Intellectual Property Law Commons^™

Peanuts And Potatoes: The Fcc's Diversification Policy And The Antitrust Laws, Dennis M. Cusack

UC Law SF Communications and Entertainment Journal

The FCC has regulated the ownership structure of the broadcasting industry in order to protect the public's interest in the free dissemination of diverse ideas. Citing the competition offered by new communications technologies, the FCC recently raised significantly the limits on group ownership of radio and television stations. This note argues that the premise behind ownership deregulation-that free market forces and the antitrust laws are sufficient guardians against excessive concentration-is flawed when considered in light of the first amendment underpinnings of the FCC's diversification policy. The author concludes that, while some deregulation may be necessary at this time, the FCC …

Intra-Corporate Communications: Sufficient Publication For Defamation Or Mere Corporate Babbling, Daven G. Lowhurst

UC Law SF Communications and Entertainment Journal

Should courts find that a defamatory communication made between employees of the same corporation does not satisfy the publication requirement of the tort of defamation? The author examines case law on both sides of the publication issue and argues that neither the cases which established the "no publication rule" nor the theoretical underpinnings of the tort of defamation can support the requirement of publication in cases of intra-corporate communications. The author concludes that the traditional theory, finding a sufficient publication as soon as a third person has understood the communication as defamatory, reconciles the defamed individual's right to sound reputation …

Protecting The Press By Protecting The Journalist: A Wrongful Discharge Action For Editorial Employees At Newspapers, Randy Baker

UC Law SF Communications and Entertainment Journal

Newspaper owners presently have both the ability and the inclination to limit the flow of information to the public. One device they use to suppress the flow of information is the threat of discharging recalcitrant employees. The author explains the "checking" function of the press on the government and how that function is impaired by newspaper owners' tendencies to limit or suppress the publication of certain information. The author also discusses the dilemma faced by editors in adhering to their journalistic standards while still enforcing the newspaper owner's policies. The author proposes that California's bar against discharges motivated by purposes …

Will The Real Cable Television Industry Please Stand Up: The Divergent Regulatory Treatment Of The Cable Television Industry Prior To The Cable Communications Policy Act Of 1984, Michael A. Mcgregor

UC Law SF Communications and Entertainment Journal

The cable television industry has received seemingly inconsistent treatment from the Federal Communications Commission. The FCC has characterized the industry both as a vigorous competitor in the marketplace and as a weak and vulnerable competitor in need of regulatory protection. The author examines the contexts in which these differing characterizations have been applied and finds they are not distinguishable. The author concludes that the FCC has not engaged in reasoned decisionmaking but, instead, has acted arbitrarily and capriciously in its decisions concerning the cable television industry.

Requiem For A Parody, Randall B. Hicks

UC Law SF Communications and Entertainment Journal

Although parody is a meritorious form of literary expression, parodists are often subject to allegations of copyright infringement based on substantial appropriation of copyrighted work. The author examines judicial applications of the "fair use" doctrine as codified in the multifactored balancing test of section 107 of the Copyright Act of 1976. The author finds the balancing test to be so vague that courts have virtually unbounded discretion in its application. Indeed, courts have abused their discretion in consistently finding no fair use in sexually-oriented or allegedly obscene parodies. The author concludes that the balancing test must either be applied without …

Descendible Publicity Rights: California's Grateful Dead, Peter H. Karlen

UC Law SF Communications and Entertainment Journal

Publicity rights, the rights to control the use of the name, likeness and photograph of a person, are now descendible by statute. The author examines recent legislation on publicity rights, specifically focusing on how it affects the descendibility of such rights. The author criticizes the legislation and proposes an alternative to what the Legislature has bequeathed to celebrities, their heirs, and the public.

The Proposed Repeal Of The Financial Interest And Syndication Rules: Network Domination Or Public Interest Representation, Evie L. Klintzer

UC Law SF Communications and Entertainment Journal

In 1970, the Federal Communications Commission (FCC) adopted the Financial Interest and Syndication Rules (FISR) and the Prime Time Access Rule to increase programming diversity and permit independent producers greater access to prime time viewing hours. Now, fourteen years later, the FCC is seeking repeal of the FISR and deregulation of network affiliation in the syndication of independently produced programs. The author carefully examines the changes occurring in the television industry since the adoption of the FISR and the arguments favoring and opposing the proposed repeal, concluding that the FISR should be retained.

An Overview Of Sex Discrimination In Amateur Athletics, Jeffrey K. Riffer

UC Law SF Communications and Entertainment Journal

Sex-based discrimination in interscholastic sports has recently been challenged by both male and female athletes. The courts have reached conflicting decisions as to whether such discrimination should be allowed and, if so, under what circumstances. The author analyzes the constitutional and statutory bases of these decisions. The author argues that this area remains in confusion because many of these decisions inadequately consider the issues involved or are based on stereotypical views of male and female athletic ability.

The Seven-Year Itch: California Labor Code Section 2855, Jonathan Blaufarb

UC Law SF Communications and Entertainment Journal

California Labor Code section 2855 applies a seven-year limit to the enforceability of personal service contracts. This note discusses section 2855 as it applies to the unique contractual practices of the entertainment industry, particularly the industry's use of mid-term contractual extensions and agreements. The author analyzes the courts' application of section 2855 in two representative cases and concludes that greater statutory guidance is needed in order for the courts to better interpret section 2855. The author suggests that an interpretive provision be added to section 2855 to create a "rebuttable presumption" that a personal service contract which is renegotiated mid-term …

Mother Knows Best: Reconciling Parental Consent With Minors' Rights In Shields V. Gross, Charmaine Jefferson

UC Law SF Communications and Entertainment Journal

The author analyzes the possibility that New York courts have eliminated a minor's common law right to disaffirm contracts under some circumstances. Sections 50 and 51 of New York's Civil Rights Law require the consent of a minor's parent or guardian for use of the minor's name, portrait, or picture. A parent's or guardian's consent may preclude the minor from later disaffirming a contract for the use of his or her name or photograph. The author suggests possible changes in legislation to protect the minor, as well as alternative legal approaches to prevent the use of photographs to which the …

The Prime Time Access Rule: Six Commandments For Inept Regulation, Thomas G. Krattenmaker

UC Law SF Communications and Entertainment Journal

The Federal Communications Commission's Prime Time Access Rule (PTAR) forbids television stations affiliated with the major networks from broadcasting certain programs during certain hours if the programs were produced for one of the major networks. The author examines the reasons PTAR is favored by the networks but concludes that PTAR should be repealed since it does not further any goals of network regulation, disregards viewer welfare, and clashes with anticensorship policies. The author suggests that regulatory inaction will increase competition among the networks for viewers, eventually forcing the networks themselves to push for PTAR's repeal.

Freer Expression Or Greater Repression - Unesco And The Licensing Of Journalists, Karen D. Kraemer

UC Law SF Communications and Entertainment Journal

Political unrest in many regions of the world presents dangers to journalists, and thereby threatens the free flow of information. UNESCO's proposal to license international correspondents in order to help insure their safe conduct has met with strong criticism from the American press. This commentary examines several human rights instruments and their limited enforceability and suggests that there may be other viable options, including treaties and internal codes of ethics, that would stem the trend of violence against reporters.

Diversification And Regulated Industries - What's Next For The Telephone Holding Companies, Louis B. Schwartz

UC Law SF Communications and Entertainment Journal

Should regulated businesses be allowed to diversify into nonregulated areas? And if so, should the ratepayers be required to absorb the losses if these "investment opportunities" turn sour? Examining the landmark AT&T Divestiture Decree, the author argues that recent decisions regarding the permissible scope of outside operations have gone too far afield. By overemphasizing the potential benefits of competition, while underemphasizing important considerations of management psychology, the author feels unlimited diversification operates to everyone's detriment. The author concludes that the present guidelines are unworkable and offers some guiding principles for future decisions.

Tuning Out The Electorate: Early Network Projections And Decreased Voter Turnout, Jeff Polsky

UC Law SF Communications and Entertainment Journal

The author offers evidence that television and radio coverage of elections prior to the closing of polls nationwide influences election results and thereby interferes with the electoral process. The author examines several possible solutions and concludes that the most effective solutions are restrictions on exit-polling and prohibitions against early broadcasts of election result projections. Acknowledging that such restrictions or prohibitions raise first amendment issues, the author argues that the primary purpose of the first amendment is protection of our system of self-government. The author concludes that broadcasts of early election projections deter people from voting and that the first amendment …

Remedies For Misappropriation Of Motion Picture And Television Story Ideas, Jonathan D. Cohen

UC Law SF Communications and Entertainment Journal

A storyline is the foundation of any motion picture or television program. However, basic storylines are afforded little protection under the copyright laws. This note analyzes the extent of protection afforded storylines under federal and California copyright law. The author discusses ways an author may fashion his storyline in order to afford it greater copyright protection, as well as remedies available to a storyline writer when infringement does occur.

The Syndication And Financial Interest Rules: Is It A Prime Time For A Change, Robert M. Osher

UC Law SF Communications and Entertainment Journal

The FCC has recently proposed a repeal of the television network syndication and financial interest rules (Rules). The Rules, enacted in 1970, regulate certain network programming practices in an effort to shift more wealth to producers and thereby encourage more diverse and creative programming. The author questions the assumptions underlying the Rules and argues that drastic changes in the television marketplace have rendered the Rules ineffective. He concludes that the Rules should be replaced by new regulations more carefully constructed to prevent unwanted network dominance.

Stay Tuned For New Technology: The Paradoxes Of The Proposed Financial Interest And Syndication Rules, Eli H. Glovinksy

UC Law SF Communications and Entertainment Journal

As part of its policy of deregulation, the Federal Communications Commission (FCC) has proposed a repeal of the financial interest and syndication rules governing the television industry. This note defines the public interest reasons behind the initial adoption of the rules and analyzes the major arguments for and against repeal. The author discusses the major networks' contention that competition rather than regulation should control the television industry, and contrasts this argument with the Committee for Prudent Deregulation's position that the strength of independent producers should be maintained to insure public interest through diverse programming. Taking this latter approach, the author …

A Tale Of Two Standards: Antitrust, The Public Interest, And The Television Industry, Edward P. Sangster

UC Law SF Communications and Entertainment Journal

Until recently, competitive advertising practices required by antitrust laws might have interfered with the statutory obligation of broadcasters to program in the public interest. In United States v. National Association of Broadcasters, the court invalidated a television industry trade agreement that helped broadcasters fulfill their public interest requirement. The court held that the antitrust requirement of free competition outweighed the programming requirement. This note examines the court's decision and analyzes its effect on the FCC's recent deregulation of television advertising practices. The author questions the wisdom of deregulating the industry before the FCC has had the opportunity to study advertising …

Changing The Rules Of The Game: The New Fcc Regulations On Political Debates, Erwin Chemerinsky

UC Law SF Communications and Entertainment Journal

In November 1983, the Federal Communications Commission (FCC), in the spirit of deregulation and in response to pressure from broadcasters, changed its policy toward radio and television sponsorship of political debates. Under the old policy, a station could broadcast a debate as a news event and avoid the costs of providing equal time to fringe candidates only if someone else sponsored the debate. Under the new rule, stations can arrange and hold debates in their own studios without any obligation to provide equal time. The author analyzes the potential consequences of the new rule, questioning the propriety of the FCC's …

Who's Watching The Watchdog: Self-Evaluative Privilege And Journalistic Responsibility In Westmoreland V. Cbs, Inc., Paul A. Weiss

UC Law SF Communications and Entertainment Journal

This note explores the self-evaluative privilege and its application to newsgathering media defendants in defamation trials. In Westmoreland v. CBS, Inc., defendant CBS was found to have waived the privilege. The author discusses the possible effects of this ruling and argues that the public interest in fostering responsible journalism should foreclose punishing newsgathering organizations that publicly take responsibility for their mistakes. The author concludes that the privilege, with limitations, should be extended to newsgathering media defendants.

Of And Concerning Real People And Writers Of Fiction, Dan Rose, Charles L. Babcock

UC Law SF Communications and Entertainment Journal

Inevitably, real life experiences are the source of all artistic inspiration. Yet, to draw from this source often leaves the author open to potential allegations of libel; fictional characters created entirely in the author's mind are, in fact, "of and concerning" real people. In this article the authors examine the dilemma presented by real people and writers of fiction. By analyzing the creative process and looking at three recent cases, they argue that the current standard is unduly protective of plaintiffs. Only by requiring proof of malicious use of the fiction device as a subterfuge to defame the plaintiff, the …

Juvenile Computer Crime - Hacking: Criminal And Civil Liability, Helen W. Yee

UC Law SF Communications and Entertainment Journal

In recent years the increase in both computer literacy and the availability of computer terminals has led to an increase in computer crime. This note examines the state and federal criminal statutes designed to punish computer crimes, and asserts that these statutes are inadequate to deal with the problem of juvenile "hacking." In order to deter teenage "hacking" and better compensate its victims, the author proposes imposing civil liability on juveniles or their parents as an effective and realistic alternative to criminal prosecution of these juveniles.

The Fcc And Pay Cable: Promoting Diversity On Television, David Coursen

UC Law SF Communications and Entertainment Journal

The FCC's pay cable policy to increase television diversity through deregulation has backfired. One unforeseen problem has been the rise of basic services, which, unlike subscription services, support themselves with advertising revenues. The author argues that the nonregulation of basic services and the harmful growth of vertical integration in the cable industry prevent television diversity and innovative programming.

Two-Way Cable Television And Informational Privacy, Kenneth M. H. Hoff

UC Law SF Communications and Entertainment Journal

The advent of interactive cable television will enable subscribers to avail themselves of various services, including catalog shopping and electronic funds transfers, within their own homes. The author is concerned that this increased convenience may be outweighed by the potential threat to privacy. The system can compile detailed information about subscribers that will be easily accessible to government authorities. The author discusses the inadequacy of present laws to protect the consumer and proposes a Model Act that would establish standards to uphold the privacy of subscribers.

The Plight Of The Personal Manager In California: A Legislative Solution, Gary A. Greenberg

UC Law SF Communications and Entertainment Journal

Personal managers play a critical role in the California entertainment industry, but are not currently regulated by statute. Entertainment unions and licensed talent agencies contend that personal managers perform substantially the same services as talent agents and should be subject to the same regulatory requirements. This note examines the recent legal and administrative rules and the problems these rules create. It discusses possible solutions, concluding with a proposal to amend the Talent Agency Act and create a "Personal Managers Act."

Sports And The Law: A Comprehensive Bibliography Of Law-Related Materials, Five Year Supplement (1979-1984), Frank G. Houdek

UC Law SF Communications and Entertainment Journal

No abstract provided.

Theatrical Motion Pictures And The Law: A Comprehensive Bibliography Of Law-Related Materials, Supplement (1980-1984), Frank G. Houdek

UC Law SF Communications and Entertainment Journal

No abstract provided.

Music And The Law: A Comprehensive Bibliography Of Law-Related Materials, Supplement (1982-1984), Gail F. Winson

UC Law SF Communications and Entertainment Journal

No abstract provided.

Writing With Light: The Metaphysics Of The Copyright Process In The Betamax Cases, David C. Farmer

UC Law SF Communications and Entertainment Journal

The United States Supreme Court has recently held that the sale of videotape recorders does not constitute contributory infringement of the copyrights of television and motion picture producers. The author analyzes the Betamax cases, arguing that the plaintiffs erred in seeking judicial relief and instead should have attempted to achieve an accommodation with the new technology in the marketplace.

The Applicability Of State Action Doctrine To Private Broadcasters, Ruth Walden

UC Law SF Communications and Entertainment Journal

In light of the "deregulatory fever" currently in vogue in Washington, claims of a first amendment right of access to the broadcasting media are being heard again. Many groups are hoping to use the Constitution

to fill the access gap that would be left by elimination of policies like the fairness doctrine. Before such an approach can succeed, however, the government action requirement of the first amendment must be met; without state action, the first amendment is simply inapplicable. In this article, the author analyzes previous attempts to apply state action doctrine to broadcasters and the judicial responses they engendered. …