The Depiction of Trademarked Landmarks in Fictional Films: Protecting Filmmakers from Infringement and Dilution Liability, 15 J. Marshall Rev. Intell. Prop. L. 676 (2016)

Many well-known landmarks, like the Empire State Building, are protected as trademarks. This trademark status may be used by trademark holders to attempt to control or limit the depictions of those landmarks in artistic works like feature films. Using the trademarked Hollywood Sign as an example, this article examines the status of landmarks as trademarks as well as the protections trademark holders have over unauthorized depictions of trademarked landmarks through actions for trademark infringement or trademark dilution. Concluding that trademark dilution is more likely the proper cause of action for the unauthorized depiction of trademarks in films, this article then examines the significant protections filmmakers are given under federal trademark dilution law when the depictions qualify as noncommercial uses or descriptive or nominative fair uses

CARANO V. DISNEY: THE FIRST AMENDMENT RIGHT OF EXPRESSIVE ASSOCIATION AS A DEFENSE TO FIRING EMPLOYEES FOR THEIR POLITICAL SPEECH

Following a series of controversial social media posts by actress Gina Carano, a cast member of the Disney+ Star Wars series, The Mandalorian, Disney terminated her employment on the show and announced that Carano would not appear in any future Star Wars projects. According to Disney, Carano was terminated because the views expressed in her posts did not align with the company’s values. Carano filed suit against Disney, claiming Disney violated California state labor laws that generally prohibit employers from sanctioning employees for their political activities. In response, Disney claims that the First Amendment right of expressive association provides an absolute defense to Carano’s action. Disney argues that this right allows an employer who is engaged in expressive activity, or protected speech, to terminate employees who the employer believes will interfere with or compromise the message the employer wants to send with its speech, even when that termination would otherwise violate the law. In essence, Disney is arguing that the high-profile, controversial positions Carano has taken detracts viewers of The Mandalorian from the show’s messages, and that the First Amendment protects its decision to terminate her employment as a result. This article examines case law on the right of expressive association, as well as the main arguments made by each of the parties in the case, to conclude that the weight of authority is on Disney’s side

Anti-Drag Laws and Free Speech: The First Amendment Case for Protecting Drag

In 2023, there were six federal court cases involving anti-drag laws or government denials of permission to hold drag shows on public property. All but one of these cases concluded that drag shows constituted expressive conduct protected by the First Amendment. Four of the cases involved challenges to recently enacted anti-drag laws, and in each of those cases, the courts found the laws to violate the First Amendment on multiple grounds, including not being narrowly tailored to achieve their purpose, as well as being vague and overbroad. However, one court, ruling on a denial of permission to hold a drag show, concluded that drag shows were not protected by the First Amendment. This Article considers these court decisions on state anti-drag laws and the reasons the laws were found to be unconstitutional. It also considers court arguments for and against providing protection to drag shows as expressive conduct under the First Amendment, concluding that drag shows do qualify for First Amendment protection

The First Amendment and Content Restrictions in State Film Incentive Programs

In recent years, many states have offered incentive programs to lure film production and its associated economic benefits—increased jobs, spending, and tourism—to their states. Several of these programs have restrictions that deny incentives based on a film’s content. For example, Texas denies film incentives to projects that have “inappropriate content” or portray “Texas or Texans in a negative way.” This article concludes that these restrictions do not violate the First Amendment. Two key considerations factor into this conclusion: First, in granting subsidies, the government may apply criteria that would be impermissible in a regulatory context. Second, the denial of a subsidy is not the same as the infringement of a right

News Reporting on Trump\u27s COVID-19 Treatments: Should Broadcasters Have to Disclose their Being Potentially Dangerous?

During the early months of the COVID-19 pandemic in 2020, President Trump touted a number of treatments that many medical professionals considered dangerous. These treatments include hydroxychloroquine and disinfectants, which if misused could cause a patient’s death. This prompted Free Press to file an emergency petition with the FCC, arguing that broadcasters who report on Trump’s claims about these treatments without highlighting their dangers could be in violation of the Commission’s broadcast hoax rule. Free Press also requested the FCC require that broadcasters include disclaimers when reporting on such claims. This article examines whether the broadcast hoax rule has been violated here, and whether such disclaimers should be required. The preferred approach under the First Amendment is to leave it to the marketplace of ideas to ascertain the truth of Trump’s statements. This article ultimately concludes that the broadcast hoax rule is a poor fit for this case and that requiring disclaimers could chill broadcast coverage of the COVID-19 pandemic, leaving the public less informed about this important public health issue. Counterspeech, or providing accurate information to help counteract false statements, is the preferable approach here

Fighting Chinese Censorship of U.S. Films by Denying Filmmakers U.S. Government Assistance: An Examination of the Proposed SCRIPT Act

In order to distribute their films in China, U.S. filmmakers must submit them to Chinese censors for approval, which frequently require changes to films to portray China and the Chinese in a more favorable light.  Given the millions of dollars to potentially be made in the large Chinese market, filmmakers have been willing to comply with Chinese censors, and have even begun to censor themselves by anticipating China’s concerns and tailoring their films appropriately.  In this way, China is able to influence the way it is portrayed in films not just for audiences in China, but in the United States and around the world.  To combat the spread of Chinese propaganda in this way, Senator Ted Cruz introduced a bill, dubbed the SCRIPT Act, that would prohibit filmmakers from obtaining government assistance with their films unless they refrain from making changes to film content to accommodate the Chinese government.  This Article examines whether the SCRIPT Act, by denying government support to filmmakers based on the content of their films, violates the First Amendment.  While a bill might be crafted to do this in a way consistent with constitutional requirements, certain aspects of the SCRIPT Act make it likely to be unconstitutional

Jon Snow Lives! Glenn Dies! When Revealing Plot Twists Constitutes Copyright Infringement

TV shows frequently rely on plot twists and cliff-hangers to keep viewers engaged and tuned-in for the next episode. To try to keep these plot twists secret, networks and program producers take steps to prevent people from revealing them before the episodes air. Recently, HBO and AMC, the networks that air Game of Thrones and The Walking Dead, respectively, have alleged that these so-called spoilers constitute copyright infringement. However, it does not appear that courts have considered whether posting such spoilers does, in fact, constitute infringement. This Article thus examines that question, which requires considering whether such spoilers constitute fair use of the copyrighted works, a defense to copyright infringement. This Article concludes that the revelation of plot twists before an episode airs by one with advance knowledge of the episode\u27s event likely constitutes copyright infringement. Significant here is the fact that the copyrighted works are not yet published, which weighs in the copyright holder\u27s favor when analyzing whether the spoilers constitute fair use. This provides copyright holders with a potential weapon to use against people who publish spoiler