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Full-Text Articles in Intellectual Property Law
Trade-Based Remedies For Copyright Infringement: Utilizing A Loss-Preventative Synthesis, Antionette M. Von Dem Hagen
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
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
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In 1987, the FCC repealed broadcasting's Fairness Doctrine.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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 …