UCLA ENTERTAINMENT
LAW REVIEW
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Volume 12 Issue 2 Spring 2005
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ARTICLES
In the Case of Lyle v. Warner Bros. Television Productions, et.
al.: A Brief Amicus Curiae
Prof. Russell K. Robinson …………………………….. 169
In this case, Respondent sitcom-writers sought to use the First Amendment as
a shield against the regulation of sexual harassment that lacked a discernable
connection to the creative process. Amaani Lyle’s male writers-supervisors
repeatedly pretended to masturbate in her presence, displayed a coloring book
with female cheerleaders with their legs spread apart, frequently requested a
“good blow job,” and altered the words on scripts to create words such as
“tits” and “penis.” These male writers-supervisors also repeatedly used the
vilest gender-based epithets to refer to women in Lyle’s
presence. Respondents did not show how any of this conduct appeared in the
scripts for Friends, a relatively tame sitcom, or led to plots or jokes. In many
instances, the supervisors even ordered Lyle not to record these personal
digressions, which demonstrates that they had nothing to do with the creative
process. This brief amicus curiae submits that these fact show that
Respondents’ creative freedom argument is a pretext for justifying ordinary
sexual harassment, which should enjoy no protection from the First
Amendment.
Celebrating Two Decades of Unlawful Progress: Fan
Distribution, Proselytization Commons, and the Explosive
Growth of Japanese Animation
Sean Leonard ………………………………………… 189
Japanese animation has become a powerhouse in the world of alternative
entertainment. Proselytization by fans ignited the anime movement in
America, despite Japanese copyright holders’ abandonment of the American
market. Through systematic and widespread copyright infringement, these
grassroots activists created a commons from which they grew a domestic
market for Japanese animation and related character goods-a great windfall
to the amazement of dismissive rights holders. Ideological camps issue
antagonistic claims, and academic discourses reach divergent conclusions,
about the effects of copyright infringement on file sharing networks. However,
the Japanese animation case is clear: for over two decades fans’ continual
infringement spurred the progress of knowledge and commerce in the world of
animation.
This article introduces the theory of the proselytization commons and
demonstrates how activists construct such commons to the ultimate benefit of
authors, licensees, and the world public. It then applies a theoretical
framework for analyzing responses to uses of copyrighted works to the
behavior of producers, distributors, and fans. Reducing or eliminating
copyright enforcement in certain circumstances produces verifiable net gains
to public and private interests while safeguarding free speech. In light of the
evidence, this article shows how a doctrine of decoupling fixation and
copyright enforcement furthers both the personal interests of grassroots
activists and the property interests of copyright holders.
The Unintended Consequence of the Miller Ayala Athlete
Agents Act: Depriving Student Athletes of Effective Legal
Representation
Robert P. Baker, Esq …………………………………. 267
Independent studies of amateur sports conducted by the Knight Commission
have concluded that the major problems confronting college athletics today
are: athletic transgressions, a financial arms race and rampant commercialism,
all of which implicate the conduct of educational institutions to some degree.
Yet, these educational institutions, and the cartel of which they are a member,
the NCAA, have lobbied state legislatures to pass laws strictly regulating the
conduct of athlete agents, as though these agents posed the major threat to
amateur sports. In fact, this lobbying effort is directed at keeping control of a
low-cost labor force.
This article discusses the Miller-Ayala Atlete Agent Act and argues that it is
less efficacious than model legislation passed by thirty-one other states. The
article also contends that the alleged threat posed by agents is over-stated, and
that regulation of this nature is unnecessary and counter-productive. Most
importantly, the article demonstrates that an unintended consequence of the
Miller-Ayala Act is to deprive student athletes of competent legal counsel.
Finally, this article considers alternative methods of dealing both with agent
misconduct and the major problems confronting amateur sports.
The Utility of a Bright-line Rule in Copyright Law: Freeing
Judges from Aesthetic Controversy and Conceptual
Separability in Leicester v. Warner Bros.
John B . Fowles ……………………………………….. 301
The copyright protection available to pictorial, graphic, or sculptural works of
art (PGS works) attached to architectural works provides an informative
setting in which to examine the merits of a employing a bright-line rule in
inherently subjective areas of the law. This is particularly the case in copyright
law, where, despite an early recognition by judges of the need for aesthetic
choices in copyright adjudication, “objectivity” has long been the mandate of
judges in their unavoidable, although necessarily covert, aesthetic copyright
determinations. This Article examines the development of the copyright
protection accorded to PGS works, evaluating the numerous “conceptual
separability” tests that have plagued this area of the law in the past.
Because copyright cases turn on the originality of expression in an ostensible
work of art, none of these conceptual separability tests adequately spare
judges the danger of the de facto subsidization of certain works of art. In
passing the Architectural Works Copyright Protection Act of 1990, however,
Congress intended to solve this problem for PGS works attached to
architectural works by introducing a bright-line rule into the equation. The
Ninth Circuit in Leicester v. Warner Bros. recognized and respected this
intention, thereby saving judges from the aesthetic controversy engendered by
determinations of conceptual separability for PGS works attached to works of
architecture. In light of the utility of a bright-line rule in this area of the law,
what other areas of the law might benefit from the introduction of and judicial
adherence to bright-line rules?
COMMENT
Rap Sheets: The Constitutional and Societal Complications
Arising From the Use of Rap Lyrics as Evidence at Criminal
Trials
Sean-Patrick Wilson ………………………………….. 345
When Marshall Bruce Mathers III (a.k.a. rapper “Eminem”/”Slim Shady”)
stands before a court charged with assault, a crime often depicted in his many
violently-themed rap songs, who does the judge and jury believe stands before
them – Mr. Mathers III or Eminem? Are these persons one and the same? If
not, who is the real Slim Shady, and how likely is he to have committed the
crime he is charged with?
Are rap lyrics really created by artists whose “rap persona” is merely a
fictional identity spawned from a hyperbolic extension of their own
experiences? Or can rap lyrics serve as credible testimony of the author? A
recent pattern and practice of state prosecutors using rappers’ song lyrics
against rapper-defendants in court has caused much concern in the hip-hop
industry, and has given rise to many serious constitutional and policy
questions. This paper addresses the free speech issues, as well some of the
broader societal issues, that arise when rappers have their lyrics used against
them at trial. By surveying recent decisions in which rappers’ lyrics were
admitted into evidence, and analyzing what role these lyrics played in the
court’s or jury’s decisions, this paper also sheds light on the quandaries
surrounding how courts and juries perceive rapper-defendants in light of the
defendant’s chosen career and artistic work.
UCLA ENTERTAINMENT
LAW REVIEW
Volume 12 Issue 2 Spring 2005
Chief Managing Editors
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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. – (2005).
EDITORIAL ADVISORY BOARD
FACULTY ADVISOR
EUGENE VOLOKH
UCLA School of Law
ADVISORY BOARD
BARBARA D. BOYLE
Boyle-Taylor Productions
GARY 0. CONCOFF
Troy & Gould
DAVID R. GINSBURG
Citadel Entertainment
SAMUEL N. FISCHER
Ziffren, Brittenham, Branca & Fischer
HELENE HAHN
Dreamworks SKG
LINDA LICHTER
Lichter, Grossman & Nichols
SHELDON W. PRESSER
Warner Bros.
MICHAEL S. SHERMAN
Jeffer, Mangels, Butler & Marmaro
LIONEL S. SOBEL
Loyola University School of Law
ALLEN E. SUSMAN
Rosenfeld, Meyer & Susman
JOHN S. WILEY
UCLA School of Law
KENNETH ZIFFREN
Ziffren, Brittenham, Branca & Fischer
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
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.