Intellectual Property Law Commons^™

Visual Arts And The Public: A Legislative Agenda For The 1990s, Thomas M. Goetzl

UC Law SF Communications and Entertainment Journal

The author reflects on the meaning both of the shocking prices currently being paid for many works of art and of some instances of the censorship of art. The author offers the possibility that both of these phenomena reveal a hostility to art and the artists who create it. The Essay then recommends a role that moral rights and resale royalty legislation can play to improve the public's sensitivity to the arts and artists.

Museum Collection Care Problems And California's Old Loan Legislation, Judith L. Teichman

UC Law SF Communications and Entertainment Journal

A number of museums have problems associated with objects which have been in their custody for many years. Sometimes it is unclear whether the objects were originally loans or gifts; in other cases, the lender has died or otherwise lost contact with the museum. This Essay describes what has led to these situations and the resulting dilemmas, including the difficulty of litigating claims to the objects. It describes the reasoning behind the factual support for various provisions in the California legislation governing loans to museums. The author concludes that the legislation will prevent a recurrence of the identified problems and …

Poetic Justice: Work Made For Hire Laws Invite State Regulation Of Parties To Copyright Contracts, Gregory T. Victoroff

UC Law SF Communications and Entertainment Journal

Little-known California laws may impose extensive statutory requirements and labor regulations on purchasers of copyrightable works using written "Work Made for Hire" contracts. These laws may coalesce with other state labor regulations, springing a costly trap on unwary users/buyers of coprightable works. Attorneys representing artist/employee clients can make artful use of the California "Work Made for Hire" laws to achieve for them a sort of "poetic justice."

The Defamation You Can't Refuse: Section 315'S Prohibition On Censoring Political Broadcasts, Martin Kassman

UC Law SF Communications and Entertainment Journal

Section 315 of the Communications Act prohibits broadcasters from censoring political candidates' commercials. What happens when a candidate runs an ad that tells lies about his opponent or someone else? What if a candidate uses obscene, indecent, or inflammatory language or images? The author reviews the cases that have come before the courts and the Federal Communications Commission. Although broadcasters have been held immune from liability for defamatory political broadcasts, that immunity is not explicit in the statute. It is unclear whether stations have the power to censor indecent or obscene political ads and whether they can be punished for …

Lights, Camera, Actionable Negligence: Transmission Of The Aids Virus During Adult Motion Picture Production, Francisco G. Torres

UC Law SF Communications and Entertainment Journal

Adult motion picture production is an activity in which the risk of HIV transmission is extremely high. Film producers' failure to employ safe sex practices and California legislation prohibiting AIDS testing by employers have combined to create an unsafe working environment for performers. This Note examines the potential liability of producers for transmission of HIV during the production of an adult motion picture. This Note then proposes that California Health and Safety Code section 199.21 be amended to allow adult motion picture producers to use AIDS test results to determine employability of performers.

The Law Of Ideas: New York And California Are More Than 3,000 Miles Apart, Peter Swarth

UC Law SF Communications and Entertainment Journal

The 1989 Los Angeles County Bar Association Entertainment Law Writing Competition First Prize Winner.

Over the years, New York and California courts have moved in opposite directions on the question of protection for the purveyor of ideas. While California courts have expanded the rights of idea sellers to almost equal those found under copyright law, New York courts virtually deny any rights to the "idea man." Recent decisions by the Second and the Ninth Circuit Courts of Appeals demonstrate just how far apart our two great centers of creativity have become.

Preface To Jens B. Koepke's The University Of California Hate Speech Policy: A Good Heart In Ill-Fitting Garb, Edward M. Chen

UC Law SF Communications and Entertainment Journal

No abstract provided.

Author, User, Scholar, Thief: Fair Use And Unpublished Works, Diane Conley

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Gray Market After K Mart: Shopping For Solutions, Danielle G. Mazur

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Art Forgery And Copyright Law: Modifying The Originality Requirement To Prevent The Forging Of Artworks, Judith M. Nelson

Cardozo Arts & Entertainment Law Journal

No abstract provided.

"Works Made For Hire" After Community For Creative Non-Violence V. Reid: The Need For Statutory Reform And The Importance Of Contract, Michael B. Landau

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Fate Of Joint Authorship After Community For Creative Non-Violence V. Reid, Shari Ilene Fine

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Vads, Vars, And Authorized Dealers - Do The Franchise Laws Apply To The Computer Industry, Kennedy A. Brooks

UC Law SF Communications and Entertainment Journal

VAD/VAR distribution programs may be "franchises" within the technical definitions in applicable federal and state laws. Computer products manufacturers should exercise care in the design of their dealer channels to avoid the impact of these laws. This Article reviews the basic features of these distribution channels, analyzes the components of the various definitions of a franchise, and discusses how these laws might affect the characteristics of a computer dealer channel.

The Future Of Software Copyright Protection: Arbitration V. Litigation, Alisa E. Anderson

UC Law SF Communications and Entertainment Journal

The legal profession and computer industry have expressed dissatisfaction with the existing copyright protection provided computer software and its traditional means of enforcement by litigation. These criticisms are exemplified in the protracted NEC Corp. v. Intel Corp. litigation. After examination of the current copyright laws and the recent NEC/Intel decision, the author analyzes the IBM/Fujitsu settlement, which created a new hybrid form of commercial arbitration. By relinquishing extensive control over their businesses to the arbitrators, IBM and Fujitsu established a sophisticated mechanism to resolve future conflicts and forestall future litigation. The author concludes that this hybrid method of arbitration is …

Digital Sampling: The Copyright Considerations Of A New Technological Use Of Musical Performance, Jeffrey S. Newton

UC Law SF Communications and Entertainment Journal

The author explores the controversial topic of digital sampling, a process that allows one musician to use another musician's performance without knowledge or consent. He explores the acquisition and use of samples and argues that a musician's "sound" is a copyrightable work, satisfying both constitutional and statutory requirements. The author further examines the interplay between sample acquisition and the Copyright Act's "fixation" requirement and the question of whether digitized tone colors are uncopyrightable upon utilitarian grounds. The author concludes that a musician's "sound" is copyrightable as a derivative work, that the standard of "substantial similarity" can be used to prove …

Technological Poetry: The Interface Between Copyrights And Patents For Software, Willis E. Higgins

UC Law SF Communications and Entertainment Journal

For historical reasons, there is an overlap between patent coverage for software as a technology and copyright coverage for software as a literary work. Each of these forms of protection for software has a proper role and should be allowed to coexist. Through common law evolution in case law and patent grants by the U.S. Patent and Trademark Office, patents have become the way to protect new and nonobvious functional concepts of software. Therefore, courts may be less willing to expand the scope of protected expression of copyrights to protect the functional aspects of software.

Carrying Copyright Too Far: The Inadequacy Of The Current System Of Protection For Computer Programs, Virginia R. Lyons

UC Law SF Communications and Entertainment Journal

Currently available methods of legal protection are inappropriate for software. Because copyright law developed long before the advent of computer programs, it does not take into consideration the specialized needs of the new technology. This Note examines the way copyright law was manipulated to address early problems in software protection, and the problems which result when these rules are applied to recent, more complicated cases. The Note then proposes a new system of legal protection for computer programs.

Trade-Based Remedies For Copyright Infringement: Utilizing A Loss-Preventative Synthesis, Antionette M. Von Dem Hagen

UC Law SF Communications and Entertainment Journal

Foreign infringement of U.S. intellectual property rights continues to affect U.S. business revenue, particularly for copyright-dependent industries. Trade-based remedies-such as sections 301 and 337 of the Trade Act of 1974, recently amended by the Omnibus Trade and Competitiveness Act of 1988-may be used to combat this infringement successfully. Sections 301 and 337 have generally been used separately as distinct remedies for different problems. This Note suggests, however, that in view of U.S. industries' long-term goal of reducing revenue losses attributable to foreign intellectual property infringement, sections 301 and 337 are more effectively used in tandem, particularly against copyright infringement. This …

The Department Of Communications: A Plan And Policy For The Abolition Of The Federal Communications Commission, Michael F. Starr, David J. Atkin

UC Law SF Communications and Entertainment Journal

Few areas of federal oversight have been as inconsistently addressed as that involving the regulation of broadcast and wire communication. Action in this realm has been all too often governed by political, rather than social or economic, imperatives. Many, no doubt, accept this situation as a necessary element of democratic decisionmaking. The deregulatory fervor of the 1980s could thus be seen as part of a long-term process of political redefinition. The consequences of regulatory neglect in this area will affect more than the traditional broadcast constituency of the Federal Communications Commission (FCC). For, as traditional distinctions between communications technologies continue …

What Does The Fairness Doctrine Controversy Really Mean, Jerome A. Barron

UC Law SF Communications and Entertainment Journal

In 1987, the FCC repealed broadcasting's Fairness Doctrine. This longestablished Doctrine required broadcasters to adequately cover issues of public importance and to provide a balanced presentation of controversial viewpoints. Opponents of the Fairness Doctrine would make broadcasting fungible, in a first amendment sense, with the print media. But what distinguishes broadcasting from the print media is not the Fairness Doctrine, but licensing in the public interest. This Commentary contends that there is an inherent bedrock fairness principle rooted in the public interest standard of the Federal Communications Act of 1934. The public interest standard is an independent source for the …

The Constitutional Administration Of The Beirut Agreement: Paradox Or Possibility, Alison E. Baur

UC Law SF Communications and Entertainment Journal

The Beirut Agreement is a multilateral treaty that allows for the dutyfree exchange of audiovisual materials, if they are certified by the exporting country to be "cultural, educational or scientific." The certification criteria used by the United States to define these terms was struck down as unconstitutional in the case of Bullfrog Films v. Wick. This Note analyzes the Bullfrog case and its subsequent appeal, as well as the issues surrounding the continued efforts of the United States Information Agency to draft satisfactory criteria. The Note concludes with the author offering suggestions for a constitutionally acceptable set of certification criteria.

Mandatory Television Access For Minor Party Presidential Candidates: Revamping Section 315 Of The Equal Opportunities Doctrine, M. Shannon Underwood

UC Law SF Communications and Entertainment Journal

The Equal Opportunities Doctrine requires that broadcasters providing exposure to candidates make comparable time available to all other candidates for the same elective office. Unfortunately, the Doctrine has been emasculated by exemptions that provide the Republican and Democratic candidates with free air time while denying time to minor party candidates, thus frustrating the Doctrine's goal of informing the public of a wide array of political thought. This Note argues that the exemptions from the Doctrine should be narrowed and also advocates a system of mandatory access for political candidates based upon their showing in the polls.

The Money Of Color: Film Colorization And The 100th Congress, Dan Renberg

UC Law SF Communications and Entertainment Journal

This Article examines the legal and legislative history of the National Film Preservation Act of 1988, the first federal legislation dealing with the controversial issue of film colorization. It analyzes the arguments advanced by some members of the motion picture industry in favor of banning all colorization performed without the author's consent. The Article concludes with a forecast of how the 101st Congress will handle further requests for legislation that would protect the integrity of black-and-white films and their creators.

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.