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Hastings Communications and Entertainment Law Journal

1989

Articles 1 - 19 of 19

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

The Money Of Color: Film Colorization And The 100th Congress, Dan Renberg Jan 1989

The Money Of Color: Film Colorization And The 100th Congress, Dan Renberg

Hastings Communications and Entertainment Law 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.


Pressing California Shield Law On Criminal Defendants: A Weighting Game, Amy R. Bach Jan 1989

Pressing California Shield Law On Criminal Defendants: A Weighting Game, Amy R. Bach

Hastings Communications and Entertainment Law 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 Jan 1989

Aural Sex: Has Congress Gone Too Far By Going All The Way With Dial-A-Porn, Heidi Skuba Maretz

Hastings Communications and Entertainment Law 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 ...


Constitutional Considerations Of The Children's Television Act Of 1988: Why The President's Veto Was Warranted, David S. Versfelt Jan 1989

Constitutional Considerations Of The Children's Television Act Of 1988: Why The President's Veto Was Warranted, David S. Versfelt

Hastings Communications and Entertainment Law 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 Jan 1989

Sobering News For The Alcohol Industry, Amanda Grove

Hastings Communications and Entertainment Law 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 ...


Digital Sampling: The Copyright Considerations Of A New Technological Use Of Musical Performance, Jeffrey S. Newton Jan 1989

Digital Sampling: The Copyright Considerations Of A New Technological Use Of Musical Performance, Jeffrey S. Newton

Hastings Communications and Entertainment Law Journal

The author explores the controversial topic of digital sampling, a process that allows one musician to use another musician's performance without knowledge or consent. He explores the acquisition and use of samples and argues that a musician's "sound" is a copyrightable work, satisfying both constitutional and statutory requirements. The author further examines the interplay between sample acquisition and the Copyright Act's "fixation" requirement and the question of whether digitized tone colors are uncopyrightable upon utilitarian grounds. The author concludes that a musician's "sound" is copyrightable as a derivative work, that the standard of "substantial similarity" can ...


A Suggested Approach To The First Amendment Issues Involved In Broadcast Regulation, Jonathan D. Blake, Debora L. Osgood Jan 1989

A Suggested Approach To The First Amendment Issues Involved In Broadcast Regulation, Jonathan D. Blake, Debora L. Osgood

Hastings Communications and Entertainment Law 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 ...


The Future Of Software Copyright Protection: Arbitration V. Litigation, Alisa E. Anderson Jan 1989

The Future Of Software Copyright Protection: Arbitration V. Litigation, Alisa E. Anderson

Hastings Communications and Entertainment Law Journal

The legal profession and computer industry have expressed dissatisfaction with the existing copyright protection provided computer software and its traditional means of enforcement by litigation. These criticisms are exemplified in the protracted NEC Corp. v. Intel Corp. litigation. After examination of the current copyright laws and the recent NEC/Intel decision, the author analyzes the IBM/Fujitsu settlement, which created a new hybrid form of commercial arbitration. By relinquishing extensive control over their businesses to the arbitrators, IBM and Fujitsu established a sophisticated mechanism to resolve future conflicts and forestall future litigation. The author concludes that this hybrid method of ...


Adam Smith Assaults Ma Bell With His Invisible Hands: Divesture, Deregulation, And The Need For A New Telecommunications Policy, Paul Stephen Dempsey Jan 1989

Adam Smith Assaults Ma Bell With His Invisible Hands: Divesture, Deregulation, And The Need For A New Telecommunications Policy, Paul Stephen Dempsey

Hastings Communications and Entertainment Law 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.


Vads, Vars, And Authorized Dealers - Do The Franchise Laws Apply To The Computer Industry, Kennedy A. Brooks Jan 1989

Vads, Vars, And Authorized Dealers - Do The Franchise Laws Apply To The Computer Industry, Kennedy A. Brooks

Hastings Communications and Entertainment Law Journal

VAD/VAR distribution programs may be "franchises" within the technical definitions in applicable federal and state laws. Computer products manufacturers should exercise care in the design of their dealer channels to avoid the impact of these laws. This Article reviews the basic features of these distribution channels, analyzes the components of the various definitions of a franchise, and discusses how these laws might affect the characteristics of a computer dealer channel.


Technological Poetry: The Interface Between Copyrights And Patents For Software, Willis E. Higgins Jan 1989

Technological Poetry: The Interface Between Copyrights And Patents For Software, Willis E. Higgins

Hastings Communications and Entertainment Law Journal

For historical reasons, there is an overlap between patent coverage for software as a technology and copyright coverage for software as a literary work. Each of these forms of protection for software has a proper role and should be allowed to coexist. Through common law evolution in case law and patent grants by the U.S. Patent and Trademark Office, patents have become the way to protect new and nonobvious functional concepts of software. Therefore, courts may be less willing to expand the scope of protected expression of copyrights to protect the functional aspects of software.


The Constitutional Administration Of The Beirut Agreement: Paradox Or Possibility, Alison E. Baur Jan 1989

The Constitutional Administration Of The Beirut Agreement: Paradox Or Possibility, Alison E. Baur

Hastings Communications and Entertainment Law 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.


Punitive Damages In Libel Cases After Browning-Ferris, P. Cameron Devore, Marshall J. Nelson Jan 1989

Punitive Damages In Libel Cases After Browning-Ferris, P. Cameron Devore, Marshall J. Nelson

Hastings Communications and Entertainment Law 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 ...


The Department Of Communications: A Plan And Policy For The Abolition Of The Federal Communications Commission, Michael F. Starr, David J. Atkin Jan 1989

The Department Of Communications: A Plan And Policy For The Abolition Of The Federal Communications Commission, Michael F. Starr, David J. Atkin

Hastings Communications and Entertainment Law 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 ...


Carrying Copyright Too Far: The Inadequacy Of The Current System Of Protection For Computer Programs, Virginia R. Lyons Jan 1989

Carrying Copyright Too Far: The Inadequacy Of The Current System Of Protection For Computer Programs, Virginia R. Lyons

Hastings Communications and Entertainment Law Journal

Currently available methods of legal protection are inappropriate for software. Because copyright law developed long before the advent of computer programs, it does not take into consideration the specialized needs of the new technology. This Note examines the way copyright law was manipulated to address early problems in software protection, and the problems which result when these rules are applied to recent, more complicated cases. The Note then proposes a new system of legal protection for computer programs.


Validity Of Post-Employment Non-Compete Covenants In Broadcast News Employment Contracts, Jon H. Sylvester Jan 1989

Validity Of Post-Employment Non-Compete Covenants In Broadcast News Employment Contracts, Jon H. Sylvester

Hastings Communications and Entertainment Law 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.


Trade-Based Remedies For Copyright Infringement: Utilizing A Loss-Preventative Synthesis, Antionette M. Von Dem Hagen Jan 1989

Trade-Based Remedies For Copyright Infringement: Utilizing A Loss-Preventative Synthesis, Antionette M. Von Dem Hagen

Hastings Communications and Entertainment Law 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 ...


What Does The Fairness Doctrine Controversy Really Mean, Jerome A. Barron Jan 1989

What Does The Fairness Doctrine Controversy Really Mean, Jerome A. Barron

Hastings Communications and Entertainment Law 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 ...


Mandatory Television Access For Minor Party Presidential Candidates: Revamping Section 315 Of The Equal Opportunities Doctrine, M. Shannon Underwood Jan 1989

Mandatory Television Access For Minor Party Presidential Candidates: Revamping Section 315 Of The Equal Opportunities Doctrine, M. Shannon Underwood

Hastings Communications and Entertainment Law 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.