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VOLUME TWENTY-ONE, NUMBER 2 -- 2001TABLE OF CONTENTSARTICLES The video game industry annually releases games that each year grow increasingly sophisticated and rise to new levels of “realism.” Sports games, in particular, make noticeable leaps in graphics, depth, sound and overall atmosphere. Although college sports video games are among the most popular, “gamers” are growing increasingly frustrated with the one major element of realism lacking in the collegiate video games—the athletes’ names. Due to the NCAA Bylaws prohibiting student athletes from exploiting their own images while maintaining amateur status, college sports video games can completely simulate collegiate gameplay atmosphere, except they are prevented from using athletes’ proper names. Instead, the video games feature real college athletes identified only by their numbers and physical attributes. Thus, the video games manage to reveal the athletes’ identities without actually identifying them by name. This Article argues that the NCAA Bylaws unfairly cause video game producers to violate student athletes’ rights of publicity by exploiting their images without paying just compensation. It advocates that the best solution to this problem is for the NCAA to recognize that allowing student athletes to receive name recognition when their images are exploited for commercial gain would benefit the athletes and the consumers without destroying the concept of amateurism. REBELS WITH A CAUSE: ARTISTS’ STRUGGLES TO ESCAPE A PLACE WHERE EVERYBODY OWNS YOUR NAME Since its inception, the entertainment industry has made every effort to control all intellectual property rights associated with its products. For years, through its superior knowledge and information, the industry manipulated its form agreements such that performers unknowingly relinquished rights to future revenue from unknown, yet developing technologies. In recent years, however, performers have become more sophisticated about their intellectual property rights and their associated value. As such, the industry can no longer rely on crafty contract language, but rather, is forced to mount a direct assault on artists’ intellectual property rights in the courts. This Article begins with an examination of cases that expose the entertainment industry’s long-standing unfair bargaining position with respect to the artists who bring their works to life. The Article continues by considering the entertainment industry's most recent efforts to usurp the rights of artists through its claims that the right of publicity is preempted by copyright law. After a careful review of the legislative history of copyright preemption and the right of publicity, along with an analysis of relevant recent case law, this Article concludes that copyright law cannot preempt the artist’s personal right of publicity. Finally, the Article warns of continued attempts by the entertainment industry at legislation designed to appropriate all rights from the performing artist, thereby compelling artists to remain ever vigilant. NOTES & COMMENTS For a few dollars, an individual can register the name of a celebrity as a domain name, and for a few million dollars, this registrant may offer to sell the domain name to that very celebrity. As such, cybersquatting poses a threat to more than just corporate America. In the last year, celebrities such as Sting, Madonna, and Julia Roberts have joined the battle for control over domain names. Almost all have turned to the International Corporation for Assigned Names and Numbers ("ICANN"). ICANN’s Uniform Domain Name Dispute Resolution Policy ("UDRP"), serves as an alternative to rights of publicity, trademark law, and Congress’ recent anti-cybersquatting act. It permits complainants like Madonna to obtain their domain names if they can show they possessed rights to the name, that the registrant lacked rights or a legitimate interest in the name, and that the registrant operated in bad faith. This Comment examines the approaches taken by the courts and the Internet community in handling celebrity-cybersquatters. An exploration of recent decisions, such as the high-profile dispute over www.madonna.com, suggests celebrities are best served by the UDRP, given recent trends and the procedural benefits that ICANN’s service providers have to offer. The Internet allows virtually anyone to publish a statement, which can then be read worldwide, resulting in an unprecedented gain in free speech. However, this gain has not occurred without conflict. The ease of Internet publishing has led to a rise in libel claims against Internet Service Providers (“ISPs”). ISPs, however, do not create the defamatory statements, but merely act to publish the statements of their subscribers. Thus, libel law applicable to traditional publishers, such as newspapers, does not easily apply to ISPs, and the courts have struggled with solutions to this problem. Moreover, due to the unique nature of the Internet and the fact that a defamatory statement is accessible worldwide, ISPs may be subjected to lawsuits in foreign jurisdictions. These potential liabilities may result in ISPs refraining from publishing information for fear of liability. As such, this Comment examines the approaches taken by different countries regarding the treatment of Internet libel. This Comment calls for a worldwide solution to combat the suppression of ideas and debate that could potentially result if libel is continued to be policed through a country-by country approach. It ultimately concludes that a truth-based system, which corrects defamatory statements with truth, rather than money, would better address the problems facing ISPs. |
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