February 2011 Archives

February 28, 2011

Professor Molly S. Van Houweling of the UC Berkeley School of Law presented "Touching and Concerning Intellectual Property" at Loyola's IP Theory Colloquium.

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February 28, 2011

Georgene Vairo photo

By Professor Georgene Vairo

This is another installment of Loyola's "11 on '11" series, in which Loyola Law School professors are weighing in on what they expect to be the biggest legal issues in their fields in 2011.

My colleagues, Michael Waterstone and David Horton have already weighed in on two of the big three class action cases before the Supreme Court this term. I will talk about the third.

Provocatively but aptly titled "Will arbitration kill the consumer class action?", David's article noted that in AT&T v. Concepcion, the Supreme Court will decide whether the Federal Arbitration Act (FAA) preempts state courts from striking down class arbitration waivers under the unconscionability doctrine. As he put it, "contract procedure" enthusiasts are on the edge of their seats anxiously awaiting the Court's ruling. The Court will have to balance its general trend in favor of favoring arbitration against it's the ideals of federalism which should enable state's to provide their citizens with greater protections than those afforded by federal law.

Michael talked about Wal-Mart v. Dukes, which is likely to have huge implications for both employment discrimination and class action law. Plaintiffs are a class of female Wal-Mart employees alleging sex discrimination. The Ninth Circuit whittled down a class of about 1.5 million employees to 500,000. Yet, the class still may be the largest-ever gender bias class action case. The Supreme Court's order granting certiorari looks at two important questions: 1) whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)--which by its terms is limited to injunctive or corresponding declaratory relief--and, if so, under, what circumstances?

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February 24, 2011

Anthony V. Alfieri, professor of law and director of the Center for Ethics & Public Service, at the University of Miami School of Law, presented "Big Law, Risk Governance, and Diversity" during Loyola's Faculty Workshop Series.

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February 24, 2011

Loyola Law School sealBy 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 ยง 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.

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February 21, 2011

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By Professor Alexandra Natapoff

In 1998, I was a community lawyer in inner-city Baltimore and taught an after-school law class for neighborhood kids. One evening, a boy of about 12 said something that would change my thinking forever.

"I got a question," he said, leaning forward intently. "Police let dealers stay on the corner 'cuz they snitching. Is that legal? I mean, can the police do that?" When I explained that they could, he and his friends slumped down in disgust. "That ain't right!" and "The police ain't doing their jobs!" they exclaimed. "So all you gotta do is snitch," another concluded, "and you can keep on dealing."

Fifty years ago, "snitching" had a very different meaning. Last fall, it was claimed that Ernest Withers -- nicknamed the "original civil rights photographer" -- was working as a paid FBI informant even as he snapped iconic pictures of the Rev. Martin Luther King Jr., the Little Rock Nine and striking sanitation workers.

Read the complete posting at CNN.com.

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February 17, 2011

Aaron Caplan

By Associate Professor Aaron Caplan

This is another installment of Loyola's "11 on '11" series, in which Loyola Law School professors are weighing in on what they expect to be the biggest legal issues in their fields in 2011.

Two cases on this year's U.S. Supreme Court docket examine informational privacy under the Constitution. Although definitions vary, informational privacy is ordinarily used to mean the ability of individuals to control the gathering, use, and distribution of information about them by others. The first case, NASA v. Nelson, has already been decided. It extends a long-standing stalemate on whether a person has a due process right to keep certain information private from the government. The second case, Sorrell v. IMS Health Inc., will be argued later this year. It asks whether data brokers and drug companies have a constitutional right to buy and sell information about doctors' drug prescription records for commercial purposes.

The prevailing wisdom has been that the Constitution provides little, if any, direct protection for informational privacy. As a result, privacy gets legal protection in the United States primarily through statutes. Among the most common statutes are those protecting information about medical care and prescription drug use. NASA leaves this general system basically intact, not expanding any direct constitutional source for privacy but not restricting the government's ability to enact privacy laws. Sorrell, however, has the potential to call many of our privacy-protecting statutes into question. [DISCLOSURE: I have provided some advice to the Vermont attorney general's office in Sorrell.]

BACKGROUND

Both of the 2011 cases can trace their roots to Whalen v. Roe, 429 U. S. 589 (1977), which marks the last time the Supreme Court gave extended consideration to what it called the "interest in avoiding disclosure of personal matters." The plaintiffs in Whalen were patients challenging a New York statute that created a computerized database of all persons who had filled prescriptions for certain drugs. A difficulty for the patients was that the Constitution does not in so many words set forth an individual right to keep information away from other private parties or from the government. (It does, however, provide explicit protection against certain types of information-gathering by the government. Most important are the Fourth Amendment limits on government searches of people's "persons, houses, papers and effects," and the Fifth Amendment right against testifying as a witness against oneself in criminal cases.)

In Whalen, the Supreme Court assumed for purposes of discussion that it might in theory be a deprivation of liberty without due process for the government to deny one's ability to keep personal information private. It ultimately concluded that the New York statute did not violate this hypothesized due process right to informational privacy because the state had a valid need for the information and because the statute contained "security provisions" to guard against unauthorized disclosure. The opinion concluded by noting that information-gathering statutes typically include a governmental duty to safeguard the collected personal information against further circulation, and this duty "arguably has its roots in the Constitution." The decision was unanimous, but Justice Stewart filed a concurring opinion in which he doubted the existence of any constitutional right to informational privacy.

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February 17, 2011

Professor Julie E. Cohen of the Georgetown University Law Center, will be presenting her paper, "Copyright as Post-Industrial Property," as part of Loyola's Faculty Workshop Series.

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February 15, 2011

Jennifer Rothman

By Professor Jennifer Rothman

Today the Ninth Circuit will consider a First Amendment defense to Electronic Arts' (EA) use of former and current college players' identities in a popular video game. The case once again raises the issue of a conflict between the First Amendment and the right of publicity - a state law that protects the name, likeness and other indicia of identity of a person from being used without consent. Because this right limits what others can say, or put in a comic book, or a commercial or even a news broadcast, it raises a host of First Amendment issues. In particular, the district court held that EA had no First Amendment defense because the use of the players' identities was not transformative. The district court adopted a very narrow reading of transformativeness - one that appears to limit a First Amendment defense to circumstances in which a player's appearance and information is significantly altered, such as turning a player into a "half-human, half-worm," as one comic book did with the identities of two well-known musicians.

It is no surprise that such a narrow reading of transformativeness in the right of publicity context has caused uproar among major newspapers, television networks and movie studios. If courts do not consider the broader context of the use in a transformativeness analysis, then realistic portrayals and references to athletes, celebrities and anyone else may not receive First Amendment protection.

As a First Amendment matter, the transformativeness test seems ill-equipped to handle disputes between free speech and the right of publicity; the narrow gloss that the district court put on transformativeness sets a dangerous precedent that the Ninth Circuit will hopefully strike down. But whatever test the circuit ultimately adopts, it's not clear that EA has a great First Amendment defense. In contrast to the fantasy sports leagues, which are tied to the performance of actual players during a particular season, the EA video games do not need to be linked to particular players' identities. They may be more successful commercially if they are, but the functionality of the games does not depend on their realism.

This case on remand, however, may not ultimately turn on First Amendment protections. Although many of the briefs in the case focus on alternative First Amendment tests that could be used - other than transformativeness - to evaluate free speech limits on publicity rights, there are other significant conflicts in the case that have not yet been litigated. Related cases reveal that the college athletes signed their publicity rights over to the NCAA. Moreover, the NCAA owns the copyrights in the televised games. The NCAA therefore arguably had permission to license the use of the images and names of the college athletes. The legitimacy of the implicit and explicit assignments of publicity rights to the NCAA by college athletes will likely be the next chapter in this on-going and hotly contested dispute.

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February 14, 2011

On Thursday, Feb. 10, Loyola Law School hosted a meeting of the Joint Committee on Biomedical Ethics of the Los Angeles County Medical Association and Los Angeles County Bar Association (the "Joint Committee"). The Joint Committee has published guidelines for physicians on Forgoing Life-Sustaining Treatment for Adult Patients and on Decisions About Genetic Testing. Currently, the Joint Committee is considering the legal and ethical issues raised by pain management. Professor Brietta Clark, who writes the Health Care Justice Blog, has been a participant on the committee since 2006.

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February 14, 2011

Jeanne C. Fromer, associate professor of law, Fordham University School of Law, presented her paper, "Expressive Incentives in Intellectual Property," during Loyola Law School's IP Theory Colloquium.

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