Issue 2

UCLA ENTERTAINMENT

LAW REVIEW

—————————————————————————————————————————————————————————-

Volume 12                    Issue 2                Spring 2005

—————————————————————————————————————————————————————————-

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

Kms MCFARREN

ALEXANDRA M. MURRAY

Managing Editors

RYAN E. BLAIR

MICHAEL A. BROWN

EVAN DWIN

NICOLE GAMBINO

STEPHEN KRAuS

DANIEL MCKENZIE

ALISON ORENDACH

ANGEL JAMES

JACOB R. PATTERSON

MELANIE PHILLIPS

KEITH ADAMS

JEANNE BERGES

MEREDITH BERGMAN

LAURA BEST

MATT BUCHANAN

DEBBIE CHO

JAMES CONOLLY

JORDAN DEMBO

BILL DECLERCQ

EDITORIAL BOARD

Editor-in-Chief

ERIc F. HARBERT

Executive Editors

MATTHEW P. HYDE

IAN M. SINK

Chief Business Editor

PHILLIP R. LERCH

Senior Articles Editors

SEAN WILSON

JIHooN Yoo

STEPHANIE Y. Yu

Submissions Editors

JENNIFER M. HANSEN

NICOLE S. PETERSON

EVENTS COMMITTEE

MEREDITH BERGMAN

MATTHEW DRESDEN

KRISTEN E. GERWECK

AARON GREENO

DONNA Mo

STAFF

JEFFERY GOLDMAN

HEATHER JOY HAMBY

DANIEL DINGERSON

MATTHEW DRESDEN

DEBORAH GARRISI

ERIC F. HARBERT

MATTHEW HOLOHAN

NATHANIEL JACKSON

BETY JAVIDZAD

Chief Articles Editor

NATHANIEL JACKSON

Articles Editors

JAY P. BARRON

RENPE C. DELPHIN

KRISTEN M. GRACE

LYNN HANG

EDWARD C. Hsu

THOMAS KAO

MICHAEL MADIGAN

MATTHEW MOORE

ELIZABETH OH

MONIQUE PARDO

LuKE VANDERDRIFT

JACOB KALINSKI

BRADLEY LEBOW

JIN AH LEE

PHILLIP R. LERCH

LISA LUCAS

KRIS MCFARREN

SABRINA MENT

CHRISTINA MILLER

DONNA MO

Subscription Price: $30.00 per year, $17.50 for a single issue.

Published twice a year by the School of Law, University of California, Los Angeles.

Subscriptions are accepted on a volume basis, starting with the first issue. If notice of

termination is not received before the expiration of a subscription, it will be renewed

automatically.

The UCLA Entertainment Law Review welcomes articles and student comments on topics of

interest to the entertainment legal community. Manuscript submissions via electronic mail

are preferred. They may be directed to . Manuscripts

may also be addressed to the Chief Submissions Editor, UCLA Entertainment Law Review,

UCLA School of Law, P.O. Box 951476, Los Angeles, California, 90095-1476. Manuscripts

will not be returned unless postage is provided. No responsibility will be assumed for

unsolicited manuscripts. Address subscription inquiries to the Business Manager of the

UCLA Entertainment Law Review . Please

send all changes of address with the most recent mailing label to the Business Editor.

The views expressed in articles printed herein are not to be regarded as those of the UCLA

Entertainment Law Review, the editors, The Regents of the University of California, or the

Editorial Advisory Board. The Review has asked contributing authors to disclose any

financial interests or other affiliations which may have affected the positions taken in their

works. Such disclosure will be found in the author’s footnote accompanying the article.

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

Columbia, Harvard, and University of Pennsylvania Law Reviews and the Yale Law Journal.

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.

Leave a Reply