Open Access. Powered by Scholars. Published by Universities.®

Entertainment, Arts, and Sports Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 28 of 28

Full-Text Articles in Entertainment, Arts, and Sports Law

All Quiet In The Western (European Football) Front: Regulation Of Football In The European Continent, Petros C. Mavroidis Jan 2018

All Quiet In The Western (European Football) Front: Regulation Of Football In The European Continent, Petros C. Mavroidis

Faculty Scholarship

Regulation of football in Europe is, absent some piecemeal interventions (like sharing of TV rights) largely non-existent. This is the case, because the de facto regulator (UEFA, Union Européenne of Football Associations) has no mandate to comprehensively address on its own competitive balance, the focal point of football, and, in more general terms, sports regulation. Various aspects of competitive balance are part and parcel of antitrust law. European Union (EU) law thus, comes into the frame, since this is the body of law regulating antitrust in the European continent. The European Union, nevertheless, has no mandate to regulate football comprehensively ...


The Whole Is More Public Domain Than The Parts?: Us Copyright Protection For Works Of Applied Art Under Star Athletica's Imagination Test, Jane C. Ginsburg Jan 2017

The Whole Is More Public Domain Than The Parts?: Us Copyright Protection For Works Of Applied Art Under Star Athletica's Imagination Test, Jane C. Ginsburg

Faculty Scholarship

In Star Athletica v. Varsity Brands, the Supreme Court granted certiorari to resolve confusion in the lower courts regarding the “separability” predicate to copyright protection of decorative features of useful articles. The case involved the “surface decorations” of stripes, chevrons, and color blocks applied to cheerleader uniforms. While the Supreme Court clarified the meaning and application of the “separability” standard for the kinds of decorative elements there at issue, the fate of other artistic “features” of useful articles, particularly their three dimensional forms, remains murky. Much of the Court’s analysis points toward a prophylactic rule excluding the entire shape ...


Intellectual Property As Seen By Barbie And Mickey: The Reciprocal Relationship Of Copyright And Trademark Law, Jane C. Ginsburg Jan 2017

Intellectual Property As Seen By Barbie And Mickey: The Reciprocal Relationship Of Copyright And Trademark Law, Jane C. Ginsburg

Faculty Scholarship

Some years ago, caselaw on trademark parodies and similar unauthorized “speech” uses of trademarks could have led one to conclude that the law had no sense of humor. Over time, however, courts in the US and elsewhere began to leaven likelihood of confusion analyses with healthy skepticism regarding consumers’ alleged inability to perceive a joke. These decisions did not always expressly cite the copyright fair use defense, but the considerations underlying the copyright doctrine seemed to inform trademark analysis as well. The spillover effect may indeed have been inevitable, as several of the cases in which the fair use defense ...


"Courts Have Twisted Themselves Into Knots": Us Copyright Protection For Applied Art, Jane C. Ginsburg Jan 2016

"Courts Have Twisted Themselves Into Knots": Us Copyright Protection For Applied Art, Jane C. Ginsburg

Faculty Scholarship

In copyright law, the marriage of beauty and utility often proves fraught. Domestic and international law makers have struggled to determine whether, and to what extent, copyright should cover works that are both artistic and functional. The U.S. Copyright Act protects a work of applied art "only if, and only to the extent that, its design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." While the policy goal to separate the aesthetic from the functional is clear, courts' application of the statutory ...


Is Music The Next Ebooks? An Antitrust Analysis Of Apple's Conduct In The Music Industry, Alexa Klebanow, Tim Wu Jan 2015

Is Music The Next Ebooks? An Antitrust Analysis Of Apple's Conduct In The Music Industry, Alexa Klebanow, Tim Wu

Faculty Scholarship

Over the last twenty years, two waves of technological change have transformed the way people purchase and listen to music. First, digital downloads displaced physical sales of albums. More recently, digital downloads, once the primary way to gain access to digital music, have come to be challenged by streaming services. Apple, a leader in the digital download market with iTunes, has engaged in various strategies to meet the challenge. This paper specifically focuses on two types of conduct – Apple’s pressure on labels to enter into exclusive license agreements, also known as windowing, and Apple’s pressure on the market ...


Proto-Property In Literary And Artistic Works: Sixteenth-Century Papal Printing Privileges, Jane C. Ginsburg Jan 2015

Proto-Property In Literary And Artistic Works: Sixteenth-Century Papal Printing Privileges, Jane C. Ginsburg

Faculty Scholarship

This Study endeavors to reconstruct the Vatican’s precursor system of copyright, and the author’s place in it, inferred from examination of over five hundred privileges and petitions and related documents – almost all unpublished – in the Vatican Secret Archives. The typical account of the precopyright world of printing privileges, particularly in Venice, France and England, portrays a system primarily designed to promote investment in the material and labor of producing and disseminating books; protecting or rewarding authorship was at most an ancillary objective.

The sixteenth-century Papal privileges found in the Archives, however, prompt some rethinking of that story because ...


Fair Use For Free, Or Permitted-But-Paid?, Jane C. Ginsburg Jan 2014

Fair Use For Free, Or Permitted-But-Paid?, Jane C. Ginsburg

Faculty Scholarship

Fair use is an on/off switch: Either the challenged use is an infringement of copyright, or it is a fair use, which Section 107 declares "is not an infringement of copyright." As a result, either the copyright owner can stop the use, or the user not only is dispensed from obtaining permission, but also owes no compensation for the use. The unpaid nature of fair use introduces pressures that may distort analysis, particularly of the "transformative" character of the use, and of potential market harm. Faced with a use, particularly in the context of new technologies, that a court ...


We (Still) Need To Talk About Aereo: New Controversies And Unresolved Questions After The Supreme Court's Decision, Rebecca Giblin, Jane C. Ginsburg Jan 2014

We (Still) Need To Talk About Aereo: New Controversies And Unresolved Questions After The Supreme Court's Decision, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Recent judicial interpretations of U.S. copyright law have prompted businesses to design technologies in ways that enable the making and transmission of copies of works to consumers while falling outside the scope of the owner's exclusive rights. The archetypal example is Aereo Inc.'s system for providing online access to broadcast television, which the Supreme Court has now ruled results in infringing public performances by Aereo.

In previous work we urged the Court to develop a principled reading of the transmit clause focusing on the particular use rather than on the technical architecture of the delivery service (Giblin ...


We Need To Talk About Aereo: Copyright-Avoiding Business Models, Cloud Storage And A Principled Reading Of The "Transmit" Clause, Rebecca Giblin, Jane C. Ginsburg Jan 2014

We Need To Talk About Aereo: Copyright-Avoiding Business Models, Cloud Storage And A Principled Reading Of The "Transmit" Clause, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Businesses are exploiting perceived gaps in the structure of copyright rights by ingeniously designing their technologies to fulfill demand for individual access through a structure of personalized copies and playback engineered in ways intended to implicate neither the public performance nor the reproduction rights. The archetypal example is Aereo Inc.’s system for providing online access to broadcast television. Aereo allows users to tune into individual antennae to stream TV to themselves, near-live, online. Aereo’s activities look a lot like the retransmission of broadcast signals, an activity which Congress has made very clear must result in remuneration for rightholders ...


On Aereo And "Avoision", Rebecca Giblin, Jane C. Ginsburg Jan 2014

On Aereo And "Avoision", Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Avoision describes conduct which seeks to exploit 'the differences between a law's goals and its self-defined limits' – a phenomenon particularly apparent in tax law. This short paper explains how the technology company Aereo utilised avoision strategies in an attempt to design its way out of liability under US copyright law. The authors argue that existing formulations encourage such strategies by applying differently depending on how the transaction is structured, resulting in a wasteful devotion of resources to hyper-technical compliance with the letter rather than meaning and purpose of the law.?


Exceptional Authorship: The Role Of Copyright Exceptions In Promoting Creativity, Jane C. Ginsburg Jan 2013

Exceptional Authorship: The Role Of Copyright Exceptions In Promoting Creativity, Jane C. Ginsburg

Faculty Scholarship

It has been suggested that today’s authors need copyright exceptions and limitations more than they need exclusive rights. I will first test the proposition by examining what one might call authorship-oriented exceptions, from ‘fair abridgement’ in early English cases to the original meaning of ‘transformative use’ in the U.S. fair use doctrine. All of these exceptions trained on the promotion of creativity by allowing authors to make reasonable borrowings from old works in the creation of new ones. I conclude that both today’s assemblers of ‘remixes’ and yesterday’s traditional creators of works of entertainment or scholarship ...


Moral Rights In The Us: Still In Need Of A Guardian Ad Litem, Jane C. Ginsburg Jan 2012

Moral Rights In The Us: Still In Need Of A Guardian Ad Litem, Jane C. Ginsburg

Faculty Scholarship

Over ten years ago in the Cardozo Arts and Entertainment Law Journal, I inquired whether authors’ “moral rights” had come of (digital) age in the US. Ever-hopeful at that time, I suggested that then-recent legislation enacted to enable the copyright law to respond to the challenges of digital media might, in addition to its principal goal of securing digital markets for works of authorship, also provide new means to protect authors’ interests in receiving attribution for their works and in safeguarding their integrity. The intervening years’ developments, however, indicate that, far from achieving their majority, US authors’ moral rights remain ...


Eparpillement Aux Quatre Vents: La Fragmentation Du Droit Du Sport, Giovanni Distefano, Petros C. Mavroidis Jan 2012

Eparpillement Aux Quatre Vents: La Fragmentation Du Droit Du Sport, Giovanni Distefano, Petros C. Mavroidis

Faculty Scholarship

Scattering to the Four Winds: The Fragmentation of Sports Law

Sports Law is characterized by a multiplicity of sources: from the outset, law-making function was mainly carried out by different and competent sports associations (both national and international). Two major events have wreaked havoc: on one side, the ever-increasing professionalization of sports business has given birth to the outcrop of private associations – active in a sort of grey and undefined area – torn between public authority ans free market; on the other side, international federations have been called upon to manage those same associations. Lack of institutional and substantive coordination, both ...


Duration Of Copyright In Audiovisual Works Under Us Copyright Law, Jane C. Ginsburg Jan 2012

Duration Of Copyright In Audiovisual Works Under Us Copyright Law, Jane C. Ginsburg

Faculty Scholarship

Calculating the duration of US copyright in audiovisual works can be a daunting task, complicated by issues of transitional law spanning the US Copyright Acts of 1909 and 1976 and the latter’s subsequent amendments. Readers with an inclination for complexity will find their tastes amply satisfied when inquiry turns to the questions of private international law that also come into play when foreign audiovisual works are at issue. Gluttons for punishment will further relish addressing the relationship of the duration of copyright in an audiovisual work to the duration of copyright in the underlying literary work on which the ...


User-Generated Content Sites And Section 512 Of The Us Copyright Act, Jane C. Ginsburg Jan 2010

User-Generated Content Sites And Section 512 Of The Us Copyright Act, Jane C. Ginsburg

Faculty Scholarship

This book chapter considers the liability of entrepreneurs of ‘user-generated content’ (UGC) sites. These immensely popular fora, such as YouTube and My Space, enable their participants to post and view a great variety of content, not all of it in fact generated by the posting user. The legislative compromise worked out between telecommunications providers and content owners in the 1998 ‘Digital Millennium Copyright Act’ provides the statutory framework, at once insulating the operators of UGC sites from debilitating copyright sanctions, while still affording meaningful relief to copyright owners. The statutory criteria to qualify for the section 512(c) safe harbor ...


Ordinary Administrative Law As Constitutional Common Law, Gillian E. Metzger Jan 2009

Ordinary Administrative Law As Constitutional Common Law, Gillian E. Metzger

Faculty Scholarship

Last term, in Federal Communications Commission (FCC) v. Fox Television Stations, the Supreme Court expressly refused to link ordinary administrative law to constitutional concerns, insisting that whether an agency action is “arbitrary and capricious” and whether it is unconstitutional are separate questions. In this article, I argue that Fox is wrong. The Court’s protestations aside, constitutional law and ordinary administrative law are inextricably linked, with the result that a fair amount of ordinary administrative law qualifies as what Henry Monaghan famously termed constitutional common law. Its doctrines and requirements are constitutionally informed but rarely constitutionally mandated, with Congress and ...


Separating The Sony Sheep From The Grokster Goats: Reckoning The Future Business Plans Of Copyright-Dependent Technology Entrepreneurs, Jane C. Ginsburg Jan 2008

Separating The Sony Sheep From The Grokster Goats: Reckoning The Future Business Plans Of Copyright-Dependent Technology Entrepreneurs, Jane C. Ginsburg

Faculty Scholarship

U.S. and many other national copyright systems have by statute or caselaw (or both) established rules engaging or excusing liability for facilitating (or, in commonwealth countries, "authorizing") copyright infringement. Taken as a group, they share a goal of insulating the innovator whose technology happens, but was not intended, to enable its adopters to make unlawful copies or communications of protected works. The more infringement becomes integrated into the innovator's business plan, however, the less likely the entrepreneur is to persuade a court of the neutrality of its venture. The US Supreme Court's 2005 decision in MGM v ...


Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg Jan 2008

Recent Developments In Us Copyright Law – Part Ii, Caselaw: Exclusive Rights On The Ebb?, Jane C. Ginsburg

Faculty Scholarship

The 1976 Act announces broad exclusive rights, offset by a myriad of specific exemptions, and one wide exception for "fair use." In words and intent, the exclusive rights are capacious, but new technologies may have caused some of the general phrases to become more constraining than might have been expected from a text whose drafters took pains to make forward-looking. Thus, the scope of the reproduction right turns on the meaning of "copy;" the reach of the distribution right on "distribute copies" and "transfer of ownership;" the range of the public performance right on "public" and "perform." Entrepreneurs and users ...


Of Mutant Copyrights, Mangled Trademarks, And Barbie's Beneficence: The Influence Of Copyright On Trademark Law, Jane C. Ginsburg Jan 2007

Of Mutant Copyrights, Mangled Trademarks, And Barbie's Beneficence: The Influence Of Copyright On Trademark Law, Jane C. Ginsburg

Faculty Scholarship

In Dastar Corp. v. Twentieth Century Fox Film Corp. Justice Scalia colorfully warned against resort to trademarks law to achieve protections unattainable by copyright, lest these claims generate "a species of mutant copyright law that limits the public's 'federal right to "copy and to use,"' expired copyrights." The facts of that controversy, in which the claimant appeared to be invoking time-unlimited trademark protection to end-run the exhausted (unrenewed) copyright term in a motion picture, justified the apprehension that unbridled trademark rights might stomp, Godzilla-like, over more docile copyright prerogatives. Unfortunately, in the Court's eagerness to forestall Darwinian disaster ...


Transactional Economics: Victor Goldberg's Framing Contract Law, Mark P. Gergen, Victor P. Goldberg, Stewart Macaulay, Keith A. Rowley Jan 2007

Transactional Economics: Victor Goldberg's Framing Contract Law, Mark P. Gergen, Victor P. Goldberg, Stewart Macaulay, Keith A. Rowley

Faculty Scholarship

Professor Mark Gergen: Thank you. It is an honor to speak to this group and to be on a panel with Stewart Macaulay, Keith Rowley, and Victor Goldberg. I have an enormous amount of respect for the three. Keith had the misfortune of being a student of mine in Federal Income Tax.

Framing Contract Law offers a wealth of information about familiar cases. Victor argues that in construing contracts, courts should be attentive to how people engineer contracts to minimize transaction costs. He shows that courts often err in this regard, imposing unnecessary costs. To make his case, Victor delves ...


The Pros And Cons Of Strengthening Intellectual Property Protection: Technological Protection Measures And Section 1201 Of The Us Copyright Act, Jane C. Ginsburg Jan 2007

The Pros And Cons Of Strengthening Intellectual Property Protection: Technological Protection Measures And Section 1201 Of The Us Copyright Act, Jane C. Ginsburg

Faculty Scholarship

The recent announcement (in late November 2006) of the Copyright Office's triennial rulemaking to identify "classes of works" exempt from the § 1201(a)(1) prohibition on circumvention of a technological measure controlling access to copyrighted works in part occasions this assessment of the judicial and administrative construction of this chapter of the 1998 Digital Millennium Copyright Act. The current Rulemaking appears more innovative than its predecessors, particularly in defining the exempted class of works by reference to the characteristics of the works' users. Copyright owner overreaching or misuse may also underlie the relative vigor of this Rulemaking: if producers ...


On Copyright's Authorship Policy, Tim Wu Jan 2007

On Copyright's Authorship Policy, Tim Wu

Faculty Scholarship

It has long been the stated aspiration of copyright to make authors the masters of their own destiny. Yet more often than not, the real subject of American copyright is distributors, book publishers, record labels, broadcasters, and others, who control the rights, bring the lawsuits, and take copyright as their industries' 'life-sustaining protection.' This paper offers a new theory and defense of the role of authors and authorial copyright in the copyright system. I argue that the device of making authors rights-bearers can seed new modes of production in the industries under copyright. Rights-bearing authors can, in other words, help ...


Inducers And Authorisers: A Comparison Of The Us Supreme Court's Grokster Decision And The Australian Federal Court's Kazaa Ruling, Jane C. Ginsburg, Sam Ricketson Jan 2006

Inducers And Authorisers: A Comparison Of The Us Supreme Court's Grokster Decision And The Australian Federal Court's Kazaa Ruling, Jane C. Ginsburg, Sam Ricketson

Faculty Scholarship

On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors' rights and the advent of new technologies, particularly in relation to peer-to-peer networks.

In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular ...


Hands Off Policy: Equal Protection And The Contact Sports Exemption Of Title Ix, Jamal Greene Jan 2005

Hands Off Policy: Equal Protection And The Contact Sports Exemption Of Title Ix, Jamal Greene

Faculty Scholarship

Before becoming a poster child for gender equity in athletics, Heather Sue Mercer was an all-state place kicker at Yorktown Heights High School in Yorktown Heights, New York (pop. 7,972). She enrolled at Duke University in the fall of 1994 and decided to become the first woman ever to try out for the Duke football team. Initially she failed to make the team as a walk-on, but the following spring she was invited by the seniors on the team to play in the annual Blue-White scrimmage. She ended up kicking a game-winning twenty-eight-yard field goal. Afterwards, Duke head coach ...


Featuring The Three Tenors In La Triviata, Victor P. Goldberg Jan 2005

Featuring The Three Tenors In La Triviata, Victor P. Goldberg

Faculty Scholarship

In the "Three Tenors" case the FTC found an agreement a violation of the antitrust law despite the fact that there was no way it could be anticompetitive. The Commission failed to heed the lessons of Coase's classic paper on the nature of the firm, making a sharp distinction between activities within a firm (legal) and across firm boundaries (not legal). Analytically, there should be no distinction. The decision to integrate activities by contract rather than ownership is a matter of relative transactions costs. Since the boundaries of the firm are, ultimately, an economic decision reflecting the costs and ...


Essay – The Author's Name As A Trademark: A Perverse Perspective On The Moral Right Of «Paternity»?, Jane C. Ginsburg Jan 2005

Essay – The Author's Name As A Trademark: A Perverse Perspective On The Moral Right Of «Paternity»?, Jane C. Ginsburg

Faculty Scholarship

The US Supreme Court in its 2003 decision in Dastar v. Twentieth Century Fox, construing the Lanham Federal Trademarks Act, deprived authors of their principal legal means to enforce attribution rights in the US. I have elsewhere criticized the Dastar Court's analysis, and have urged amending the Copyright Act to provide express recognition of the attribution right. This time, however, I propose to reconsider the foundation for the attribution right; I draw on literary and historical sources to supplement legal arguments concerning the meaning of the author's name. I will suggest that, contrary to the usual characterization of ...


Television And The Quest For Gold: The Unofficial Paper Of The 1984 Olympics, Victor P. Goldberg Jan 1985

Television And The Quest For Gold: The Unofficial Paper Of The 1984 Olympics, Victor P. Goldberg

Faculty Scholarship

While sitting in front of the tube watching Olympic canoeing (or Greco-Roman water polo, it's all a blur), I began to wonder about why ABC had been granted exclusive rights to televise the Olympics. The owners of the "Olympics" brand name could have sold the television rights in numerous ways. Why did they choose to have a single network provide all the coverage? Further, I mused, how did they get away with it? If the NCAA's football package violates the antitrust laws, how does the Olympic package remain within the law? It struck me that a paper speculating ...


Search And Seizure Of The Media: A Statutory, Fourth Amendment And First Amendment Analysis, James S. Liebman Jan 1976

Search And Seizure Of The Media: A Statutory, Fourth Amendment And First Amendment Analysis, James S. Liebman

Faculty Scholarship

On the evening of October 10, 1974, police appeared at radio station KPFK-FM in Los Angeles with a warrant authorizing them to search the premises for a New World Liberation Front (NWLF) "communique" that took credit for a recent bombing. The officers conducted an intensive 8-hour search-combing files, listening to tapes, and looking through reporters' notes – finally concluding that the NWLF letter was not at the station. The KPFK search warrant was one of six that California law enforcement officials have executed at press offices since 1972. The circumstances surrounding the incident illustrate the rationale behind the recent development of ...