The Jurisprudence of Transformation: Intellectual Incoherence and Doctrinal Murkiness Twenty Years After Campbell v. Acuff-Rose Music

Examining recent judicial opinions, this Article analyzes and critiques the transformative-use doctrine two decades after the U.S. Supreme Court introduced it into copyright law in Campbell v. Acuff-Rose Music. When the Court established the transformative-use concept, which plays a critical role in fair-use determinations today, its contours were relatively undefined. Drawing on an influential law-review article, the Court described a transformative use as one that adds “new expression, meaning or message.” Unfortunately, the doctrine and its application are increasingly ambiguous, with lower courts developing competing conceptions of transformation. This doctrinal murkiness is particularly disturbing because fair use is a key proxy for First Amendment interests in copyright law. This Article traces the evolution of transformative use, analyzes three key paradigms of transformative use that have gained prominence in the post-Campbell environment, and offers suggestions for a jurisprudence in which transformative use is a less significant component of the fair-use analysis

Fissures, Fractures & Doctrinal Drifts: Paying the Price in First Amendment Jurisprudence for a Half Decade of Avoidance, Minimalism & Partisanship

This Article comprehensively examines how the U.S. Supreme Court’s adherence to principles of constitutional avoidance and judicial minimalism, along with partisan rifts among the Justices, have detrimentally affected multiple First Amendment doctrines over the past five years. The doctrines analyzed here include true threats, broadcast indecency, offensive expression, government speech, and strict scrutiny, as well as the fundamental dichotomy between content-based and contentneutral regulations

Transformative Variations: The Uses and Abuses of the Transformative Use Doctrine in Right of Publicity Law

In 2001, the California Supreme Court embarked upon a novel experiment in its right of publicity jurisprudence. The court imported a single element from copyright\u27s fair use analysis. That element—transformative use—has since become an enormously important defense for publicity defendants. Unfortunately, the transformative use doctrine is notoriously protean, and has resulted in significant confusion in publicity law that almost certainly chills protected speech. Many courts seem to lack a clear idea of what a sophisticated transformative use analysis should even look like. This article unpacks these issues and proposes improvements to this difficult legal area

Know Your Audience: Risky Speech At The Intersection Of Meaning And Value In First Amendment Jurisprudence

Using the U.S. Supreme Court’s 2014 decision in Air Wisconsin Airlines Corp. v. Hoeper as an analytical springboard, this article examines the vast burdens placed on speakers in four realms of First Amendment law to correctly know their audiences, in advance of communication, if they want to receive constitutional protection. Specifically, the article asserts that speakers are freighted with accurately understanding both the meaning and the value audiences will ascribe to their messages, ex ante, in the areas of obscenity, intentional infliction of emotional distress, student speech, and true threats. A speaker’s inability to effectively predict a recipient’s reaction to his message could result in a loss of speech rights and, in turn, lead to either criminal punishment or civil liability. Dangerous disconnects and chasms between speakers and audiences can arise, negating free expression when a message’s meaning or its value is lost in translation. Ultimately, speakers should not be forced to engage in complicated guesswork and multiple layers of abstraction in order to safely exercise their First Amendment rights

“Defamation Live”: The Confusing Legal Landscape of Republication in Live Broadcasting and a Call for a “Breaking News Doctrine”

Live, broadcast defamation is a murky area of law garnering surprisingly scant scholarly attention. But because libel law typically creates republication liability for broadcasters who air defamatory statements uttered by third parties—even when news organizations have no idea what the third parties are about to say— broadcasters covering live, breaking news events face significant risks of liability for remarks by people at the scene. This Article analyzes the case law of live and spontaneous broadcast defamation, explores the statutory backdrop in such cases and, ultimately, proposes a solution in the form of a “breaking news doctrine” that relieves broadcasters of republication liability if five prerequisites are satisfied

Free Speech, Fleeting Expletives, and the Causation Quagmire: Was Justice Scalia Wrong in Fox Television Stations?

This Article concentrates on one particular issue raised in the Fox Television Stations ruling - the critical question of causation of harm caused by mass media messages and, in particular, the quantum of evidentiary proof needed by a federal agency to demonstrate causation sufficient to justify restricting the speech in question. The issue is ripe for review

Application of libel law principles by Kansas editors

Call number: LD2668 .R4 JMC 1989 B86Master of ScienceJournalism and Mass Communication