UCLA ENTERTAINMENT

LAW REVIEW

Volume 12                     Issue 1                    Fall 2004

ARTICLES

Writers Gone Wild: “The Muse Made Me Do It” as a Defense

to A Claim of Sexual Harassment

Daniel E. Eaton ………………………………………  1

In this article San Diego attorney Daniel Eaton argues that the California

Supreme Court should consider recognizing a “creative privilege” defense to

claims of sexual harassment when it reviews the case of a former writers’

assistant on the hit sitcom Friends. The author contends that such a privilege

would be rooted in well-recognized statutory privileges, such as the privilege

that applies to statements related to litigation and other official proceedings.

The author concludes the article by identifying, without answering, a series of

“hard questions” courts developing such a privilege would eventually have to

address, such as whether a “creative privilege” should be limited to the arts

and entertainment fields or should instead be applied to the creative aspects of

virtually any workplace setting.

Are Musical Compositions Subject to Compulsory Licensing

for Ringtones?

Mario F. Gonzalez, Esq ……………………………….  11

With the advent of mastertones-ring tones derived from popular sound

recordings-ringtone companies find themselves squeezed between royalties

being charged by record companies that own the sound recordings and music

publishers that own the underlying musical compositions. This article

examines whether the ringtone companies may use Section 115 of the

Copyright Act to obtain a compulsory license for the reproduction and

distribution of ringtones containing musical compositions. The royalty under a

compulsory mechanical license is much less than the royalty music publishers

are currently charging ringtone companies. Multiplied by millions in potential

ringtone sales, the difference in the royalty rates to all interested parties would

be enormous. The ringtone companies should, therefore, assume that the

music publishers will vigorously take the position that Section 115 does not

apply to ring tones.

Bending Over Backwards for Copyright Protection: Bikram

Yoga and the Quest for Federal Copyright Protection of an

Asana Sequence

Katherine   Machan …………………………………….  29

This article assesses the scope and enforceability of a number of copyrights

held by Bikram Choudhury, the creator of the self-titled Bikram Yoga method.

Bikrarm claims that by virtue of holding various copyrights, he has obtained

patent-style protection for his yoga system. He asserts that no unlicensed

individuals may practice or teach his yoga system without his permission, and

has made various threats to this effect and in one instance even filed an

infringement suit against some studio owners. Recently, a group of yoga

teachers and studio owners asked the federal court for the Northern District of

California to enter a declaratory judgment as to the scope and enforceability

of Bikram’s copyrights.

Various arguments for and against Bikram’s position are considered. He

claims that he deserves exclusive rights against any unauthorized use of his

system because he selected and arranged the unique sequence of yoga

postures which comprise his system, and imposed an ambient temperature

requirement of 105 degrees Fahrenheit upon studio operators. Bikram’s

opponents argue that yoga has been around for centuries, Bikram did not

himself create the individual postures comprising the series, and there is and

should be nothing proprietary about the practice of yoga.

This article argues that while certain of Bikram’s copyrights are valid and

enforceable, none of them confers on him the sort of broad protection for his

system which he claims. In particular, it is argued that yoga is not the proper

subject of copyright protection.

COMMENTS

SDMCA Laws: Preemption and Constitutional Issues

Kevin  McReynolds …………………………………….  63

Since 2000, the Motion Picture Association of America (“MPAA”) has been

lobbying state governments to enact new legislation that updates existing

telecommunications and cable security laws. This legislation has been enacted

in seven states and is pending in several more. More recently, this legislation

has become a source of debate and critics have attempted to stop its passage.

Critics have dubbed these laws “Super” Digital Millennium Copyright Act

laws (“SDMCA”) because they functionally expand the powers of

telecommunications service providers and entertainment companies along the

same lines as the federal Digital Millennium Copyright Act.

This article considers both sides of the SDMCA debate and reviews additional

issues that arise. The Delaware SDMCA law is used as an example because it

is current law and closely tracks the language in the MPAA’s model version of

the legislation. Through this lens it is possible to see that there may be serious

problems with SDMCA laws that critics have not fully addressed including

potential unconstitutionality.

Dastar Through European Eyes:

Effects of the Public Domain on Transatlantic Trade

Ory  Sandel ……………………………………………  .93

The U.S. Supreme Court published its unanimous opinion in Dastar Corp. v.

Twentieth Century Fox Film Corp. in June 2003. Claims of copyright

infringement of public domain works based on the Lanham Act’s designation

of origin requirements henceforth fail as a matter of law because if they did

not, the otherwise limited duration of copyright terms would be artificially

extended. In effect, the Court delineated the boundary between trademark

law and copyright law as they relate to unfair competition. As a result, public

domain works are free to be used at will and without concern for attribution in

the creation of derivative works.

The problem that arises out of this decision is that European law, as surveyed

in the article, is incongruent. Based on relevant European Council Directives

and key European Court of Justice decisions interpreting them, it appears that

Europeans may find residual rights of authors of public domain works that

would prohibit the use of these works in derivative works. Alternatively,

differences in attitudes regarding authors’ moral rights will yield the same

result.

This disharmony of law may create diversionary trade effects, e.g. the

movement of producers of such works to the United States from less public

domain-friendly countries. Left unaddressed, market forces could cause the

European Union to institute protectionist policies to keep out materials that

violate its laws, even though – in fact because – they do not violate those of the

United States. This is a realistic possibility, as the two entities are currently

embroiled in a situation exactly mirroring that hypothesized: musical works

falling into the public domain in the EU well before they do so in the United

States, and the RIAA lobbying Congress to create barriers to trade in these

works because their importation will undercut the prices on domestically-

produced versions that still require the payment of royalties. In short, the

trade effects of public domain law disharmony are reciprocal. Furthermore,

while the United States and EU are still seized of the copyright issue, their

tendencies seem diametrically opposed based on their respective attitudes

towards the Dastar issue and recent legislative efforts.

Falsity, Fault, and Fiction: A New Standard for Defamation in

Fiction

Matthew   Savare ……………………………………….  129

From Superman to Anna Karenina, compelling characters are essential to

fiction and are a valuable commodity in the entertainment industry. Although

authors conceptualize characters differently, it is undeniable that “real life

experiences are the source of all artistic inspiration.” This Article investigates

the current laws regarding defamation in fiction, describes the legal and

business morass created by doctrinal inconsistencies, and offers a new, uniform

standard by which courts can adjudicate such claims. Part I provides an

overview of how authors create characters. Part II outlines the confused state

of jurisprudence in this area, emphasizing the contradictions among different

courts and the attendant ramifications on authors, publishers, and the public.

Part III offers a new judicial standard for defamation in fiction based on

previous scholarship. Part IV concludes that the current legal standard for

defamation in fiction provides neither adequate “breathing space” for authors

nor the   constitutionally mandated  First Amendment protection  for

entertainment speech.

UCLA ENTERTAINMENT

LAW REVIEW

Volume 12  Issue 1  Fall 2004

Chief Managing Editors

KRIS McFARREN

ALEXANDRA M. MURRAY

Managing Editors

RYAN E. BLAIR

MICHAEL A. BROWN

EVAN DwmN

NICOLE GAMBINO

STEPHEN KRAUS

DANIEL MCKENZIE

ALISON ORENDACH

ANGEL JAMES

JACOB R. PATTERSON

MELANIE PHILLIPS

KEN ASKIN

JEN BAILEY

PAUL BATTAGLIA

KELLY BEHRENS

DAVID BLACK

JEREMY BORDEN

JASON BREEN

CHRISTIAN CANAS

MICHELLE CARPENTER

EILEEN CHUNG

ANAT DARDASHTI

BILLY DECLERQ

MATr DEMBLOWSKI

CYNTHIA DUFFY

KATRINA EMMONS

ALEX FINEMAN

DANIEL FOX

HOLLY GILBERT

PATRICK HAMMON

CHARLIE HENTY

GREGG HOLCOMB

AVI KAHAN

EDITORIAL BOARD

Editor-in-Chief

ERIC F. HARBERT

Executive Editors

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IAN M. SINK

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Citations conform generally to A Uniform System of Citation (17th ed.), copyright by the

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Variations exist for purposes of clarity and at the editors’ discretion.

Please cite this issue as 12 UCLA ENT. L. REV. – (2004).

EDITORIAL ADVISORY BOARD

FACULTY ADVISOR

EUGENE VOLOKH

UCLA School of Law

ADVISORY BOARD

BARBARA D. BOYLE

UCLA Department of Film, Television, and Digital Media

GARY 0. CONCOFF

Troy & Gould

DAVID R. GINSBURG

Alliance Atlantis Communications

SAMUEL N. FISCHER

Ziffren, Brittenham, Branca, Fischer, Gilbert-Lurie, Stiffelman & Cook LLP

HELENE HAHN

Dreamworks SKG

LINDA LICHTER

Lichter, Grossman & Nichols

SHELDON W. PRESSER

Warner Bros.

MICHAEL S. SHERMAN

Jeffer, Mangels, Butler & Marmaro

LIONEL S. SOBEL

Southwestern University School of Law

KENNETH ZIFFREN

Ziffren, Brittenham, Branca, Fischer, Gilbert-Lurie, Stiffelman & Cook LLP

The UCLA Entertainment Law Review would especially like to thank the

following groups that have contributed to the founding of this journal:

CONTRIBUTORS

Kenoff & Machtinger

Kramer & Goldwasser

Rogers & Harris

Shapiro, Posell, Rosenfeld & Close

Trope and Associates

Wolf, Rifkin & Shapiro

Wyman, Isaacs, Blumenthal & Lynne

PATRONS

Gipson Hoffman & Pancione

FOUNDERS

Ziffren, Brittenham, Branca, Fischer, Gilbert-Lurie, Stiffelman & Cook LLP

The Matthew Bender Company, Inc.

The UCLA Entertainment Law Review would also like to thank the

Graduate Students’ Association for its support of this publication.