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VOLUME TWENTY, NUMBER 1 -- 2000TABLE OF CONTENTSARTICLES CATCHIN’ THE HEAT OF THE BEAT: FIRST AMENDMENT ANALYSIS OF MUSIC CLAIMED TO INCITE VIOLENT BEHAVIOR Gangsta rap, a popular genre of rap music, is often used as a form of expression to depict the violent and often angry lives of inner-city youths. However, the graphic lyrics have caused some to question whether the music directs its listeners to imitate the lyrics and commit various crimes. This Article discusses whether the First Amendment can protect gangsta rap from civil suits alleging the music is directed to—and is likely to—incite imminent lawless action. First, this Article defines political speech and analyzes the virtually absolute First Amendment protection traditionally applied to speech falling within that category. This Article then reviews Supreme Court opinions that have explored the advocacy-incitement doctrine and cases where the plaintiff has claimed to have been victimized by violent acts incited by some form of entertainment. This Article maintains that gangsta rap, for the most part, constitutes political speech. However, this Article argues that a court could arbitrarily hold that some gangsta rap does constitute unlawful incitement under current interpretations of the Brandenburg test. Finally, the Article discusses the problems resulting from a finding of liability, including the threat of overinclusive censorship. NOTES & COMMENTS WYLER SUMMIT PARTNERSHIP V. TURNER BROADCASTING SYSTEM, INC. AND THE CONTRACTUAL WAIVER DOCTRINE: TRANSFORMING THE SHIELD INTO A SWORD? A well-established rule under California contract law is that a party to a contract may waive a provision that was inserted in the agreement solely for the benefit of that party. This use of the waiver doctrine is referred to as “defensive” because it does not impose new legal duties on the non-waiving party. Instead, defensive waiver, a long recognized doctrine in contract law, is used as a shield. By contrast, offensive waiver, where a party uses waiver as a sword, was prohibited under California law—until Wyler Summit Partnership v. Turner Broadcasting System, Inc. This Note discusses how, in Wyler Summit, the Court of Appeals for the Ninth Circuit effectively approves of the offensive use of the contractual waiver doctrine. The Note analyzes both California law as it relates to the contractual waiver doctrine, and the Wyler Summit majority and dissent opinions, and concludes that the Ninth Circuit majority opinion is inconsistent with both California case law and long-standing principles relating to the use of the contractual waiver doctrine. The Note also suggests that, due to its departure from California law, the Wyler Summit precedent could have a detrimental effect on the ability of entertainment attorneys to draft reliable agreements on behalf of their clients. AVERY DENNISON V. SUMPTON: THE NINTH CIRCUIT RAISES THE BAR FOR SUCCESSFUL DILUTION CLAIMS IN DOMAIN NAME CASES Appellate courts have recently been faced with many cases involving cybersquatters, those who reserve and later profit from the sale of a domain name to the entity that owns the corresponding trademark name. In these cases, the courts rarely perform a detailed analysis of the first factor of the Federal Dilution Act, “famousness” of the marks. Instead, the courts assume the marks’ fame and focus their analysis on the dilution requirement. However, in Avery Dennison v. Sumpton, the Ninth Circuit raised the bar for successful dilution claims by rigorously applying the famousness factors of the Federal Trademark Dilution Act. The strict application precluded Avery Dennison’s marks from being deemed famous under the Act. As a result, Avery failed to prevail on its dilution claim against a business that used “Avery” and “Dennison” as domain names in a vanity email/web site business. This Note concludes that the Ninth Circuit properly found that Avery Dennison’s marks did not meet the threshold element of fame under the Dilution Act. However, this Note argues that the famousness factors should have been applied differently in order to clarify the statutory ambiguity that exists with this first element. Further, this Note argues that the reservation of the domain names and the use of those names by patrons as email and web site addresses satisfied “commercial use,” the second element of the Dilution Act. Because trademark law, as applied to the Internet and domain name cases is still evolving, courts will undoubtedly look to the Ninth Circuit’s application of the famousness factors for all dilution cases. As a result, trademark owners may now face a more difficult time in proving that their mark is famous under the Federal Trademark Dilution Act. The expansion of the Internet has posed many problems with the application of the Copyright Act of 1976. Congress has recently addressed such problems by implementing technologically-based legislation such as the “No Electronic Theft” Act and the Digital Millennium Copyright Act. However, although these provisions were created to deter copyright infringement on the Internet, they may be inadequate in the fight against infringement by fans who post legally-protected material to their fan site in order to show their adoration for their favorite celebrity, movie, or television show. This Comment argues that, for the entertainment industry, protection of their copyrights may not necessarily be found in the recent technological legislation, but rather, in the traditional Copyright Act of 1976. This Comment specifically traces one fan site’s progression through the fair use doctrine, the “No Electronic Theft” Act and the Digital Millennium Copyright Act, to conclude that, even with the advancement of the Internet, the strongest protection for the entertainment industry is, in fact, the traditional copyright law of 1976. |
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