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Volume Twenty-Three, Number 3, 2003TABLE OF CONTENTS
ARTICLES Agents of Chaos : Judicial Confusion in Defining the Right of Publicity-Free Speech Interface Speech is free, but the resources needed to create it cost money. A constitutional “speaker” may not have that money. Can the speaker take or use others’ property to enable speech? If so, when? The answers to those questions may seem obvious in many contexts. For example, few would argue that a filmmaker could rob a bank to get the money needed to make a movie. For reasons often not clearly articulated, however, these questions have proven more difficult to answer when the property taken is intellectual property. Constitutional “speakers” often wish to use others’ intellectual property to communicate their “message.” Courts have struggled to accommodate these competing interests in the intellectual property context. Copyright and trademark law have developed approaches that operate with varying degrees of success. However, courts have largely failed to fashion clearly-articulable standards in what is arguably the newest form of intellectual property recognized in the United States —the right of publicity. Despite two United States Supreme Court decisions and decades of caselaw, the current legal landscape is a confusing morass of inconsistent, sometimes non-existent, or mutually exclusive approaches, tests, standards, and guidelines, with the confusion only increased by several recent rulings. This Article discusses the various approaches courts have followed to adjudicate First Amendment defenses to right of publicity claims, evaluates the strengths and weaknesses of these approaches, and suggests standards that, in the author’s view, may help reconcile the competing property and expressive interests in the context of the right of publicity. NOTES & COMMENTS Here’s Why Hollywood Should Kiss the Handshake Deal Goodbye Movie makers do lunch, not contracts. Accordingly, Hollywood ’s use of oral agreements, or “handshake deals,” has become legendary. There is, however, a tide that seems to be rising against handshake deals in Hollywood , and for good reason. Although oral contracts are thought to provide flexibility for a fast-paced and dynamic industry, the reality is that their lack of clear and defined contractual terms often leaves parties making up the rules as they go along. Furthermore, they are weighted against Hollywood artists and in favor of the studios and producers who employ those artists. This Comment examines the history of the movie industry’s reliance upon handshake deals. It then demonstrates the disparity of bargaining power between Hollywood artists and their employers, and examines the manner in which oral contracts are used to exploit this disparity. This Comment then refutes the usual excuses for the industry’s use of oral contracts, and examines the existing precedent and policy reasons for legislating against the handshake deal. It concludes by demonstrating the concrete steps that should be taken to “cure” Hollywood of its addiction to oral agreements. As will become apparent from the history and consequences of handshake deals, particularly with respect to artists, the effects of handshake deals are such that the film business should do away with them altogether. On August 8, 2002 , the FCC amended its own rules and adopted a requirement that new broadcast television-receiving equipment have the capability to receive DTV signals. It has prescribed a gradual phase-in of digital tuners in television-receiving devices over a five-year span. Essentially, this means that television sets not equipped with equipment capable of receiving DTV signals will become obsolete once analog programming disappears and television broadcasts become all-digital. The FCC has relied on the All-Channel Receiver Act (“ACRA”), in enacting this regulation, despite the fact that forty years have elapsed and many other developments have occurred since ACRA was enacted in 1962. This Comment argues that the FCC does not have the requisite power under ACRA to pass regulations forcing television receiver manufacturers into equipping the prescribed products with DTV tuners and decoders. Relying on legislative history, the caselaw, and the unique market conditions pertinent to digital television and FCC regulation in this area, this Comment will demonstrate that the FCC’s actions contravene the express intentions of ACRA’s framers, exceed the FCC’s authority under ACRA, impose an additional government tax on television sets, and do not reflect consumer demand. For these reasons, either the FCC or the courts need to halt this outrageous regulation. |
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