Prof. Lazaroff's Law Review Article Cited in Pivotal Opinion

Professor Emeritus Dan Lazaroff’s law review article, “The NCAA in Its Second Century: Defender of Amateurism or Antitrust Recidivist?” from the Oregon Law Review is cited in the U.S. Court of Appeals for the Ninth Circuit's opinion in O’Bannon v. NCAA.

The NCAA began to strengthen its enforcement capabilities in 1948, when it adopted what became known as the “Sanity Code”—a set of rules that prohibited schools from giving athletes financial aid that was based on athletic ability and not available to ordinary students. See Daniel E. Lazaroff, The NCAA in Its Second Century: Defender of Amateurism or Antitrust Recidivist?, 86 Or. L. Rev. 329, 333 (2007). The Sanity Code also created a new “compliance mechanism” to enforce the NCAA’s rules—“a Compliance Committee that could terminate an institution’s NCAA membership.” Id.

Professor Emeritus Dan Lazaroff commented on this landmark decision in publications like the The Los Angeles Times, Pittsburgh Post-Gazette, Inside Higher Ed., and The Daily Journal.

Expression is the Better Part of Valor: Discretion and Good Faith in Entertainment Contracts

By Professor F. Jay Dougherty

It is not unusual for contracts in the entertainment industry to contain provisions leaving performance of an act to one party’s discretion. Often the other party’s attorney will request that such a provision also expressly require good faith. Sometimes, “good faith” is expressly added to the contractual language—after all, the client will act honestly in exercising its discretion. In the past, however, negotiators might reject the request, arguing that good faith and fair dealing is implied in all contracts anyway. In recent years, some courts have moved away from implying an obligation of good faith in a matter left to a party’s discretion. Other courts have implied the good faith obligation, even where a matter of subjective creative judgement is involved. Volatility and uncertainty in connection with implied covenants of good faith suggest that attorneys should be careful to draft such provisions clearly, leaving no ambiguity as to the intent of the parties.

In Third Story Music v. Waits[1], the plaintiff (“TSM”) had entered into an exclusive recording artist agreement with acclaimed singer-songwriter Tom Waits in the 1970’s, and had later transferred its rights under that agreement to Elektra/Asylum Records, a label in the Warner Communications family of record companies (“Warner”). Under the agreements, TSM would produce Waits’ records, and Warner would have the exclusive right to exploit and license those records. The agreement between TSM and Warner also specifically said that Warner “may at [Warner’s] election refrain from any or all of the foregoing.” TSM was to receive a percentage of amounts earned by Warner from the records, and a substantial advance for each album.

In 1993, an affiliate of TSM attempted to obtain a license from Warner to compile and exploit an album of some of the Waits recordings. Warner itself had no objection, but before it would agree to issue the license, it sought Waits’ approval, which he refused to give (assertedly to maximize the value of his later recordings made after the expiration of his agreement with TSM). When Warner refused to issue the license, TSM sued for damages for breach of the implied convenant of good faith and fair dealing. Warner demurred, asserting that the contract language expressly permitting it to refrain from licensing precluded application of the implied covenant. The demurrer was sustained, and affirmed on appeal.

The Shadow Tells a Story: Teller Gets Summary Judgment for Copyright Infringement of His “Shadows” Illusion

By Professor Jay Dougherty

As I wrote about in a blog in 2012, magician, Teller, half of the famous “Penn & Teller” duo, brought an interesting and perhaps unprecedented copyright infringement claim against a Dutch magician, Gerard Dogge, who made of video of a “strikingly similar” illusion, posted it on Youtube and offered to sell DVD’s and reveal the “secret” of the illusion (which, in this case he appears to claim is different from Teller’s method). After several procedural rulings since then, in a decision on March 20,2014, Judge Mahan in the U.S. District Court for the  District of Nevada gave summary judgment to Teller on the copyright infringement claim, finding that Dogge had essentially admitted access, and there was not even a genuine issue of material fact on “substantial similarity” under both the “extrinsic” (objective) and “intrinsic” (more subjective, “total concept and feel”) tests used in the Ninth Circuit.  Teller v. Dogge (2:12-CV-591 JCM)(D.Nev., 2014).

Magicians incur many obstacles in trying to protect their illusions by copyright law. The “method” or “system” embodying the illusion won’t be protected (although some have qualified for patent protection), nor will the abstract “ideas” and commonplace “scenes a faire.” As Judge Mahan pointed out here, “While Dogge is correct that magic tricks are not copyrightable, this does not mean that ‘Shadows’ is not subject to copyright protection... The mere fact that a dramatic work or pantomime includes a magic trick, or even that a particular illusion is its central feature does not render it devoid of copyright protection.”

Campus in the Spring

By Associate Professor Elizabeth Pollman

This year we are celebrating the 50^th anniversary of our law school campus.  I love what an interesting space we inhabit in downtown Los Angeles, and I consider myself lucky to get to teach on such a unique and functional campus that has been designed with an artistic vision.  

But the campus, of course, really comes alive with all of us who spend our time here, and I wanted to share how I’m reminded of that on an almost daily basis. It is the time of the spring semester when law review boards change over and the faculty receives emails with the lists of students who will be taking the helms of the various journals at Loyola.  I’m delighted to see current and former students on the lists, and I remember how busy my students are outside of the classroom.  It is also the season for receiving emails from students, diligently letting me know that they have to miss a class because they are attending (and winning!) a trial competition.  Sometimes I come across other interesting and important activities that Loyola students are up to and here’s a new one: – the dlreporter.com.

The Dotted Line Reporter is a Loyola law student-produced blog that has excellent, timely content focused on business and legal developments in the entertainment industry.  The blog provides lots of interesting info and analysis on a wide range of topics in film, television, music, sports, the arts, and more.   The site is packed with content on trending topics I want to read – everything from the recent “Dumb Starbucks” parody to the Time Warner-Comcast merger.  What is truly impressive is how many of the stories are not just the same sound bites you’d find on bigger, well-known blogs and websites but are rather original commentary and reflect thoughtful research.  The “Dumb Starbucks” piece, for example, was the result of one of the student contributors actually going over to the faux coffee storefront and interviewing folks and sleuthing the story. 

What I also love about this new blog is how it reflects the entrepreneurial spirit of the students who have started it.  I teach business law courses here at Loyola, and I try to bring to life the law we study – how the cases we read, for example in Business Associations, reflect scenarios where real people were pursuing innovative ideas, career or investment goals.  The students creating the dlreporter.com have that entrepreneurial, industrious spark to use their interests to pave their own paths to success.

Whose Version of 'Diversity' Did the Oscars Celebrate?

By Associate Professor Priscilla A. Ocen and Khaled A. Beydoun

This op-ed originally appeared on AlJazeera.com.

In many ways, Hollywood is a fenced-off community. It serves as the guardian of public accolades for excellence in film and representation. Yet, its gatekeepers are still overwhelmingly white, male and old, while the world it seeks to depict is the opposite. The Academy of Motion Picture Arts and Sciences is no different from broader trends in Hollywood itself. The voters who determined the winners of the 86th-annual Academy Awards on Sunday, March 2 are a testament to the white homogeneity and hegemony in Hollywood.

People of color have always been on the margins of Hollywood. Oscar nods to Hattie McDaniel, Sidney Poitier, Denzel Washington, Halle Berry and Jamie Foxx were generally lauded as moments of racial progress, allegedly highlighting an industry moving away from racial exclusion and toward diversity.

Unmasking the meaning and motivations behind Hollywood “diversity” reveals that gatekeeper politics – not racial progress – dictates which people of color are let inside, and the shape, complexion and color of the faces that remain fenced outsides Hollywood’s gates.

Inside the Gates: Oscar Voters are White and Male

One can drive from Hollywood’s Dolby Theatre, the site for the Oscars, and easily take a route through a tapestry of Asian, Black and Latino neighborhoods. Yet, the images that are often celebrated within spaces like the Dolby Theater obscure or outright misrepresent the lives of people who live in communities of color, often relying on tired and outdated stereotypes.

Stealing Shadows?

By Professor Jay Dougherty

A complaint filed by the magician Teller of the team Penn & Teller against a Dutch magician has been receiving much press and attention lately. Read more about the case here. It presents some fascinating issues and if they are not resolved on other grounds it could lead to the first decision regarding a category of works added expressly to the 1976 Copyright Act, namely those of "pantomime." I've written the leading article on the subject, "Now You Own It, Now You Don't: Copyright and Related Rights in Magic Productions and Performances," which was published in a book called "Law and Magic: A Collection of Essays." (The book is available on Amazon.) Professor Jim Grimmelman has posted a nice blog about it, hitting some of the issues.

Here's one link to Teller's copyright registration for his illusion, "Shadows." The claim is a "pantomime drama." The registration might have presumptive validity. As discussed more fully in my article, there's no statutory definition of pantomime, but the Compendium II of Copyright Office practices defines "pantomime" in part as: "the art of imitating or acting out situations, characters, or some other events with gestures and body movement." From what I've read of Teller's piece, and the illustrated "script" for it that was attached to his registration, it sounds like that could apply here. If so, copyright law gives him an exclusive right (in the U.S.) to "publicly perform" it, "publicly display" it, or "prepare derivative works" adapted from it. (It's not clear how one would "display" a pantomime, maybe in a still photo? There's a case finding which proves that still photos could infringe a choreographic work.) Of course, a court won't give copyright to the mere "idea" of the illusion, and since the YouTube video of the defendant's act has been removed I haven't compared the two. Also, the "method" or "system" of the illusion--how it is actually effectuated--might not be protected, although this can be a complex issue. There is also the "useful article" problem, but it would be interesting to see how a work that "portrays the appearance" of cutting a rose by cutting its shadow would be assessed. There would probably be some "thin" protection, but if the defendant's work is too similar in its expression, coupled with the presumption of validity, this suggests that Teller has more than a ghost of a chance!

Claim by Tolkien estate vs. fictional work including J.R.R. Tolkien as a character: The work of Sauron?

By Professor Jay Dougherty

Recently there have been reports that the Tolkien estate has fired off cease and desist correspondence to Steve Hillard, the Texas-residing author of a self-published book called Mirkwood. Mirkwood is apparently a fictional work, perhaps Tolkienesque, in which J.R.R. Tolkien is a character. It appears that the gist of the assertions (which are reportedly asking that the book be enjoined and destroyed) is that it is an unauthorized commercial exploitation of Tolkien's name and likeness; in other words, a violation of his rights of publicity. This claim seems extremely weak, and it's surprising that it would even be asserted.

First, the decisional law and many statutes have pretty clearly established that one doesn't have a property right in his or her life story. The same can be said as to fictional works including a "real" person as a character, at least if they are not held out as being true (and even the small line of cases drawing that line are questionable). Some plaintiffs have argued that a work that has nothing to do with the person whose persona is used becomes a "commercial exploitation" of that persona. But books, films, songs, works of art, etc. are not the same as T-shirts and coffee cups. They are works of expression--speech protected under the Constitution. (A football videogame is currently being challenged, in part on an assertion that it is just a product, not "speech." See my colleague Jennifer Rothman's recent post about oral argument in that case.) Courts in different jurisdictions have used various approaches to address tension between the relatively new right to control commercial uses of persona that are not false endorsements. Most of those approaches should favor almost any expressive use that is not an advertisement pure and simple, although one of them---the most antagonistic to freedom of expression---looks at the elusive "primary intent" of the expressive defendant. The "Mirkwood" book doesn't appear to be being held out as true, and appears to be highly expressive and "transformative" (one of the tests applied in this context). The Tolkien estate should lose on that basis.

But their claim is weak for at least two other reasons. First, many states' laws, especially covering a right of publicity after the death of the person portrayed, expressly exclude from liability speech works such as books or films. In fact, if the estate were to assert the application of Texas law to this dispute, that law has such an exclusion: "A person may use a deceased individual's name, voice, signature, or likeness in: (1) a play, book, film..." Texas Property Code Section 26.012. But the dispute may not even have to reach that clear defense. The majority rule as to whether the right of publicity survives death is to look to the law of the state of domicile at the time of death of the celebrity. Mr. Tolkien lived in England when he passed away in 1973 (long before the descendible right of publicity was officially recognized in most states). England does not recognize a right of publicity, let alone a descendible one that survives death. See, e.g., Cairns v. Franklin Mint, 292 F.3d 1139 (9th Cir., 2002) (Princess Diana domiciled in England at time of death--no right of publicity claim under California deceased celebrity statute) (note that decision also affirmed a $2 million+ award of attorneys' fees to the defendant). Hence, a Texas court, if this dispute were to get that far, should toss this claim out at an early stage on a similar basis, too.

We all love Tolkien and his imaginative books. I loved the books and the films, and can't wait for the new The Hobbit films, in production now. I happily pay for them, and will continue to do so. He was a genius, and his heirs deserve to benefit from that. But he is also iconic and forever intertwined with certain types of fantasy literature. That he is now a character is such a work should be celebrated--not threatened with Sauronian attacks and destruction!

Loyola to host paparazzi law forum

By Jacqueline Lechtholz-Zey, JD '11 and Gregory Strausberg, JD '09, LLM '11

On Feb. 25, the Loyola of Los Angeles Entertainment Law Review will present a day-long, three panel event entitled "Paparazzi Law in a Flash: Examining California's Past, Present and Future." This symposium aims to educate its law student, media professional, and attorney audiences on the legal discourse surrounding the modern day paparazzi in the context of the recent enactment of AB 2479 ("the anti-stalking law"). This newly enacted law makes it a misdemeanor to tailgate or drive recklessly to capture a photo or tape recording of an individual for commercial purposes. It represents California's most recent attempt at addressing the storied problem of striking the proper Constitutional balance between the First Amendment's protections for newsgatherers and an individual's right to privacy. With the passage of AB 2479, it is clear that states are again starting (as they did with the rise of "yellow journalism" over a hundred years ago) to recognize a growing problem in the way this segment of the media interacts with its subjects. However, the lack of enforcement of past laws aimed at curbing abusive practices--as indicated by the relative absence of lawsuits under California Civil Code § 1708.8--demonstrates the immense power of the First Amendment and the difficulty in crafting laws that do strike this proper balance. More information about the event is available on its website.

The legal dialogue regarding the paparazzi--including its dynamic interplay of state and federal law--is a field that has intrigued scholars (legal and non-legal alike) since the beginnings of America's media and entertainment industry, as exemplified by the axiomatic writings of Louis Brandeis and Samuel Warren in The Right To Privacy at 4 Harvard Law Review 193 (1890). While no point in American history clearly establishes the origin of an aggressive media force in need of legal regulation, many attribute the identification of this problem as coinciding with the rise of "yellow journalism" in the late nineteenth century. Such "journalism" is no better typified than by the infamous publication of an article in the New York Journal in 1898 that exclaimed, "DESTRUCTION OF THE WAR SHIP MAINE WAS THE WORK OF AN ENEMY"--a title that does not seem to sound so far flung from the typical grocery store tabloid reads of 2011. Such dramatic, seemingly simple proclamations had the power of catching the attention of the average nineteenth century reader and were therefore crucial to the fortunes of the rapidly expanding media companies of the time. However, behind such "simple" statements and their accompanying images (which often depicted famous individuals or sensationalized events) laid an extremely complex legal dilemma, which forced legal scholars such as Louis Brandeis and Samuel Warren, along with the American courts, to properly consider the point at which the First Amendment shield ended and where the right to privacy sword began.

Paparazzi Law in a Flash: Examining California's Past, Present and Future will include discussions of the past, present and future legal developments on this topic in a way that is understandable to legal and non-legal professionals. Loyola Law School has assembled leading practitioners, scholars, as well as recently admitted entertainment lawyers who have all played a central role in the on-going debate of what is permissible, constitutionally protected activity versus activity giving rise to criminal and civil liability. Loyola Professor Karl Manheim will speak about parallel efforts and international privacy law. And Professor Jay Dougherty will serve as a moderator. Loyola of Los Angeles Entertainment Law Review is also proud to include the discussions and articles of its own students Patrick Alach JD '09 and Gary Wax JD '09, which should be of use to those who seek to enforce or defend against the instantiation of this new statutory scheme.

This event is open to all who wish to attend. For media relations, please contact Brian Costello, deputy director of commujnications. We thank you for your support of this event and other future Loyola Law School entertainment and media law productions.