UCLA Entertainment Law Review

Since the National Football League (“NFL”) created the Franchise Tag in 1993, 245 NFL players have been offered a one-year franchise tag contract that prevented them from benefitting from the free agent market to realize their true value. NFL players used to have an avenue of suing the NFL by dissolving their union, the National Football League Players Association (“NFLPA”), and challenging the Collective Bargaining Agreement (“CBA”) under antitrust law. However, the Eighth Circuit Court foreclosed such challenges in Brady v. NFL in 2011, removing one of the few tools players had to balance out the bargaining power with NFL Owners.

In this Note, I document the development of the franchise tag and explain its functioning, and discuss the impact of Brady v. NFL on antitrust challenges to the CBA. I then suggest a different method players could employ—suing the NFL for franchise tag contracts as a form of economic duress. Alternatively, the NFL and the NFLPA could negotiate to remove the franchise tag or replace it with a less restrictive form, which would restore voluntariness in NFL contracts. I conclude with the contention that until the top players in the NFL can freely test the market, every player in the NFL will suffer from decreased competition, which drives down the overall player market value.

Social criticism and self-expression are being suppressed under overbroad intellectual property regimes. The United States Supreme Court has had multiple opportunities to apply its precedents on common-law torts, statutory crimes, and administrative regulations to copyright, trademark, and the right of publicity, but it has failed to do so. Indeed, the Court has tripled down on a definitional or internal approach that virtually prohibits First Amendment scrutiny of injunctions or damages against infringing speech in copyright disputes.

This Article explores how the Supreme Court has not carefully considered a constitutional right to engage in commentary in its intellectual property jurisprudence. Cases like Harper & Row, Campbell, Warhol, Jack Daniels, and potentially Elster introduced a necessity test, which helps determine whether imitation of a protected work or personal name should be a free-speech right. Despite different fact patterns and legal theories, cutting across the copyright trademark divide, two of these cases involved First Amendment rights. Harper & Row addressed whether reproduction of excerpts of a United States president’s memoirs or given name was truly necessary to a speaker’s message, and Elster alluded to whether alternative means of expression existed to the use of a former president’s name as the trademark of a t-shirt company. In cases involving commentary on works or brands not connected to public officials, a similar dynamic arose in Campbell, Warhol, and Jack Daniels. While Warhol did not reference free speech, it should have. A right of fair comment could have improved the rulings in each of these cases by focusing on speakers’ and listeners’ interests; the First Amendment’s drafting and intent; and doctrines of viewpoint and content discrimination, overbreadth, vagueness, and chilling effects.

Fair comment is a familiar principle from libel and slander law and it has been expanded to right of privacy cases in the Supreme Court and to right of publicity cases in the state supreme courts and lower federal courts. One issue is how far designers, artists, sculptors, and brand managers—like those in Warhol, Elster, and Jack Daniels—may go in making fun of images, names, or designs that are iconic, heavily commodified, or even rare or banal. In a more complex statement, freedom of opinion needs to be preserved from strategic deployments of copyright or trademark rights against quite dissimilar art or designs that criticize, comment upon, or parody famous images, trademarks, or trade dress, in a manner that would not be very confusing. Just as fair comment in tort and state statutory cases permits taking some liberties with the reputations, created facts, and messages of other persons, fair comment in federal statutory cases could involve two connected inquiries: whether an alleged infringer knowingly or recklessly violated another’s rights, and whether the reasonably prudent consumer would be confused in trademark disputes or perceive the same “meaning” or “aesthetics” between two or more “works” in copyright ones. The function of these inquiries is to implement the First Amendment’s overbreadth protections against chilling effects, thereby ensuring a wide breathing space for cultural and social comment.

This paper evaluates fair use in the context of the training process for generative music AI systems, such as those creating text-to-music, voice-to-music, instrumental-only, lyrics-only, and other outputs. Training data for such systems is comprised of musical compositions and sound recordings, much of which is under copyright. This paper considers the four fair use factors and how courts may weigh them in favor of, or against, fair use in the unauthorized copying of copyrighted works for music AI training. This paper adopts the approach outlined in Andy Warhol Found. for the Visual Arts v. Goldsmith, 598 U.S. 508 (2023) for the first fair use factor, which emphasizes proper framing of the specific use and the purpose of the allegedly infringing secondary work at issue—here, the generative music AI system and its use by end-users. This paper will consider three possible views of the purpose of a generative music AI system (as a tool, as entertainment, and as functional music) and illustrate how each framing may influence the analysis of each fair use factor and the ultimate result of the fair use inquiry.