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Volume Twenty-Three, Number 2 -- 2003
TABLE OF CONTENTS
2002 SYMPOSIUM UPDATE Media Liability for Violent Conduct: One Year Later A major subject of debate in February 2002 at the Fourth Annual Entertainment Law Symposium—“Tune In, Turn On, Cop Out?: The Media and Social Responsibility”—was the media’s liability for violent audience behavior. The symposium panel discussed a number of high-profile cases in which media products, such as songs, movies, and books, were blamed for causing violence. One year now has passed since that discussion, but the topic has not faded from either the public view or the legal limelight. Recent national events, such as the sniper shootings in Maryland and Virginia , have again focused the journalistic spotlight on media products as a source of blame for societal violence. This update Article briefs the reader on the tide of judicial opinions in the past year that has risen up against holding the media civilly liable for real-life violence caused by a slew of products, including video games, television talk shows, movies, and Internet Web sites.
ARTICLES Defending the First in the Ninth: Judge Alex Kozinski and the Freedoms of Speech and Press By examining Alex Kozinski’s opinions and scholarly writings, one might expect that the Ninth Circuit Judge privileges speech above all other rights. However, this Article reveals that the Reagan-appointed judge—who writes with panache and often refers to popular culture in his opinions—considers himself “a champion of all rights.” Based on a ninety-plus-minute interview with Judge Kozinski at his Pasadena , California offices, described in detail here, this Article provides a first-hand look at his thoughts on a range of both First Amendment issues and cases. In the process, he describes what he believes may be the most important free speech issue soon facing the federal courts—the extent to which recently-enacted anti-terrorism statutes may abridge freedom of speech and the Fourth Amendment. Judge Kozinski also discusses several other issues, among them his belief that freedom of speech serves as a bulwark against totalitarianism, the role of legal scholarship in judicial decision-making and in the United States Supreme Court nomination process, and the perception that the Ninth Circuit is a liberal appellate court. How the “Summer of the Spinoff” Came to Be: The Branding of Characters in American Mass Media The various media are feeding on and cross-pollinating each other, acts which blur the distinctions among the conventional art forms. Our movies were once television shows, our television shows were once video games, our video games were once books, and our books were once movies. This Article examines this trend through the prism of the character, the most portable and most profitable aspect of a work. Because brand name characters can appear over and over again in a variety of media, the ability to use them in derivative works is even more valuable than the right to sell any one particular work. This Article defines what a character is, and describes how characters interact with the other elements that make up an artistic work. It then examines and defines the different ways that an entertainment company can maximize the value of its characters. Next, the Article considers the various economic opportunities that different media offer for exploitation of characters, and then considers the different ways in which characters can lose their value. The discussion then turns to the various legal tools that are available to prevent such losses and to allow a company to capture its characters’ value. The law’s impact on creativity in the entertainment business is then examined. The Article concludes that intellectual property law is not an appropriate lever with which to shift the creative focus of entertainment companies. NOTES & COMMENTS For years, recording artists have questioned record label accounting practices. Many performers and musicians believe record companies use unfair accounting tricks to reduce their artist royalties, and, subsequently, their healthcare and pension benefits. The world’s five major music conglomerates say they pay artists accurate royalties, in accordance with their contracts, and based on standard industry accounting practices. Because current record industry accounting systems are so complex, improper royalty accounting has become part of the norm. Aside from the simple underpayment, such practices can put an artist in an unrecouped position for longer periods of time. They can also affect the leverage between artists and record companies and deprive or reduce the amount of healthcare and pension benefits owed to recording artists in their later years. This Comment explores current recording industry accounting standards, gives an overview of the auditing process for those artists who are contractually allowed to audit their record company, and examines the AFTRA Code and its relation to the royalty accounting process. This Comment also reviews current case law and the availability of remedies to the recording artist. Ultimately, the author concludes that a fiduciary duty should be imposed on record labels to report accurate royalties to their recording artists.
When “Sex” Sells: Expanding the Tort of Conversion to Encompass Domain Names When Gary Kremen registered the domain name “sex.com” on May 9, 1994 , he intended to use the future Web site to provide women with information on sexually-transmitted diseases, underage pregnancy, and health. However, via a fraudulent letter, another individual managed to transfer rights to the domain name to himself. Though Kremen sued the individual and successfully recovered the rights to “sex.com,” the United States District Court for the Northern District of California refused to allow recovery under the tort theory of conversion. After providing some background on the tort of conversion and on domain name components, this Comment argues that domain names should be recognized as property, meaning that, like personal property, they can be converted, and that those that convert domain names should be subject to tort suits for conversion. |
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