UCLA ENTERTAINMENT
LAW REVIEW
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Volume 13 Issue 1 Fall 2005
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ARTICLES
Music Composition, Sound Recordings and Digital Sampling in
the 21st Century: A Legislative and Legal Framework to
Balance Competing Interests
Jerem y Beck …………………………………………. 1
A new bright-line rule in copyright law in the Sixth Circuit digital sampling
case of Bridgeport Music v. Dimension Films (decided in 2004 and
rearticulated in June 2005) not only misinterprets legislative intent, but also
demonstrates little understanding or knowledge of the larger history and
methodology of music composition. Digital sampling and issues of copyright
infringement continues to spark fervent debate; unfortunately, the literature
tends to ignore or misunderstand the practice and precedent of music
composition as it has existed in Western practice for over a thousand years.
Sampling is merely a newer technique in the continuing development of that
practice. This article analyzes and considers sampling within the larger history
of music composition in order to provide a better sense of balance and
perspective in the continuing discussion.
Additionally, the article argues that a broader middle ground – encompassing
the doctrines of de minimis use and fair use as well as a compulsory license
scheme in certain situations – would both satisfy competing economic interests
and encourage the growth of a healthy creative environment and culture. In
contrast to court decisions such as that of the Sixth Circuit, this legislative and
legal framework better reflects the spirit and intent of the original purpose
behind the copyright provision of the Constitution.
I Know, It’s Only Rock and Roll, But Did They Like It?:
An Assessment of Causes of Action Concerning the
Disappointment of Subjective Consumer Expectations
Within the Live Performance Industry
Brian A . Rosenblatt …………………………………… 33
What role should Judges and Juries play in addressing claims for
disappointment of consumer expectations within the live concert industry?
The article was inspired by, and partially based on, a class action case
successfully defended in the Chancery Division of the Circuit Court of Cook
County, Illinois. The case, Berenz, et. al. vs. Creed Music, Inc. (Diamond
Road, Inc.), USA Interactive (Ticketmaster), and Jeff Hanson Management &
Promotions, Inc., No. 03 CH 07106, was filed by Plaintiffs over, ostensibly, a
less than spectacular concert performance by the rock band Creed. The
Plaintiffs essentially alleged that the band’s lead singer was either intoxicated
or inebriated to the point that his performance was so lackluster that it was
tantamount to a non-performance, and accordingly all patrons in attendance
should have been entitled to a refund of the ticket price. While the article
studies this case in particular, it also looks at the more global aspect of the
viability of lawsuits based upon a disappointment of consumer expectations
within the live performance industry. Equally applicable to live sporting
events as well, the article diffuses the mysteries of exactly what a ticket
constitutes, thereby defeating claims for breach of contract, and ultimately
suggests that for disappointed consumers, their recourse lies not with the court
system, but rather in the market. Fans and consumers are entitled to stop
buying music from a specific artist, and can refuse to attend any further
concerts, but our courts should not be playing the role of “rock critic”.
Flagrant Foul: Racism in “The Ron Artest Fight”
Jeffrey A. Williams ……………………………………. 55
With under a minute left in the Indiana Pacers-Detroit Pistons basketball
game, Pacer Ron Artest was called for a hard foul on Detroit star Ben
Wallace, prompting Wallace to shove Artest forcefully with two hands. Thus
began a brawl that would engulf the teams, the fans, and eventually the NBA,
NBPA and the sports world nation-wide. Media reaction to the fight was clear
in its focus on Artest but incautious in its entrance into the cultural contest,
contributing to an acknowledgement that the incident was emblematic that
lacked an understanding of what precisely it reflected.
Flagrant Foul focuses on the influence of racial bias in framing “the Ron
Artest Fight” and its impact in the severe suspensions that followed.
Criminological or economic explanations are lacking, lending clarity to the
racial dimensions of the media and league responses. More, the reflection of
market bias in addressing player misconduct is widespread, with racially
charged incidents attracting increased scrutiny and violence against women
and other ills often going unaddressed. League policies should be reformed to
be less discretionary and more proportionate to the severity of the offenses
even if, as in the steroids debate, federal legislative action is necessary.
COMMENTS
Balancing Free Speech Interests: The Traditional Contours of
Copyright Protection and the Visual Artists’ Rights Act
Matt Williams ………………………………………… 105
Does the First Amendment limit the parameters within which Congress can
create copyrights and neighboring rights? In order to answer that question,
this article explores the meaning of a controversial phrase used by the
Supreme Court in the landmark copyright case Eldred v. Ashcroft, 537 U.S.
186 (2003). There, Justice Ginsburg stated that copyright statutes may require
heightened First Amendment scrutiny should Congress ever “alter the
traditional contours of copyright protection.” After concluding that the Court
intended the traditional contours of copyright protection to refer to the ways
in which copyright laws balance the First Amendment rights of authors and
users of copyrighted works with those of the general public, the article asserts
that the Visual Artists’ Rights Act of 1990 is an example of a statute that alters
the traditional contours of copyright protection.
In the Shadow of Mt. Olympus: Could a Revision of
17 U.S.C. §§ 1202-1204 Bring Them Into Daylight?
Eric F Harbert ………………………………………. 133
In the seven years since passage of the Digital Millennium Copyright Act
(DMCA), voluminous material relating to §1201 of the Act has been written as
part of a war of culture and litigation. That war has yielded numerous lawsuits
brought under §1201, and the section continues to be used for enforcement
measures on behalf of intellectual property owners. Yet the neighboring
sections of the Act have received less attention. Although §1202 has rarely
been invoked in a court proceeding, it could grow in importance in the realm
of digital content distribution, where intellectual property rights are being split
into smaller and small slivers of ownership distributed on an increasing
number of incompatible platforms.
This Comment looks at §1202 of the DMCA and the remedies sections, 17
U.S.C. §§ 1203-1204, their possible interpretations, their origins in World
Intellectual Property Organization treaties, and prior U.S. law in this area to
suggest revisions that will make them more effective, more robust, and less
partial in their protection. Particular emphasis is accorded to section 1202 in
an attempt to ameliorate the extraordinary complexity of liabilities the present
version could create, and to clarify its intended purpose. A draft of the
proposed statute is included as an appendix.
UCLA ENTERTAINMENT
LAW REVIEW
Volume 13 Issue 1 Fall 2005
Chief Managing Editors
NICOLE GAMBINO
JACOB PATTERSON
Managing Editors
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JAIME COGHILL
ANAT DARDASHTI
VERONICA GUNDERSON
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DANIEL MCKENZIE
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ADI SCHNAPS
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JOY STRANSKY
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JOEY ANDERSON
PRESTON ASCHERIN
B.J. BECKETT
CASEY BOURKE
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ZANDER CHEMERS
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BETH COOMBS
SCOTT D’AMBROSIO
STEPH D’AMATO
REGINA DU
MARISA DYE
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ROBERT ESTRIN
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KRIS FREDRICKSON
EXECUTIVE BOARD
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Citations conform generally to A Uniform System of Citation (18th ed.), copyright by the
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Variations exist for purposes of clarity and at the editors’ discretion.
Please cite this issue as 13 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
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PATRONS
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FOUNDERS
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The Matthew Bender Company, Inc.
The UCLA Entertainment Law Review would also like to thank the
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