Can college sports afford pay-to-play?

By: Kyle Kennedy

Earlier this month, the NCAA asked the 3rd Circuit to block a federal lawsuit brought against them by multiple former student-athletes spearheading a legal effort to have student-athletes treated as paid employees by their schools. This effort would essentially require schools to compensate their student-athletes as employees and subject the schools to labor regulations. Judge Theodore McKee, one sitting member of the 3rd Circuit panel hearing the motion, indicated that student-athletes could be considered employees under the Fair Labor Standards Act (FLSA). The FLSA covers individual employees whose work regularly involves them in interstate commerce, including travel to other states to do their jobs. The NCAA limits teams from practicing more than 20 hours per week, but student-athletes reported spending between 35 and 40 hours per week on their sport. Student-athletes travel interstate for competitions and essentially work on their sport full-time in addition to their classes and other responsibilities, which tends to point towards employee status. In September of 2021, the National Labor Relations Board released a memo through their general counsel Jennifer Abruzzo which stated that college athletes should be treated as employees of the school. 

In 2021, the NCAA generated $1.15 billion dollars in revenue, with $850 million coming from the rights to televise March Madness. Despite their overloaded schedules, a 2019 study by the National College Players associated reported that 85% of college athletes living on campus and 86% living off campus live below the federal poverty line. Most college athletes do not receive full scholarships; the average award for a Division I athlete was $18,013 for males and $18,722 for females. For Division II athletes those averages dropped to $6,588 for males and $8,054 for females, and Division III schools are prohibited from offering athletic scholarships. While the NCAA has recently approved a policy allowing athletes to be compensated for their name, image, and likeness, these profits have mostly been directed to high-profile athletes in profit-bearing sports who already are likely receiving large or full ride scholarships. 

The lawyers for the athletes are not seeking a large reward or to cut a chunk from the pie of NCAA profits. Instead, they are simply seeking to have athletes paid at a reasonable hourly wage like students who work in the libraries or dorms as a part of work-study programs.  The NCAA in arguing for dismissal stated that paying college athletes is a slippery slope, that it may lead to schools cutting less profitable sports, and that qualifying the student-athletes as paid employees could expose their scholarships to taxation.  There is certainly some truth to these concerns, as Judge McKee of the 3rd circuit offered that the court may take the stance that some athletes, such as “the quarterback at the SEC school,” would be considered employees while other athletes are not. 

This could create huge complications among college athletic departments because football and men’s basketball are often the main sources of revenue for smaller school’s entire athletics budgets. These schools could essentially be forced to eliminate all or many of their smaller sports to be able to afford to pay the athletes that fall under the FLSA. It’s also unclear how this dichotomy of employee and non-employee athletes would interact with other NCAA regulations such as Title IX, which promotes equality in sports by requiring equalized investment. If sports like football and basketball were to be excluded from the calculation because the athletes are employees, this would lead to a huge loss in gender equity in sports because schools would be able to pour money into their men’s basketball, football, and other profit-bearing programs without spreading the funding among women’s teams and less profitable sports.

For many student-athletes, especially those in smaller sports, college athletics is not just about a scholarship or advancing an athletic career. Most athletes in these sports are competing for far less than full scholarship and choose to pursue their sport because of their passion. While it’s important to acknowledge that athletes in profit-bearing sports have traditionally been taken advantage of by the NCAA under the guise of amateurism, the recent changes to NCAA policy to allow name, image, and likeness deals allow high-profile athletes to reap the value of their market worth. If a pay-for-play structure truly threatens the existence of these smaller sports at the college level, then perhaps the newly minted name, image, and likeness policy of the NCAA will have to serve as a placeholder for the compensation of athletes, or at least those with market value. Additionally, the formal consideration of student-athletes as employees of their schools under the FLSA raises a host of unanswered questions requiring a massive overhaul of current individual school policies and practices. Regardless of one’s opinion on the way the case should turn out, college athletics departments and legal scholars alike will be carefully tracking this case and its possible future implications.

Copyright Law (Taylor’s Version)

By: Melissa Torres

Are you ready for it? Taylor Swift is reportedly set to kick off 2023 with the release of a new album, Speak Now (Taylor’s Version). Despite just releasing the fastest-selling album of 2022, Midnights, fans have been speculating about which one of her early albums she’ll rerecord next for quite awhile. Reports state, “Taylor has quietly been in the studio working on remaking both Speak Now and 1989. All details are still being ironed out but Speak Now (Taylor’s Version) should be out within the next couple of months, before she kicks off her Eras world tour.” 

But why is Taylor Swift rerecording old albums?  

While it may seem obvious to the general public that the writer, composer, and performer of a song would then own the recording of the song, the music industry functions on a different set of rules formed by contracts and copyrights. When a new artist signs with a record label, they form a contract which specifies the intellectual property rights of the works created. 

Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. Common types of work include photographs, illustrations, books, and music. These works are fixed when they are captured in a “sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time.” U.S. copyright law provides copyright owners with a list of exclusive rights and also provides owners of copyright the right to authorize others to exercise these exclusive rights, subject to certain statutory limitations. 

Typically, in the music industry, copyrights are divided between the musical composition of a song and its sound recording. The musical composition refers to the lyrics of a song, the music itself, or both. The sound recording, also known as the master, is the recorded performance of the song. As a result, more often than not, an artist’s record label owns the master of a song.  

In Swift’s case, she signed with record label Big Machine Records in 2005 and formed a contract in which one of the stipulations was that Big Machine would own the rights to the sound records in perpetuity. After the deal ended in 2018, Swift moved on and signed to a different label. Her recordings made over the 13 years stayed with Big Machine, and the label sold the rights to them for $300 million to Scooter Bruan in 2019. Swift alleges she was never given the opportunity to purchase these rights. Despite writing and performing over 82 songs, she has no rights to those records and receives no payment anytime they are played. Therefore, the singer embarked on a mission to rerecord her first six records in order to own both the musical composition and master of the new recordings. 

Because Swift has written every single song released in those six albums and therefore owns the musical composition copyright, she retains the “sync rights” of her music. A synchronization license is needed for a song to be reproduced onto a television program, film, video, commercial, radio, or even a phone message. Permission from the owner of the master use license, typically the record company, also needs to be obtained if a specific recorded version of a composition is used for such a purpose. As a result, everytime these songs are used for commercial purposes, the owner of the masters earns a profit. 

By rerecording versions of her old hits, Swift will now hold the master and composition rights of these songs. To be clear, the original masters of these songs still exist, but by encouraging fans to stream the newer recorded version, Swift is able to reclaim any income that may have gone toward songs previously owned by her former label. 

What can we learn from Swift?

Swift’s case provides several important lessons to creators about the importance of intellectual property rights. Situations such as these, while not usually on the same scale, are relatively common in the entertainment industry. Prince, Kesha, and The Beatles are just some of the many artists who have fought for ownership rights of their music.  Artists need to be careful when entering contracts in order to protect their intellectual property rights. Intellectual property is valuable, and it is crucial artists recognize the significance of protecting their rights. Without intellectual property protection, artists would not be fully compensated for their creations. As a result, artists’ desire to produce new work would decline and cultural innovation would suffer. Moreover, creators should never rush to sign a contract before consulting a legal professional and fully understanding the future implications of each clause, as they can have enormous ramifications. The document that Swift signed in 2005 is still affecting not only her life, but the music industry today. Despite the legal hurdles Swift has dealt with, she is ultimately able to survive and profit off recreating her old music. Swift’s strong fan base has rallied behind her by promoting her rerecorded music and has helped her continue a career as one of the most successful female artists of the decade. 

Virtual Reality? Depictions of Real Locations May Land Video Game Developers in Hot Water

By: Matt Williamson

One of the most interesting, and sometimes annoying, parts of being a law student is that legal analysis starts to seep into even the most mundane aspects of your life. Recently, as part of my workout routine, I stumbled across something odd in a virtual world which led me down a rabbit hole of legal considerations that video game developers must navigate when including real locations and buildings in their games.

Biking Up a Bagel

Anyone who knows me can attest that I absolutely love riding my bike. In fact, I love it so much that last October, staring down Seattle’s 3:30pm sunsets and months-long drizzle, I invested in an indoor bike trainer. To make the experience of indoor riding slightly less monotonous, I got a subscription to the popular fitness app, Zwift. Zwift is a video game-style program that allows users to bike (via a trainer or stationary bike) through an animated world, complete workouts, and compete with one another. 

One evening, I noticed a new route available in New York City, specifically around the internal Central Park Perimeter Loop. I was intrigued as I have personally spent lots of time running this exact loop while training for a marathon a few years ago.

Excited to pedal around the familiar loop, I started my ride. It was almost surreal to watch my avatar pedal around a digitally animated version of a mixed-use path I knew essentially by heart. I was especially struck by how accurate the twists and turns were and how many of the roadside landmarks were faithfully rendered. However, as I made my way up to the Northeast corner of the park, I noticed a feature that I had never seen in the real Central Park: a giant glass tube opened up before me, stretching into the sky. Myself and a pack of other riders dutifully climbed up its glossy surface. That’s right – Zwift designers added a giant bagel-like glass causeway to the iconic New York skyline.

As I sweated up the absurd glass-bagel climb, I couldn’t help but wonder: Why the hell is this here? 

Too Close to Reality

As it turns out, the answer may be as complicated as the relationship between video games and the real location and buildings they portray virtually.

Back in 2022, the perennially popular video game franchise Call of Duty released the newest installment in its Modern Warfare series: Modern Warfare II (“MWII”). Even before the full launch of MWII, fans noticed something intriguing about several of the maps featured in the game – they were remarkably similar to real world locations. Three maps in particular stood out: Crown Raceway, Breenbergh Hotel, and Valderas Museum. Each bore a striking resemblance to a real place: the Marina Bay Street Circuit in Singapore, the Conservatorium Hotel in Amsterdam, and the Getty Museum in Los Angeles, respectively. 

At first, little attention was paid to these maps beyond their expected gameplay characteristics, but things quickly started to take a turn. Valderas Museum was featured heavily in the game’s open Beta, a limited release that allows developers a chance to mass test a game before it is fully released, yet it suddenly and without explanation dropped out of the game’s map-pool at launch. Though neither Activision, the game developer behind MWII, nor the Getty, commented, widespread speculation arose that the developer had been forced to remove the map from the game over concerns about possible copyright infringement claims raised by the museum.

New rumors arose when early marketing for MWII featured a map called Marina Bay Grand Prix – a faithful depiction of the Marina Bay Street Circuit in Singapore complete with both signage and car models that directly evoked both the real life racetrack and the immensely popular motorsport series Formula One. Yet, the map never appeared in the Beta and, by the time the game was released, these assets had been altered to reflect a more generally branded race track called Crown Raceway.

The final act in this string of mishaps came when the game was released with the third of these controversial maps as a part of its core gameplay rotation. Breenbergh Hotel is easily recognizable as the Conservatorium Hotel, a 5-star establishment located in Amsterdam. The owners of the Conservatorium were incensed by the use of their building in a game that depicts intense and realistic violence. The hotel’s manager, Roy Tomassen, was quoted by Dutch newspaper de Volkskrant as saying: “The game in no way reflects our core values ​​and we regret our apparent and unwanted involvement.” Though de Volkskrant also reported that the Conservatorium was considering legal action, the map is still playable in MWII, and is even a common battleground in the game’s eSport championship series the Call of Duty League. 

Toeing the Line

MWII clearly ran afoul of a number of parties with its map design, but, perhaps as Breenbergh Hotel illustrates, the legal options available to these parties are a bit murky, and even more ephemeral than one might expect.

One type of legal cause of action these parties might try to employ is copyright infringement. Copyright infringement occurs when copyrighted works are used by parties other than the owner of the copyright without the owner’s consent. 

However, unlike many kinds of intellectual property, a great deal of architecture is no longer protected by copyright law and is therefore freely available for use in art. Most famous buildings like the Empire State Building are considered part of the public domain, as are all private buildings constructed before 1990. Thus, this seems like a legal avenue that is unlikely to provide actual relief to parties that may try to utilize it.

What if video game developers included trademarks in their games? Trademarks are symbols or words that have been legally registered or established by use as representing a company or product (think McDonald’s Golden Arches logo or Nike’s “Just Do It” slogan). One fundamental aim of trademark law is giving trademark owners the ability to prevent other parties from copying or closely mimicking a trademark in such a way that might trick consumers into believing that what they are seeing is somehow sponsored, produced, or endorsed by the trademark owner. At first glance, this cause of action seems like it might present a more viable recourse for someone like the owners of the Conservatorium Hotel. However, previous lawsuits show us that developers often need to take only minor steps to effectively head off these sorts of trademark infringement challenges.

For example, in 2008, the owners of a Los Angeles strip club called the Play Pen, sued Rockstar Games, the developers of the Grand Theft Auto series, when they discovered that Rockstar’s GTA – San Andreas game featured a knock-off version of their club called the “Pig Pen.” In deciding the case, the Ninth Circuit assessed Rock Star’s assertion that the inclusion of the Pig Pen was protected by the First Amendment. Notably, the First Amendment protects the use of trademarked images or words in art unless the use has no artistic relevance to the work in which it has been included, or the use “explicitly misleads as to the source or content of the work,” (i.e., makes it seem like the trademark owner has signed off on the inclusion or is behind the game).

In applying this test, the court ultimately ruled in favor of Rockstar. The court’s decision (which I assure you is as hilarious a read as you would imagine) articulates the panel of judges’ belief that the depiction of the strip club had some artistic relevance to the game and was not explicitly misleading. The judges pointed to subtle changes that had been made to the appearance of the club that differentiated it from the real thing, and noted that no one would reasonably believe that the strip club owners had produced the game. 

These and other similar cases show that, while it is theoretically possible for a video game developer to be sued for incorporating a real location or business into the virtual world it creates, it seems as though developers need only take small precautionary measures like subtly changing the look of a building or location, to effectively shield themselves from serious danger. In the end, as much as I might like to believe in some sort of Zwift legal team conspiracy, it seems pretty unlikely that their developers added the glass bagel to the Central Park course as anything other than an extra challenge for cyclists and runners. However, you can be sure that if they ever make a Burke-Gilman trail expansion pack, my eyes will be peeled.

The War on Forgery: An Exploration into Current Technologies Used to Catch Art Fraud

By: Zachary Finn

The field of art authentication has been revolutionized by several new technologies designed to spot fake art. Supposedly, up to fifty percent of all artworks in the market are fake, forged, or misattributed. Forgery is the act of making, exploiting, selling, and peddling fake art. This practice has become one of the most lucrative businesses in the world. According to the US Department of Justice and UNESCO, the crime of art forgery and laundering has been the third highest-grossing criminal commerce in the world over the last 40 years. This is just behind drugs and weapons. As technology has developed over the years, so has a plethora of developments and methods to detect fake and forged art. Many of the new technologies have successfully infiltrated the art crime domain, but they also raise legal implications to consider. 

One of the most encouraging is spectroscopy, which analyzes the chemical composition of the artwork and compares it to the known composition of genuine works from the same period. Spectroscopists test to identify whether certain specific elements and molecules are present in the pigment used to create works of art. For example, scientists use Mass Spectrometry to identify whether lead is present in certain artworks. Throughout early art history, lead was popularly used in paintings. Ancient paintings are identifiable through this technology because lead is now extremely rare and difficult to come by. After discovering the toxic qualities of lead, the art scene was quick to remove lead from its paint belt. Therefore, using spectrometry technology, an individual can spot a forged or fake painting by testing to see the presence of lead or other comparable elements and molecules. If a Da Vinci is without lead, it is almost certainly a fake. Mass spectrometry requires samples from an artwork, which may cause damage. This can create legal disputes over the damage and restoration of the artwork, especially since most of the artwork being tested has historical and cultural significance.

Similar to spectrometry, X-ray fluorescence is another technology that analyzes the elemental composition of art. With this technology, X-rays analyze shine beams on an artwork, which causes atoms in the pigments to emanate ancillary X-rays These rays identify the specific elements, where then experts can determine if they are consistent with materials used in works from the same period. Forgers practice and develop methods of painting over less valuable but still old artworks to create a more valuable fake art. The advantage of using X-ray fluorescence is that it penetrates through layers of paint. This offers scientists and art historians the capability to examine the underlying painting of an artwork. Like mass spectroscopy, X-ray fluorescence raises legal considerations because it potentially damages an artwork in question. On top of this, like most of these technologies, a legal consideration regarding admissibility for evidential purposes emerges. Courts and juries will have to weigh the credibility of experts and these technologies. 

Continuing with scientific technology, Multispectral Imaging uses expert cameras to capture images of an art piece in different wavelengths of light. This allows the examiners to identify inconsistencies that can be indicative of forgery. With multispectral imaging, cameras use different imaging techniques, including ultraviolet and infrared light. UV imaging reveals polishes, touch-ups, and overpainting. Infrared exposes details such as underlying paint jobs. A big advantage of this tool is that it is a non-invasive process so that it does not alter an art’s composition. Delicate and rare artworks may be susceptible to damage by other types of testing, so therefore this technology can be most useful in the war against art forgery. However, this technology also leads to legal questions involving expert opinions and declarations as imaging results are still open to interpretation, and different experts may reach different results as to conclusions of an art’s composition.

In the “most tech-savvy” way to detect forgery, Artificial Intelligence and machine learning algorithms analyze large databases of both genuine and fake art. The AI and machines extract patterns and features that distinguish real and fake art from one another. In a research development by Case Western Reserve University, this technology “combines data from the precise, three-dimensional mapping of a painting’s surface with analysis through artificial intelligence — a computer system based on the human brain and nervous system that can learn to identify and compare patterns.” In one study, AI and machine learning were able to spot forged art with greater than 95% accuracy. A key advantage of using AI and machine learning in art forgery is that large amounts of data can be analyzed and evaluated quickly and efficiently. This expedites spotting potential forgeries and works more accurately and efficiently compared to other methods. However, legal issues involving privacy arise as AI sift through large amounts of datasets that can possibly contain private or unconsented information. As technology evolves, AI algorithms and machine learning can be updated and revised to improve accuracy and proficiency.

The art world has been plagued with crimes of forgery and faking artworks for centuries, but with new technologies such as spectroscopy, X-rays, multispectral imaging, AI, and machine learning, the ability to detect counterfeit art has revolutionized the way experts fight this war against forgery. It will be exciting to see what other technologies emerge in the upcoming years, as well as what new paintings are discovered to be just fake copies.

Is AI Good in Moderation?

By: Chisup Kim

In 2016, Microsoft released Tay, a chatbot based on artificial intelligence on Twitter that became smarter as users interacted with it. Unfortunately, this experiment did not last long, as some Twitter users coordinated a barrage of inappropriate tweets towards Tay to force the chatbot to parrot out racist and sexist tweets. Tay tweeted racial slurs, support for gamergate, and incredibly offensive positions within a matter of hours of being online. Last week, Microsoft returned to the AI space by launching a new AI-powered Bing search engine in partnership with OpenAI, the developers of ChatGPT. Unlike Tay, the Bing Search AI is designed as a highly-powered assistant that summarizes relevant articles or provides related products (e.g., recommending an umbrella for sale with a rain forecast). While many news outlets and platforms are specifically focused on reporting on whether the Bing AI chatbot is sentient, the humanization of an AI-powered assistant creates new questions about the liability that could be created by the AI’s recommendations. 

Content moderation itself is not an easy task technically. While search engines are providing suggestions based on statistics, search engine engineers also run parallel algorithms to “detect adult or offensive content.” However, these rules may not cover more nefariously implicit searches. For example, a search engine likely would limit or ban explicit searches for child pornography. However, a user may type, for example, “children in swimsuits” to get around certain parameters, while simultaneously influencing the overall algorithm. While the influence may not be as direct or to the same extent as Tay on Twitter, AI machine learning algorithms incorporate user behavior into their future outputs that taint the search experience for the original intended audience. In this example, tainted search results influenced by the perverted could affect the results for a parent looking to buy an actual swimsuit for their child with photos depicting inappropriate poses. Around five years ago, Bing was criticized  for suggesting racist and provocative images of children that were likely influenced by the searches by a few nefarious users. Content moderation is not an issue that lives just with the algorithm or just with its users, but rather a complex relationship between both parties that the online platforms and their engineers must consider. 

Furthermore, the humanization of a recommendation service altering how third party content is provided may lead to further liability for the online platform. The University of Washington’s own Professor Eric Schnapper is involved in the Gonzalez v. Google case, which examines the question of whether Section 230(c)(1) of the Communications Decency Act immunizes interactive computer services when making algorithmically targeted recommendations of a third-party content provider. Section 230 currently immunizes most online platforms that are considered an “interactive computer service” from being a “publisher or speaker” of third-party information or content. The Gonzales plaintiff is challenging Google on the grounds that YouTube’s algorithmic recommendation system led some users to be recruited into ISIS, and ultimately led to the death of Nohemi Gonzalez in the 2015 terrorist attacks in Paris. After the first days of arguments, the Supreme Court Justices seemed concerned about “creating a world of lawsuits” by attaching liability to recommendation-based services. No matter the result of this lawsuit, the interactive nature of search engine based assistants creates more of a relationship between the user and the search engine. Assessing how content is being provided has been seen in other administrative and legislative contexts such as the SEC researching the gamification of stock trading in 2021 and California restricting the types of content designs on websites intended for children. If Google’s AI LaMDA could pass the famous Turing Test to appear to have sentience (even if it technically does not), would the corresponding tech company be more responsible for the results from a seemingly sentient service or would it create more responsibility on the user’s responses? 

From my perspective, I think it depends on the role that the search engines give their AI-powered assistants. As long as these assistants are just answering questions and providing pertinent and related recommendations without taking demonstrative steps of guiding the conversation, then search engines’ suggestions  may still be protected as harmless recommendations. However, engineers need to continue to be vigilant on how user interaction in the macroenvironment may influence AI and its underlying algorithm, as seen with Microsoft’s Twitter-chatbot Tay or with  some of Bing’s controversial suggestions. The queries sent with covert nefariousness should be closely monitored as to not influence the experience of the general user. AI can be an incredible tool, but online search platforms should be cognizant of the rising issues of how to properly moderate content and how to display content to its users.