Recent uclalaw_elr items

Fair Comment: Restoring the Rightful Scope of Fair Use and Free Speech after Elster and Warhol

Thu, 4 Jun 2026 00:00:00 +0000

Social criticism and self-expression are being suppressed under overbroad intellectual property regimes. The United States Supreme Court has had multiple opportunities to apply its precedents on common-law torts, statutory crimes, and administrative regulations to copyright, trademark, and the right of publicity, but it has failed to do so. Indeed, the Court has tripled down on a definitional or internal approach that virtually prohibits First Amendment scrutiny of injunctions or damages against infringing speech in copyright disputes.

This Article explores how the Supreme Court has not carefully considered a constitutional right to engage in commentary in its intellectual property jurisprudence. Cases like Harper & Row, Campbell, Warhol, Jack Daniels, and potentially Elster introduced a necessity test, which helps determine whether imitation of a protected work or...

Front Matter

Thu, 4 Jun 2026 00:00:00 +0000

Front Matter

Tackling the Economic Duress Problem with the NFL Franchise Tag

Thu, 4 Jun 2026 00:00:00 +0000

Since the National Football League (“NFL”) created the Franchise Tag in 1993, 245 NFL players have been offered a one-year franchise tag contract that prevented them from benefitting from the free agent market to realize their true value. NFL players used to have an avenue of suing the NFL by dissolving their union, the National Football League Players Association (“NFLPA”), and challenging the Collective Bargaining Agreement (“CBA”) under antitrust law. However, the Eighth Circuit Court foreclosed such challenges in Brady v. NFL in 2011, removing one of the few tools players had to balance out the bargaining power with NFL Owners.

In this Note, I document the development of the franchise tag and explain its functioning, and discuss the impact of Brady v. NFL on antitrust challenges to the CBA. I then suggest a different method players could employ—suing the NFL for franchise tag contracts as a form of economic duress. Alternatively,...

Play It Again, HAL: Evaluating Fair Use in Generative Music Artificial Intelligence Training

Thu, 4 Jun 2026 00:00:00 +0000

This paper evaluates fair use in the context of the training process for generative music AI systems, such as those creating text-to-music, voice-to-music, instrumental-only, lyrics-only, and other outputs. Training data for such systems is comprised of musical compositions and sound recordings, much of which is under copyright. This paper considers the four fair use factors and how courts may weigh them in favor of, or against, fair use in the unauthorized copying of copyrighted works for music AI training. This paper adopts the approach outlined in Andy Warhol Found. for the Visual Arts v. Goldsmith, 598 U.S. 508 (2023) for the first fair use factor, which emphasizes proper framing of the specific use and the purpose of the allegedly infringing secondary work at issue—here, the generative music AI system and its use by end-users. This paper will consider three possible views of the purpose of a generative music AI...

Case-by-Case: Most Sound Recording Copyright Assignments Should be Terminable

Thu, 12 Dec 2024 00:00:00 +0000

Since becoming exercisable in 2013, termination of transfer rights under section 203 of the Copyright Act have had little impact on the music industry as a whole. Recent class-action lawsuits by recording artists have sought to change that. In the final substantive opinion on the matter, the Second Circuit expressed the necessity of evaluating termination and possible defenses on a case-by-case basis. It may not be the win recording artists were hoping for, but it leaves the door open for them to regain their copyrights; and, for the moment, puts to rest the claim that all sound recordings are works made for hire. This Article surveys the implications of case-by-case work made for hire determinations on the viability of sound recording reversion attempts by recording artists going forward. This Article also explores the variety of ways in which record labels have tried and will continue to try to stave off the termination attempts by artists. This Article concludes with suggestions...

Students, Athletes, and Employees: An Evolving Distinction

Thu, 12 Dec 2024 00:00:00 +0000

As the emergence of Name, Image, and Likeness (NIL) rights continues to redefine the legal environment of college athletics, many experts and commentators have turned their attention to student-athlete unionization, arguing both for or against classifying student-athletes as employees under the National Labor Relations Act of 1935. However, few commentators have addressed a critical observation that this Article finds indispensable to a well-functioning narrative among students, student-athletes, and employees: not all athletic programs are the same. In fact, many of these programs are so different from one another that focusing on the “forest” of unionization might gravely ignore the “trees” that characterize these complex groups of institutions.

In response, this Article aims to facilitate a more complete discussion between students, student-athletes, and employees by highlighting one group of institutions whose barrier to student-athlete unionization is very different...

Children Are Making It Big (for EVERYONE ELSE): The Need for CHILD LABOR LAWS Protecting Child Influencers

Thu, 12 Dec 2024 00:00:00 +0000

Child influencers are a large part of social media’s advertising success. Child influencers earn millions each year, with the most successful of them earning upwards of $29 million. They make their money from sponsored content and monetizing their social media platforms. Currently, child influencers have no legal rights through traditional child labor laws such as the Fair Labor Standards Act of 1938 or state-based child actor laws. Only one state—Illinois—has passed legislation specifically targeted at protecting child influencers. As a result, the risk of financial, physical, and psychological exploitation of child influencers is one that cannot be ignored. Because of the rapid expansion of child influencers and the lack of regulation or legislation to prevent the exploitation of these children, Congress must enact federal legislation to ensure the safety of children across the nation.

This Article addresses the fact that child influencers are working and should thus...

Front Matter

Thu, 12 Dec 2024 00:00:00 +0000

Front Matter

Rules of the Game: Are the Rules and Mechanics of Video Games Copyrightable?

Thu, 12 Dec 2024 00:00:00 +0000

The video game industry has long been characterized by game developers borrowing gameplay features from earlier releases to develop their own new and innovative games. This practice has persisted due to the widespread belief that the rules of video games are excluded from copyright protection under § 102(b) of the Copyright Act, either for being too abstract or for having a functional nature. This Article is the first scholarly work to argue that this belief is mistaken and that none of the § 102(b) exclusions categorically apply to such rules. Specifically, it proposes that most video game rules are in fact eligible for “thin” copyright protection, and that such protection would strike an appropriate balance between incentivizing creativity and permitting competition in the industry. This Article concludes that such a copyright would provide improved legal clarity and a reliable means of preventing video game “cloning,” which does not exist in the status quo.

Post Post-Paramount Decrees: The Evolution of Antitrust Concerns as the Film Industry Transforms

Thu, 12 Dec 2024 00:00:00 +0000

While this Comment cannot tackle the extensive breadth of behaviors and concerns potentially stemming from the revocation of the Paramount Decrees, it does take a look at the most salient changes in the film industry since the investigation into and revocation of the Decrees. Part II provides a brief overview of the 1948 Paramount action and the resulting consent decrees, and Part III covers the government’s justifications for revoking the Decrees in 2020. Part IV analyzes major changes in the film industry since the revocation, and finally, Part V examines how some of these changes could lead to consumer harm in light of the revocation, taking particular note of the resurgence of block booking and circuit dealing in theaters and the open-ended question of how streaming fits into the picture.

The Pas de Deux Between Unionization and Federal Arts Funding: Why Congress Must Address Its Overcorrection That Impeded the Freelance Dance Industry

Wed, 4 Oct 2023 00:00:00 +0000

Freelance dancers do not receive adequate workplace protections. This problem is largely attributable to two interrelated causes: the dancers’ inability to unionize as well as a choreographer’s inability to access sufficient funding. The inability to join existing performing arts unions leaves the freelance dancer with limited power to secure better protections. A shortage of sufficient funding opportunities available to choreographers inhibits a choreographer’s ability to improve conditions for his or her dancers. These unionization and funding problems must be remedied concurrently to establish adequate workplace conditions in the freelance dance industry.

A current bill in Congress, the Richard L. Trumka Protecting the Right to Organize Act (PRO Act), may provide freelance dancers with the ability to unionize by amending the National Labor Relations Act (NLRA) so that freelance dancers are captured within the NLRA’s definition of “employee.” The dancers’ newfound ability...

PICTURE THIS: Applying the Fair Use Doctrine to Documentary Films after Google/Oracle and Warhol

Wed, 4 Oct 2023 00:00:00 +0000

The genre of documentary films has grown in both importance and audience reach over the past few decades, in no small part because of filmmakers’ reliance on the copyright doctrine of fair use. The expansion started after the passage of the 1976 Copyright Act and accelerated in the wake of the Supreme Court’s unanimous, landmark 1994 decision, Campbell v. Acuff-Rose Music, Inc., concerning a parodic rap-music send-up of a classic rock ‘n’ roll song. Over the years, a consistent body of case law evolved that provided a basis for making edit-room decisions about third-party content that filmmakers and their legal counsel could reasonably expect to be protected as fair use. Twenty-seven years later, the Court’s ruling in Google LLC v. Oracle America Inc. reaffirmed Campbell’s principles and the case law on which documentarians relied.

However, the Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith raised important questions about the...

The Inequitable Taxation of Low- and Mid-Income Performing Artists

Wed, 4 Oct 2023 00:00:00 +0000

The Internal Revenue Code (IRC) imposes an excessive income tax burden on many low- and mid-income performing artists. Low- and mid-income performing artists suffer a higher effective income tax burden than similarly situated taxpayers who are not performing artists and may also suffer a higher income tax burden than high-income performing artists. This inequity is due to a failure in the Internal Revenue Code, which has been significantly exacerbated by the Tax Cuts and Jobs Act (TCJA) passed in 2017.

This Article makes three key assertions: First, it shows that the IRC and the TCJA do not account for the unique employment structures of the entertainment industry, resulting in low- and mid-income performing artists having to pay income tax on more than their net income. Second, the Article uses stylized examples to show how current taxation of performing artists fails the standard benchmarks of sound tax policymaking. Third, the paper explores several possible solutions...

Front Matter

Wed, 4 Oct 2023 00:00:00 +0000

Front Matter

NFTs and the Art World – What's Real, and What's Not

Mon, 19 Sep 2022 00:00:00 +0000

This Article explores the reality and mythology of NFTs in art law and in the art world by unpacking six myths, misconceptions, and poorly understood truths about NFTs that prevent persons, and particularly art law lawyers, from understanding the role NFTs are playing and could play in the art world and beyond. The Article discusses the legal and financial attributes and potentialities of NFTs for artists, galleries, dealers, investors, museums, and, most especially, for lawyers who advise the players in the art world. The six myths or misconceptions are:

-Myth 1: NFTs are artworks.

-Myth 2: NFTs create a false artificial scarcity in artworks.

-Myth 3: The valuation of NFTs is unlike any rational process of valuation for any other artwork or asset.

-Myth 4: Smart Contracts are like regular contracts.

-Myth 5: NFTs have created the ability of artists to receive resale royalty rights.

-Myth 6: NFTs will allow all artists the chance to make...

Art is Big Business: Fine Art, Fair Use, and Factor Four After Goldsmith

Mon, 19 Sep 2022 00:00:00 +0000

This Article explores fair use jurisprudence in the fine art context. Particularly, this Article proposes that, motivated by an increasingly commercial contemporary art landscape, courts may be reevaluating their approaches to fair use in this sphere. Part I of the Article provides background on fair use law in the fine art context, specifically focusing on the difficulties posed by appropriation art in copyright law. Part II of the Article explores changes to this paradigm following the Second Circuit’s recent decision in Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith. I focus on the Second Circuit’s reemphasis of the fourth fair use factor, as well as the copyright holder’s pecuniary interests in licensing within the fourth factor analysis. Part III offers several motivations that may have informed the Goldsmith decision: (1) overly broad interpretations of transformative use from the 1990s to 2010s; (2) a shift away from equitable relief in copyright infringement actions;...

Of Circuit Splits, Dictionaries & Legal Essences: The Right of Publicity as "Intellectual Property"

Mon, 19 Sep 2022 00:00:00 +0000

This Article first provides a basic outline of both the right of publicity and the mechanism of Section 230. Next, it analyzes the existing case law interpreting Section 230’s intellectual property exclusion. The Article then explores three dimensions that suggest the right of publicity should not be treated as intellectual property for 230 purposes. Finally, it offers concluding perspectives on this difficult and vitally important area of the law.

Front Matter

Mon, 19 Sep 2022 00:00:00 +0000

Front Matter

Mon, 19 Sep 2022 00:00:00 +0000

Table of Contents

The Streaming Wars+: An Analysis of Anticompetitive Business Practices in Streaming Business

Fri, 25 Jun 2021 00:00:00 +0000

The recent rise of streaming platforms currently benefits consumers with quality content offerings at free or at relatively low cost. However, as these companies’ market power expands through vertical integration, current antitrust laws may be insufficient to protect consumers from potential longterm harms, such as increased prices, lower quality and variety of content, or erosion of data privacy. It is paramount to determining whether streaming services engage in anticompetitive business practices to protect both competition and consumers.

Though streaming companies do not violate existing antitrust laws because consumers are not presently harmed, this Comment thus explores whether streaming companies are engaging in aggressive business practices with the potential to harm consumers. The oligopolistic streaming industry is combined with enormous barriers to entry, practices of predatory pricing, imperfect price discrimination, bundling, disfavoring of competitors...

The Application of the Sales Comparison Affiliate Transaction Provision to New, In-House Streaming Transactions Involving Historical Television Programs, and Their Impact on Profit Participants

Fri, 25 Jun 2021 00:00:00 +0000

In this Article, the Authors discuss how the rise of in-house streaming services will impact profit participation. Specifically, this Article discusses: (1) the vertical integration of the television industry, including the recent advent of in-house streaming services exhibiting content produced by their related-party studios; (2) the context in which the Sales Comparison ATP became a standard provision in profit participant agreements and how this history aids in its interpretation; (3) the meaning and purpose of each sentence and term in the Sales Comparison ATP; and (4) a roadmap for how profit participants may be able to leverage the Sales Comparison ATP to preserve their rights as entertainment conglomerates increasingly use their own streaming platforms to exhibit the valuable library television programs that they own.

Fighting Chinese Censorship of U.S. Films by Denying Filmmakers U.S. Government Assistance: An Examination of the Proposed SCRIPT Act

Fri, 25 Jun 2021 00:00:00 +0000

In order to distribute their films in China, U.S. filmmakers must submit them to Chinese censors for approval, which frequently require changes to films to portray China and the Chinese in a more favorable light. Given the millions of dollars to potentially be made in the large Chinese market, filmmakers have been willing to comply with Chinese censors, and have even begun to censor themselves by anticipating China’s concerns and tailoring their films appropriately. In this way, China is able to influence the way it is portrayed in films not just for audiences in China, but in the United States and around the world. To combat the spread of Chinese propaganda in this way, Senator Ted Cruz introduced a bill, dubbed the SCRIPT Act, that would prohibit filmmakers from obtaining government assistance with their films unless they refrain from making changes to film content to accommodate the Chinese government. This Article examines whether the SCRIPT Act,...

Fri, 25 Jun 2021 00:00:00 +0000

Table of Contents

“Oh [Yes], She Betta [Should]!”: Dolling Up Drag Queens’ Intellectual Property Rights

Fri, 25 Jun 2021 00:00:00 +0000

For centuries, drag performance has persisted as a socially complicated art form inextricably tied to the LGBTQ+ community. Historically, prevailing audiences often labeled the art form and the queer community as unconventional and threatening. As a result, drag art’s sudden acceptance by the same mainstream crowd is both satisfying and precarious from an intellectual property perspective. This Comment examines the development of drag through its heightened popularity in entertainment today, where drag artists are faced with insufficient intellectual property protections unfit for dynamic queer art.

Front Matter

Fri, 25 Jun 2021 00:00:00 +0000

Front Matter

Moral Bars to Intellectual Property: Theory & Apologetics

Fri, 25 Jun 2021 00:00:00 +0000

Various intellectual creations are raising complex moral issues in intellectual property law. Videos of mass shootings made by perpetrators, statues of the Confederacy displayed openly, torture techniques used on criminal detainees, and devices for consuming illegal drugs are only a few examples. These expressive and inventive works pose the question of whether their apparent immoral nature should preclude intellectual property protection. Although courts and scholars have long debated moral values in intellectual property doctrines, the literature is largely silent on the effect of intellectual property theory. The question thus arises: Do the utilitarian, labor-desert, and autonomy theories of intellectual property imply that morality is relevant to whether a work should receive patent or copyright protection? This is a critical question left unanswered by the scholarship and jurisprudence dealing with intellectual property and morality. ...

The Necessity of Blanket License Agreements in Light of 17 U.S.C. 110(4) Unveiled