Issue 1

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

JULIA BEGGS

JAIME COGHILL

ANAT DARDASHTI

VERONICA GUNDERSON

SABRINA KOTVAL

STEPHEN KRAUS

JENNIFER LEE

TODD MARTIN

DANIEL MCKENZIE

JEREMY MOEHLMAN

BLAKE NORVELL

ADI SCHNAPS

KIM SIM

JOY STRANSKY

JENNIFER ALLISON

JOEY ANDERSON

PRESTON ASCHERIN

B.J. BECKETT

CASEY BOURKE

GREG BROEGE

ELIZABETH BURNSIDE

ZANDER CHEMERS

KATHRYN CONROY

BETH COOMBS

SCOTT D’AMBROSIO

STEPH D’AMATO

REGINA DU

MARISA DYE

LAURA EATON

ROBERT ESTRIN

RENEE FLOYD

AIMEE FRANK

KRIS FREDRICKSON

EXECUTIVE BOARD

Editors-in- Chief

MATTHEW HYDE

SEAN-PATRICK WILSON

Executive Editors

MARK SKOLNICK

STEPHANIE YU LIM

Chief Submissions Editor

TORY MARNIELLO

Chief Business Editor

ERIN SPARKUHL

EDITORIAL BOARD

Senior Articles Editors

KRISTEN GRACE

ELIZABETH OH

LUKE VANDERDRIFT

Submissions Editors

JASON BREEN

MATTHEW DEMBLOWSKI

JAMES RAMSEY

Events Coordinator

CORIE ROSEN

Practitioner Liaisons

MATT BONOVICH

KIM MILLER

STAFF EDITORS

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EVAN HUNTER

SALLY JAMES

PETER JASINSKI

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JON LANDIS

AARON LAVINE

ZAC LOCKE

GREG MARTIN

KIM MILLER

JAMES MOLEN

ANTHONY NGUYEN

NANCY OLSON

KRISTIN PAIVA

Chief Articles Editor

ALEXANDRA MURRAY

Articles Editors

ALEX FINEMAN

ALECIA LEAR

JAKE LEVY

SHONDELLA MCCLELLAN

MATTHEW MOORE

MONIQUE PARDO

MELANIE PHILLIPS

CYNTHIA TOLLETT

LYLE ZIMSKIND

Faculty Liaison

PAUL BATTAGLIA

JOHN PELLEGRINI

MEEHAN RASCH

NATASHA RIEGER

AMY RILEY

BRIAN ROSENBLATT

THOMAS RYAN

ALLA SAVRANSKAIA

JOSH SCHEIN

JONATHAN SEGAL

AMANDA SIMPSON

ALMUHTADA SMITH

MATT SPERLING

DEVIN STONE

MATT TOLNICK

JOSE TREJO

KATE TYLER

DAVID WEINBERG

KRISTY WIEHE

DANNY YADIDSION

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

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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 (18th 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 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

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.

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