Pace I.P., Sports & Entertainment Law Forum

Hardball in City Hall: Public Financing of Sports Stadiums

Roger I. Abrams — Mon, 13 May 2013 12:20:51 PDT

Roger I. Abram’s article on public financing of sports stadiums is an unedited portion of Chapter 9 from Abram’s forthcoming book, Playing Tough: The World of Sports and Politics, published by University Press of New England (2013).

Fair or Foul: When Does Media Accusation of Performance Enhancing Drug Use Become Tortious?

Richard T. Ward III — Mon, 13 May 2013 12:20:50 PDT

The Steroids Era in baseball refers to the recent period in the MLB where many players and trainers have been found guilty or been implicated in the use of performance enhancing drugs which leads to sharp increases in player talent. The stigma associated with PED use, and also any other form of cheating, has proven to be a fast track to shame in the world of Major League Baseball. This article addresses the current state of defamation law in New York and the Federal Courts by analyzing the recent statement made by Skip Bayless concerning use of Performance Enhancing Drugs by Yankees' Shortstop Derek Jeter and the possibility that such statements could create tort liability. The article also considers the possible future paths of defamation law by comparing the level of protection the media enjoys today and the level of protection it may expect in the future.

Apple v. Samsung: Design Protection and Consumers

Nidhi Garg — Mon, 13 May 2013 12:20:49 PDT

Nidhi Garg writes an article about how design patent protection affects product lines and the average consumer. The analysis is done in light of the case between Apple and Samsung over patents relating to iPhones and iPads. The article focuses on design patent protection and how it has evolved over history. After an analysis of the laws, regulation, and case law related to design patents the article describes how consumers are affected by such changes. More particularly, how overreaching design patent protection may improve product lines and/or decrease innovation and product selection.

A Sure Thing? Online Gaming and Canada

Ryan M. Rodenberg et al. — Mon, 13 May 2013 12:20:45 PDT

The legal status of gaming activities on First Nations land within Canada is complicated. The foci of this paper are two-fold. First, we trace the origin and expansion of First Nations gaming. Second, we analyze the potential of First Nations as hubs for the growing global e-gaming industry, with an emphasis on Internet poker and online sports wagering. We conclude by positing that the Canadian regulatory scheme presents an opportunity to First Nations in connection with e-gaming.

When Copyright Can Kill: How 3D Printers Are Breaking the Barriers Between “Intellectual” Property and the Physical World

Matt Simon — Mon, 13 May 2013 12:16:06 PDT

This article examines copyright’s applicability to 3D printing technology, by analyzing the facts surrounding the (formerly) proposed development of a fully 3D printable firearm. Critical to this analysis however, is an understanding of how copyright has traditionally protected intellectual property, and why 3D printers do not fit into this conventional framework. As 3D printing is advancing at an extraordinarily rapid rate, any discussion of this topic would be incomplete without reference to the “moving target” that is 3D printing technology. In the short time between when this article was initially submitted for evaluation to the PIPSELF Law Forum in December 2012, and when it will be published in May 2013, many new uses for 3D printing have already been demonstrated, and indeed some of the issues discussed in this article have already become outdated, all within a six month timespan.

This article discusses at length, the efforts of the Defense Distributed project to develop a 3D printable firearm. When the article was originally submitted in 2012, Defense Distributed had already managed to prove the feasibility of using 3D printed firearms components, but the gun utilizing the printed component promptly broke apart after only successfully firing 6 shots. However, in February 2013, Defense Distributed released a new video, demonstrating a redesigned 3D printed component that was successfully used to fire over 600 rounds without a structural failure. Other recent developments in 3D printing include a company whose goal is to produce 3D printable cultured leather and edible meat products.

Finally, in January 2013, the organization Public Knowledge released a whitepaper entitled “What's the Deal with Copyright and 3D Printing?” written by Michael Weinberg. As both the whitepaper and this article discuss the same basic principles, but do so by analyzing slightly different areas of the law, I view the whitepaper as a companion piece to this article.

UPDATE (5/5/13): Defense Distributed has completed (and successfully test fired) the world’s first entirely 3D printed pistol.

UPDATE (5/10/13): In the timespan of a single week after the release of the first 3D printed pistol, the U.S. State Department has initiated procedures to force Defense Distributed to remove all its 3D printable gun components from the Internet, with the State Department claiming it needs to review the files for compliance with the International Traffic in Arms Regulations (ITAR). Further there are other measures being proposed by Congressman Steve Israel to outright ban 3D printed guns. However, considering that the 3D printable pistol was already downloaded over 100,000 times before the recent ITAR action, and the fact that the inherent design of the Internet means that many websites are foreign based, and therefore entirely outside the jurisdiction of the U.S., it appears to be an increasingly futile effort to force “removal” of these files from the Web. These files are still widely available on the Internet, and likely will continue to remain so, as websites like The Pirate Bay will continue to host & distribute 3D firearm files, regardless of any laws passed or litigation filed attempting to compel their removal.

Separation of Sport and State: The Federal Government’s Involvement in Major League Baseball’s Drug Testing Program

Anthony F. Iliakostas — Mon, 13 May 2013 12:16:03 PDT

Major League Baseball has been one of the premier major sports leagues in taking action and putting an end to the use of performance-enhancing drugs in baseball. Entering its eighth year, Major League Baseball has implemented and improved its drug-testing policy. However, with congressional hearings on the use of steroids and other drugs in baseball along with federal investigations, there is a lingering worry that the government is intervening in Major League Baseball's drug testing program. In this article, Anthony Iliakostas breaks down Major League Baseball's drug testing program and how the U.S. government has gotten involved. The article concludes by answering the ultimate question: should the government intervene in Major League Baseball's drug testing program?

New Jersey vs. The Paragons of Society: I’ll Bet on New Jersey Invalidating PASPA

Levi Glick — Mon, 13 May 2013 12:15:59 PDT

Levi Glick writes an article on the Professional and Amateur Sports Protection Act (“PASPA”), which in effect prohibits state-sanctioned sports betting within the United States. His article addresses the efforts by the State of New Jersey to establish state-sanctioned sports betting within the state, and the subsequent legal challenges brought forth by the professional sports leagues. He focuses on the legal arguments that New Jersey leveled in challenging the leagues’ alleged claims. He also focuses on the Constitutional arguments that weigh in favor of finding PASPA unconstitutional, as well as the public policy arguments for repealing it.

Fifty Shades of Transformation

Danielle Meeks — Mon, 13 May 2013 12:15:57 PDT

Danielle Meeks explores the recent trend of publishing fan fiction, brought to the forefront by the popularity of the Fifty Shades trilogy. Creating a work within another author's copyrighted fictional universe for profit is analyzed under the fair use doctrine and by comparing substantial similarities between Fifty Shades and the Twilight series to determine if the trilogy is transformative enough to survive a potential lawsuit.

Keynote Address

James W. Quinn — Tue, 13 Sep 2011 11:45:00 PDT

James W. Quinn, Esq., is chair of Weil’s 500-lawyer global litigation practice and a renowned sports and entertainment litigator. Mr. Quinn has amassed an extensive legal background over the last 40 years, including successfully representing CBS Corp., Johnson & Johnson Co., ESPN, and nearly all the major sports leagues.

Evolving Roles for Attorneys Practicing in the Areas of Sports, Entertainment and I.P. Law

Gary A. Munneke — Tue, 13 Sep 2011 11:15:00 PDT

CLE ethics segment worth one CLE credit, in which Pace Law Professor Gary Munneke discusses the evolving roles for attorneys practicing in the areas of sports, entertainment and I.P. law. He explores topics including entertainers’ intellectual property rights to their bodies of work, and the roles of attorneys who serve as agents for sports and entertainment figures.

Prof. Munneke teaches and writes in the areas of professional responsibility, law practice management, legal careers and lawyer training. He has authored more than 50 articles, and 20 books, including the leading casebook on law practice management, Materials and Cases on Law Practice Management. This year, he was awarded the prestigious Samuel S. Smith Award for excellence in law practice management by the ABA Law Practice Management Section.

Business Transactions in Sports Law

Tim Cedrone et al. — Tue, 13 Sep 2011 10:00:00 PDT

Panel discussion features attorneys Peter White of DLA Piper, along with Hymie Elhai of the New York Jets and Dimitrios Efstathiou of Major League Soccer. Tim Cedrone of Appruzzese, McDermott, Mastro & Murphy, P.C. serves as the panel’s moderator.

New Media and the Digital Environment

Jennette Wiser et al. — Tue, 13 Sep 2011 08:45:00 PDT

Panel featuring attorneys Lydia Cheuk of Blue Man Productions, LLC, Suzanne White of Coach, Inc., and Mary Rasenberger of Cowan, DeBaets, Abrahams & Sheppard LLP discuss new media and the digital environment as it pertains to I.P. law. This panel is moderated by Jenni Wiser, editor-in-chief of the Pace I.P., Sports & Entertainment Law Forum.

Introduction

Christopher Psihoules — Tue, 13 Sep 2011 08:30:00 PDT

Introduction by Christopher Psihoules, Managing Editor, Pace I.P., Sports & Entertainment Law Forum.

How Close Is “Too Close”

Lana Ciaramella — Tue, 17 Apr 2012 10:49:57 PDT

Lana Ciaramella writes an article on trade dress infringement. Her article discusses the standards of trade dress infringement, how they are applicable to private label products and how the courts have modified their view of trade dress infringement over time. She focuses on the landmark decision in McNeil Nutritionals, LLC v. Heartland Sweetners, which set a new precedent for treatment of trade dress infringement by private label manufacturers of brand name products.

The Creative Commons: A Supplement to Copyright in Today’s Technological Culture

Frank Polcino — Tue, 17 Apr 2012 10:49:56 PDT

In his article “The Creative Commons: A Supplement to Copyright in Today’s Technological Culture”, Frank Polcino discusses the relatively new licensing approach for copyrightable works, which originated from a 501(c)(3) tax-exempt charitable corporation called Creative Commons.

A Changing Game: The Inclusion of Transsexual Athletes in the Sports Industry

Joseph Randall — Tue, 17 Apr 2012 10:49:54 PDT

Joseph Randall explores the emerging trend in the sports industry towards the inclusion of transsexual athletes. He analyzes the impact of Renee Richards v. United States Tennis Association, the first case to speak on the legal rights of transsexual athletes, and then provides an overview of how the sports industry is gradually making it easier for transsexual athletes to compete in athletics. Randall ultimately concludes that in the interests of ethics and equality, the sports industry has a duty to afford all transsexual players an equal opportunity to play.

War of the Dolls: Did the Ninth Circuit Fail to Apply the “Intended Audience Test” in Holding Substantial Similarity Should Be Determined from the Perspective of the “Ordinary Observer” and Not a “Child” in Mattel, Inc. v. MGA Entertainment, Inc.?

Emily Flasz — Tue, 17 Apr 2012 10:48:36 PDT

Emily Flasz writes an article on the application of the substantial similarity test in copyright infringement cases. Her article addresses whether the second prong of the substantial similarity test, the “intrinsic test,” should include the “intended audience test” when the works in issue are intended for children. She examines this question within the context of the Ninth Circuit’s decision in Mattel, Inc. v. MGA Entertainment, Inc. and provides an in depth look at how the Second, Third, Fourth, Sixth, and Ninth Federal Circuit Courts have applied the “intended audience test” when the works in dispute are intended for specialized audiences, particularly children.

For the Love of the Name: Professional Athletes Seek Trademark Protection

Brett Harris Pavony et al. — Tue, 17 Apr 2012 10:48:35 PDT

Brett Pavony & Jaia Thomas wrote an article that explores the burgeoning relationship between professional sports and trademark law. After providing an overview of the various requirements outlined by the United States Patent and Trademark Office (USPTO), the article transitions into exploring the emerging trend of sports figures seeking federal trademark protection. Brett & Jaia blend their expertise and research to present an article that focuses on an analytical examination of professional athletes seeking trademark protection. The article also offers a glimpse into the future of intellectual property law as it pertains to professional athletes. As more and more athletes seek to take advantage of the legal tools afforded through U.S. trademark law, the article concludes by offering practical advice for athletes as they continue to protect and monetize their personal brands.

Back on Track 2: The Principles of Corrective Justice for Performance Enhancing Malpractice in Sports

Andrea Carska-Sheppard et al. — Tue, 17 Apr 2012 10:48:34 PDT

The first version of this article appeared on the Social Science Research Network more than five years ago. At the time, Andrea Carska-Sheppard, Paul Weiler, and Jim Medford suggested an interdisciplinary debate to bring about solutions urgently needed in the area of performance enhancing malpractice in sports. This was before the Congressional investigations on steroid use, which brought public scrutiny to professional sports. While our society deals (with varying success) with other types of offenses by providing perpetrators with means of support and rehabilitation, we noted there is very little systematic support available to athletes who are suspended for performance enhancing malpractice. The article offered a debate on the legal model that would provide corrective justice and rehabilitation for these types of wrongdoing. In order to create a legal model the authors turned to Professor Weiler’s proposed medical malpractice theory and applied it to performance enhancing malpractice. The World Antidoping Agency (WADA) has now adopted its revised Anti-Doping Code and the time has come to revisit our article and the proposed model. What the authors found is that, despite of the passage of time, their proposal is still timely and calls for the attention of all stakeholders. Though the new Anti-Doping Code sheds light on various aspects of doping prosecution and education, it is silent as to the rehabilitation and assistance provision to athletes implicated in doping. The concept of offering a systematic assistance model to the wrongdoers relates to the morality of current and future generations, which cannot be ignored. Instead it is time for the stakeholders to review and examine the model proposed in this article, which would assist athletes and enhance corrective principals in doping malpractice management.

Sports in America

John D. Feerick — Tue, 17 Apr 2012 10:47:30 PDT

A speech written and delivered by Dean John Feerick on April 17, 2009 at the Fordham Law School Sports Law Symposium gives us an insightful look into what sports mean to the world around them. Dean Feerick has been involved first hand in a number of influential sports law decisions in his time as a practitioner and this speech serves as a reminder as to the meaningful role that sports play in each one of our lives. Feerick draws from life experiences of his own as well as that of colleagues and family members to observe the timeless and universal nature of Sports.