated to address contemporary social and economic needs.

Constitutional Considerations Of The Children's Television Act Of 1988: Why The President's Veto Was Warranted, David S. Versfelt

UC Law SF Communications and Entertainment Journal

Late last year, President Reagan surprised many when he vetoed the Children's Television Act of 1988, which would have limited the time available for commercials broadcast during children's programming. His veto message referred to "freedom of expression," but did not elaborate on first amendment concerns raised by the legislation. The author evaluates these and other issues and concludes that President Reagan's veto was consistent with a sensitive approach to first amendment issues in the area of children's advertising.

Sobering News For The Alcohol Industry, Amanda Grove

UC Law SF Communications and Entertainment Journal

On November 18, 1989, the Alcoholic Beverage Labeling Act of 1988 will become operative. As a result of this new federal law, all alcoholic beverage containers will be required to bear a government warning label. This note focuses on the past, present, and future of alcohol warning label legislation. First, the author traces the history and development of state and federal alcohol warning label legislation, analyzing key factors which led to passage of the Alcoholic Beverage Labeling Act of 1988. Next, the author critically examines the Act, highlighting omissions and proposing improvements. Finally, the author explores sources of continuing pressure …

Attention K Mart Shoppers: In K Mart Corp. V. Cartier, Inc. The Supreme Court Granted District Courts Jurisdiction In Gray Market Disputes, Thomas H. Wolfe

UC Law SF Communications and Entertainment Journal

Overshadowed by the more controversial substantive questions raised by the gray market problem has been the issue of jurisdiction over gray market cases. In K Mart Corp. v. Cartier, Inc, the U.S. Supreme Court decided that the federal district courts, and not the Court of International Trade, have jurisdiction over gray market cases. The Court held that the statute controlling gray market importation cannot be considered an embargo, as that word was intended to be used by Congress. The author argues that the Supreme Court misinterpreted Congress' intent when Congress granted the Court of International Trade jurisdiction over cases involving …

Cable Franchising And The First Amendment: Preferred Problems, Undesirable Solutions, Daniel L. Brenner

UC Law SF Communications and Entertainment Journal

The right to construct a cable system has usually been granted to a sole franchisee based on competitive bidding. A series of lawsuits in the 1980's has argued that exclusive grants violate the first amendment rights of excluded, would-be operators. This Article examines the issue as framed by the U.S. Supreme Court's decision in City qf Los Angeles v. Preferred Communications, Inc., concluding that its instruction for a factual examination of a city's justification for exclusive licensing will be mostly unproductive. It concludes that exclusive franchising provided for by Congress in the 1984 Cable Act does not generally violate the …

The Supreme Court's Decision In Hustler Magazine V. Falwell: The Demise Of Intentional Infliction Of Emotional Distress For Public Figures, Hollie Their

UC Law SF Communications and Entertainment Journal

The author analyzes both the Fourth Circuit and the U.S. Supreme Court decisions in Hustler Magazine v. Falwell. After comparing and contrasting both decisions, the author concludes that the courts should apply the actual malice standard to claims of intentional infliction of emotional distress when a public figure brings an independent cause of action.

Alternatives To The Fairness Doctrine: Structural Limits Should Replace Content Controls, Christopher A. Hilen

UC Law SF Communications and Entertainment Journal

The abolition of the Fairness Doctrine by the Federal Communications Commission provides an opportunity to reexamine the way in which broadcasters are encouraged to offer programming on controversial issues of public importance. The author outlines alternatives to the Fairness Doctrine and subjects each to a Fair Treatment Test, which requires that the alternative 1) guarantee that the public will receive programming on controversials of importance to it, and 2) provide full first amendment rights to broadcasters. The author concludes that a structural approach to broadcast regulation, under which stricter crossownership limits than presently exist are imposed on broadcasters, offers the …

Visual Arts And The Law: A Bibliography, Part Ii, Gail I. Winson

UC Law SF Communications and Entertainment Journal

No abstract provided.

Obtaining Early And Effective Relief Against Trademark Counterfeiting, Neil A. Smith

UC Law SF Communications and Entertainment Journal

Counterfeiting has become a worldwide industry which generates over a billion dollars worth of business in the U.S. The author traces the development of court-created remedies for trademark counterfeiting, which include temporary and preliminary injunctions, temporary restraining orders (TROs), orders for production and inspection of records and inventory, and seizures of counterfeit merchandise by U.S. Marshalls. Recently, courts have expanded these remedies to include ex parte TROs, granted without notice to the alleged counterfeiter, and sometimes without knowledge of the identity of the counterfeiter, and seizure of counterfeit goods by the plaintiff or the plaintiff's attorney. The author also discusses …

The Fact/Opinion Distinction In Libel, Timothy W. Gleadon

UC Law SF Communications and Entertainment Journal

Following Gertz v. Robert Welch, Inc., state and federal courts struggled to develop guidelines to distinguish fact from opinion in libel law. While the existing guidelines have resulted in broader constitutional protection of opinion statements, they do not constrain ad hoc judicial interpretation of text as either fact or opinion. This article examines the fact/opinion distinction from both a communication and a legal perspective and argues that the use of an interdisciplinary approach to the fact/opinion question exposes fundamental problems with the existing guidelines. The author concludes that for opinion to have adequate constitutional protection, context should be used as …

What Is A Newspaper Under California's Retraction Statute - Enquiring Minds Want To Know, Catherine M. Bump

UC Law SF Communications and Entertainment Journal

California Civil Code section 48a limits recovery in defamation suits against newspapers to special damages, unless the plaintiff has unsuccessfully demanded a retraction from the media defendant The seminal case on this issue, Burnett v. National Enquirer, Inc., failed to provide a clear test of what constitutes newspaper status. The author argues that the resulting uncertainty has precipitated a chilling effect on media. In addition, the author contends that modern libel litigation rarely fulfills plaintiffs' objectives and that a broader retraction statute would be a step toward better serving both plaintiffs and defendants in libel cases.

Women's International League For Peace And Freedom, Fresno Branch V. City Of Fresno: Free Speech Access To Transit Cars Under The California Constitution, Lisa F. Graul

UC Law SF Communications and Entertainment Journal

In Women's International League for Peace and Freedom, Fresno Branch v. City of Fresno, a California court of appeal held that under the California Constitution the area within a public bus is not a public forum. Although the court purported to act under the California Constitution, its ruling instead followed the reasoning of a factually similar United States Supreme Court case, which based its ruling on the first amendment to the U.S. Constitution. This note argues that a different outcome should have been reached, based on the case law interpreting the California Constitution's unique "liberty of speech" clause.

Rediscovering Traditional Tort Typologies To Determine Media Liability For Physical Injuries: From The Mickey Mouse Club To Hustler Magazine, John L. Diamond, James L. Primm

UC Law SF Communications and Entertainment Journal

Confusion exists in the courts over when to impose liability on media defendants for physical injuries. While media defendants are regularly subjected to claims of defamation, invasion of privacy, and sometimes intentional infliction of emotional distress, claims of liability for physical injuries caused by media publication have most often been rejected over concern about infringing on first amendment protection. The authors argue that courts have inappropriately denied liability by failing to differentiate among kinds of media liability cases and by failing to analyze them as they would similar tort cases. The proper differentiation of these cases would insure against diminution …

The Search For Consistency In Constitutional Defamation Law, Elmer Gertz

UC Law SF Communications and Entertainment Journal

Since the U.S. Supreme Court's historic ruling in New York Times v. Sullivan, the law of defamation has been developed largely by the Supreme Court with constitutional protections, removed from common law or statutory development by the states. The author, the plaintiff in the leading defamation case of Gertz v. Robert Welch, Inc., traces the constitutionalization of the law of defamation. The author argues that the Supreme Court decisions since New York Times have been inconsistent and have resulted in the localization of constitutional protection, such that the result in a given defamation case depends on the state in which …

Comments On International Video Piracy - A Review Of The Problem And Some Potential Solutions, John D. Maatta, Lorin Brennan

UC Law SF Communications and Entertainment Journal

Since the introduction of videocassettes, video piracy has become a problem of international proportions. The authors summarize the various types of video piracy and discuss anti-piracy actions taken by governments and film associations. The authors explore possible solutions to the piracy problem, including an international registration system called a "Carnet de Passage."

Daily Herald Co. V. Munro: 9th Circuit Strikes Down Limits On Election Day Broadcast Of Exit Polls, David J. Cowan

UC Law SF Communications and Entertainment Journal

The broadcast of east coast presidential voting returns before the polls have closed in western time zones has led two western states to enact legislation limiting the media's access to polling places on election day. Proponents of such statutes argue that allowing the media to obtain exit poll data and project the winners before the polls close discourages voters and leads to skewed election results. In Daily Herald Co. v. Munro, the 9th Circuit held that the State of Washington's poll closing statute violated the first amendment if its purpose was to prevent broadcasting of early election returns. The author …

New Concepts Of Contract Liabilities In College Sports: Member Institutions V. The National Collegiate Athletic Association, Kenneth L. Shropshire

UC Law SF Communications and Entertainment Journal

"Big time" college sports are governed by the National Collegiate Athletic Association (NCAA). This private association has the ability to make decisions that can have a devastating financial impact on member institutions. This Article examines the contractual relationship between the NCAA and member institutions and maintains that an award of punitive damages may be appropriate in certain contract breach situations.

The Chilling Effect Of Overprotecting Facutal Narrative Works, Jee Hi Park

UC Law SF Communications and Entertainment Journal

In Salinger v. Random House, Inc., the Second Circuit Court of Appeals implicitly broadened the scope of an author's copyright protection. The author reviews the background doctrines of copyright law and examines their application in recent cases. The author concludes that Salinger and its progeny have caused uncertainty in defining the threshold of copyrightability and asserts three reasons to reverse the court's decision.

The Sports Lawyer's Duty To Avoid Differing Interests: A Practical Guide To Responsible Representation, Robert E. Fraley, F. Russell Harwell

UC Law SF Communications and Entertainment Journal

As in the legal profession generally, lawyers in the sports representation area face numerous potential conflicts of interest in representing athletes and other sports personalities. The author maintains that, despite the pervasiveness of these ethical concerns, it is possible for a sports lawyer to maintain vigorous representation of multiple clients, as well as to "reasonably believe' that such interests will not "materially interfere" with the lawyer's "independent professional judgment." The author suggests that sports lawyers may avoid these conflicts if, following a full disclosure of all multiple interests, they obtain the knowing consent from their multiple clients, thereby narrowing the …

In The Ordinary Course Of Business: The Legal Limits Of Workplace Wiretapping, Martha W. Barnett, Scott D. Makar

UC Law SF Communications and Entertainment Journal

The use of telecommunications monitoring and recording devices in the workplace has generated considerable controversy. The authors untangle the interlocking web of federal and state laws that limit the extent to which private businesses may engage in workplace wiretapping, using the laws of Florida as a paradigm of state regulation. In particular, the authors' analysis of cases which interpret federal and Florida wiretapping statutes indicates that courts often take dissimilar approaches to resolve workplace wiretapping issues. The authors also discuss FCC and state public service commission regulations, as well as the effect of a proposed federal "beeper bill." In conclusion, …

The Copyrightability Of Computer Program Screen Displays, Laurie Zeeb Kullby

UC Law SF Communications and Entertainment Journal

Copyright protection for computer programs has traditionally centered on the computer program itself. Recently, a debate has developed in the computer industry as to whether copyright protection should be expanded to cover the audiovisual screen displays generated by the programs. The author traces the development of the current law on this issue and distinguishes it from video game copyright law, in which the screen display has always been the primary object of copyright protection. The author concludes that computer program screen displays should not be registered separately, but instead should be protected under the copyright of the underlying computer program.

Piracy And Gray Markets, Robert W. Steele

UC Law SF Communications and Entertainment Journal

The author discusses parallel imports or "gray market goods" in the context of the federal trademark laws, the regulations promulgated by the Customs Service and its enforcement of these regulations. In the recent United States Supreme Court case, K Mart Corp. v. Cartier, Inc., the author argued on behalf of K Mart. In this speech, the author discusses and rebuts the arguments made by his opponent, the Coalition to Preserve the Integrity of American Trademarks (COPIAT) and contends that parallel imports are advantageous to the American consumer and necessary in any effort to reduce the foreign trade deficit. He concludes …

Some Revisions Of A Gray Market Decalogue: A Response To Messrs. Lewin And Steele, William H. Allen

UC Law SF Communications and Entertainment Journal

The author, who represented the Coalition to Preserve the Integrity of American Trademarks (COPIAT), in the recent United States Supreme Court case, K Mart Corp. v. Cartier, Inc., rebuts the arguments in favor of parallel importation made by Nathan Lewin and Robert W. Steele. The author argues that the Customs Service regulations interpreting section 529 of the Tariff Act of 1930 are incompatible with the Act itself and make no economic sense. He contends that there are policy and legal arguments for enforcing section 526 as written, not as the Customs Service has interpreted it, thereby prohibiting parallel importation. Although …

Piracy And Gray Markets In The European Economic Community, Richard L. Moxon

UC Law SF Communications and Entertainment Journal

This Article summarizes the establishment and principal purposes of the European Economic Community (EEC) and selected provisions of the Treaty of Rome. The author analyzes the inherent shortcomings of the provisions of the Treaty as they apply or fail to apply to piracy and counterfeiting of various goods, services and labor within the EEC. The author concludes that counterfeit goods and piracy will continue to be a substantial problem in the EEC absent increased cooperation among the member countries and the development of a common policy designed to deal with these issues.

Emerging Gray Market Balance: A Global Perspective On Solutions For The Nineties, Timothy P. Rumberger

UC Law SF Communications and Entertainment Journal

Significant harms attend both the unrestrained influx of parallel imports and their blanket exclusion. In light of the recent United States

Supreme Court decision in K Mart Corp v. Cartier, Inc., the author examines the causes, symptoms and competing interests of consumers, manufacturers, domestic trademark owners and gray market importers. This Note considers the contemporary legislative, Judicial and executive approaches toward balancing these interests. The author suggests a solution to capture the benefits of parallel imports while effectively eliminating the dangers by means which fairly allocate the policy burdens on those who enjoy the benefits.