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Open Access Publications from the University of California

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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.

Front Matter

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Articles

The NCAA Needs Smelling Salts When It Comes to Concussion Regulation in Major College Athletics

Despite the now commonplace concern surrounding concussions,

the widely-recognized long-term cognitive damage caused by on-field

head injuries, the preventative steps that youth and professional sports

leagues have taken to mitigate these effects, and the plain words of

caution spoken by professional athletes themselves, the NCAA has been

lethargic, at best, in reacting to the alarm that athletes, doctors, and

lawmakers have been sounding about the danger of head injuries from

playing contact sports. Congress, state legislatures, sports leagues,

and NCAA-member conferences have rallied to the cause, applying

themselves to the task of establishing concussion management

protocols and funding studies to evaluate how concussions are caused

and what can be done to prevent them.

 

Yet, the NCAA has failed to apply its resources with similar energy,

or take independent action to protect its student-athletes from being

plagued by cognitive decline in their post-collegiate professional lives.

This Article explains the science of a concussion, and presents the

reasons why it is imperative that concussions be prevented This

Article evaluates the efforts of other sports leagues -fom the NFL to

youth leagues to the Ivy League - to implement concussion

management plans and devote funds to studying the cognitive effects of

multiple head injuries. This Article argues that the NCAA, which

purports to prepare student-athletes for success off the field, has

enjoyed great autonomy since its inception - shielded from government

regulation and from student-athlete demands. This Article argues that

the NCAA's independence has allowed it to fail its student-athletes by

not providing proper education, guidelines, and prevention techniques.

Furthermore, this Article suggests that the NCAA create an education

plan to prepare student-athletes for timely returns-to-play, and urges

the NCAA to direct its funds towards research and collaborative

opportunities with existing concussion research efforts. Ultimately,

this Article concludes that the NCAA has failed to provide proper

regulation in this area of collegiate athletics, and urges the federal

courts to mandate change.

Social Science, Media Effects & The Supreme Court: Is Communication Research Relevant After Brown v. Entertainment Merchants Association?

This article examines the implications of the U.S. Supreme Court's

2011 ruling in Brown v. Entertainment Merchants Association for the

future use of social science evidence and communication research to

supply legislative facts supporting laws that target harms allegedly

caused by media artifacts. The Brown majority set the bar for the

relevance of social science evidence exceedingly high - perhaps too

high, the article suggests - while Justice Stephen Breyer, in contrast,

adopted a much more deferential approach in a dissent that embraced

the evidence proffered by California. The article also reveals an

apparent inconsistency in Justice Antonin Scalia's approach to social

evidence when comparing his majority opinion in Brown against his

opinion just two years earlier in Federal Communications Commission

v. Fox Television Stations, Inc. Ultimately, the article asserts that

communication scientists hoping to influence both legislative bodies

and jurists should view Brown as a wake-up call to do two things: 1)

educate lawmakers and jurists about whether and when social science

research can adequately resolve complex questions about media-caused

harms; and 2) jettison research that lacks real-world generalizability

and legal relevance.

The Artist's Resale Royalty Right: Overcoming the Information Problem

The artist's resale royalty right, commonly called the droit de suite,

has proven politically popular in a diverse range of countries. Since

France first codified the right into law in 1920, at least fifty countries

have followed suit. To date, the United States, with the exception of

California, has been notably absent from this picture. But a federal

resale royalty law is now on the horizon for American artists. In

December 2011, delegates in both the U.S. House of Representatives

and the U.S. Senate introduced the Equity for Visual Artists Act of

2011 (EVAA), a bill which would amend the existing copyright law to

include a resale royalty provision.

 

This Article evaluates whether Congress should adopt the EVAA,

or some other variation of the resale royalty right, and provides

guidance to lawmakers in considering such legislation. Specifically,

this Article points out that an informational deficit, which it terms the

information problem, looms over the resale royalty right. Scholars and

lawmakers must have access to information about sales of artwork in

order to evaluate the effect and efficacy of the right in practice.

Likewise, the structure of the right requires that various parties have

access to information about sales in order to carry out the requirements

of resale royalty laws. However, secrecy norms pervade the art

market, especially in the United States, making such information

difficult, if not impossible, to come by. This Article considers several

possibilities for how federal lawmakers might overcome, or at least

minimize, this information problem, and concludes that the most

promising scheme would be one that requires parties to disclose

relevant information through a registration system.

Comments

Copyright Cartels or Legitimate Joint Ventures? What the MusicNet and Pressplay Litigation Means for the Entertainment Industry's New Distribution Models

Starr v. Sony BMG Music Entertainment illustrates the inherent

tension between copyright holders seeking to enforce their exclusive

rights and antitrust doctrine. In Starr, competing record labels pooled

their copyrights into digital distribution joint ventures, MusicNet and

Pressplay. Such collaboration toes a thin line between cartel-like

conduct and joint venture legitimacy. Competitors in the entertainment

industry have often collaborated to protect their copyrights. While

some of these joint ventures have survived antitrust scrutiny, others

have not. The result is often guided by the choice of antitrust standard

of review: per se or rule of reason.

 

The current MusicNet/Pressplay litigation demonstrates how the

fundamental tenets of competition law become muddied when

intellectual property owners attempt to use their monopolies to control

new online distribution models. After examining how the choice of

antitrust standard will impact the MusicNet/Pressplay litigation, this

Comment considers how current digital joint ventures between content

owners, Vevo, Hulu and Ultraviolet, would be analyzed under antitrust

doctrine. Despite the record labels' apparent anti-competitive conduct

in MusicNet/Pressplay, the conflicting statutory policies of copyright

and antitrust law, and lack ofjudicial scrutiny in this area suggests the

rule of reason would be more appropriate.

Next-Generation Piracy: How Search Engines Will Destroy the Music Business

This Comment seeks to address the problems that search engines

create for the music business in our ever-evolving digital society.

Piracy costs are now measured in billions, encompassing lost revenue

and job cutbacks. As the world becomes even more dependent on the

Internet for entertainment, piracy can only get worse. Although in the

United States piracy has been addressed with respect to P2P file

sharing services, record companies are coming upon an era where

search engines will enable effective, quick, and simple piracy. This

evolution has already taken hold in China, a country where 99 percent

of music files are estimated to be pirated, and copyright infringement is

as easy as typing a song name into a specialized search engine. The

problem is slowly starting to be felt domestically. Although Supreme

Court precedents have addressed the issues of P2P file sharing,

current statutes and decisions are unequipped to deal with the next

generation of search engines.

 

This Comment argues that although search engines might be held

responsible for some of their contributions to piracy through the court

system, ultimately, the fundamentals which make up the business model

of music companies must change. Statutes, court decisions, and

society are comfortable allowing an open and unrestricted Internet,

ensuring that search engine capabilities will not be curbed As the

digital age progresses, recording companies will bleed money until

they are faced with a choice: adapt or die. This Comment proposes

that to survive, recording companies must delve deep into alternative

revenue streams, leaving behind their pursuit of pure music in the

process. Ultimately, pure music as an art form will vanish.