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VOLUME 15, ISSUE 1 (Winter
2008)
Abstracts
UCLA
ENTERTAINMENT
LAW
REVIEW
Articles
The Expressive Workplace
Doctrine: Protecting the Public Discourse from Hostile Work Environment Actions
Jonathan Segal
.......................................................................................
Fear of hostile work environment litigation
has led employers involved in expressive enterprises such as television
production to institute speech codes that make it difficult for employees to
participate in the sorts of off-color, graphic, or painfully honest discourse
that the creative process demands. In the quest to protect litigious workers’
sensitivities, adult comedy might be less edgy; historical dramas might be less
realistic; advertising less effective; the news of a political sex scandal might
be less detailed; immigration debates might be less lively; even the nudes at a
museum might be less nude. Consequently, curtailing certain kinds of speech
within a workplace might have the effect of curtailing speech outside it as
well.
To minimize the extent to which harassment
concerns deter constitutionally protected speech and to resolve the tension
between the First Amendment and workplace harassment laws in expressive
workplaces, legislatures and courts should give these employers a limited
exemption from hostile work environment claims. This Article develops a rule
called the Expressive Workplace Doctrine that would strike a needed balance
between hostile work environment protections and First Amendment interests. The
Expressive Workplace Doctrine tilts the hostile work environment balance toward
greater speech protection.
Inside the FBI Inspections of Adult Movie
Company Age-Verification Records: A Dialogue with Supervisory Special Agent
Chuck Joyner
Clay Calvert & Robert D. Richards.........................................................
This Article is
intended as a companion piece to the Legacy of Lords article published in
the UCLA Entertainment Law Review’s Summer, 2007 issue (Volume 14.2). In
particular, the new Article features an exclusive interview conducted by the
authors with FBI Supervisory Special Agent Chuck Joyner at the FBI office in Los
Angeles.
Whereas the
Legacy of Lords article addressed the FBI raids of adult movie industry
age-verification records from the point of view of those working within the
industry, this Article explores an alternative point of view of the searches:
that of the FBI and the government.
No Trust at the NFL: League’s
Network Passes Rule of Reason Analysis
James J. LaRocca....................................................................................
Last Thanksgiving, the NFL Network, a new
cable television channel owned and operated by the National Football League,
exclusively televised its first of eight football games for the 2006-07 season.
Unfortunately, thousands missed the premiere because three of the country’s
largest cable operators declined deals with the NFL.
While the NFL is willing to provide its
network to the cable operators (for a fee), the
league insists that each operator offer the station to its customers as part of
its basic cable package. The NFL believes that once thousands of disappointed
people realize they cannot access the games it exclusively carries on its
network, they will pressure their cable providers to carry the station, creating
significant advertising revenue for the league. The NFL’s plan has sparked a
Senate Judiciary Committee hearing to examine possible antitrust violations.
This Article defends the NFL’s actions from an
antitrust perspective. It argues that the NFL’s plan passes a “full-blown” rule
of reason test since the plan is pro-competitive: it provides the public with
broader access to games, at no additional costs, and is necessary for the
network’s survival.
Special Music Industry
Section
The New (Record) Deal
Zac Locke................................................................................................
Most new artists eventually become
disenchanted with their record deals, and never see a penny of income after
their initial advances. While some observers would like to get rid of record
labels altogether, this Note suggests that drastically changing the system
instead of eliminating it may be the answer. After all, labels still provide
valuable marketing for artists, helping them break through the ever-increasing
clutter. Thus, this Note suggests a new model for recording contracts between
labels and new artists. The proposed record deal is one of limited exclusivity,
with a comprehensive revenue sharing model, based on a number of deliverable
songs. The Note posits that the system could be simpler, fairer, and actually
force labels and artists to work together to develop the artists’ careers while
providing both with new revenue sources.
Dollars, Downloads
and Digital Distribution: Is “Making Available” a Copyrighted Work a
Violation of the Author’s Distribution Right?
Kristy Wiehe.............................................................................................
Recent litigation initiated by
members of the Recording Industry Association of America asserts that “making
available” a copyrighted sound recording on a peer-to-peer (P2P) file-sharing
network is a violation of the copyright holder’s exclusive right of
distribution. The RIAA’s “making available” theory, however, is too broad, and
flaunts both the plain language and legislative history of the Copyright Act,
which give authors a narrow distribution right. This Note proposes a solution
both to the narrow legal issue as well as to the broader business issues facing
the recording industry today: namely that the music industry must provide an
economic rationale for consumers to purchase music. The Note concludes by
proposing potential incentives that the industry could use to entice consumers
to purchase music instead of illegally downloading it.
An Alternative Operating Model for the
Record Industry Based on the Development and Application of Non-Traditional
Financial Models
Vivek V. Mali...........................................................................................
The days
of monster profits for record labels have come to an end, partly as a result of
technological advances and the availability of affordable, powerful personal
computers that have removed barriers to entry into the music marketplace. The
Note proposes using private equity funds that invest in musicians’ intellectual
property as a viable alternative operating structure for the record industry in
the face of this democratization of ownership. The flexible, dynamic and
diverse characteristics of a private equity fund and the low barrier to enter
the marketplace for individual musicians, taken together with the numerous
digital distribution channels and virtual ‘venues’ available, could influence
the record industry’s move towards this model.
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