Intellectual Property Law Commons^™

Down In Front: Entertainment Facilities And Disabled Access Under The Americans With Disabilities Act, Katherine C. Carlson

UC Law SF Communications and Entertainment Journal

This note deals with the problem of compliance with the Americans with Disabilities Act (ADA) in sports and entertainment venues. The beginning of the note briefly describes the scope of the ADA and the meaning of the provisions which are relevant to the problem of public entertainment facilities. It also discusses the remedies that the ADA offers in such accommodation situations. After this overview of the ADA's theoretical application, the note then looks at the ADA in actual practice and whether it has actually caused sports and entertainment facilities to adequately accommodate disabled patrons. An examination of some prominent cases …

A Proposal To Shore Up The Foundations Of Patent Law That The Underwater Line Eroded, A, Edwin H. Taylor, Glenn E. Von Tersch

UC Law SF Communications and Entertainment Journal

This article examines the trend of modern patent jurisprudence in the United States, focusing on the development of the law since the landmark Federal Circuit decision of Underwater Devices Inc. v. Morrison Knudsen Co. Inc. in 1983. Specifically, the authors contend that Underwater and its progeny have skewed the proper interpretation and use of the rule against willful infringement, causing litigants to overuse (or even abuse) the willful infringement doctrine and, more importantly, inhibiting one of the twin goals of the patent laws, disclosure of useful inventions. To address this negative trend, the authors propose a change in the standard …

A Brief Return To The Digital Sampling Debate, Matthew G. Passmore

UC Law SF Communications and Entertainment Journal

This note revisits the problem of digital sampling by musicians and the copyright law issues that arise from it. After briefly surveying the historical and technical aspects of digital sampling, the note asks the question: "are transformative digital samples art?" and answers in the affirmative. The note then looks at the goals and doctrine of copyright law, and how they are implicated by the digital sampling problem. Finally, the note advocates an expanded interpretation of the fair use copyright defense in digital sampling cases, arguing that such an expansion would both effectuate the goal of copyright enforcement and recognize the …

Bowie Bonds: A Key To Unlocking, The Wealth Of Intellectual Property, Nicole Chu

UC Law SF Communications and Entertainment Journal

Before David Bowie broke a new frontier in financing by selling $55 million in bonds backed by future music royalty payments and copyrights, music royalties and copyrights had never previously been securitized due to the uncertainty in predicting future cash flows. The concept of intellectual property securitization resolves the dilemma of inexpensively raising a large amount of money, while still retaining ownership in the underlying intellectual property. Asset securitization of intellectual property touches upon copyright, bankruptcy, tax, and securities law, as well as being impacted by the Uniform Commercial Code. This Note provides a brief overview of the securitization structure, …

Copyright, Culture & (And) Black Music: A Legacy Of Unequal Protection, K. J. Greene

UC Law SF Communications and Entertainment Journal

This article explores how African-American music artists, as a group, were routinely deprived of legal protection for creative works under the copyright regime. The issue of copyright deprivation and Black artists is highly significant, given the enormous cultural contribution of Black music to American society, the importance of the music to Black culture, and the tremendous economic benefits at stake. As new issues develop in copyright law, it will be important to people of color, and to an egalitarian society as a whole, that the new copyright regime not duplicate the inequalities of the old. An underlying assumption of race-neutrality …

Signal Bleed: Congress Attacks When It Sounds Like Sex, Josh C. Grushkin

UC Law SF Communications and Entertainment Journal

Section 505 of the Telecommunications Act of 1996 attempts to eliminate the phenomenon of signal bleed from sexually explicit adult channels. This Note argues that section 505 of the Telecommunications Act of 1996 should ultimately be found unconstitutional, and that Congress address the phenomenon of signal bleed of sexually explicit programming through other alternatives which are less constitutionally offensive.

Toxic Television, Editorial Discretion, & (And) The Public Interest: A Rocky Mountain Low, Clay Calvert

UC Law SF Communications and Entertainment Journal

In the modem world of newsmedia, the lines between informative news and gratuitous entertainment have been blurred by a increase in "infotainment" broadcasting and by news shows which often use violence or other entertainment devices to increase audiences. This trend has given rise to concerns that the current regulatory scheme is not properly categorizing this type of "news" and is not sufficiently warning or protecting viewers. In this article, Professor Calvert examines the questions surrounding this controversy. To illustrate some of these issues, this article looks at a recent challenge brought by a Colorado group to the renewal of the …

Tobacco Is A Filthy Weed And From The Devil Doth Proceed: A Study Of The Government's Efforts To Regulate Smoking On The Silver Screen, Jason Edward Lavender

UC Law SF Communications and Entertainment Journal

Many of the negative effects of tobacco have been addressed by recent litigation and federal regulations. The federal government already regulates tobacco label and advertisement content and prohibits tobacco promotion on television and radio. There are lingering concerns, however, about the effects of depicting tobacco use in movies. This Note examines current tobacco regulations and the justifications asserted for new restrictions on the use of tobacco in movies. This Note further analyzes the First Amendment implications of a ban on tobacco use in movies, and concludes that such use is commercial speech that should be granted heightened Constitutional protection.

Keeping The World Safe From Naked-Chicks-In-Art Refigerator Magnets: The Plot To Control Art Images In The Public Domain Through Copyrights In Photographic And Digital Reproductions, Kathleen Connolly Butler

UC Law SF Communications and Entertainment Journal

This article addresses an emerging and significant problem in the realm of copyright and art law: the control of public domain art images through the copyright of photographic and digital reproductions. This problem occurs since galleries or collections have control over the duplication of fine art images by the public and have used this control to generate exclusive reproductions of the art, which, under present law, are copyrightable themselves, precluding public use of these images of concededly public domain art. Professor Butler argues that this de facto control over art which is rightfully in the public domain both gives economic …

Hong Kong's Copyright Ordinance: How The Ban On Parallel Imports Affects The U.S. Entertainment Industry And Hong Kong's Free Market, Alison L. Morr

UC Law SF Communications and Entertainment Journal

Parallel importing has attracted debate, pairing free trade and consumer choice against copyright owners and exclusive licensees' rights. Hong Kong law prevents licensees from exporting a product outside a designated area, but also forms geographic monopolies from which the exclusive licensee receives economic benefits. This Comment assesses Hong Kong's copyright protection by comparing proponent and opponent arguments, and analyzing the external pressures surrounding the passage of the Copyright Ordinance and a similar Taiwanese restriction. The focus of this Comment is on the Copyright Ordinance's effects on parallel importing in exclusive licensees' territories, specifically the influx of international entertainment products.

Trade Dress Protection For Product Configurations And The Federal Right To Copy, Margareth Barrett

UC Law SF Communications and Entertainment Journal

No abstract provided.

Trade Dress Protection For Product Configurations And The Federal Right To Copy, Margreth Barrett

Faculty Scholarship

No abstract provided.

A New Program For Action: Strengthening The Standards For Noncommercial Educational Licensees, Randi M. Albert

UC Law SF Communications and Entertainment Journal

This article explores the history of noncommercial television and radio broadcasting, and evaluates the utility and efficacy of the FCC's current standards for determining when broadcasting qualifies as "noncommercial" and is eligible for benefits concomitant with this status. Professor Albert posits that, in order to effectively evaluate the existence of a commercial/noncommercial broadcast distinction at all, one must look at the development of the law in this area and determine whether the current rules are serving their stated function. To this end, the article traces the history of noncommercial broadcasting and explicates the purpose for such a status. It also …

Son Of Son Of Sam: Trashing Popular Media And Criminalizing Crime-Related Expression, David Sternbach

UC Law SF Communications and Entertainment Journal

When the Supreme Court struck down New York's "Son of Sam" statute on First Amendment grounds, it nonetheless found that states have "an undisputed compelling interest in ensuring that criminals do not profit from their crimes." The Court in effect invited states and lower courts to find less restrictive means to restrict crime-related expression, yet declined to address the question of how, or whether, expression-related income can be considered profit from crime. This Article examines that question, and discusses judicially-imposed restrictions on receipt of payment for expression deemed to be crime-related, including fines intended to forestall sales of stories by …

The Fairness In Musical Licensing Act: The Tavern Bill Casts A Shadow, Julie B. Raines

UC Law SF Communications and Entertainment Journal

The Fairness in Musical Licensing Act, now pending before Congress, would allow restaurants owners and other businesses to play copyrighted music in their place of business without paying royalties or licensing fees to the copyright owner. This Article discusses the Fairness Act in the context of the 1976 Copyright Act and analyzes the effect of the Fairness Act on the future of the music industry if it passes into law. This Article also offers other possible solutions to the underlying conflicts that the Fairness Act seeks to remedy. The author concludes that the Fairness Act unreasonably exempts a large group …

The Telecommunications Act Of 1996: Predicting The Winners And Losers, Robert M. Frieden

UC Law SF Communications and Entertainment Journal

The Telecommunications Act of 1996 has created substantial upheaval across the telecommunications landscape. On one hand, the 1996 Act created broad deregulatory and market entry opportunities for new market players; on the other hand, those implementing the Act have presumed that incumbent carriers will cooperate with new market entrants thereby accelerating the loss of market share, but gaining new market entry opportunities once competition begins to flourish. This Article analyzes the Various different factions that are likely to benefit from the Act, as well as those that are likely to suffer losses from telecommunications deregulation. The author concludes that the …

Is A Website Like A Flea Market Stall - How Fonovisa V. Cherry Auction Increases The Risk Of Third-Party Copyright Infringement Liability For Online Service Providers, Kenneth A. Walton

UC Law SF Communications and Entertainment Journal

In a recent decision, Fonovisa v. Cherry Auction, the Ninth.Circuit allowed a record company to sue a swap meet for copyright infringement committed by the swap meet's vendors. The vendors rented a stall from the Cherry Auction swap meet and sold counterfeit music cassettes that infringed the plaintiff Fonovisa's copyright. The Ninth Circuit held that the swap meet could be sued under theories of contributory infringement and vicarious infringement.

The Fonovisa decision extends the scope of third-party copyright infringement liability beyond previously established boundaries. This extension may make it much easier to hold an online service provider (OSP) liable for …

Should Trade Secret Appropriation Be Criminalized, I. Neel Chatterjee

UC Law SF Communications and Entertainment Journal

Trade secret law is a rapidly developing and increasingly popular system of intellectual property which strikes a tenuous balance between individual profit benefit through secrecy and maximization of social welfare. In doing so, trade secret law adopts some property-based and some liability-based principles. This Article argues that criminalizing trade secret appropriation unjustifiably extends protection as a property-based concept beyond economically efficient goals. The author concludes that punitive damages within the context of civil liability are a more economically efficient means to deter unauthorized use of trade secrets and "socially blameworthy" conduct.

Patent Opinions, Privileges, And The Advice Of Counsel Defense To Claims Of Willfull Patent Infringement: Litigation Counsel Caught In The Crossfire, Michael M. Markman

UC Law SF Communications and Entertainment Journal

The interests advanced by the attorney-client privilege and work product doctrines are a subject of frequent debate. Scholars and practitioners agree, however, that both forms of discovery protection must be waived in certain circumstances. One such situation is where a client asserts the "advice of counsel" as a defense. In the arena of patent litigation, the waiver of discovery protection arises where the alleged patent infringer asserts the advice of counsel defense to claims of willful patent infringement.

The scope of waiver of discovery protections upon asserting the advice of counsel defense to claims of willful patent infringement is expanding …

Lessons From Oz: Quantitative Guidelines For Children's Educational Television, Angela J. Campbell

UC Law SF Communications and Entertainment Journal

To implement the Children's Television Act of 1990, the Federal Communications Commission recently adopted a guideline assuring license renewal to television stations that air three hours per week of children's educational programming. This Article explores the likely success of the guideline by examining Australia's long experience with a children's television quota. The author argues that Australia's experience suggests that quantitative guidelines can lead to an increase in the quantity of children's educational programming. At the same time, as in Australia, broadcasters may try to count as children's educational programming programs that are not specifically designed for children, are of low …

Limitations On Claims Of Ownership And Claims For Royalties, Donald E. Biederman

UC Law SF Communications and Entertainment Journal

No abstract provided.

Protecting A Piece Of American Folklore: The Example Of The Gusset, Jo Carrillo

Faculty Scholarship

No abstract provided.

Information Property And The Internet, Henry V. Barry

UC Law SF Communications and Entertainment Journal

The concept of information as property is not new, but has gained new momentum with the development of the Internet. During the past century, courts have developed theories recognizing and protecting limited property rights in information, and prohibiting forms of information misappropriation. The author argues that the expanding use of the Internet generally, and the World Wide Web in particular, have resulted in a "misappropriation explosion" which, if unmoderated, could result in reduced access to information.

The author traces the evolution of property rights in information. Next, the author discusses the recent expansion in the law of misappropriation in federal …

Privacy And The Internet, Maureen S. Dorney

UC Law SF Communications and Entertainment Journal

This Article provides an overview of United States privacy status and regulations governing privacy issues and recent European privacy initiatives. The author explores how, in the absence of an overarching regulatory framework, steps have been taken by government and industry to address consumers concerns about privacy and the Internet.

War.Com: Why The Battles Over Domain Names Will Never Cease, Deborah Howitt

UC Law SF Communications and Entertainment Journal

In this Note, the author discusses the history of disputes over Internet domain names and presents potential solutions to the problem. The author reviews the International Ad Hoc Coalition's proposal for additional top-level domains, and concludes that new domains will not provide an adequate solution to disputes over domain names.

The author provides an overview of trademark law, including the Federal Trademark Dilution Act of 1995, which created a federal cause of action for trademark dilution. Although the addition of this cause of action has made it easier for trademark owners to prevent the use by others of "famous" marks …

Alternative Dispute Resolution And Emerging Online Technologies: Challenges And Opportunities, George H. Friedman

UC Law SF Communications and Entertainment Journal

By all measures, 1995 was a watershed year for the so-called "Information Superhighway." In increasing numbers, individuals, governments, and businesses-including attorneys, their clients, and the courts-are enjoying the expanded use of the burgeoning information and services available on computer networks such as the Internet. As courts and lawyers moved online, it was only natural that the Information Superhighway would ultimately build an "on-ramp" for the alternative dispute resolution (ADR) movement. This indeed occurred late in 1995 with the creation of innovative online ADR projects, several World Wide Web sites related to ADR, and a rapid increase in the use of …

The Talent Agencies Act: Time For A Change, Edwin F. Mcpherson

UC Law SF Communications and Entertainment Journal

Several years ago, the Talent Agencies Act was an effective tool for regulating unscrupulous agents and would-be agents, and the Labor Commissioner was a rigorous enforcer of the law. As recently as two to three years ago, the Act was interpreted and enforced uniformly and strictly, and wreaked havoc on the personal management profession. However, more recently the Labor Commissioner has left much of the enforcement and interpretation of the Act up to the courts. Superior Court judges do not understand (or do not care to understand) the Act, and appellate justices appear to be just as confused. The author …

Sifting Through The Wreckage Of Abc Reportage: Little Victories, Big Defeats & (And) Unbridled Media Arrogance, Clay Calvert

UC Law SF Communications and Entertainment Journal

This Article analyzes two recent high-profile cases involving investigative journalism by ABC News. It points out journalistic victories achieved in both cases that ultimately were overshadowed by other events. The Article also critiques the arrogance on the part of some journalists who flaunt generally applicable legal principles and cloak themselves in the First Amendment and the "right-to-know" justification for their actions. The author argues that journalists must provide both courts and the public with well reasoned explanations for their news gathering tactics if they want to expand the boundaries of First Amendment protection and boost journalistic credibility in the eyes …

Definite Confusion Over Likely Confusion, James W. Soong

UC Law SF Communications and Entertainment Journal

The U.S. circuit courts disagree on whether the likelihood of confusion determination in trademark law is a question of fact, law, or both. While the likelihood of confusion issue divides the circuits, scholarly commentary has been substantially uniform. Many legal commentators have argued that the likelihood of confusion determination should be deemed a question of fact for various reasons. In contrast, this Article proposes that the ultimate likelihood of confusion determination should be a question of law because of legal and policy considerations. This Article borrows the reasoning of recent Supreme Court precedent deciding that patent claim construction is a …

Sex Online: Is This Adultery, Christina Tavella Hall

UC Law SF Communications and Entertainment Journal

Should online infidelity be included as grounds for divorce in modern adultery statutes? This Note explores the history of divorce law and evaluates the possibilities of alleging online adultery as a sustainable reason for divorce. The author concludes that, in light of the normative goals of divorce law, the courts are an improper venue for addressing online affairs. Thus, online affairs, though possibly detrimental to marriage, are not "adultery" for legal purposes and therefore should not constitute adequate grounds for divorce in fault-based divorce proceedings.