Intellectual Property Law Commons^™

Don't Bite The Hand That Feeds: A Call For A Return To An Equitable Talent Agencies Act Standard, Chip Robertson

UC Law SF Communications and Entertainment Journal

This Note addresses the current conflict in case law surrounding the California Talent Agency Act. It examines the validity of the Wachs v. Curry incidental procurement exemption and Waisbren v. Peppercorn's strict rule prohibiting procurement without a license. The Note discusses the negative implications of the California Labor Commissions decision to abandon the Wachs incidental exemption and enforce the Waisbren holding. The author then suggests alternatives which may lead to more equitable solutions for artists, personal managers, and talent agents.

Reflections On A Gossamer Thread In The World Wide Web: Claims For Protection Of The Droit Moral Right Of Integrity In Digitally Distributed Works Of Authorship, Timothy E. Nielander

UC Law SF Communications and Entertainment Journal

The global distribution of digitized materials through the Internet creates new challenges for traditional copyright law. Protection for moral rights continues to be a subject of international contention because of the global and interactive nature of cyberspace. Moral rights contemplate highly personal control over creative expression even after the artist has obtained the economic benefit provided by copyright laws throughout the globe. This Article argues that policies predicated on the free flow of information and of creative works in international trade may diminish the capacity of artists to claim violations of a right of integrity in digitized reproductions of their …

Forgive Us Our Press Passes, Daniel Schorr

UC Law SF Communications and Entertainment Journal

No abstract provided.

Law And Order In Cyberspace: Washington Report, Nicholas W. Allard, David A. Kass

UC Law SF Communications and Entertainment Journal

Electronic commerce in cyberspace faces an uncertain legal environment. In many instances the laws that will shape the future growth and development of electronic commerce have yet to be written. Gaps in the regulatory framework, and rules from other contexts that are made obsolete by cyberspace technology, promote chaotic market conditions and impede innovation. Today, business activity or interaction with people which employs 19th and 20th Century communication technology is governed by an array of civil and criminal laws. It is, however, not at all clear which existing legal rules do or ought to apply to markets in cyberspace. From …

Enforcement Of Use Limitations By Internet Services Providers: How To Stop That Hacker, Cracker, Spammer, Spoofer, Flamer, Bomber, Keith J. Epstein, Bill Tancer

UC Law SF Communications and Entertainment Journal

As the Internet continues its rapid growth and development, concerns regarding the potential for its misuse are also growing. Many of the abuses and misuses of the Internet defy simple solutions. Unacceptable uses of the Internet have triggered calls for regulation of cyberspace, harmed Internet users, and have sometimes resulted in liability for unwary Internet Service Providers. The authors considers the difficulties of Internet Service Providers and others who do business on or over the Internet caused by unacceptable Internet use, and proposes a set of solutions designed to protect their interests. Contractual use limitations, in conjunction with policies designed …

An Updated Consideration Of A Taxing Problem: The Harmonization Of State And Local Tax Laws Affecting Nonresident Professional Athletes, Marc Yassinger

UC Law SF Communications and Entertainment Journal

Professional athletes today can no longer merely concern themselves with their on-the-field performances. More and more states and cities, driven by growing deficits and the need to create more tax dollars, have made diligent efforts to focus their tax collection resources on visible individuals who earn sizable salaries in their jurisdictions. With their big salaries, nonresident professional athletes are easily identifiable targets who justify the effort. The author examines how the collection of taxes from nonresident professional athletes has created numerous problems, including inconsistent formulas employed by different jurisdictions, which has lead in some cases to double taxation.

This Note …

Race As A Hiring/Casting Criterion: If Laurence Olivier Was Rejected For The Role Of Othello In Othello, Would He Have A Valid Title Vii Claim, Heekyung Esther Kim

UC Law SF Communications and Entertainment Journal

This Note analyzes whether an actor or actress has a cause of action against casting directors and/or producers under Title VII of the 1964 Civil Rights Act for employment discrimination based on race. The author discusses what constitutes a violation of the Act and the procedural requirements a plaintiff must comply with in order to establish a prima facie case of discrimination. This Note then addresses how the law does not effectively deal with the issue and how this inapplicability of the law affects employment opportunities for minority actors and actresses. The author proposes that currently, the only appropriate remedy …

The Quality Of First Amendment Speech, Randall P. Bezanson

UC Law SF Communications and Entertainment Journal

One of the core axioms of First Amendment jurisprudence is that the quality of speech-its goodness or badness from a literary, artistic, or aesthetic perspective, or its effectiveness in communicating to an audienceshould bear no relationship to its protection under the First Amendment. This Article analyzes the Supreme Court's First Amendment doctrine across a wide range of fields: political speech, obscenity, commercial advertising, misrepresentation, entertainment, literature and the arts, and humor. The author demonstrates that the Court regularly, although implicitly and perhaps unconsciously, employs various qualitative criteria in determining whether and to what extent speech is protected under the First …

Curing The Inequitable Conduct Plague In Patent Litigation, Glenn E. Von Tersch

UC Law SF Communications and Entertainment Journal

The defense of unenforceability due to inequitable conduct in patent infringement suits has become an absolute plague. Senior Judge Nichols of the Federal Circuit said as much ten years ago, and the problem still remains. Because of the expense of litigating such a defense, patent owners settle valid infringement claims for cents on the dollar, while infringers suffer little more than the slight risk of sanctions. This Note defines inequitable conduct in patent prosecution, details the consequences of inequitable conduct, and describes the restricted method available for curing inequitable conduct. Next, the author describes the problems with the current state …

Has The Fda Bought The Winston Cup: A Takings Analysis Of The Proposed Ban On Sports Sponsorships By Tobacco Companies As Applied To Nascar, Andrew B. Dzeguze

UC Law SF Communications and Entertainment Journal

In 1996 the Department of Health and Human Services announced that the FDA would regulate all tobacco advertising, classifying tobacco as a drug. This Note explores the ramifications of this announcement as it relates to the ongoing sponsorship of NASCAR auto races by tobacco companies. Initially, this Note provides a brief history of NASCAR and its tobacco sponsorship. The Note then explores three legal theories for invalidating the FDA regulations: First Amendment defenses, lack of jurisdiction defenses, and takings claims. The author concludes that a takings claim provides the best method of challenging the FDA regulations, because it would not …

Impact Of The Communications Decency Act Of 1996 On Federal Prosecutions Of Computer Dissemination Of Obscenity, Indecency, And Child Pornography, William P. Keane

UC Law SF Communications and Entertainment Journal

With the passage of the Communications Decency Act of 1996, Congress provided federal prosecutors with a potentially powerful new tool for combating "indecent" communications sent or made available to minors through computer networks. The author offers an early examination of the CDA on the use of computer and computer networks as instrumentalities of federal obscenity, indecency, and child pornography crimes, as well as the possible Constitutional challenges that are likely to emerge. He also outlines anticipated problems with enforcement, proof, and various defense strategies.

Regulating Competition In The Information Age: Computer Software As An Essential Facility Under The Sherman Act, David Mcgowan

UC Law SF Communications and Entertainment Journal

This Article examines the application of the antitrust laws to computer software markets, beginning with a discussion of the different economic approaches underlying the antitrust and copyright laws. The Article contends generally that antitrust does not provide the analytical tools necessary to determine the optimal scope of copyright protection. The Article then examines more particularly the increasingly common argument that access to software code-including at least some form of copying-may be an "essential facility" under the antitrust laws. In this regard the Article discusses the analytical confusion surrounding the essential facilities concept and argues that application of the concept should …

Hilton Davis And Jury Trials,, William Alsup, Carolyn Wiggin

UC Law SF Communications and Entertainment Journal

Congress' creation of the Court of Appeals for the Federal Circuit in 1982 led to a boom in patent litigation that has continued into the 1990's. As this boom has continued, the role of juries in patent infringement cases has been criticized, with commentators suggesting jury bias in favor of patent holders. In particular, critics of patent infringement jury trials have argued that the doctrine of equivalents favors plaintiffs by allowing juries too much discretion in finding a patent infringement when there has been no literal infringement.

In 1995, the Federal Circuit's decision in Hilton Davis Chemical Co. v. Warner-Jenkinson …

The Copyright Term Extension Act: Is Life Plus Seventy Too Much, Jenny L. Dixon

UC Law SF Communications and Entertainment Journal

The Copyright Term Extension Act, if enacted, will increase the term of copyright protection to include the life of the author plus seventy years. Proponents of this legislation argue that such an increase is necessary for the United States to remain competitive in international intellectual property matters. This Note examines that proposition in light of the United States copyright tradition, the international copyright agreements currently in effect, and the negative impact the extension could have upon users of the public domain.

The Application Of Securities Laws In Cyberspace: Jurisdictional And Regulatory Problems Posed By Internet Securities Transactions, Kenneth W. Brakebill

UC Law SF Communications and Entertainment Journal

This Note examines the impact of the Cyberspace revolution upon our current American system of securities regulation. The Author discusses several recent technological innovations, including the advent of electronic media to deliver corporate information to investors, the use of the Internet to consummate public stock offerings, and the creation of on-line securities trading systems to match buyers and sellers, and addresses the response of securities regulators to these novelties. In large part, the author will explore the legal uncertainty that has been thrust upon the American courts, federal and state regulators, and investors in light of the growing use of …

Patent Protection For Computer-Related Inventions: The Past, The Present, And The Future, Nancy J. Linck, Karen A. Buchanan

UC Law SF Communications and Entertainment Journal

Intellectual property protection is important to the United States' economic welfare, in particular to the computer industry. This Article briefly overviews the underlying purpose of the United States' patent laws and the confusion present in the law regarding patent protection for computer software and computer-related inventions. It begins its discussion of this confusion with a review of the history of patent protection for these inventions, characterizing the history as "marked by 'stops and starts.'" The initial "starts" are numerous cases from the Court of Customs and Patent Appeals reversing the Patent and Trademark Office's (PTO's) refusal to issue a patent …

Patent Law's Nonobviousness Requirement: The Effect Of Inconsistent Standards Regarding Commercial Success On The Individual Inventor, Reed W. L. Marcy

UC Law SF Communications and Entertainment Journal

This Note examines the Federal Circuit's approach to determining nonobviousness, the most difficult of the statutory patent requirements to satisfy, and the effect that inconsistent nonobviousness standards have on the individual inventor.

Since 1982, the Federal Circuit has made the commercial success of an invention the most important factor in determining whether an invention was not obvious and thus patentable. For the most part, the Federal Circuit's approach has helped the individual inventor. However, numerous obstacles arise when too much emphasis is placed on the marketing of the invention rather than on the creative act of inventing. In addition, the …

Ball Four: The Irs Walks The Kansas City Royals, Myreon Sony Hodur

UC Law SF Communications and Entertainment Journal

The IRS will grant deductions for money spent on charitable purposes. One such purpose is lessening the burdens of governments. In 1993 the IRS granted a deduction worth almost $100 million to the estate of Ewing M. Kauffman for his donation of the Kansas City Royals baseball team to a local community foundation under a "Succession Plan." That arrangement would give local buyers preference in bidding to purchase the team from the foundation. The IRS found that the Succession Plan lessened the burden of government insofar as it relieved Kansas City area governments of their burden in keeping the franchise …

The Right Of Publicity Versus Free Speech In Advertising: Some Counter-Points To Professor Mccarthy, Stephen R. Barnett

UC Law SF Communications and Entertainment Journal

Professor J. Thomas McCarthy, in a recently published lecture, has defended recent expansions of the right of publicity and rejected the idea of a free-speech defense that would in some cases protect the unlicensed use of a celebrity's name, likeness, or "identity" in an advertisement. In this "counter-lecture" Professor Barnett focuses on what he sees as the growing conflict between the right of publicity, as embodied in Ninth Circuit decisions such as the Vanna White and Abdul-Jabbar cases and in the Restatement (Third) of Unfair Competition, and free speech in advertising, as protected by the Supreme Court's doctrine of "commercial …

Vara's First Five Years, Simon J. Frankel

UC Law SF Communications and Entertainment Journal

This article addresses the background, provisions, and brief history of the Visual Artists Rights Act of 1990 (VARA), a federal law protecting the "moral rights" of visual artists. These non-economic rights, which give artists some control over their creations even after the works are sold, have a long history in continental Europe, but are a recent import to the United States. After American courts declined to recognize such rights under common law earlier in this century, approximately a dozen states enacted laws protecting the rights of creators of "fine art." These statutes generally protect the artist's right of integrity-to protect …

At The Interface Of Patent And Trademark Law: Should A Product Configuration Disclosed In A Utility Patent Ever Qualify For Trade Dress Protection, Kevin E. Mohr

UC Law SF Communications and Entertainment Journal

Patent law seeks to advance technological innovation by encouraging invention with a limited-duration monopoly. In return, the inventor discloses his invention, and it becomes free for the public to use upon the patent's expiration. Trademark law seeks to avoid consumer confusion by granting to the trademark owner for an indefinite period a monopoly in the use of the mark in connection with its goods. Where a product is protected by a utility patent and the product owner also seeks to protect the product's shape or design by relying on trademark law, these policies can collide. This can result in the …

The Lecture Series, Mary Kay Kane

UC Law SF Communications and Entertainment Journal

No abstract provided.

Contractual Rules And Terms And The Maintenance Of Bargains: The Case Of The Fledgling Writer, Blake D. Morant

UC Law SF Communications and Entertainment Journal

A writer enters into an agreement with a publisher who is obligated to disseminate the writer's creative work. This contract often contains clauses such as indemnity provisions which seemingly protect the publisher from liability for marketing the work by shifting the risks of publication precipitously to the writer. Both parties accept this provision for disparate reasons: the writer, particularly a novice in this bargaining area, accedes to these risks either because of ignorance of the clause and its possible consequences, or a perceived lack of choice on her part; the publisher demands indemnification from the writer in the presumed belief …

Utilitarian Design Features And Antitrust Parallels: An Economic Approach To Understanding The Funtionality Defense In Trademark Litigation, M. A. Cunningham

UC Law SF Communications and Entertainment Journal

In this Article, the author addresses an issue of continuing significant concern to trade dress owners by examining the impact of a recent Supreme Court decision on the role of the functionality defense in trademark litigation. He traces the development of the functionality doctrine in the courts and identifies the convergence of the principles underlying the doctrine with the competition concerns of antitrust law. The Article concludes with recommendations for ways of employing the economic analysis used in antitrust litigation as an effective tool to resolve disputes over whether a particular combination of design features is functional.

Pinning The Blame In Cyberspace: Towards A Coherent Theory For Imposing Vicarious Copyright, Trademark And Tort Liability For Conduct Ocurring Over The Internet, Ian C. Ballon

UC Law SF Communications and Entertainment Journal

Vicarious liability, or the principle that under certain circumstances it is fair and just to hold unrelated third parties liable for conduct which they did not initiate or perhaps even condone, is both a logical outgrowth of, and impediment to, the ongoing rapid expansion of the Internet. Online infringers and tortfeasors may be more likely than others to be effectively "judgment proof," because their conduct was undertaken anonymously, they cannot satisfy a damages award, or they are located beyond the jurisdiction of a convenient and economical U.S. venue for litigation. As a consequence, and as Internet use has increased and …

Virtual Prostitution: New Technologies And The World's Oldest Profession, David Cardiff

UC Law SF Communications and Entertainment Journal

The various developing technologies that will allow entertainment consumers to receive video on demand will provide increased choice and interactivity. These technologies will also be capable of providing interactive video pornography, thus refocusing the public debate regarding obscene and indecent communications. This Note explores the capabilities of these new technologies, vis-A-vis pornographic communications, in the context of the traditional nuisance-based jurisprudence that has evolved in response to more traditional means of disseminating pornography, and in the context of the various new laws, including the Communications Decency Act of 1996, which are intended to restrict access to, and punish purveyors of, …

Caught In The Web: Entrapment In Cyberspace, Jennifer Gregg

UC Law SF Communications and Entertainment Journal

Cyberspace presents a new forum for criminal activity, including the distribution of child pornography. Law enforcement has responded with creative undercover techniques to catch on-line pedophiles and other lawbreakers. But who is policing the police? This Note applies existing entrapment law to police deception in this novel setting, discusses the current state of the law, and demonstrates that the judicially created doctrine is inadequate to curb police abuses. It suggests that legislative action is needed to modify entrapment law to accommodate the special aspects of cyberspace, and identifies the threshold issues which such legislation must address.

Blood Money: When Media Expose Others To Risk Of Bodily Harm, Sandra Davidson

UC Law SF Communications and Entertainment Journal

This Article explores application of negligence law to media that expose others to a foreseeable risk of bodily harm or death. Negligence suits are an increasing risk to the media. Several such cases are winding through the judicial system. Braun v. Soldier of Fortune and Hyde v. City of Columbia stand as precedents for media liability.

Besides surveying negligence cases brought against media, this Article explores the related areas of strict liability and incitement, which have not yet resulted in media liability. It also discusses the availability of bomb recipes on the Internet and asks whether increased dangers to physical …

Seeing Beyond The Smoke And Mirrors: A Proposal For The Abandonment Of The Commercial Speech Doctrine And An Analysis Of Recent Tobacco Advertising Regulations, Scott Joachim

UC Law SF Communications and Entertainment Journal

This Note examines the Supreme Court's struggles both in defining commercial speech and identifying the parameters of the commercial speech doctrine. The author analyzes a series of Supreme Court cases and concludes that the doctrine rests on an ill-defined notion of commercial speech and on illusory assumptions regarding the distinctions between commercial speech and more highly protected discourse such as political speech. The author concludes that the Court should abandon the commercial speech doctrine and provide commercial speech the full protections enjoyed by political speech. The Note next outlines President Clinton's and the FDA's recent tobacco advertising regulations and analyzes …

Of Seeds And Shamans: The Appropriation Of The Scientific And Technical Knowledge Of Indigenous And Local Communities, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.