Mercer and Black on Inspired Filth: Working Blue in Vaudeville America @UTKLaw @UMemLRev @UBSchoolofLaw

William Davenport Mercer, University of Tennessee, Knoxville, Department of History; College of Law, and Joel Black, University at Buffalo Law School, are publishing Inspired Filth: Working Blue in Vaudeville America in volume 53 of the University of Memphis Law Review. Here is the abstract.

The common law long held that words could be punished if their utterance might cause a breach of the peace. This article thus examines a seemingly simple question: When did American law transform this long-standing rule as it pertained to vulgar, filthy, or “blue,” words and begin to consider the simple utterance of those words as criminal actions in and of themselves? To answer that question, we looked to stand-up comedy and discovered a tradition of regulating filthy words that reached back to the post-Civil War era. There, the regulation of words as obscene coincided with the emergence of sanitized entertainment spaces, epitomized by vaudeville and the increased presence of women and children in public spaces. On these stages “blue” words were illicit; resistance from performers such as Sophie Tucker and Russell Hunting would only confirm the prevalence of this legal regulation. These performers and their regulation invite us to observe a post-war legal transition that was not just about citizenship and individual rights and to recognize that filthy words also underpinned a new legal order. A century before George Carlin, Richard Pryor, and Lenny Bruce famously pushed the boundaries of comic expression, “blue” language stood at the center of efforts to separate ordinary people from their words; the legal protections for speech were made contingent on their capacity to protect, and even generate, the profits of owners, managers, and investors. This post-war transformation of filthy words from common law to statute reminds us that the right to speak has long been subject to an economic hierarchy in which the interests of the wealthy are paramount. As vaudeville reveals, in modern America access to this right has been strongest when words reinforced this hierarchy and weakest when they threatened it.

Download the article from SSRN at the link.

Maillard on Hollywood Loving @noblemaillard

Kevin Noble Maillard, Syracuse University College of Law, is publishing Hollywood Loving in volume 86 of the Fordham Law Review (2018). Here is the abstract.

In this Essay, I highlight how nongovernmental entities establish political, moral, and sexual standards through visual media, which powerfully underscores and expresses human behavior. Through the Motion Picture Production Code (the “Hays Code”) and the Code of Practices for Television Broadcasters (the “TV Code”), Americans viewed entertainment as a pre-mediated, engineered world that existed outside of claims of censorship and propaganda. This Essay critically examines the role of film and television as persuasive and integral legal actors and it considers how these sectors operate to maintain, and sometimes challenge, racial order.

Download the Essay from SSRN at the link.

Kaye on Why Pornography Is Not Prostitution @tjsl

Anders Kaye, Thomas Jefferson School of Law, has published Why Pornography is Not Prostitution: Folk Theories of Sexuality in the Law of Vice at 60 St. Louis Law Journal 243 (2016). Here is the abstract.

This Article dissects an anomaly in the law regarding pornography and prostitution: under that law, people who have sex with other people for money are normally guilty of prostitution, but not when they are acting in pornography. Since the prostitute and the pornographic actor both engage in the same physical activities and both do so for money, it is natural to wonder why the prostitute is guilty of a crime, but the pornographic actor (normally) is not. In recent years, commentators and courts have offered a jumbled potpourri of rationales and justifications for this anomaly, most of which are either analytically inadequate or implausible in light of present social attitudes. Skeptical that there is a plausible justification for this anomaly, this Article instead offers an explanation – an account that helps us understand why the law makes this anomalous distinction between prostitution and pornographic acting even if the distinction cannot be justified. The explanation points to folk theories about sex – unrefined stories and narratives about sex that persist in and pervade our popular culture. On this folk-theory explanation, the divergence at issue springs from the interplay between a cultural commitment to sating ostensibly voracious male sexual desire and a cultural anxiety about the ways that direct sexual involvement with the female may corrupt or contaminate the male, not just physically, but morally and socially. From the perspective of these folk theories, prostitution and pornography both have the virtue that they sate male desire, but prostitution, involving direct sexual involvement with the female, threatens to taint or corrupt the male consumer (physically, morally, and socially) in a way that pornography does not. Pornography, then, strikes a more “favorable” balance between sating male desire and protecting men from potential corruption than prostitution does. As a result, it is privileged over prostitution in the law. Of course, this cultural mythology about sex does not supply a defensible justification for the state of the law. On the contrary, these folk theories seem almost childishly superstitious, and they resonate with atavistic and ugly ideologies about gender and sex. Nevertheless, this folk-theory account should help explain why the criminalization of prostitution persists so stubbornly today, despite the increasingly pervasive acceptance of feminist, libertarian, and sex-positive insights that might lead to decriminalization, and why the law treats prostitution differently than it treats pornographic acting. In this sense, the explanation offered here does not so much harmonize the law as diagnose in it a persisting pathology. Diagnosing this pathology in the law of prostitution and pornography should, in turn, cast new light on broader issues in the law of vice.

Download the article from SSRN at the link.

Dougherty on the Misapplication of "Mastermind": A Mutant Species of Work for Hire and the Mystery of Disappearing Copyrights

F. Jay Dougherty, Loyola Law School (Los Angeles), is publishing The Misapplication of 'Mastermind': A Mutant Species of Work for Hire and the Mystery of Disappearing Copyrights in volume 39 of the Columbia Journal of Law & the Arts (2016). Here is the abstract.

Recent decisions in both the Ninth (Garcia v. Google) and Second (Casa Duse 16) Circuit have applied concepts of "mastermind" authorship or "dominant author" to claims of copyright in individual contributions of actors and directors to a motion picture. This article, which is a transcript of a presentation at Columbia Law School, describes the roots of the "mastermind" concept in copyright and argues for its mis-application in this context.

The full text of the article is not available from SSRN.

Cross-posted to the Media Law Prof Blog.

Lovett on a Dispute Over Movables: The Professor Longhair Lawsuit

John A. Lovett, Loyola University New Orleans College of Law, is publishing Professor Longhair's Legacy: A Comparative Perspective on Revendicating Movables in Northern Lights: Essays in Honour of David Carey Miller (Douglas Bain, Roderick Paisley, and Andrew R. C. Simpson, eds.; Aberdeen University Press, 2016) (Forthcoming). Here is the abstract.

This essay addresses the problem of how an owner of a corporeal movable can recover possession of the movable from another person who detains or possesses it without right. It approaches this age-old problem through the lens of SongByrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, (5th Cir. 1997) and SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172 (2d Cir. 2000). These two decisions addressed the claims of SongByrd, Inc., the successor in interest of the legendary, New Orleans, rhythm and blues pianist Henry Roeland Byrd, aka Professor Longhair, against the estate of the legendary, rock and roll producer Albert Grossman. SongByrd sought to recover possession of several master tapes made by Byrd and other New Orleans musicians in the early 1970s that later made their way into Grossman’s possession. Without the consent of Byrd or his heirs, Grossman’s estate eventually licensed these master tapes to two record companies. One of these companies eventually released an album that earned Byrd a posthumous Grammy Award. After providing biographical background on Byrd and Grossman and explaining how the master tapes ended up in Grossman’s possession, the essay examines the conceptual and pragmatic differences between Louisiana’s civil law response to SongByrd’s revendicatory action to recover the tapes and New York’s common law approach that framed the merits of the dispute in terms of when SongByrd’s claims for replevin and conversion began to accrue. In essence, the two SongByrd decisions illustrate the difference between a civil law acquisitive or positive prescription approach that asks whether a would-be adverse possessor has taken sufficient steps to begin to possess as owner and deserves to be awarded with ownership through prescription and a common law approach that focusses on whether the true owner has been inexcusably passive in pursuing claims to recover his property. The essay also addresses the long term impact of the respective decisions on the law of Louisiana and New York and how the controversy has been used by property law scholars in the United States to illustrate a statute of limitations/accrual approach to the claims of owners seeking to recover valuable personal property or movables.

Download the essay from SSRN at the link.

Dennis Greene, Law Professor and Founding Member of Sha-Na-Na, Passes Away

Frederick Dennis Greene, a founding member of the rock and roll group Sha-Na-Na and a graduate of Yale Law School, has died after a brief illness. Among the courses Professor Greene taught at the University of Dayton Law School from 2004 to his death were Torts, Constitutional Law, and Entertainment Law. I had the honor of serving with him on the AALS Law and Film Committee and knew him as a charming, erudite, and witty colleague. I will miss him.

Selected Bibliography of Frederick Dennis Greene

Cultural Colonization in the Hollywood Film: The Harlem Debates, Part 2, 5 Asian Law Journal 63 (1998).

Immigrants In Chains: Afrophobia in American Legal History: The Harlem Debates, Part 3, 76 Oregon Law Review 537 (1997).

The Law and Business of the Entertainment Industry (Cognella Press, 2013).

The Resurrection of Gunga Din, 81 Iowa Law Review 1521 (1995-1996).


Tragically Hip: Hollywood and African American Film, Cineaste (1994)

Dennis Greene: Sha Na Law
https://www.youtube.com/watch?v=vzZl927OcoA

"Little Star": Denny Greene RIP

https://www.youtube.com/watch?v=QpzjZBhLYvY

"Game of Thrones" Good Business For Belfast

The Times of London reports that Belfast is profiting from as much as £110 million from the Game of Thrones economy. The show films in and around the area, and tourists visit the city and its surroundings to watch the fun (and well as to see historic Northern Ireland, of course, which is lovely). More here (subscription required--sorry).

Tip of the beret to Chidem Kurdas@PonziRegulation.

The Rhetorical Language of Slavery, Workers' RIghts, Football Players, and Unpaid Interns

Maria Linda Ontiveros, University of San Francisco School of Law, is publishing NCAA Athletes, Unpaid Interns and the S-Word: Exploring the Rhetorical Impact of the Language of Slavery in the Michigan State Law Review. Here is the abstract.

This essay presents initial results of a literature survey that explored the use of the rhetoric of slavery by workers' rights groups. It presents quantitative results for uses of terms such as slave, slavery, modern day slavery, plantation, Jim Crow and Juan Crow as these terms were used by immigrant worker advocates, opponents of labor trafficking, advocates for unpaid interns, National Collegiate Athletic Association athletes, professional athletes and in the context of prison labor. The essay also provides a qualitative analysis of how these terms were used by NCAA athletes and unpaid interns and a discussion of the criticism leveled at them for drawing the slavery analogy for voluntary employment relationships. The essay argues that, even though these advocates were criticized for their rhetorical use of the language of slavery, the rhetoric was effective because it helped frame NCAA athletes and unpaid interns as workers engaged in labor deserving of protection under labor and employment laws, even though they were not being paid for their labor. It describes how legal cases brought by these workers, including O'Bannon v. NCAA; Northwestern University and College Athletes Players Association (CAPA); and Glatt v. Fox Search Light have helped redress their problems. The essay argues that these two case studies illuminate the public understanding of core principles of the Thirteenth Amendment, including the right to own and sell your labor and the existence of a floor for free labor created by labor and employment laws. When employment relationships violate these principles, even if the relationship is voluntary, advocates can and will turn to the rhetoric of slavery to advance their cause because the arrangements violate the spirit of the Thirteenth Amendment.

Download the essay from SSRN at the link.

2 Broke Girls and the Statutory Rape Question

On the May 4, 2015 episode of "2 Broke Girls," Nash's mother accuses Max of having sex with her "underaged" son, and nearly everyone in the episode, including Max and Caroline, seems to agree that Max has some kind of legal issue. However, there's only one problem with this analysis of the situation. As the mother admits, Nash is "just now 18." Even if Max and Nash began their affair when Nash was seventeen, under New York state law, their affair is perfectly legal. The authorities cannot arrest Max for statutory rape. Here are the relevant parts of the NY statute.

New York Penal Law

  § 130.35 Rape in the first degree.
    A  person is guilty of rape in the first degree when he or she engages
  in sexual intercourse with another person:
    1. By forcible compulsion; or
    2. Who is incapable of consent by reason of being physically helpless;
  or
    3. Who is less than eleven years old; or
    4. Who is less than thirteen years old and the actor is eighteen years
  old or more.
    Rape in the first degree is a class B felony.


130.30 Rape in the second degree.

 A person is guilty of rape in the second degree when:
  1. being eighteen years old or more, he or she engages in sexual
intercourse with another person less than fifteen years old; or
  2. he or she engages in sexual intercourse with another person who is
incapable of consent by reason of being mentally disabled or mentally
incapacitated.
  It shall be an affirmative defense to the crime of rape in the second
degree as defined in subdivision one of this section that the defendant
was less than four years older than the victim at the time of the act.

S 130.25 Rape in the third degree.
  A person is guilty of rape in the third degree when:
  1. He or she engages in sexual intercourse with another person who is
incapable of consent by reason of some factor other than being less than
seventeen years old;
  2. Being twenty-one years old or more, he or she engages in sexual
intercourse with another person less than seventeen years old; or
  3. He or she engages in sexual intercourse with another person without
such person`s consent where such lack of consent is by reason of some
factor other than incapacity to consent.
  Rape in the third degree is a class E felony.

Similarly, none of the provisions covering criminal sexual conduct apply either. We have no reason to believe that Nash does not consent to the relationship and he is of age (he was seventeen and is now eighteen). Nor can his mother object to his working as a model. He cannot void his modeling contract, since he seems to have entered into it as an adult (although it's not clear from the episode when he turned eighteen; if it was after he entered in the contract with the agency, he would need to enter into another contract).

Max and Caroline's continuing problem, however, is that they still don't have a talent agent's license; thus, they cannot represent Nash.

2 Broke Girls and the Talent Agency License

Caroline and Max take on the job of talent agents on the April 27, 2015 episode of 2 Broke Girls in "2 Broke  Girls and the Look of the Irish."  They decide to try to help newly hired Nash (Austin Falk) become a model (and they'll pocket some cash in exchange). There's only one problem: the episode gives no indication that either one of the members of our dynamic business duo is licensed under state law to represent talent in the state of New York.  Under New York law, one needs a license to act as a talent agent. See Article 11 of the NY General Business Law, which applies to those representing actors and models, among other clients.

Under Article 11, Section 171:

    2. a. "Employment agency" means any person  (as  hereinafter  defined)
  who, for a fee, procures or attempts to procure:
    (1)  employment  or  engagements  for  persons  seeking  employment or
  engagements, or
    (2) employees for employers seeking the services of employees.
    b. "Employment  agency"  shall  include  any  person  engaged  in  the
  practice  of  law  who  regularly  and  as part of a pattern of conduct,
  directly or indirectly, recruits, supplies, or  attempts  or  offers  to
  recruit  or  supply,  an  employee  who  resides outside the continental
  United States (as defined in section one hundred eighty-four-a  of  this
  article)  for  employment  in  this  state  and  who  receives  a fee in
  connection with the arrangement for the admission into this  country  of
  such workers for employment.
    c.  "Employment  agency"  shall  include  any  person  who, for a fee,
  renders vocational guidance or counselling services and who directly  or
  indirectly:
    (1)  procures or attempts to procure or represents that he can procure
  employment or engagements for persons seeking employment or engagements;
    (2) represents that he has access, or has the capacity to gain access,
  to jobs not otherwise available to those not purchasing his services; or
    (3) provides information or service of any kind purporting to promote,
  lead to or result in employment for  the  applicant  with  any  employer
  other than himself.

...

   3. "Fee" means  anything  of  value,  including  any  money  or  other
  valuable  consideration  charged,  collected, received, paid or promised
  for any service, or act rendered or to  be  rendered  by  an  employment
  agency,  including  but  not limited to money received by such agency or
  its emigrant agent which  is  more  than  the  amount  paid  by  it  for
  transportation,  transfer  of baggage, or board and lodging on behalf of
  any applicant for employment.
    4. "Agency manager" means the person designated by the applicant for a
  license who is responsible  for  the  direction  and  operation  of  the
  placement  activities  of  the  agency  at  the  premises covered by the
  license.
    5. "Placement employee"  shall  mean  any  agency  manager,  director,
  counsellor,  interviewer,  or any other person employed by an employment
  agency  who  spends  a  substantial  part  of  his  time   interviewing,
  counselling  or  conferring  with  job  applicants  or employers for the
  purpose of placing or procuring job applicants, but  shall  not  include employees  of an employment agency who are primarily engaged in clerical occupations.

...
7.  "Person"  means  any  individual,  company,  society, association,
  corporation, manager, contractor,  subcontractor,  partnership,  bureau,
  agency, service, office or the agent or employee of the foregoing.
    8.  "Theatrical  employment  agency"  means  any person (as defined in
  subdivision seven of this section) who procures or attempts  to  procure
  employment  or engagements for an artist, but such term does not include
  the business of managing entertainments, exhibitions or performances, or
  the artists or attractions constituting the same,  where  such  business
  only incidentally involves the seeking of employment therefor.
    8-a.  "Artist"  shall  mean actors and actresses rendering services on
  the legitimate stage and in the production  of  motion  pictures,  radio
  artists, musical artists, musical organizations, directors of legitimate
  stage, motion picture and radio productions, musical directors, writers,
  cinematographers,  composers,  lyricists,  arrangers,  models, and other
  artists and persons rendering professional services in  motion  picture,
  theatrical, radio, television and other entertainment enterprises. 
    9.  "Theatrical  engagement"  means any engagement or employment of an
  artist.

Continuing with Section 172:

  License  required. No person shall open, keep, maintain, own,
  operate or carry on any employment agency unless such person shall  have
  first  procured  a  license  therefor  as provided in this article. Such
  license shall be issued by the commissioner of labor, except that if the
  employment agency is to be conducted  in  the  city  of  New  York  such
  license  shall be issued by the commissioner of consumer affairs of such
  city. Such license shall be  posted  in  a  conspicuous  place  in  said
  agency.

Boldface added by the editor of the L & H Blog (ahem, me).

True, Nash refers to Caroline as his "manager" at one point in the episode. If Caroline and Max actually act as Nash's personal managers, then NY law does not require them to obtain talent agent licenses under the "incidental employment" exception (Section 171 (8)) but they cannot "procure employment" for him. Their behavior in the episode indicates that they are not doing so "incidentally." They go to an audition with him purposefully (although they leave when they discover the audition is for a sexually explicit film). When a friend of their new employer indicates she wants to hire Nash as a model, Caroline eagerly demonstrates that she wants to take the businesswoman up on that offer. Caroline (and Max) probably are not pursuing employment for Nash incidentally. They have a goal in mind: finding modelling work for Nash. For that, they need to be licensed as talent agents.

On "incidental" representation, see Section 171(8) above and Mandel v. Liebman, 303 N.Y. 88 (1951) (plaintiff attorney sued defendant author, because defendant refused to pay plaintiff commissions agreed upon in contract, arguing contract by which defendant employed plaintiff to represent him as personal manager was void because plaintiff was not licensed as talent agent under NY law).

New Group To Take Over Putting On Stage Version of "To Kill a Mockingbird"

Just days after the Monroe County Historical Museum announced that it would not longer be producing the stage version of To Kill a Mockingbird, news has surfaced that a newly formed nonprofit group may be working its way toward putting on the play beginning next year. More here from the Associated Press, here from the BBC, which reports that Harper Lee, author of the novel, is leading the nonprofit, called the Mockingbird Company. Link here to the group's Facebook page.

Monroeville, AL, No Longer To Put On "To Kill a Mockingbird" After This Year

The Monroe County Heritage Museum, of Monroeville, Alabama, Harper Lee's home town, which has produced the stage version of To Kill a Mockingbird for nearly 30 years, apparently will no longer put on a production after this year. Museum director Tom Lomerick told his board yesterday that Dramatic Publishing Company, which handles licensing for the rights owner, Christopher T. Serger, has terminated the agreement with the Museum. Many people come to Monroeville every year to attend performances of the play, and Mr. Lomerick estimates that the town earns around $1 million a year in revenues from this tourism.

Dramatic Publishing Company has indicated it will grant rights to put on the play to a group in Kentucky.  More here from the New York Times, here from Al.com.

2 Broke Girls and the Model Release

On the February 23, 2015 episode of 2 Broke Girls ("2 Broke Girls and the Great Unwashed"), Caroline and Max wait on a customer (Valerie Harper), who turns out to be a famous photographer. Without their knowledge, she takes their photos, as well as those of other employees at the diner, and displays them in an exhibit in a Soho gallery. The photos sell briskly, except for Caroline's. Caroline objects, although it seems that she's offended more that her photo isn't selling, and than that because the photographer didn't ask her consent, and the photographer offers her a print of the photo to mollify her. Caroline does accept the photo, yet--still no model release. Notice that the photographer doesn't get a model release for any of the photos of the employees at Han's diner. Does she need them? We don't know if she obtained a property release from Han.

The First Amendment protects a photographer's right to take photos in public spaces (nice roundup of photographers' rights here from the ACLU), and to sell artistic photographs, although what may complicate matters is that this photographer took her photographs in a diner rather than in on the street or in a public park.  However, socialite Caroline obviously has a right of publicity. It's worth something here; she has been cultivating her persona since she was a teen, and she was in the spotlight during the high profile trial of her father Martin Channing, who is now in prison as a result of his conviction for running a Ponzi scheme. To the extent that the photographer's use of the photos cross the line from fine art to advertisement, how much might they infringe on Caroline's right of publicity? We don't actually that in the episode, but we could spin some hypos. Suppose the photographer creates business cards with her photo of Caroline on them? She might not; she admits that the photo isn't particularly successful because people "don't believe" Caroline as a server in a diner. The role doesn't fit Caroline's persona.

What about the photos of Max and the other employees? What are their rights of publicity worth, if anything? Suppose the photographer decides to use one of their photos as future advertising?  Suppose she sells a coffee table book of her work, which includes the photos and those particular pages become part of the advertising campaign? Should a prudent publisher demand that she get model releases even if the law doesn't require them right now?

Both a prudent photographer and a prudent publisher should seek model releases, even if, as in this case, the photographer doesn't seem to be using the photos for commercial purposes. Entertainment attorney Gordon Firemark gives a short but cogent explanation of the law in this area here.

Discussion of the need for model releases in fine art photography here. Short overview of how courts balance the First Amendment and the right of publicity here. Text of N.Y. Code sec. 50 (right of privacy) here.

Fun for discussion with an entertainment law or IP class.

Balancing Privacy and Free Speech In "Time, Inc. v. Hill" (1967)

Samantha Barbas, State University of New York (SUNY), Buffalo, Law School, is publishing When Privacy Almost Won: Time, Inc. v. Hill (1967) in the University of Pennsylvania Journal of Constitutional Law. Here is the abstract.

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against the press for the publication of nondefamatory private facts.

The Hill case represented the culmination of a longstanding tension in American law. Since the early 20th century, states had recognized a “right to privacy” that permitted the victims of unwanted, embarrassing media publicity to recover damages for emotional distress. The privacy tort was praised for offering protection against an exploitative press, and at the same time decried by the publishing industry as an infringement on its freedoms. In the 1950s and 60s, with the growth of the media, an increase in privacy actions, and large judgments against the press, the privacy-free press conflict raised contentious debate.

Privacy and free speech were charged issues in American culture more generally. In an era that saw the introduction of computers, large-scale data collection, and increasing government surveillance, “privacy” emerged as a major national focus. Free expression rights also assumed new meaning and urgency in the turbulent social climate of the postwar era. These concerns were reflected in the Supreme Court’s decisions from this time. New York Times v. Sullivan (1964) held that the press had an expansive right to report on the public conduct of public officials, including a right to publish falsehoods, unless they were made with reckless disregard of the truth. One year later, Griswold v. Connecticut declared a constitutional right to privacy, protected by “penumbras” and “emanations” of guarantees in the Bill of Rights.

Time, Inc. v. Hill cast these freedoms in opposition. The case called upon the Warren Court, the Sullivan Court and the Griswold Court, to reconcile the two constitutional rights it had championed and created. A majority led by Justices Warren and Fortas initially voted to uphold the Hills’ claim. But after a bitter fight, votes switched, and a narrow majority voted for Time, Inc. The opinion by Justice Brennan rejected the notion of a constitutional right against unwanted publicity and declared an expansive view of the First Amendment as protection for all “newsworthy” material. The right of the press to publish on “matters of public interest,” from political reporting to articles about Broadway plays to movies and comic books, outweighed the privacy interests of unwilling subjects of media publicity.

This article explains how privacy almost won -- how the Supreme Court almost recognized a constitutional right to privacy against the press -- and why it didn’t. Time, Inc. v. Hill marked a crossroads, a moment when the law could have gone in one of two directions: towards privacy and a measure of press restraint, or towards a freer -- if not at times unruly and uncivil -- marketplace of ideas. The Court chose the latter, and we have lived with the consequences since.

Download the article from SSRN at the link.

Come and Knock On His Door (Now)--He's Been Waiting For You

A U.S. District Court judge has ruled that a young playwright did not infringe the copyright of DLT Entertainment in his work, 3C, which resembles the popular 1970s sitcom Three's Company. Judge Loretta Preska found that in spite of numerous similarities pointed out by DLT,  David Adjmi's play is a parody and a "drastic departure" from the original. It is also not a competitor in the same market as the original.  All sweet vindication for Mr. Adjmi, who has been waiting for three years (since he received a cease-and-desist letter from DLT's attorneys), to be able to pursue marketing opportunities for his work.

More here from the New York Times. Recap of the court's analysis here from Rebecca Tushnet at 43(B)log.

Bullfighting as Entertainment and Competition

Francisco Marcos, IE Law School, has published Entertainment Made in Spain: Competition in the Bullfighting Industry as Working Paper IE Law School, AJ8-219-I. Here is the abstract.

Controversial for many reasons, bullfighting is probably one of the most typical entertainment activities in Spain. Bullfights are an idiosyncratic spectacle belonging to the Spanish cultural tradition, but which has also a meaningful economic significance. This paper will look at the role of market forces and competition in the bullfighting industry, describing the peculiarities of its organization and looking at the many anticompetitive features that characterize it. Spanish local authorities are strongly involved in the organization of bullfights and strict and detailed public rules govern the intervening actors and the performance during the shows. Thus, the institutional framework of bullfighting heavily constrains competition conditions in the industry, setting the scenario for a limited role of market forces. Furthermore, history shows that the collective organization of different players involved (promoters, breeders, bullfighters and subordinates) in order to exert their market power has occasionally lead to anticompetitive actions and reactions. Thus, unsurprisingly, the Spanish Competition authorities have dealt with some anticompetitive behaviour by some of the players participating in the bullfighting industry.

Download the paper from SSRN at the link.