The UCLA Entertainment Law Review (“ELR”) is an international law journal published once or twice a year by the UCLA School of Law. Since 1994, ELR’s staff has worked diligently to bring to our subscribers academic work of the highest quality, as well as articles that tackle the most novel and cutting edge issues in the field of entertainment law.
Volume 19, Issue 1, 2012
All Four Quarters: A Retrospective and Analysis of the 2011 Collective Bargaining Process and Agreement in the National Football League
The NFL survived the 2011 offseason despite being bombarded by a
sports law perfect storm. The National Football League Players
Association (NFLPA or the Players) decertified itself as the bargaining
representative of NFL players on March 11, 2011, hours before the
expiration of the collective bargaining agreement that the NFL and the
NFLPA agreed to in 2006 (the 2006 CBA). That night, nine current
NFL players and one prospective NFL player, led by New England
Patriots quarterback Tom Brady, filed an antitrust lawsuit against the
NFL and its 32 Clubs.
The Brady lawsuit was just part of a litigious 2011 in professional
football. The NFL responded to the Brady lawsuit with a "lockout."
Players could not report to work, Clubs could not have any contact
with players and, eventually, games could have been missed. In
addition to the Brady lawsuit, the Players sought damages related to the
NFL's television contracts that allegedly violated the 2006 CBA,
retired players fought for their rights in the labor negotiations, and the
NFL contended that the NFLPA had failed to bargain in good-faith in a
proceeding before the National Labor Relations Board.
The NFL and NFLPA ultimately reached a settlement of the various
lawsuits and agreed to a new CBA (the 2011 CBA) without missing
any regular season games. This Article examines the history of labor
negotiations in the NFL, provides a thorough examination of the most
recent labor dispute and its related legal actions, and concludes with a
detailed analysis of the 2011 CBA.
Shedding Light on Copyright Trolls: An Analysis of Mass Copyright Litigation in the Age of Statutory Damages
Copyright law and the Internet are at an impasse. The looming
question is how to approach unlicensed distribution of copyrighted
works in the age of peer-to-peer networks. To supplement profits from
copyrighted works, copyright holders have devised a mass-litigation
model to monetize, rather than deter, infringement. Because of the
existence of statutory damages, plaintiffs utilize the threat of outlandish
damage awards to force alleged infringers into quick settlements.
Statutory damages incentivize litigation-based businesses and
encourage copyright holders to waste judicial resources by litigating
even when actual damages are nominal. This Article presents an
analysis of the legal and policy issues that arise in a mass-litigation
model primarily through filings in federal district courts. After a
discussion of the original purposes of U.S. copyright law, this Article
concludes that statutory damages should be removed from the 1976
The American legal system is unable to continue avoiding the
question of art versus non-art. In particular, questions of copyrightability
often hinge on art-status. Yet art is a constantly evolving,
reflexive field in which artists and philosophers continually challenge
the status quo. Judges would benefit from analyzing claims to artstatus
under the objectivity provided by well-developed aesthetic
theories, aided by expert testimony when needed After reviewing
several major philosophies of art, this Article proposes a framework
for adjudicating art-status based on an aesthetic theory known as the
Historical Definition of Art. Furthermore, to balance copyright law's
purpose of protecting innovation with its need to promote public
availability of copyrighted works, this Article proposes the creation of
a new statutory exception to provide a defense for "utilitarian
adaptations" of copyrighted three-dimensional works. This statutory
defense would serve to encourage innovation and stimulate production
of novel goods.
The market for information has changed dramatically in the past
decade with the popularization of the Internet, the exponential growth
in number and variety of speakers, and the increased democratization
of speech. These shifts have made digital media particularly
vulnerable to harm from information pollution; the information market
is not as capable as it once was of ensuring that the truth prevails.
Anecdotal evidence suggests that information consumers are not
looking for the truth, but rather, for information that confirms their
own pre-existing biases. Moreover, there is significant evidence that
people are resistant to changing their minds from what they had
previously believed, even if it is later proven to be false. Combined,
market failures in disseminating information and personal heuristics in
interpreting information suggest that the remedy of more speech to
combat false or defamatory speech is not as effective as once thought.
Instead, First Amendment jurisprudence should be rebalanced to allow
for a general right of correction for digital speech.
Despite the availability of information from online news
organizations and new media outlets, newspapers remain the primary
contributor of new content to the marketplace of information and
ideas-integral in setting the agenda for public discourse, connecting
readers with their communities, reducing the costs of citizen oversight
on elected officials, and producing investigative and local news
reports. But newspaper economics have sparked massive reductions in
editorial operations and threaten the press's role in American democratic
society. The strong public interest in preserving the newspaper
industry should compel Congress to stabilize the press.
Journalists, politicians, and legal scholars have discussed many
possible solutions. This Comment evaluates the practical and constitutional
questions raised by two potential public subsidy programsdirect
government funding and indirect support by facilitating
newspaper conversion to nonprofit status-and whether such programs
could be administered without jeopardizing the Fourth Estate's
independence. This Comment argues that direct subsidies, though they
could be tailored to survive constitutional challenge and to protect
editorial independence, cannot deliver a feasible long-term solution.
Indirect subsidies likely would only be available to newspapers
following an amendment to the U.S. tax code and even then would
provide limited benefit to qualiying newspapers until they have developed
a fundraising base. Yet, this Comment concludes that subsidies
could stabilize the press practically if Congress combined direct
funding and tax-based incentives into a hybrid similar to that utilized
by public radio.