Entertainment, Arts, and Sports Law Commons^™

Constitutive Choices: Section 230 And First Amendment Values Versus Fosta And President Trump's Executive Order, Scott Memmel, Christopher Terry

Cardozo Arts & Entertainment Law Journal

In 2018, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) produced the first category of speech not provided immunity by Section 230 of the Communications Decency Act. This first cut against Section 230 was followed by President Donald Trump's May 2020 executive order aimed at limiting the legal protections for social media companies. Both of these actions represent a new battle over old ideas about protecting expression. This Article uses Paul Starr's "Constitutive Choices" model to suggest that Section 230 represents a legacy of laws and regulations designed to foster free speech and access to information. …

The Ordinary Authors Of The Bureau Of New Plays: Copyright And Reallocating Authority In The American Theatre (1936-1949), Brent Salter

Cardozo Arts & Entertainment Law Journal

This Article examines the brief history of the Bureau of New Plays, a nonprofit enterprise funded in 1936 by seven major Hollywood film studios and administered by the Theatre Guild's Theresa Helburn, to identify and develop talented young American playwrights. A study of the Bureau of New Plays provides a window into the authority that playwrights, and particularly younger writers, exercised over the work they created. In one respect, the establishment of the Bureau of New Plays complemented American copyright's general trajectory toward the expansion of the rights of the individual author, and in the context of the theatre the …

An Estate Plan For Kanye West, Thomas E. Simmons

Cardozo Arts & Entertainment Law Journal

One inventory item in megastar Kanye West's vast portfolio of assets merits a unique sort of care and safeguarding his right ofpublicity. The right ofpublicity is a property interest which represents the commercial value of a celebrity's name, image, and likeness. In some states, including California, the right survives the celebrity's death and is freely alienable and devisable. A protective arrangement, such as a trust, is often pursued to impose postmortem use and transferability restrictions on property that has particular importance to the testator. This Article proposes a noncharitable purpose trust as a means by which Kanye West's right of …

Post-Etherdelta: Clarifying Liabilities For Cryptocurrency Exchanges And Market Participants, Robert Sistoso

Cardozo Arts & Entertainment Law Journal

The rise of cryptocurrencies has led to the development of both centralized and decentralized exchanges, which face significant regulatory challenges under U.S. securities laws. The SEC has applied the Howey test to determine whether tokens qualify as securities, and its enforcement actions, such as against EtherDelta, highlight the need for clarity on the liabilities of developers, operators, and users in decentralized systems. The article advocates for the SEC to refine its regulatory approach to balance investor protection with the promotion of innovation in blockchain technology.

Fashion's Brand Heritage, Cultural Heritage, And The Piracy Paradox, Felicia Caponigri

Cardozo Arts & Entertainment Law Journal

This Article explores the role that heritage has on our understanding of the appropriateness of intellectual property protection for fashion designs in light of Christopher Sprigman and Kal Raustiala's seminal work in The Piracy Paradox. At times, heritage seems to both reinforce Sprigman and Raustiala's argument that fashion thrives in a low-IP regime and, at other times, heritage challenges that argument. Taking Italian fashion design as a case study, this Article considers the intersection of brand heritage, cultural heritage, and intellectual property law and makes three central observations. First, that fashion designs reflecting brand heritage thrive in a low-IP …

Where Code Is Chaos: Content Platforms And Algorithmic Incentives, Amy L. Landers

Cardozo Arts & Entertainment Law Journal

This Article considers the intersection of the piracy paradox in the context of the attention economy, the algorithmic behavior of content platforms, and intellectual property's incentive theory. This inquiry is framed by a micro-history of a micro-dispute between two micro-celebrities about a color-block sweatshirt design of debatable originality. Because purchases are largely made to engage and support the creator as interactive communication, the arguments for legal protection for influencer merchandise are weak. Therefore, this field appears to be an ideal space for the operation of the piracy paradox.

This conclusion might be persuasive if anti-copying norms or other considerations minimized …

Fashion, Models, And Intellectual Property, Andres Sawicki

Cardozo Arts & Entertainment Law Journal

In this Article, I revisit the impact of Professor Kal Raustiala and Professor Christopher Sprigman 's landmark article, The Piracy Paradox. Their work identified an empirical anomaly that was difficult to explain in light of the standard justification for intellectual property rights: although IP law does not grant meaningful exclusivity in novel fashion designs, the fashion industry invests significant resources developing those novel designs. To account for this anomaly, The Piracy Paradox shifted the focus from the supply side of innovation to the demand side. The standard justification emphasized that innovators face threats of copying that they cannot easily mitigate; …

Is It Really A #Ad? An Increase In Rising Influencers Posting Fake Sponsored Content, Amanda Guzman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

"Gigi, Over Here!": Celebrity Use Of Copyrighted Paparazzi Photographs, Dylan B. Reich

Cardozo Arts & Entertainment Law Journal

The note argues that celebrities should have limited rights to use paparazzi-taken photos of themselves, balancing their rights with those of photographers. It proposes that non-commercial use by celebrities could be permissible under certain legal doctrines.

From A Circuit Split To A District Split: Amending Copyright Lawsuits After Fourth Estate Public Benefit Corporation V. Wall-Street.Com, Llc, Habeeb Sheikh

Cardozo Arts & Entertainment Law Journal

The note examines the legal implications of the Supreme Court's decision in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, which resolved a circuit split by adopting the "registration approach" for copyright lawsuits. This approach requires a copyright registration to be granted by the Copyright Office before a lawsuit can be filed. The article argues that lower courts are now divided on whether plaintiffs can amend their complaints to include newly registered copyrights after the initial filing, and it advocates for allowing such amendments to ensure fairness and efficiency in the judicial process.

Trademark Enforcement And Statutory Incentives, Leah Chan Grinvald

Cardozo Arts & Entertainment Law Journal

The combination of the recent U.S. Supreme Court case, Romag Fasteners v. Fossil Group, Inc., and the diamond anniversary of the Lanham Act provides good grounds to reflect on how trademark enforcement and statutory incentives have evolved through the years. Although enforcement of one's trademarks through the use of the courts can be traced back to England in the 1790s, trademark litigation and other enforcement activities have exploded, in relative terms, since the enactment of the Lanham Act in 1946. Although not subject to an easy empirical correlation, this trend suggests that the statute has had an impact on increasing …

Registration And Federalization: 75 Years Of The Lanham Act, Mark P. Mckenna, Brittany Von Rueden

Cardozo Arts & Entertainment Law Journal

The Lanham Act, enacted 75 years ago, aimed to enhance notice and uniformity in trademark law, primarily through improved registration processes. However, its goals were only partially met. While it successfully federalized trademark law, it fell short in emphasizing registration due to court interpretations that allowed enforcement of unregistered marks, leading to a more complex and expanded scope of trademark protection.

Mark Talk, Alexandra J. Roberts

Cardozo Arts & Entertainment Law Journal

The article argues that trademark law should evolve to incorporate "mark talk"—consumer discussions and usage of trademarks on social media and online platforms—as a key factor in determining secondary meaning. Traditional methods, such as advertising expenditures and sales data, are critiqued for their limitations in the digital age. The author advocates for updating legal frameworks to reflect contemporary consumer interactions, emphasizing that mark talk provides direct evidence of consumer perception and a mark's distinctiveness. However, courts and the USPTO have been slow to adopt these modern approaches, highlighting a disconnect between legal practices and the realities of digital communication.

The Final Chapter Of The 200-Year-Old Story?: A Comment To Professor David Rudenstine, Samantha Anderson

Cardozo Arts & Entertainment Law Journal

The article argues that the British Museum's claim to the Parthenon Marbles is based on questionable evidence, with the key document, the firman, neither found nor recorded in Ottoman archives. This suggests the legal basis for ownership is weak and potentially fraudulent, undermining the museum's legitimacy.

Comment On Trophies For The Empire: A New York Perspective On Greek Claims To The Parthenon Sculptures At The British Museum, Raymond J. Dowd

Cardozo Arts & Entertainment Law Journal

The article argues that Greece has a strong legal case for the return of the Parthenon Marbles from the British Museum, particularly if issues like statutes of limitations and sovereign immunity are overlooked. It suggests that under New York law, Greece would likely succeed and encourages Greece to pursue legal action, potentially through a declaratory judgment in Greek courts to resolve the legal dispute and influence public opinion.

Trophies For The Empire: The Epic Dispute Between Greece And England Over The Parthenon Sculptures In The British Museum, David Rudenstine

Cardozo Arts & Entertainment Law Journal

The article challenges the British Museum's claim to the Parthenon sculptures, arguing that the evidence undermines the legality and ethics of their acquisition. It asserts that Lord Elgin's removal of the sculptures was unauthorized and involved bribery, and that the British Museum's defense relies on flawed historical interpretations and misrepresentation of key documents. The article concludes that the moral and legal arguments increasingly favor the repatriation of the sculptures to Greece.

Comment On Trophies For The Empire By David Rudenstine, Lawrence M. Kaye

Cardozo Arts & Entertainment Law Journal

The article presents a comprehensive analysis of the dispute over the Parthenon Sculptures, arguing that Lord Elgin's removal of the sculptures was unlawful and that their retention by the British Museum is morally indefensible. It advocates for the repatriation of the sculptures to Greece based on legal, cultural, and ethical grounds.

David Rudenstine Takes A New, Close Look At The Centuries-Old Debate Over The Parthenon Sculptures, Thomas R. Kline, Olga Symeonoglou

Cardozo Arts & Entertainment Law Journal

David Rudenstine challenges the British Museum's claim that Lord Elgin had permission to remove the Parthenon Sculptures, arguing that historical evidence, including discrepancies in key documents, undermines this claim. He posits that the lack of valid permission and evolving attitudes towards cultural restitution strengthen the case for returning the sculptures to Greece.

Comment On Trophies For The Empire: The Epic Dispute Between Greece And England Over The Parthenon Sculptures In The British Museum By David Rudenstine, Michael Mccullough

Cardozo Arts & Entertainment Law Journal

The article challenges the British Museum's legal and moral justifications for retaining the Parthenon Marbles, arguing that the key historical documents cited to legitimize Lord Elgin's removal of the sculptures do not provide valid authority. The analysis concludes that the British Museum has misrepresented the facts surrounding the acquisition and that its continued possession lacks a legal or ethical basis. The article advocates for the repatriation of the Marbles to Greece, emphasizing considerations of fairness and justice.

Copyright And Disability, Blake E. Reid

Publications

A vast array of copyrighted works—books, video programming, software, podcasts, video games, and more—remain inaccessible to people with disabilities. International efforts to adopt limitations and exceptions to copyright law that permit third parties to create and distribute accessible versions of books for people with print disabilities have drawn some attention to the role that copyright law plays in inhibiting the accessibility of copyrighted works. However, copyright scholars have not meaningfully engaged with the role that copyright law plays in the broader tangle of disability rights.