Tag: Entertainment Law

Reality’s Kids: Are Children Who Participate on Reality Television Shows Covered Under the Fair Labor Standards Act? – Note by Adam P. Greenberg

From Volume 82, Number 3 (March 2009)
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Because Kid Nation was the first reality show to feature minors exclusively, it provides a fitting springboard from which to evaluate whether reality children in general are covered by the FLSA’s child labor provisions. Although FLSA coverage must be determined on a case-by- case basis, a discussion of Kid Nation, and of reality television in general, will illuminate relevant characteristics of the genre and help guide future analysis of this issue. Given the untempered success and growth of reality television, it is unlikely that Kid Nation will be the last program to utilize the services of children. Again, a determination of FLSA coverage will hinge on three questions: (1) Are the children performing work?; (2) Are the children employees?; and (3) Are the children exempt as actors or performers?

 

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A Little Help with Sharing: A Mandatory Licensing Proposal to Resolve the Unanswered Questions Surrounding Peer-to-Peer Liability for Contributory Copyright Infringement in the Wake of Grokster – Note by Julie Zankel

From Volume 80, Number 1 (November 2006)
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In June 2005, the Supreme Court held that the peer-to-peer (“P2P”) networks Grokster and Streamcast1 could be held liable for contributory copyright infringement upon a showing that network administrators clearly expressed support for or took other affirmative steps to encourage infringement. In the Supreme Court’s only prior holding on the issue of secondary liability, Sony Corp. of America v. Universal City Studios, Inc., the Court established that a manufacturer could not be held liable for contributory infringement if the device was “capable of substantial noninfringing uses.” In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., the Court focused on the networks’ culpable conduct-relying on an inducement theory-and came to a conclusion that would allow the lower court to find Grokster liable on remand without resolving the current circuit split on the issue4 or rethinking or reinterpreting its prior holding in Sony. This ruling essentially overturned the Ninth Circuit’s holding that Grokster was not liable for its users’ infringement merely by virtue of the fact that the system also had substantial noninfringing uses. The Grokster Court instead held that the Sony doctrine did not foreclose the possibility that an actor could be liable for contributory infringement, even if the device is capable of substantial noninfringing uses, when there is evidence the actor encouraged and induced illegal use of the product.

Thus, while it is now clear that a P2P network that encourages infringing uses of its product can be liable for contributory copyright infringement, the extent of liability for a network that does not actively induce users to infringe copyrights where the system is capable of both infringing and noninfringing uses remains uncertain. Further, the Grokster decision is not instructive as to what exactly inducement entails. While the Court was adamant that Grokster’s actions amounted to inducement in the present case, it gave no explanation regarding what actions a network would have to take to be considered “intentionally inducing… infringement,” or alternatively what a network would have to do to avoid inducing infringement on a system capable of both infringing and noninfringing uses. This lack of clarity is of particular importance considering the growing popularity of these types of networks. P2P networks, in particular, are increasingly being used by universities, government agencies, corporations, libraries, and other organizations. Exchange over P2P networks is not limited to music (the digital files at issue in Grokster), but includes motion pictures, novels, videogames, television programs, and photographs.8 In addition, as digital technology rapidly advances, it will be feasible to disseminate more and more types of copyrighted and uncopyrighted works through P2P networks “with ever greater speed and efficiency.”

Further, considering the amount of money that is at stake (Grokster, for example, agreed to “pay up to $50 million in damages”), it is extremely important that P2P networks have some sense of their potential liability in a case where no inducement exists, and what they could and should do to avoid such liability. The Grokster opinion is not instructive on this point, and this is exactly where the two concurring opinions diverge. Justice Ginsburg’s concurring opinion seems to imply that, had there been no “inducement,” a network such as Grokster would still fail the Sony test. On the other hand, Justice Breyer’s concurrence maintains that without culpable intent, a network such as Grokster should not be liable for contributory copyright infringement.

Prior to the Grokster case, both the Ninth Circuit and the Seventh Circuit confronted contributory copyright liability issues in A&M Records, Inc. v. Napster, Inc. and In re Aimster Copyright Litigation, respectively. Although in both cases the defendants were found liable for the infringement of their users, due to the unclear standard set forth in Sony, these two courts came to divergent conclusions in their analysis with respect to the circumstances under which contributory liability should and could be imposed. While the Ninth Circuit focused on whether the defendant had actual or constructive knowledge of the infringement and subsequently failed to act to curb the infringing activity, the Seventh Circuit concentrated on whether the device was actually used for noninfringing purposes. The Seventh Circuit interpreted Sony to further require that even where noninfringing uses exist, the network provider must demonstrate it would have been disproportionately costly to design the server or monitor the network in a way that would eliminate or reduce the infringing uses in order to escape liability. 

This debate regarding issues surrounding secondary liability is one that must be resolved quickly. Clarification of the Sony rule is necessary to encourage legitimate P2P networks by ensuring that networks are fully informed of the extent of their potential liability. Without a resolution, servers will have no way to determine their liability or know what reasonable steps should be taken to avoid such liability. The Grokster majority avoided this question by basing its decision on an inducement theory-arguing this would enable copyright owners to protect themselves while keeping the Sony rule intact so as not to chill innovation. The lack of guidance in the Grokster decision, however, could itself chill innovation as it will lead P2P network providers to take economically inefficient steps to avoid liability, disallow uses on their servers even though the uses would not infringe and might further education or some other important goal, or completely abandon their networks in favor of something less risky.

This Note will argue that the best way to resolve this conflict is through a mandatory licensing scheme that puts the burden on the content industry rather than the technology provider to track the use of protected works and petition the service provider for a reasonable royalty.

 

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The Right of Publicity vs. the First Amendment: Will One Test Ever Capture the Starring Role? – Note by Gloria Franke

From Volume 79, Number 4 (May 2006)
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America’s fascination with fame and celebrities is self-evident. In our culture, fame is used effectively to persuade, inspire, and inform the public in almost every aspect of our lives. Thus, for celebrities, fame has an inherent economic value, which they endeavor to enhance and protect through the relatively recent legal doctrine of the right of publicity. Broadly defined, the right of publicity is the “inherent right of every human being to control the commercial use of his or her identity.” Celebrities invoke this right to prevent the unauthorized commercial use of their names, likenesses, or other aspects of their identities in order to protect and control their valuable personas.

The public’s fascination with celebrities has evolved into the ubiquitous use of stars to symbolize individual aspirations, group identities, and cultural values. Celebrity images are therefore important expressive and communicative resources and the public’s use of these images is vital to the realization of the First Amendment goals of self-expression and the creation of a robust public discourse. Thus, there is a direct conflict between a celebrity’s right of publicity and the public’s right to free expression embodied in the First Amendment. Courts, in struggling to accommodate these competing interests, have failed to articulate a clear standard to resolve the conflict, resulting in a confusing morass of inconsistent, incomplete, or mutually exclusive approaches, tests, and standards. The chaos surrounding the scope of publicity rights in works protected by the First Amendment has led to a real hit on free expression that is especially troubling as we enter the digital age – with the Internet providing a global platform for expression in our multicultural society. Courts need a clear standard to take the leading role in resolving the conflict between the First Amendment and the right of publicity in expressive works. This Note proposes a test with the clarity and nuance to take center stage and resolve this conflict.

 

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Take My Likeness, Please: Threats to the Right of Publicity in Light of State Farm Mutual Automobile Insurance Co. v. Campbell – Note by Hillel Michael Elkins

From Volume 78, Number 5 (July 2005)
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Celebrities were recently deprived of a valuable asset. This time, however, the perpetrator was not an Internet hacker, a supermarket tabloid, or an unscrupulous business manager. It was the United States Supreme Court. Although State Farm Mutual Automobile Insurance Co. v. Campbell concerns the constitutionality of punitive damages, it may have the unintended effect of limiting celebrities’ nationwide rights of publicity.

The right of publicity affords an individual an interest in the use of that individual’s name, likeness, photograph, voice, and other personal characteristics in connection with commercial exploitation and the marketing of goods and services. It is the “inherent right of every human being to control the commercial use of his or her identity… and recover in court damages and the commercial value of an unpermitted taking.” Although this body of law has its roots in privacy rights, such as those concerning public disclosure of embarrassing facts, the right of publicity is an explicit recognition of the commercial injury caused by the use of a person’s identity.

As of early 2003, eighteen states recognized common law rights of publicity and seventeen states had statutory provisions. While there is some overlap, as some states recognize both statutory and common law rights of publicity, twenty-two states do not recognize any such right at all.

 

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Talent Agents, Personal Managers, and Their Conflicts in the New Hollywood – Note by David Zelenski

From Volume 76, Number 4 (May 2003)
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Hollywood is an impersonal, uncaring, and unforgiving place, and artists need the sophisticated assistance of third parties to help them locate employment opportunities and to assist them in making career decisions. This is where talent agents and personal managers step in. Agents and managers represent artists, and their collective role in the entertainment industry is straightforward. According to agent Joel Dean, they “try to put [artists and producers] together to make a match . . . . It couldn’t be simpler.”

To be more specific, agents procure employment for talent. Their job is to get the artists they represent as much work as possible. Managers, on the other hand, shape artists’ careers. Their job is to serve their clients in an advisory capacity and to counsel them on the career options that have been made available to them through their agents. When looked at this way, things seem very black-and-white: Agents present artists with employment opportunities, and managers suggest which of those opportunities artists should accept.

 

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