Journal of Entertainment and Technology Law

Print Archive

The Vanderbilt Journal of Entertainment and Technology Law publishes four times a year (Spring, Summer, Fall, and Winter). We have two selection cycles (spring and fall) per year. We also publish Blog posts authored by current Vanderbilt Law students on topical current events.

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Section Contents

Volume 28, Issue 1

  • A Speaker-Based Approach to Content Moderation: The Case of Livestreaming

    October 2025 | Maayan Perel | Article | This Article proposes a speaker-based approach to livestreaming moderation. Beyond the current one-size-fits-all-users approach, it suggests leveraging Machine Learning (ML) and AI to personalize the general optimization function of AI-based filtering models, and tailor it to the specific characteristics of the account holders, including their preferences, interests, and past digital activity. Indeed, advanced predictive capabilities are already exploited by social media platforms for content curation purposes, to match content to users, and maximize platforms’ revenues. Accordingly, under the proposed approach, potentially violent users should be subject to stricter moderation thresholds, while non-violent speakers could face more lenient thresholds. This nuanced approach to content moderation could enhance the integrity of livestreams, ensuring that livestreams that foster democratic discourse and informed citizenship outweigh harmful and unlawful streams. real-time nature challenges existing filtering techniques that are mainly designed to address prerecorded content.

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  • Metaphysical Quandary of Synthetic Media Transparency

    October 2025 | Darrell G. Mottley | Article | This Article advocates for the rights of artists and content creators to maintain confidentiality regarding the presence of AI-generated elements in their creative work. As the field of AI-generated media rapidly evolves, this Article advocates for democratizing AI-assisted digital output by establishing a sui generis framework that will counter government efforts to categorize such content. The sui generis framework proposes that individuals should not be obligated to reveal whether their creations incorporate outputs generated by artificial intelligence, allowing them more creative freedom and personal autonomy over their creative processes. Furthermore, the Article examines the role of transparency in AI-generated works for consumers and explores the impact of technology on creator rights and intellectual property.

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  • Student-Athletes, Universities, and Society: Balancing the Symbiosis

    October 2025 | Casey Faucon | Article | This Article argues that student-athlete, NIL leveraged business ownership and creation is a means to balance the long-term goals and needs of the student-athletes, the universities, and consumers of college sports. First, the promotion of student-athlete business ownership and creation embraces the rights restorative framework benefitting student-athletes. Second, universities can fulfill their educational and development missions and remain financially and athletically competitive. Third, promoting student-athlete business ownership and creation embraces the role of consumers in this symbiotic relationship and can have the larger, spillover effect of contributing to regional economic development in America’s unique college towns.

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  • Private Equity’s Viable Path to College Athletics Investment: Potential Entity Mechanisms and Antitrust Considerations

    October 2025 | Michael Ilg | Note | This Note analyzes the decision between a single entity structure and joint venture seen in most professional sports leagues in the United States. Based on the entity formation and antitrust considerations, the most viable option for private investment is a full buyout leading to the league operating as a joint venture with traditional sports league collective bargaining.

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  • Minors or Miners? Analyzing Compensation of User-Generated Content Under the Fair Labor Standards Act

    October 2025 | J. Clayton Eaton | Note | This Note argues that the current landscape of labor and content regulation is ill-suited to address the realities of virtual economies comprised of user-generated goods and services. Next, this Note proposes adapting and repurposing an archaic provision of the Fair Labor Standards Act to protect young creators in the modern, digital age and ensure that the compensation structures treat creators more fairly.

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  • The Public Health Cost of Online Behavioral Targeting

    October 2025 | Arthi Annadurai | Note | This Note proposes the establishment of state regulatory agencies to enforce stricter informed consent rules, similar to those used in human subjects research, in order to protect vulnerable health app users while also preserving the marketing efficiency created by online behavior targeting techniques. These rules would require clear and accessible disclosures about how data is used, modeled after the stringent consent requirements in human subjects research, and ensure that consumers understand the potential risks to their health.

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Volume 27, Issue 4

  • How the Law Makes Smart Cities Unaccountable, and How to Start Making It Better: Lessons from Sidewalk Toronto

    July 2025 | Beatriz Botero Arcila | Article |

    Sidewalk Toronto was the flagship project of Sidewalk Labs, the smart-city subsidiary of Google’s parent company, Alphabet. It was the largest smart-city project planned in North America or Europe. It is also the most notable failure of such a project to date.

    Smart city projects and the technologies behind them improve the delivery and efficiency of city services, produce data to help local policymakers learn from their policy interventions and bring several economic development benefits. At the same time, they can create important risks to fundamental rights and enhance the capabilities of corporate and public surveillance. When Sidewalk Toronto was abandoned many suspected it was because of the concerns and opposition it raised regarding the risks of increased corporate surveillance it posed.

    Although concerns about surveillance were the political driver of Sidewalk Toronto’s failure, this Article argues that the reason why the project failed, and perhaps had to fail, is because there was no apt legal framework to sustain it. Sidewalk Toronto was an interesting project from a local economic development perspective, and from an innovation perspective. However, existing privacy laws in Canada were not up for the task of handling, reasonably limiting, and ensuring the safe use of ubiquitous data collection in the city’s public spaces and infrastructures. Additionally, and most importantly, the public-private structure of governance behind the project was unaccountable and unfit to oversee its safe development.

    This Article demonstrates that the interplay between data protection law and public and private governance structures that govern smart city projects around the world are crucial to guarantee smart cities safety and trustworthiness; and for cities to be able to harness their benefits. In doing so, this Article calls for not only reform of data governance law, but also reform in other fields of law better equipped with dealing with the power asymmetries and particularities of the sectors where digital technologies are being adopted. This Article focuses on cities and how local law and governance should be adapted to address these risks.

    While digital technologies promise solutions to urgent urban challenges, the Sidewalk Toronto story teaches a stark lesson: without robust legal frameworks and accountable institutions, smart city projects around the world will create substantial risks.

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  • Governing Global Gig Platforms in the Age of AI: When the Manager is an Algorithm

    July 2025 | David S. Lee & Felicia F. Chen | Article |

    Gig workers are vulnerable to discrimination from the sharing economy platforms on which they work. This challenge is worsened by these platforms’ dependence on algorithms and artificial intelligence (AI) systems, which are used to control and direct gig workers. These platforms also often operate globally, and discrimination embedded within their algorithms can be magnified when exported into new cultural contexts.

    These platforms exercise significant influence over gig workers, but their for-profit nature means that their boards and directors often prioritize shareholder value over gig worker protection. This tension has led to intense debates, as platforms attempt to minimize the rights and benefits they provide to gig workers. Yet, recent legal developments from the European Union—specifically, the European Union’s Platform Workers’ Directive, AI Act, and Framework Convention on AI—signal the beginning of a global legal and policy shift towards protecting gig workers and regulating AI use.

    This Article examines the intricate interplay among algorithmic discrimination, corporate governance, and growing global legal scrutiny to protect gig workers and govern AI. This emerging legal and regulatory framework from the European Union has the potential to align platforms’ incentives with gig workers’ rights. Finally, this Article offers policy recommendations and actionable organizational changes for platforms to navigate this evolving legal landscape.

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  • Applying the Public Forum Doctrine to Public Official and Campaign Social Media Accounts

    July 2025 | Jonathan Peters & Skylar Bandoly | Article |

    The US Court of Appeals for the Second Circuit ruled in the 2019 case Knight First Amendment Institute at Columbia University v. Trump that the @realDonaldTrump Twitter account was a designated public forum, making it a First Amendment violation for President Trump to block users from it on the basis of their viewpoints. A few years later, in the 2024 case Lindke v. Freed, the US Supreme Court established a two-part test to determine whether a public official’s social media activity constituted state action under 42 U.S.C. § 1983. This Article reviews these and related cases to explore—in the context of public forum analysis—how courts have addressed the personal social media accounts of public officials and the campaign accounts of candidates running for elected office, particularly if the candidate is running for re-election. This Article also offers several proposals regarding how courts should address such accounts.

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  • State and Regulatory Agency Approaches to Limiting Deepfakes in Political Advertising

    July 2025 | Mary Margaret Burniston | Note |

    With recent advancements in artificial intelligence (AI), regulators have turned their attention to the issue of how—and whether—to regulate the use of AI in political advertisements. While nineteen states have passed legislation regulating AI in political advertising, such regulations may be challenged as violations of the First Amendment. Furthermore, federal agencies also dispute which regulatory agency has jurisdiction to address the problem, with the Federal Election Commission (FEC) and the Federal Communications Commission (FCC) both claiming authority. Beyond issues of jurisdiction, agency action is also limited by the US Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo.

    As deepfakes in political advertisement present the clearest threat of electoral confusion and deception, lawmakers should focus on deepfakes and craft content-neutral regulations of the manner of speech that can be used in AI-generated political advertisements. Such regulations would advance the strong government interest of preventing misrepresentation and electoral confusion. These regulations should be narrowly tailored to require labeling of deepfakes, while leaving open ample channels of alternative communication. The FCC and FEC should exercise complementary roles, with the FCC focusing on deepfakes in robocalls, television, and radio, and the FEC focusing on prohibiting fraudulent misrepresentation.

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  • Roll for Lawsuit: Are Actual-Play Series Copyright Ingringers?

    July 2025 | Mark Mehochko | Note |

    Dungeons and Dragons is a highly popular Tabletop Role-Playing Game designed by Gary Gygax and Dave Arneson in 1973. The game’s emphasis on narrative storytelling makes it an interesting subject for copyright analysis. When a group plays Dungeons and Dragons (D&D) for an audience, using copyrighted materials from Dungeons and Dragons’s publisher, Wizards of the Coast, there is an open question about whether the players infringe on Wizards of the Coast’s exclusive rights under § 106 of the Copyright Act of 1976. This issue is further complicated by Wizards of the Coast’s unique approach to licensing.

    This Note examines how Dungeons and Dragons performances implicate Wizards of the Coast’s exclusive rights under the Copyright Act. After establishing that groups playing D&D publicly are likely liable for infringement of the reproduction, derivative work, and public performance rights of Wizards of the Coast, a statutory solution is proposed based on the Ninth Circuit’s holding in Allen v. Academic Games League of America, Inc.

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  • De-Identified and Unregulated: How Data Brokers Outpace State Privacy Laws

    July 2025 | Hannah Moore | Note |

    State consumer privacy laws, though increasingly important in the absence of a comprehensive federal privacy framework, fail to effectively regulate the practices of data brokers who exploit de-identified data. Laws like the Tennessee Information Protection Act (TIPA) exempt de-identified data from key protections, leaving significant gaps in oversight.

    While the Health Insurance Portability and Accountability Act (HIPAA) establishes standards for de-identification, advanced analytics and linkage techniques employed by data brokers render this data increasingly susceptible to re-identification. The Federal Trade Commission (FTC) has taken steps to address these risks, but its limited authority highlights the need for comprehensive solutions.

    This Note proposes two key approaches to addressing the privacy risks posed by data brokers and the re-identification of de-identified data: enacting federal privacy legislation and adopting synthetic data generation to mitigate re-identification risks to close regulatory loopholes. Together, these measures aim to address the shortcomings of state and federal privacy frameworks, ensuring stronger protections for de-identified data in an evolving data ecosystem.

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  • NIL Speeds Ahead While Title IX Trails Behind: Finding Room for Title IX in the Evolving NIL Landscape

    July 2025 | Sophie Zelony | Note |

    Title IX was enacted to eliminate sex-based discrimination in educational programs receiving federal funding, including intercollegiate athletics. While the law has successfully increased female participation in sports, disparities in the treatment of male and female athletes persist, particularly in the context of publicity and promotional resources. The rise of name, image, and likeness (NIL) opportunities has further widened this gap, as universities and their affiliated collectives disproportionately promote male athletes, enhancing their marketability and NIL earning potential. Schroeder et al. v. University of Oregon presents a novel legal issue—whether Title IX applies to NIL deals when universities provide unequal publicity resources to male and female student athletes. This Note examines how Title IX’s equal treatment mandate extends to NIL promotional efforts, arguing that when institutions directly or indirectly facilitate NIL opportunities in a manner that disproportionately benefits male athletes, they risk violating federal law. Furthermore, the entanglement between universities and NIL collectives raises critical questions of agency law, suggesting that collectives function as promotional arms of institutions rather than independent third parties. Without regulatory intervention, these inequities will continue to undermine Title IX’s purpose.

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Volume 27, Issue 3

  • Generative AI’s Illusory Case for Fair Use

    May 2025 | Jacqueline C. Charlesworth | Article |

    Pointing to Authors Guild, Inc. v. Google Inc., Authors Guild, Inc. v. HathiTrust, Sega Enterprises Ltd. v. Accolade, Inc. and other leading technology-driven fair use precedents, artificial intelligence (AI) companies and those who advocate for their interests claim that mass unauthorized reproduction of books, music, photographs, visual art, news articles, and other copyrighted works to train generative AI systems is a fair use of those works. Though acknowledging that works are copied without permission for the training process, the proponents of fair use maintain that an AI machine learns only uncopyrightable information about the works during that process. Once trained, they say, the model does not incorporate or make use of the content of the training works. As such, they contend, copying for the purposes of AI training is a fair use under US law.

    This Article challenges the above narrative by examining generative AI training and functionality. Despite wide employment of anthropomorphic terms to describe their behavior, AI machines do not learn or reason as humans do. Instead, they employ an algorithmic process to store the works they are fed during the training process. They do not “know” anything independently of the works on which they are trained, so their output is a function of the copied materials.

    More specifically, large language models (LLMs) are trained by breaking textual works down into small segments, or “tokens” (typically individual words or parts of words), and converting the tokens into vectors—numerical representations of the tokens and where they appear in relation to other tokens in the text. The training works do not vanish, as suggested, but instead are encoded, token by token, into the model and relied upon to generate output. AI image generators are trained somewhat differently through a “diffusion” process in which they learn to reconstruct particular training images in conjunction with associated descriptive text. Like an LLM, however, an AI image generator relies on encoded representations of training works to generate its output.

    The exploitation of expressive content to produce new expressive content sharply distinguishes AI copying from the copying at issue in the technological fair use cases relied upon by AI’s fair use advocates. In these earlier cases, the determination of fair use turned on the fact that the alleged infringer was not seeking to capitalize on authors’ creative expression. This is exactly the opposite of generative AI.

    The fair use argument for generative AI is further hampered by the propensity of models to generate infringing copies and derivatives of training works. In addition, some AI models rely on retrieval-augmented generation (RAG) technology to generate output. RAG searches out and copies materials from online sources to augment and respond to user queries (for example, regarding an event that postdates the training of the LLM). Here again, copyrighted materials are being copied by generative AI without permission in order to exploit their expressive content.

    For these and other reasons, each of the four fair use factors of Section 107 of the Copyright Act weighs against AI’s claim of lawful use, especially when considered against the backdrop of a rapidly evolving market for licensed use of training materials.

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  • Data Portability Revisited: Toward the Human-Centric, AI-Driven Data Ecosystems of Tomorrow

    May 2025 | Mark Fenwick, Michael Fertik, Paulius Jurcys & Timo Minssen | Article |

    This Article critically examines the contemporary regulatory framework and discourse surrounding data portability in the United States. Using recent regulatory developments in the European Union as an illustration, this Article suggests that although data access and portability are identified as vital issues in multiple policy instruments, in its current iteration, at least, legal conceptions of portability continue to reinforce the interests of service providers and data controller enterprises rather than individual end users. This Article argues that a paradigm shift toward a more human-centric data approach to data governance must occur, under which data would be recognized as fundamental to an individual’s identity in a digital age. Therefore, it should be placed in the hands of individuals rather than service providers or data controller enterprises. This Article considers technical and market trends in the European Union that reveal and facilitate such a change. It suggests that regulatory frameworks should better align with these technological and market developments to encourage change-inducing trends among market actors. In short, this Article identifies a transformative approach to data portability that empowers individuals with the freedom and ability to aggregate their data in secure personal spaces under their control or dominion. Such a human-centric perspective on data portability is crucial in building Artificial Intelligence (AI)-powered applications for individual consumers that can pave the way for the human-centric, AI-driven data ecosystems of the future.

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  • Google’s Chrome Antitrust Paradox

    May 2025 | Shaoor Munir, Konrad Kollnig, Anastasia Shuba & Zubair Shafiq | Article |

    This Article examines Google’s dominance of the browser market, highlighting how Google’s Chrome browser plays a critical role in reinforcing Google’s dominance in other markets. While Google portrays Chrome as a neutral platform built on open-source technologies, this Article shows that Chrome is, in fact, instrumental in Google’s strategy to reinforce its dominance in the online advertising, publishing, and browser markets. The examination of Google’s strategic acquisitions, anticompetitive practices, and the implementation of so-called “privacy controls” underlines that Chrome is far from a neutral gateway to the web. Rather, it serves as a key tool for Google to maintain and extend its market power, often to the detriment of competition and innovation in the digital economy.

    This Article illustrates how Chrome not only bolsters Google’s position in online advertising and publishing through practices such as coercion and self-preferencing, but also leverages its advertising clout to engage in a “pay-to-play” paradigm—the cornerstone of Google’s larger strategy of market control. It also outlines potential regulatory interventions and remedies by drawing on historical antitrust precedents. Lastly, this Article proposes a triad of solutions motivated by an analysis of Google’s abuse of Chrome, including behavioral remedies targeting specific anticompetitive practices, structural remedies involving an internal separation of Google’s divisions, and divestiture of Chrome from Google into an independent organization.

    Despite Chrome’s dominance and its critical role in Google’s ecosystem, as well as its recent legal troubles with the Department of Justice, it so far has avoided significant antitrust action. A key reason for this inaction lies in the long-standing precedent supporting the hegemony of technology firms and the uncertainty surrounding Chrome’s viability as a standalone entity. This Article attempts to address these issues to enable antitrust actions that are essential in remedying current market imbalances. Such actions are also critical to mitigate future threats to competition from an increasingly monopolistic technology landscape, thereby fostering a competitive digital environment that promotes innovation and protects consumer interests.

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  • A Unicorn No More? The No-Trade Clause and its Potential to Reshape NBA Contractual Negotiations

    May 2025 | Paul Gerstle | Note |

    The no-trade clause, which, in the simplest of terms, allows a player to block his organization from trading him, is somewhat of a unicorn in NBA contractual circles. It has been sparsely used in the National Basketball Association (NBA) history, and there are certainly some good reasons for this. Allowing a player to control his fate without any potential for a trade puts his team in a straitjacket. Thus, teams have long kept their distance from the no-trade clause, with only ten players in NBA history having a no-trade clause in their contract. Most of these players have been legends within their respective organizations: long-tenured players who simply wish to one day retire with the teams on which they have spent the majority of their careers.

    As the average salary of an NBA player has ballooned over the past few years, teams have been forced to give maximum contracts to retain their best talent, regardless of whether that player is deserving of a maximum contract. This has led to a newfound loyalty problem: with maximum contracts becoming more and more the norm, what can teams offer their franchise player(s) that will incentivize them to stay if they can get a maximum contract anywhere? The answer is the no-trade clause, which gives players a unique contractual provision that they cannot get on other teams. The aforementioned problems that are associated with the no-trade clause remain, but certain teams would be wise to consider exercising this option for young players whom they see as franchise figureheads for years to come. This Note investigates the history of the no-trade clause in the NBA, its use in other sports leagues, and the potential implications of its expanded use moving forward. This Note argues for the no-trade clause to be entrenched as a more common contractual provision, serving as an additional tool for both teams and players alike to consider when at the negotiating table. As a part of this solution, this Note advocates for changes to the NBA Collective Bargaining Agreement that will give teams more flexibility in choosing to whom they wish to give no-trade clauses. Should these changes be made, this Note identifies the player archetype to which teams should consider giving no-trade clauses.

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  • The Sports-Betting Market: A Road to Sports Betting as Viable Investing

    May 2025 | Tyler Gottlieb | Note |

    Since its legalization, sports betting has experienced rapid growth, both in terms of economic output and expansion into more states. The current system of sports betting in the United States requires individuals to place bets using a sportsbook. The sportsbook sets the lines on every bet. If an individual wins their bet, the sportsbook pays them money according to the listed odds. If an individual loses their bet, the sportsbook keeps the amount staked. Sportsbooks set lines in a way to ensure that on average, they make money on every bet. This system has been widely accepted, often based on the common understanding that “the house always wins.” When the house wins, the individual loses. Sports betting in its current state is riddled with pricing inefficiencies that can be best remedied by treating sports betting as a market in which individuals can buy and sell bets. By reimagining the way sports betting is regulated, a system can be created where individuals can place bets at fair prices and be rewarded with gains based on superior ability. By thinking of sports betting like a capital market, it becomes clear how flawed the current system is, and we can draw inspiration from other capital markets to create a vision of an efficient sports-betting marketplace that protects investors instead of exploiting them.

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  • Dangerous Digital Standing: Applying Spokeo and TransUnion to Online Privacy Harms

    May 2025 | Michael E. Ten Eyck | Note |

    In recent years, the California Invasion of Privacy Act (CIPA) has been used to sue website-holding companies for utilizing chat bots that record online conversations. Such claims have already generated high-profile class actions and multidistrict litigations, with many more expected. Because CIPA violations often occur writ large when websites retain data from their chat boxes, and the statute imposes relatively high damages, there exists an incentive for plaintiffs’ attorneys to seek out aggregated claims, generating time-consuming litigation. Meanwhile, the harms suffered by those bringing suit fall under the category of intangible privacy harms. The US Court of Appeals for the Ninth Circuit’s case law regarding standing shows a broader allowance for potentially nominal harms. This differs from the US Supreme Court’s norm following TransUnion LLC v. Ramirez’s emphasis on an injury’s concreteness to confer standing. While recent decisions show that the effectiveness of CIPA in chatroom-type class actions is limited, at least one court has found a CIPA plaintiff to have standing absent any seemingly concrete harm.

    This Note describes the potentially illusory claims giving rise to mass litigation in California federal courts. It then analyzes the common injuries under a proposed reading of TransUnion that denies standing to most intangible harms. It ultimately concludes that appellate review should compel the revival of limited standing applied to intangible, digital harms in the Ninth Circuit. However, the TransUnion decision may rest on shaky Constitutional ground. Justice Thomas has advanced a dissenting view, rooted in history, which emphasizes the nature of the rights at issue. This view might have gained traction with a more originalist judiciary and could eventually prevail. While Justice Thomas’s view would allow seemingly frivolous suits for statutory damages, this Note argues it could also inform legislatures about the best ways to frame causes of action when they aim to protect digital privacy rights.

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Volume 27, Issue 2

  • The Music & The Movement: Race, Rhythm, and Social Justice

    March 2025 | Renee Nicole Allen | Article |

    From Billie Holiday’s “Strange Fruit” to Public Enemy’s “Fight the Power” to J. Cole’s “Be Free,” music has played a vital role in energizing social justice movements and elevating the legal and social issues facing Black people. An examination into the legal, historical, and social contexts for the music created during ten key movements in Black history reveals the role of lyrics and rhythm. Through the lens of music, ten movements—Freedom, Lynching, the Great Migration, Civil Rights, Black Power, Black Feminism, Police Brutality, Mass Incarceration, Black Love, and Black Lives Matter—demonstrate that Black music is more than entertainment. It is a critique of social ills, a reflection of strength, a source of empowerment, a roadmap for resistance, and a proposal for change.

    The Music & The Movement: Race, Rhythm, and Social Justice, a seminar course at St. John’s University School of Law, examines music’s vital role in energizing social justice movements. This Article examines the seminar course and its necessity in the law school White Space. Part I of this Article describes the inspiration for the course and includes a course description. Part II describes the law school White Space and identifies the problems associated with omitting race and social context from law school courses. Part III briefly describes three movements—Lynching, the Great Migration, and Black Lives Matter—and their relation to the music and law of each historical time period. The conclusion demonstrates how the course equips students with the sociohistorical context necessary to advocate for racial and social justice.

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  • Why Tennessee’s ELVIS Act Is the King of Artificial Intelligence Protections

    March 2025 | Sarah Luppen Fowler & John D. Fowler | Article |

    Artificial intelligence (AI) is evolving and advancing quickly. As AI advances, it presents novel legal issues for individuals and industries alike. For example, AI can now mimic the voices of famous musicians so well that it can be almost impossible for listeners to discern whether the vocals are from those musicians or generated with AI. Yet under the current legal framework, new works that mimic a famous artist’s voice can be created and distributed by anyone without the consent of the musician and without any legal repercussions.

    Fortunately, lawmakers are proposing legislation to protect against the unauthorized use of another’s voice, image, or likeness in the face of AI. The first AI-focused state law, Tennessee’s Ensuring Likeness Voice and Image Security Act (ELVIS Act), was passed on March 21, 2024, and went into effect on July 1, 2024. Multiple state and federal legislators have since proposed similar laws. This Article argues that the ELVIS Act is a gold standard for AI protections in general and for sound recording artists in particular, and that the protections that it provides should be incorporated into a federal right of publicity law. Indeed, many of the ELVIS Act’s key provisions are included in introduced federal legislation relating to AI protection of voice, image, and likeness. Federal legislation that includes many of the themes from the ELVIS Act would protect artists from having their voice unfairly appropriated by emergent AI technology and used in ways that they did not authorize. It would provide uniform protections and thereby prevent the current patchwork system of publicity laws from growing even further apart. With AI evolving faster than any other sector in American society, including the law, lawmakers can shore up the gaps now by quickly passing national legislation.

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  • Reimagining the Music Industry: In Search of a More Perfect Union

    March 2025 | Loren E. Mulraine | Article |

    This Article challenges the long-standing accepted business model of the music industry, including recording contract terms, ownership of masters, artist recoupment, and copyright terminations. It explores the negative implications of failing to revise these methods and neglecting to create a more equitable relationship between artists and recording companies. Indeed, the music industry is an outlier from almost every commercial industry in its financing structure. As such, this Article suggests that the future industry model should include equity ownership of master recordings. It then reviews the need to revise contract terms and eliminate the unilateral options and the unduly burdensome clauses such as the controlled composition clause. The industry’s heavy-handed practice of calculating recoupment on the artists’ fraction of the income that is reflected in their royalty rate, as opposed to a more equitable method of using net receipts requires creative adjustments to contracts that provide for artists to gain an ownership interest in their master recordings. Finally, this Article concludes that the current statutory language of the Copyright Act of 1976, as it relates to copyright terminations, is poorly conceived and falls far short of the stated Congressional intent of providing creators with a fair opportunity to recapture their copyrights after a specified period of time. The past two decades have brought technological and informational advances that have allowed artists to thrive without the assistance of deep pocketed recording companies. Major labels must adapt to these changes by making their relationships with artists more equitable. If they do not evolve, they will become a relic of the past.

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  • Trouble, Trouble, Trouble: Taylor Swift, Ticketmaster, and Arbitration

    March 2025 | Professor Imre S. Szalai | Article |

    Through Ticketmaster’s use of arbitration and the controversy surrounding Ticketmaster’s botched sale of tickets for Taylor Swift’s The Eras Tour, this Article explores problems with the broad use of arbitration in the United States. Arbitration, a private contractual method of resolving disputes in a binding manner, is a neutral process that can provide many benefits. However, under the current broad scope of arbitration law, virtually every type of claim can be arbitrated. A more limited arbitration law could provide more robust enforcement of laws, greater accountability and transparency, and stronger development of precedent within our legal system. Stronger parties (like large corporations) sometimes view arbitration as a means to suppress claims and limit liability. Thus, instead of trying to resolve disputes in good faith, stronger parties may try to disadvantage weaker parties (like individual consumers) through the drafting of unfair arbitration clauses with harsh, one-sided terms. Arbitration is supposed to be based on the consent of the parties, but in many consumer and worker transactions, meaningful, voluntary consent is often lacking. The live-ticketing industry’s use of arbitration illustrates these broader concerns with arbitration, and this Article suggests reforms and solutions to alleviate the troubled use of arbitration in the United States.

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Volume 27, Issue 1

  • Goncharov (1973), Internet Folklore, and Corporate Copyright

    January 2025 | Stacey M. Lantagne | Article |

    Goncharov (1973) is a meme, which is a term broadly used to refer to a species of viral internet creativity. Memes can be many different things, but Goncharov is an especially rich, complex, collaborative, and mutating one. It revolves around a movie that does not exist. Goncharov is a fictional Martin Scorsese film that the internet collectively pretends was produced in 1973. Over the course of a few feverish weeks in the fall of 2022, social media users, with no coordination and without knowledge of each other or the overall project, created a cast, storyline, soundtrack, reviews, fanfiction, and a promotional poster. And they did it all for free. Actually, they did it all for fun—a concept foreign to copyright law’s idea of what drives creativity.

    This Article uses Goncharov to illustrate how copyright law doctrines have developed to support a narrow, corporate conception of copyright. Copyright law depends heavily on an understanding of creativity as an economic venture mediated by contractual relationships. Sprawling collaborative and unmonetized memes like the Goncharov meme sit uneasily in the system because they are likely uncopyrightable as a type of folklore. However, positioning a meme like Goncharov as the equivalent of public domain folklore leaves it vulnerable to financial exploitation. This Article uses the vehicle of Goncharov to ask whether such a result is what copyright law should support, or whether we should rethink how we treat the new traditional knowledge being developed daily by our creative culture. This Article argues that copyright law dangerously focuses attention on a very small slice of human creativity, leaving vast amounts of creativity devalued as undeserving of legal protection. This hierarchy paints a watered-down picture of creativity. Creativity, as can be seen just in the single example of the Goncharov meme, is so much more complex, multi-faceted, unpredictable, and interesting than current copyright law posits. As we prepare to grapple with machine-generated creativity that may challenge copyright assumptions, we should not forget the vast swaths of human creativity that also challenge those assumptions.

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  • In Code We Trust: Blockchain’s Decentralization Paradox

    January 2025 | Sangita F. Gazi | Article |

    This Article explores blockchain technology’s decentralization and governance challenges. It interrogates the tension between the idea of a trustless, decentralized economy at the core of blockchain’s promise and the realities of power concentration and information asymmetry. Examining the ramifications of the Crypto Winter of 2022 on trust and governance within the blockchain ecosystem, the Article also underscores a critical paradox within blockchain ecosystems. It argues that despite the foundational ethos of decentralization and open participation, the governance structures of major blockchain networks manifest significant centralization, challenging the narrative of an egalitarian, user-driven evolution. The current state of blockchain’s centralities fundamentally incentivize participants to be opportunistic. In light of the collapse of several blockchain organizations in 2022, this Article highlights the danger of blockchain’s centralities. It posits that, without an effective governance regime established by network participants, blockchain’s tragedy will continue to destroy the network’s valuable resources. Finally, this Article stresses the need to design a fully polycentric blockchain system, from both operational and governance aspects, to incentivize network participants and stakeholders to act in the interest of the community rather than in their own interests.

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  • Alice’s Patent Puzzle: Unlocking Patent Eligibility for Diagnostic Methods Within Wonderland’s Faulty Two-Step Framework

    January 2025 | Anjali Dhamsania | Note |

    As it stands today, diagnostic tests and their methods are largely unpatentable. In 2012, the Supreme Court, in Mayo Collaborative Services v. Prometheus Laboratories, Inc., redefined the scope of patent subject matter, leaving a profound impact in the context of medical diagnostics. The subsequent decision by the Court in Alice Corporation v. CLS Bank International two years later significantly expanded the range of judicially created exceptions to statutory patent eligibility criteria to encompass “abstract ideas,” solidifying this “Alice-Mayo” framework as the definitive test to determine patent-eligible subject matter.

    But this shift has made it exceedingly difficult to secure diagnostic method patents and has led to a surge in patent invalidation under 35 U.S.C. § 101. The Alice-Mayo framework has resulted in inconsistent outcomes as courts and the United States Patent and Trademark Office struggle to apply the framework to diagnostic methods. The persistent legal ambiguity underscores the need for clarity, with the patent law community clamoring for large-scale guidance from either the Supreme Court or Congress. This Note examines several proffered approaches to handling the legal ambiguity that persists in light of the Alice-Mayo framework, weighing the advantages of carving out exceptions against complete upheaval through congressional reform statutes. This Note’s hybrid solution combines (i) a current practice under the two-step framework with the implementation of (ii) a new statutory exception and (iii) a compulsory licensing provision. It aims to create a narrow pocket that would allow diagnostic methods to be patent eligible so long as they are tied to a specific treatment and, at the same time, dispel accessibility concerns regarding the excessive costs of patented diagnostics.

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  • NetChoice, Regulatory Competition, and the Real Battle Behind Social Media Regulations

    January 2025 | Tao Huang | Note |

    Regulating online social media platforms has been a fiercely debated issue for years. The NetChoice case decided by the US Supreme Court 2023 Term arises from a circuit split regarding Florida and Texas laws that regulate social media content moderation. Most discussions on regulation of social media content moderation have focused on whether social media platforms are speakers (editors) or carriers (conduits), and whether their moderation practice constitutes editorial judgment (i.e., protected speech). This Article argues that this framing of the debate ignores another more important role of social media platforms—as regulators. Platforms, when they enact and enforce their content rules, are regulating the speech of users. When the government prescribes how platforms should moderate content, it is using its public regulatory power to preempt the platforms’ private regulatory power.

    In the social media context, regulatory competition and preemption among state or national governments are common. Different powers are trying to shape the platforms according to their own normative visions of free speech. However, there exist multiple and competing visions, the two most prominent of which are the US vision and the European Union vision. Hence, the real concern of the Texas and Florida laws is not that they are content-based, but that they have imposed one particular vision of free speech values upon the global “public square,” a place that is characterized by legal and cultural pluralism. Accommodating such value heterogeneity and conflict is not easy. This Article proposes three possible ways forward: (1) a judicial approach that embraces open-ended balancing instead of strict categoricalism; (2) an administrative approach that nudges procedural governance by platforms and democratic participation by users; and (3) a technological approach that aims to decentralize the structure of social media.

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  • And the Two Shall Become One: Conceptualizing the Right of Publicity as the Nexus of Trademark and Copyright Law

    January 2025 | Alvin Zhang | Note |

    The right of publicity, which bars the unauthorized commercial use of a celebrity’s likeness, has become increasingly important in recent years. As generative artificial intelligence (AI) threatens to replace singers’ voices and actors’ appearances on screen, people are increasingly looking to the right of publicity to protect entertainers from exploitation.

    Defining the right of publicity, however, is notoriously difficult. Since the right overlaps with both trademark and copyright law, circuit courts are currently split over whether to apply the trademark-based Rogers test or the copyright-based transformative use test.

    This Note, in addressing this split, proposes a legal framework under which all right of publicity cases can be evaluated uniformly. The central point is that the right of publicity does not function as only a trademark or only a copyright, but as a combination of both. In identifying the two distinct harms associated with the right of publicity, this Note proposes a solution—called the “dual harm approach”—that combines both sides of the circuit split instead of choosing one over the other. By tying the right of publicity to existing trademark and copyright doctrine, this approach will enable judges to evaluate publicity rights claims with familiar concepts instead of starting from scratch.

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Previous Issues

February 2025

Volume 26, Issue 4

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February 2025

Volume 26, Issue 3

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January 2024

Volume 26, Issue 2

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November 203

Volume 26, Issue 1

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July 2023

Volume 25, Issue 4

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June 2023

Volume 25, Issue 3

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