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

Fair Use Avoidance In Music Cases, Edward Lee Jul 2018

Fair Use Avoidance In Music Cases, Edward Lee

Boston College Law Review

This Article provides the first empirical study of fair use in cases involving musical works. The major finding of the study is surprising: despite the relatively high number of music cases decided under the 1976 Copyright Act, no decisions have recognized non-parody fair use of a musical work to create another musical work, except for a 2017 decision involving the copying of a narration that itself contained no music (and therefore might not even constitute a musical work). Thus far, no decision has held that copying musical notes or elements is fair use. Moreover, very few music cases have even ...


Doping Appeals At The Court Of Arbitration For Sport: Lessons From Essendon, David Mahoney May 2018

Doping Appeals At The Court Of Arbitration For Sport: Lessons From Essendon, David Mahoney

Boston College Law Review

In recent years, there has been an increase in the growth of the sports industry globally. With it has come the growth of global sports arbitration. The Court of Arbitration for Sport (“CAS”), created in part because of the increase in sport-related arbitration, is designed to promote efficiency and uniformity in the resolution of disputes. Despite the noteworthy objectives of the CAS, recent developments, such as the supplement scandal surrounding the Essendon Football Club of the Australian Football League, highlight the pressure that endures between individual athletes and sport governing bodies. This pressure is especially clear in instances where athletes ...


Playing A Man Down: Professional Sports And Stadium Finance—How Leagues And Franchises Extract Favorable Terms From American Cities, Nicholas Baker Jan 2018

Playing A Man Down: Professional Sports And Stadium Finance—How Leagues And Franchises Extract Favorable Terms From American Cities, Nicholas Baker

Boston College Law Review

In an era of unprecedented profitability, expansion, and popularity of American professional sports leagues, it seems outrageous that cities and municipalities across the United States would continue to subsidize the funding of new stadiums for wealthy sports franchises. Yet despite the economic obstacles facing many of these cities and municipalities, the gratuitous public funding of stadiums across the United States persists. This reality stems from the extraordinary bargaining power that professional sports franchises maintain over the cities in which they are located. Indeed, threating to relocate a franchise brings forth a litany of cities that are ready and willing to ...


From Student-Athletes To Employee-Athletes: Why A "Pay For Play" Model Of College Sports Would Not Necessarily Make Educational Scholarships Taxable, Marc Edelman Sep 2017

From Student-Athletes To Employee-Athletes: Why A "Pay For Play" Model Of College Sports Would Not Necessarily Make Educational Scholarships Taxable, Marc Edelman

Boston College Law Review

In recent years, numerous commentators have called for the National Collegiate Athletic Association (“NCAA”) to relax its rules prohibiting athlete pay. This movement to allow athletes to share in the revenues of college sports arises from the belief that college athletes sacrifice too much time, personal autonomy, and physical health to justify their lack of pay. It further criticizes the NCAA’s “no pay” rules for keeping the revenues derived from college sports “in the hands of a select few administrators, athletic directors, and coaches.” Nevertheless, opponents of “pay for play” contend that several problems will emerge from lifting the ...


Get Your Own Street Cred: An Argument For Trademark Protection For Street Art, Danielle Crinnion Jan 2017

Get Your Own Street Cred: An Argument For Trademark Protection For Street Art, Danielle Crinnion

Boston College Law Review

Street art is visual art created in public spaces, many times at the behest of the communities in which the work is created. It is a derivative of graffiti, which is the illicit marking of public locations, usually on buildings or train cars. Retailers’ appropriation of street art and graffiti is becoming commonplace, causing confusion in the market. As a result, street artists have filed an increasing number of copyright and trademark infringement lawsuits to protect their intellectual property rights. There is a debate regarding whether these artists are entitled to trademark protection given the expressive nature of their marks ...


Free Speech & Disparaging Trademarks, Ned Snow Nov 2016

Free Speech & Disparaging Trademarks, Ned Snow

Boston College Law Review

Speech law has silenced trademark. In In re Tam, the Federal Circuit ruled that the First Amendment requires Congress to grant trademark protection for disparaging speech. More specifically, the Federal Circuit held unconstitutional the provision of the Federal Lanham Act that denies trademark protection for marks that disparage. The Federal Circuit’s ruling, however, is not the final word on the issue. The Supreme Court has agreed to hear the Tam case. This Article argues against the Federal Circuit decision. As illustrated by the five different opinions from the en banc panel, the complexities of speech law easily lead to ...


A New Chapter In Antitrust Law: The Second Circuit's Decision In United States V. Apple Determines Hub-And-Spoke Conspiracy Per Se Illegal, Erin Garrity Apr 2016

A New Chapter In Antitrust Law: The Second Circuit's Decision In United States V. Apple Determines Hub-And-Spoke Conspiracy Per Se Illegal, Erin Garrity

Boston College Law Review

On June 30, 2015, in United States v. Apple, Inc., the U.S. Court of Appeals for the Second Circuit held that Apple’s agreements with five publishing companies violated the Sherman Act. With Apple as a retailer and the publishers as manufacturers, the agreements between the two groups were vertical. This classification is significant because in 2007 in Leegin Creative Leather Products v. PSKS, Inc., the Supreme Court held that all vertical agreements should be analyzed under the rule of reason. Rather than looking at the structure of the agreements, however, the Second Circuit focused on the type of ...


Jurisdictional Haze: Indiana And Washington’S Unconstitutional Extensions Of The Postmortem Right Of Publicity, Robert Rossi Jan 2016

Jurisdictional Haze: Indiana And Washington’S Unconstitutional Extensions Of The Postmortem Right Of Publicity, Robert Rossi

Boston College Law Review

Long after they die, cultural icons such as Elvis Presley, Marilyn Monroe, and Jimi Hendrix continue to earn millions of dollars annually. Despite the tremendous amount of money earned by marketing the images of certain late celebrities, the laws conferring and governing the postmortem right of publicity are varied and often unpredictable. In most states, the right to profit from the image of a deceased person depends entirely upon the law of the jurisdiction in which the deceased was domiciled at the time of death. Certain state legislatures, however, have passed statutes conferring this right on persons domiciled outside of ...


Court-Side Seats? The Communications Decency Act And The Potential Threat To Stubhub And Peer-To Peer Marketplaces, Matthew Feuerman Jan 2016

Court-Side Seats? The Communications Decency Act And The Potential Threat To Stubhub And Peer-To Peer Marketplaces, Matthew Feuerman

Boston College Law Review

In 1996, Congress passed section 230 of the Communications Decency Act, which provides broad immunity to websites from vicarious liability for the content produced by its users. Despite this broad immunity, a website will be liable for its user’s content when it is deemed to be an “information content provider” itself. In 2008, in Fair Housing Council of San Fernando Valley v. Roommates. Com, LLC, the Ninth Circuit Court of Appeals held that a website is an information content provider and thus loses immunity when it “materially contributes to the alleged unlawfulness” of the content. Although most courts have ...


Real Accountability: The Ncaa Can No Longer Evade Antitrust Liability Through Amateurism After O’Bannon V. Ncaa, Michael T. Jones May 2015

Real Accountability: The Ncaa Can No Longer Evade Antitrust Liability Through Amateurism After O’Bannon V. Ncaa, Michael T. Jones

Boston College Law Review

On August 8, 2014, in O’Bannon v. National Collegiate Athletic Association, the U.S. District Court for the Northern District of California held that the NCAA’s restriction on compensating student-athletes for the use of their names, images, and likenesses violated the Sherman Act. The court ruled against the NCAA despite a long history of judicial deference grounded in preserving the amateur and educational nature of the NCAA. The NCAA has appealed the decision. Despite annual revenues approaching $1 billion, the NCAA claims its amateur and educational fundamentals distinguish its product from commercialized professional sports. This Comment argues that ...


“Wire” Circuit Courts Split On Cable Piracy: The Fifth Circuit Examines Federal Telecommunications Law In J&J Sports Productions, Inc. V. Mandell Family Ventures, Brian Fleming May 2015

“Wire” Circuit Courts Split On Cable Piracy: The Fifth Circuit Examines Federal Telecommunications Law In J&J Sports Productions, Inc. V. Mandell Family Ventures, Brian Fleming

Boston College Law Review

On May 2, 2014, in J&J Sports Productions, Inc. v. Mandell Family Ventures, LLC, the U.S. Court of Appeals for the Fifth Circuit overturned the lower court’s decision and held that section 605 of the Communications Act of 1934 does not apply to the unauthorized reception of cable wire transmissions originating as radio communications. The Fifth Circuit joined the Seventh and Third Circuits in maintaining that section 553 of the Communications Act of 1934 exclusively regulates this unauthorized reception after analyzing the legislative history and congressional intent behind the federal regulation. The Second Circuit, alternatively, has ruled ...


A Call To The Bullpen: Alternatives To The Morality Clause As Endorsement Companies’ Main Protection Against Athletic Scandal, Andrew Zarriello Jan 2015

A Call To The Bullpen: Alternatives To The Morality Clause As Endorsement Companies’ Main Protection Against Athletic Scandal, Andrew Zarriello

Boston College Law Review

High-profile scandals in the sports world, exemplified by Lance Armstrong and Tiger Woods, expose endorsement companies to financial and reputational risks. Endorsement contracts today rely on morality clauses to mitigate this risk of exposure, which unduly restricts a company’s response to an athlete’s misconduct. Clawback clauses, on the other hand, provide companies with a mechanism to fully protect their investment in the employee or sponsored athlete. This Note discusses the practicality of introducing clawback clauses into athletic endorsement contracts. Although many factors inhibit endorsement companies from implementing clawback clauses into endorsement contracts, more beneficial alternatives exist that companies ...


Betting On State Equality: How The Expanded Equal Sovereignty Doctrine Applies To The Commerce Clause And Signals The Demise Of The Professional And Amateur Sports Protection Act, Michael Welsh May 2014

Betting On State Equality: How The Expanded Equal Sovereignty Doctrine Applies To The Commerce Clause And Signals The Demise Of The Professional And Amateur Sports Protection Act, Michael Welsh

Boston College Law Review

In recent years, the U.S. Supreme Court revived the long-dormant equal sovereignty doctrine, which states that the federal government cannot enact legislation that renders states unequal in power, dignity, and authority. Although the doctrine historically applied only in the context of states entering the Union, in the 2013 case Shelby County v. Holder, the Supreme Court broadened the doctrine’s scope, holding that the doctrine applied to all disparate treatment of states. As such, the revived equal sovereignty doctrine leaves federal statutes—such as the Professional and Amateur Sports Protection Act (“PASPA”), which prohibits state-sanctioned casino sports gambling in ...


Virtual Property, Virtual Rights: Why Contract Law, Not Property Law, Must Be The Governing Paradigm In The Law Of Virtual Worlds, Christopher J. Cifrino Jan 2014

Virtual Property, Virtual Rights: Why Contract Law, Not Property Law, Must Be The Governing Paradigm In The Law Of Virtual Worlds, Christopher J. Cifrino

Boston College Law Review

Virtual worlds such as World of Warcraft and Second Life have recently exploded in popularity. As users of these worlds acquire virtual assets, conflicts inevitably arise. These conflicts are currently resolved through the terms of End User License Agreements (“EULAs”) between users and developers. Many commentators, however, criticize EULAs as being too one-sided and argue for courts to acknowledge traditional common law property rights in virtual property. These arguments invoke three theoretical justifications for virtual property rights: Lockean labor theory, personhood theory, and utilitarianism. This Note argues that each of these theories is a poor fit for virtual property, and ...


Frankly, My Dear America, We Don’T Give A Damn: Comparing Chinese And European Trade Barriers To American Audiovisual Works And The American Response, Shalia Sakona May 2013

Frankly, My Dear America, We Don’T Give A Damn: Comparing Chinese And European Trade Barriers To American Audiovisual Works And The American Response, Shalia Sakona

Boston College Law Review

For Hollywood film studios, strict Chinese regulations controlling the importation and distribution of foreign audiovisual works within China have made the Chinese audiovisual market as impenetrable as the Great Wall. Recently, in China—Measures Affecting Trading Rights, the World Trade Organization (WTO) ordered China to relax its barriers to foreign films. China has yet to comply with the order, causing ongoing protest by the United States. Meanwhile, the United States has long tolerated Television Without Frontiers, a European Union (EU) Directive that imposes local content quotas that restrict the amount of non-European programming aired on television. This Note compares the ...


Prisoners Of Fame: How An Expanded Use Of Intrusion Upon Psychological Seclusion Can Protect The Privacy Of Former Public Figures, David Libardoni May 2013

Prisoners Of Fame: How An Expanded Use Of Intrusion Upon Psychological Seclusion Can Protect The Privacy Of Former Public Figures, David Libardoni

Boston College Law Review

Public figures who no longer receive attention in the public sphere have had enormous difficulty regaining the privacy rights they once had. When it comes to limiting the discussion of their personal affairs, both the First Amendment and the common law invasion of privacy torts make no distinctions between former public figures and those currently involved in public affairs. This Note proposes an expanded use of the invasion of privacy tort for unreasonable intrusion upon seclusion to protect the privacy of these “prisoners of fame.” Although the tort is primarily understood to protect individuals from intrusions into physical spaces, this ...


Not Quite Filling The Gap: Why The Miscellaneous Expense Allowance Leaves The Ncaa Vulnerable To Antitrust Litigation, Drew N. Goodwin May 2013

Not Quite Filling The Gap: Why The Miscellaneous Expense Allowance Leaves The Ncaa Vulnerable To Antitrust Litigation, Drew N. Goodwin

Boston College Law Review

Throughout its history, the National Collegiate Athletic Association (NCAA) has been repeatedly accused of violating antitrust law in a range of different ways—restricting television broadcasts, limiting coaches’ salaries, and capping the amount of athletic scholarships. Most recently, in the case of White v. NCAA, a class of plaintiffs argued that the NCAA’s artificial limitation on student-athlete compensation violated antitrust law. Although this case settled before trial, it represented a major victory for student-athletes. The NCAA is now considering a proposal— the Miscellaneous Expense Allowance (“MEA”)—that would raise the NCAA’s artificial cap on athletics-related financial aid by ...


Holding Back The (Crimson) Tide Of Trademark Litigation: The Eleventh Circuit Shields Works Of Art From Lanham Act Claims In New Life Art, Nicholas Macri Mar 2013

Holding Back The (Crimson) Tide Of Trademark Litigation: The Eleventh Circuit Shields Works Of Art From Lanham Act Claims In New Life Art, Nicholas Macri

Boston College Law Review

On June 11, 2012, in University of Alabama Board of Trustees v. New Life Art, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that the Lanham Act does not apply to works of art that include others’ trademarks as long as the use of the trademark is artistically relevant to the underlying work and does not explicitly mislead consumers into believing that the trademark holder endorsed or sponsored its use. In so holding, the Eleventh Circuit provided clarity to artists as to what types of trademark uses are permitted in their works. This Comment argues that ...


Defeating The Terminator: How Remastered Albums May Help Record Companies Avoid Copyright Termination, James J. Schneider Nov 2012

Defeating The Terminator: How Remastered Albums May Help Record Companies Avoid Copyright Termination, James J. Schneider

Boston College Law Review

Starting in 2013, copyright owners can begin terminating copyright grants made thirty-five years earlier. In the music industry, this termination right could harm the profits of record companies, which rely on valuable older recordings to drive profits. But all is not lost for these record companies, as termination is not guaranteed. Congress excluded certain types of work from termination, including derivative works. After outlining the standards courts use to determine what constitutes a derivative work and how remastered albums are made, this Note analyzes whether remastered albums will be considered derivative works and thus not subject to termination. The Note ...


Dilution By Tarnishment: An Unworkable Cause Of Action In Cases Of Artistic Expression, Alexandra Olson Mar 2012

Dilution By Tarnishment: An Unworkable Cause Of Action In Cases Of Artistic Expression, Alexandra Olson

Boston College Law Review

This Note argues that the Trademark Dilution Revision Act (TDRA), enacted to provide relief to companies whose trademarks are used in tarnishing ways, is unworkable when applied to tarnishing uses in artistic works. When the TDRA was enacted in 2006, it included several amendments to current dilution law that will keep defendants who used a trademark in an expressive work free from liability no matter how tarnishing the use. Specifically, the amendments require that the mark be nationally famous and that the defendant’s use of the mark be a trademark use. They also include a noncommercial use exclusion as ...


A Stronger Defensive Line: Extending Nfl Owners’ Antitrust Immunity Through The Norris-Laguardia Act In Brady V. Nfl, Allison Stoddart Feb 2012

A Stronger Defensive Line: Extending Nfl Owners’ Antitrust Immunity Through The Norris-Laguardia Act In Brady V. Nfl, Allison Stoddart

Boston College Law Review

On July 8, 2011, in Brady v. NFL, the U.S. Court of Appeals for the Eighth Circuit held that the Norris-LaGuardia Act prevented the injunction of an NFL lockout. In so doing, the court provided to the NFL an additional shield from antitrust scrutiny. This Comment argues that by immunizing NFL lockouts from antitrust scrutiny, NFL players will lose an important bargaining tool: the antitrust challenge.


Sports Merchandizing, Publicity Rights, And The Missing Role Of The Sports Fan, Joseph P. Liu Mar 2011

Sports Merchandizing, Publicity Rights, And The Missing Role Of The Sports Fan, Joseph P. Liu

Boston College Law Review

Sports fans play a tremendously important role in the success and popularity of sports teams and the enterprise of sports in general. It is somewhat curious, then, that fan interests are almost entirely missing from discussions about certain important legal issues that have a direct impact on them. Specifically, fan interests play a surprisingly limited role in discussions about sports team merchandising and player rights of publicity. This Article argues that modern sports licensing practices are coming into increasing conflict with the interests of sports fans, and that the law should take greater account of such interests. This Article starts ...


The Ncaa As Regulator, Litigant, And State Actor, Vikram David Amar Mar 2011

The Ncaa As Regulator, Litigant, And State Actor, Vikram David Amar

Boston College Law Review

As a general matter, the Constitution limits the government but not the private sector. Known as the “state action” doctrine, the idea that constitutional constraints apply only when public entities are primarily or substantially involved has been developed by the U.S. Supreme Court in scores of cases. This Article argues that the fundamental inadequacy of and dissatisfaction with the state action doctrine arises from the Court’s unwillingness to admit that state action principles are not transsubtantive—that the principles play out differently depending on the particular constitutional claim being asserted. The Article surveys state action rulings to argue ...


Hurricane Warning Flag For Olympic Sports: Compliance Practices In Biediger V. Quinnipiac University Signal A Risk To Women's And Men's Olympic Sports, Nancy Hogshead-Makar Mar 2011

Hurricane Warning Flag For Olympic Sports: Compliance Practices In Biediger V. Quinnipiac University Signal A Risk To Women's And Men's Olympic Sports, Nancy Hogshead-Makar

Boston College Law Review

The NCAA has had an uneven and sometimes rugged history in its relationship with the role and advancement of women in athletics. To its credit, the organization has shifted from being a perpetuator of outmoded stereotypes to being an effective advocate for Title IX, most notably during the Bush administration. Title IX scuffles have instead moved to private groups or individual schools. Recent litigation against Quinnipiac University reveals how some schools have tried to cut costs by cheating women out of genuine sports experiences. But the litigation is more than just another Title IX case: it captures the fissures created ...


Antitrust, Governance, And Postseason College Football, Michael A. Mccann Mar 2011

Antitrust, Governance, And Postseason College Football, Michael A. Mccann

Boston College Law Review

This Article examines the compatibility of the Bowl Championship Series (BCS) with federal antitrust law and the appropriateness of the federal government using its formal and informal powers to encourage a new format for postseason college football. The Article begins by examining the legality of the BCS under sections 1 and 2 of the Sherman Antitrust Act. While the BCS suffers from blatantly anticompetitive features, its procompetitive virtues would likely prove dominant in a rule of reason analysis. The BCS also benefits by virtue of myriad obstacles associated with instituting a college football playoff system. The Article then discusses the ...


The Feminist Case For The Ncaa's Recognition Of Competitive Cheer As An Emerging Sport For Women, Erin E. Buzuvis Mar 2011

The Feminist Case For The Ncaa's Recognition Of Competitive Cheer As An Emerging Sport For Women, Erin E. Buzuvis

Boston College Law Review

This Article examines whether a university can count opportunities in competitive cheer to demonstrate compliance with Title IX. A federal court in Connecticut recently considered this question for the first time. Although it held that the sport as it currently exists is not sufficiently similar to other varsity sports to qualify for Title IX compliance, the decision has mobilized two separate governing bodies to propose more organized and competitive versions of competitive cheer as possible NCAA emerging sports. This Article argues that these proposals would satisfy regulators and the courts. It then discusses how competitive cheer has potential to improve ...


Ncaa Sanctions: Assigning Blame Where It Belongs, Maureen A. Weston Mar 2011

Ncaa Sanctions: Assigning Blame Where It Belongs, Maureen A. Weston

Boston College Law Review

Success in a major intercollegiate athletic program, particularly a National Collegiate Athletic Association (NCAA) Division I national championship, can translate into millions of dollars and immense pride for the players, coaches, alumni, fans, and university. It can also be a determinative factor in a highly recruited high school student-athlete’s program selection decision. In this intensely competitive environment, temptations to cheat, exploit, or circumvent the rules lurk, not only for agents, but also for institutional personnel, certain student-athletes, boosters, and even parents. Acting on behalf of over 1200 member institutions, the NCAA regulates and enforces rules of amateurism in college ...


Early Scholarship Offers And The Ncaa, Alfred C. Yen Mar 2011

Early Scholarship Offers And The Ncaa, Alfred C. Yen

Boston College Law Review

Over the last few years, many NCAA Division I universities have begun offering athletic scholarships to progressively younger student-athletes. Both student-athletes and institutions have much to gain from early informal athletic scholarships. This Article argues, however, that the costs of these early scholarships outweigh the benefits for both student-athletes and institutions. Although the NCAA has laudably begun the process of curbing informal scholarship deals with underclassmen, this Article argues that existing practices are unlikely to change unless the NCAA adopts regulatory strategies fundamentally different from simple prohibitions of the sort recently considered and rejected. Real reform will be difficult to ...


The Conflicting Obligations Of Museums Possessing Nazi-Looted Art, Emily A. Graefe Mar 2010

The Conflicting Obligations Of Museums Possessing Nazi-Looted Art, Emily A. Graefe

Boston College Law Review

During the Nazi regime, much of Europe’s art was pillaged. This Note addresses the conflicts faced by museums when an original owner or heir of artwork brings an ownership claim against a piece in the museum’s collection. Because of their fiduciary duties, museums are encouraged to protect trust assets. Museums can protect their assets from ownership claims with statutes of limitations and laches defenses, which grow stronger with the passage of time. On the other hand, professional codes of conduct encourage museums to work with heirs when there is a claim of ownership to find a mutually agreeable ...


Money As A Thumb On The Constitutional Scale: Weighing Speech Against Publicity Rights, Diane Leenheer Zimmerman Nov 2009

Money As A Thumb On The Constitutional Scale: Weighing Speech Against Publicity Rights, Diane Leenheer Zimmerman

Boston College Law Review

When courts in right of publicity cases deal with claims against defendants arising outside the context of commercial advertising but involving what judges nonetheless deem to be commercial uses, the typical approach is to “balance” a defendant’s right of free speech (that is, her right to use information legitimately in her possession) against a plaintiff’s exclusive right to control commercial uses of her persona. Considerable variation exists among the tests used to determine when a use is “commercial” rather than purely expressive, but if the defendant has crossed the line drawn by a given jurisdiction, then her constitutional ...