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The Coachella Festival: A Celebration of Art, Camping, Live Music and Litigation! 

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By Mackenzie Kinsella

The Coachella Valley Music and Arts Festival 

The Coachella Valley Music and Arts festival is undoubtedly one of the most iconic music festivals. Coachella is held yearly in Indio, California. The festival is traditionally held over two weekends in April and lasts three days per weekend. Since its inception in 1999, this festival has hosted some of the most popular names in music including Harry Styles, Beyonce, the Red Hot Chili Peppers, Lady Gaga and Prince. In the early 2020s, Coachella has attracted record breaking amounts of attendees, including an average daily attendance of about 125,000 festival goers. In 2023, the festival had over 500,000 attendees over the two weekends. As a result, Coachella is a very lucrative festival bringing in hundreds of millions of dollars. Although Coachella has always landed huge headliners and huge crowds, Coachella also has a lengthy history of litigation over the trademarks associated with the festival’s brand. 

Previous Coachella Trademark Litigation 

            Coachella’s litigious history has included rival festivals and clothing lines. In 2017, the Coachella Valley Music and Art Festival filed a lawsuit against Urban Outfitters for trademark infringement. Coachella claimed that one of Urban Outfitter’s brands, Free People, was infringing on its trademark by using the festival’s name in advertising specific products, the “Coachella” boot, the “Coachella Valley” tunic and the “Coachella” mini dress. Additionally, Coachella argued that Free People’s use of its trademark name would confuse consumers in determining what products were actually authorized Coachella merchandise and what were Free People’s products. Coachella’s trademark litigation battles, however, do not end with Free People. 

            Coachella’s fight for brand protection continued in 2022 when the festival giant sued Afrochella, a Ghana musical festival. Coachella claims that the Afrochella name is intentionally using the well-known Coachella and Chella trademarks by using this trademark to promote Afrochella’s own festival. The Coachella festival argues that the use of Afrochella would likely cause confusion within the festival market and consumers may associate Afrochella with the Coachella brand. While this kind of litigation history may seem alarming, Coachella’s adamant efforts to protect its trademark are warranted given trademark law’s protection. Trademark law holds trademark owners responsible for enforcing its trademark within its marketplace; if there are more brands that coexist with similar names, then the original trademark owner’s protection is weakened. Once a brand or company name becomes so commonplace that the name is not connected solely to the original product brand genericide occurs. Brand genericide is a major problem for companies today, especially considering the time it takes for a brand to become generic has decreased over time with the increased use of social media and universal language. 

Current “Moechella” Litigation 

            Currently, Coachella is suing the creators of Moechella, a concert series in Washington D.C. Similar to its previous legal arguments, Coachella is arguing that this Moechella festival will cause confusion by suggesting an affiliation with Coachella. Furthermore, Coachella is suggesting that the association due to the similar event name is damaging due to a deadly shooting that occured at a previous Moechella festival. Coachella is asking the Court for an injunction to prevent the use of the Moechella name, the logo, any profits using the term Moechella, punitive damages, attorney’s fees and compensation for corrective advertising. However, this degree of legal action against Moechella is gaining some criticism. Moechella’s trademark use is being critiqued as a David vs. Goliath battle. Moechella is being deemed, by critics of Coachella, as the party focused on a community initiative against the billion dollar Goliath. Moechella’s trademark application was blocked by Coachella’s legal team. However, Moechella’s creators claim that the Moechella’s event purpose is to uplift Black music and not monetize a name. Justin “Yaddiya” Johnson, a Moechella creator, claims that such litigation is an aggressive move to stop the expression of Black music. However, given the pressure on trademark owners to be mindful of brand genericide, it can be argued that trademark owners, like Coachella, have to be proactive to protect their products. 

Bad Beat: Iowa Gambling Probe Allegedly Violated Student Athletes’ Constitutional Rights with Warrantless Geofence

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By: Sam William Kuper

“I hope all of these athletes at Iowa (UI) and Iowa State (ISU) take the State of Iowa to the cleaners.” UI men’s wrestling coach Tom Brands did not mince words describing the recent fallout from actions taken by the Iowa Division of Criminal Investigation (DCI) against student athletes. Last year, over a dozen student athletes and students at UI and ISU were criminally charged and some were suspended by the NCAA under suspicion of illegal sports gambling. However, a recent motion by defendant Isaiah Lee, a former ISU football player, alleges that the  charges were a result of an unconstitutional “warrantless search.”

Initial Investigation

Back in May of 2023, the DCI initiated an investigation of UI and ISU student athletes suspected of sports gambling in violation of state and NCAA rules. 25 current or former UI and ISU athletes and student managers were charged because of the investigation. Many for “tampering with records”—an aggravated misdemeanor that carries a maximum sentence of up to two years in prison—for allegedly falsifying personal electronic sports wagering records by utilizing the accounts of others to place sports bets. 16 pleaded guilty, with most pleading guilty to the lesser charge of underage gambling. Some of those charged were subsequently suspended by the NCAA, with different punishments depending on whether their wagers were on their own games or that of other sports or schools. For example, Isaiah Lee faced permanent ineligibility for placing a bet against his own team in a game where ISU beat Texas 30-7.

Alleged “Warrantless Search”

Isaiah Lee’s January 22nd Motion to Compel outlines his version of the facts. First, it is important to understand that gambling companies such as FanDuel and DraftKings must verify the location of their mobile users to make sure they are in a jurisdiction where sports gambling is legal. They do so via the company GeoComply, who act as the “custodians of data and processing” on behalf of their customers.

In December of 2022, Special DCI Agent Brian Sanger was given access to GeoComply’s data visualization and data analytics tool, Kibana. He used the software tool to place a “Geofence”—a virtual fence on a desired geographic area that reveals data of users within that area—around an athletic facility at UI where access is restricted to athletes, coaches, and support personnel. After he found gambling apps were opened inside the geofence, he requested subpoenas to obtain identifying account and bet information—leading to criminal charges for the student athletes.

According to the motion, Sanger did not remember why he initiated the search, but that he was “concerned about things such as people infiltrating Iowa’s sports team to gain insider information or match fixing.” However, he apparently did so without “warrant[s], tips, complaints, or evidence that illegal gambling was occurring.” The purpose of the discovery motion is to compel the State to disclose the circumstances and communications surrounding how and why Sanger and the DCI came to be in use of Kibana, and the types of searches he performed with it. For context, GeoComply’s website states they only comply with data requests from law enforcement if it is “legally binding and valid.”

What is a Fourth Amendment regulated search?

The Fourth Amendment of the U.S. Constitution protects people from unreasonable searches and seizures by government actors (like Sanger). The modern “reasonable expectation of privacy” or “REP” test as to whether Fourth Amendment protections apply was stated in Justice Harlan’s concurrence in Katz v. United States (1967): (1) the person must have exhibited an actual (subjective) expectation of privacy; and (2) that expectation must be one that society is prepared to recognize as “reasonable.” If these requirements are met, then the Fourth Amendment applies and the government needs a warrant based on probable cause to search.

However, under the “third-party exposure doctrine,” a person has no legitimate expectation of privacy in what they knowingly expose to the public or third parties. For example, the Supreme Court has held that there is no REP in garbage left on the curb of your home for pickup. But this standard has been heavily controversial in the digital age, as modern consumers often “reveal a great deal of information about themselves to third parties”—such as Google, Facebook, and their cell phone providers. In the landmark case Carpenter v. United States (2018) a 5-4 court declined to extend this doctrine to tracking cell-site location information for longer than seven days—suggesting that users have a reasonable expectation of privacy in their location history despite its disclosure to parties like Google. In addition, the court held in Kyllo v. United States (2001) that “[w]here . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” There, the government unconstitutionally used a thermal imaging device to scan the defendant’s home for heaters used in growing marijuana without a warrant. 

Did the student athletes have a REP?

The question of whether student athletes like Isaiah Lee are protected by the Fourth Amendment is complicated. While the first prong of the REP test is uncontroversially met, the second prong, along with the third-party exposure doctrine, raises many questions.

For example, what kind of location data was used? GeoComply’s website says they collect GPS, GSM, Wi-Fi, and IP Address data from the user’s device to verify location accuracy. Many universities, like UW, have a policy of turning over evidence of illegal activities on their network as soon as possible after detection. Thus, one would likely not have a REP of illegal activities while on UW’s network (however, UI does appear to have a greater level of privacy protection). But if, by chance, GeoComply only used GPS data, and the students were using solely their cellular network to access the gambling applications, there would likely be a stronger argument in favor of a REP.

With the alleged facts we have as of now, this case resembles Kyllo. The government used “a device that is not in general public use” (geofence software Kibana) “to explore details of the home that would previously have been unknowable without physical intrusion” (whether mobile phones in dorms and athletics facilities accessed gambling apps) without a warrant supported by probable cause. The debate is whether a public school’s dorms and athletics facilities should carry the same level of protection as a home.

What would be the remedy?

If the court finds Sanger’s use of the geofence software to be unconstitutional, the remedy would be the “exclusionary rule.” This would prevent the government from using the evidence gathered, along with any evidence gathered because of the original evidence (such as the identifying account information gathered because of the original geofence) in criminal prosecution. Thus, all the currently pending UI and ISU cases would likely be dismissed. But could the students then bring a civil action against Sanger under 42 U.S.C. 1983 for compensatory damages (such as lost wages from being suspended by the NCAA)? That is an entirely different question.

Sand Trap: The Future of the PGA Tour’s Nonprofit Status

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By: Sam William Kuper

“Saudi Arabia’s sovereign wealth fund” is not a collection of words typically linked to tax-exempt nonprofits. However, that is exactly who stands to benefit from the century-old 501(c)6 Internal Revenue Code when the PGA Tour and LIV Golf complete their tentative agreement to merge in 2024. But is this merger and the PGA Tour’s planned continued use of its tax exemption as necessarily bad—or even evil—as many politicians are saying they will be?

Money Talks

Led by Chairman Crown Prince Mohammed Bin Salman (de facto leader of Saudi Arabia) and Governor Yassir Al-Rumayyan (former chairman of Saudi Arabia’s national oil company, Aramco), Saudi Arabia’s Public Investment Fund (“PIF”) has over $700 billion USD in assets and is seen as a cornerstone for the development of Saudi Arabia’s Vision 2030 project. Starting in 2014, PIF began investing and reaching beyond Saudi Arabia’s borders to extend its influence and investment opportunities. From stakes in Silicon Valley sweethearts Uber and WeWork(oof) to video game icons Electronic Arts and Activision Blizzard, PIF has become an investment hegemon. Its next goal? Dominating international sports.

Coined “sportswashing,” PIF has used its immense wealth to insert itself into the world’s most popular sports in an attempt to bolster its reputation and hide from Saudi Arabia’s awful human rights record. They bought a middling Premier League soccer team and infused it with cash. They backed Formula One races in Saudi Arabia, headlined by post-race concerts from Travis Scott, Charlie Puth, and Calvin Harris. PIF’s crown jewel, however, was its introduction of LIV Golf in October of 2021.

(Don’t) Pay for Play

For the better part of a century, the PGA Tour has been the preeminent golf league in the world. In 2021, it hosted 113 tournaments in 36 U.S. states and 10 countries, with about 200 golfers competing for $765 million in prize money. It generated over $1.59 billion in revenue and paid executives over $30 million—with Commissioner Jay Monahan raking in $13 million. The catch? They have been a 501 (c)6 tax-exempt nonprofit since 1977.

Initially enacted within the 1913 Tariff Act, 501(c)6 organizations (in comparison to 501(c)3) are organizations that share a common business interest. Their purpose is to promote that interest for the benefit of their members, and “not to engage in a regular business of a kind ordinarily carried on for profit.” In return, they must publicly file a 990 form disclosing their finances—including their sources of funding, charitable donations, and payments to executives.

The PGA Tour was not alone in claiming this exception amongst its peers. In 1966, the Tariff Act was amended to include “football leagues” when the National Football League (NFL) merged with a competitor. Major League Baseball (MLB) and the National Hockey League (NHL) also claimed nonprofit status in the decades following. But while the MLB, NHL, and NFL have all discarded their non-profit status in recent years, the PGA Tour has remained steadfast—mostly because their players are individual contractors and not member teams who make their own profits from ticket sales, merchandise, etc.

By co-sponsoring tournaments with 501(c)3 charities (such as the FedeEx St. Jude Classic), the PGA Tour provides a platform for raising money. However, a 2013 ESPN report flamed the PGA Tour for donating just 16% of its revenue from tournaments on average to charities—the industry standard is 65%—and in one case, caused a charity to lose money.

Pitching the Wedge

Documents prepared for PIF by Mckinsey & Company—known to hold authoritarian governments as clients—advised that LIV needed to lure the top 12 players in the world from the PGA Tour to be profitable. They managed four. Nicknamed “Project Wedge,” LIV’s launch was met with expected criticism. Signing stars like Phil Michelson, Dustin Johnson, and Bryson DeChambeau to massive contracts, the PGA immediately banned them from future Tour events. Commissioner Monahan publicly admonished these players, saying that he “would ask any player that has left, or any player that would consider leaving, ‘have you ever had to apologize for being a member of the PGA Tour?’” In its first season, LIV spent $784 million on 8 events. Their revenue was “virtually zero.”

But despite LIV’s flop, they persisted—and the golf world was thrown into further chaos. The 11 banned golfers sued the PGA Tour for antitrust violations and the PGA counterclaimed for tortious interference. The Justice Department launched its own antitrust investigation into professional golf. But in May of 2023, over breakfast near Palazzo Ducale in Venice, Monahan and Al-Rumayyan came to terms with what, in hindsight, was likely inevitable.

Big Beautiful Deal

The announced agreement, described by former President Trump as “big, beautiful, and glamourous,” would combine the European Tour, LIV Golf, and the PGA Tour into one, new for-profit entity that would control the PGA’s commercial rights. The PGA Tour would retain its nonprofit status and control over how tournaments are played. LIV would reserve the exclusive right to invest in the company. Al-Ramyan would be the Chairman. All lawsuits would be dropped. Almost immediately, two Senate committees launched investigations into the merger so they could assess the “risks associated with a foreign government’s investment in American cultural institutions, and the implications of this planned agreement on professional golf in the United States going forward.”

“Golf is a sport in which players call penalties on themselves, whether an infraction is visible to others or not” – PGA Tour mission statement

“Any hypocrisy I have to own.” Jay Monahan, in walking back his initial comments about players leaving for LIV, reiterated that he felt like the merger was best for golf. But it is without a doubt problematic. From Saudi Arabia’s connection to 9/11 to the 2018 killing of Washington Post journalist Jamaal Kashoggi, there is no good way to frame Saudi involvement in American sport.

But here are the facts. The PGA Tour has raised $3.6 billion for charitable donations since 1938, and $1.6 billion since 2014. In 2021, it generated $173 million, or about 12% of total revenue—just 8 million away from cracking the top 100 of the most charitable organizations in the U.S. The NFL Foundation, in contrast, gave away $70 million in 2022, or about .5% of the NFL’s total revenue. Patagonia, who was widely praised for shifting ownership to a nonprofit and dedicating 100% of its profits to environmental causes, still gives away only about 6.6% of its revenue.

We still do not know much about the details of the merger or the future of the PGA Tour as a nonprofit. But if the PGA Tour either decides or is forced to give up its nonprofit status, it will no longer be required to publicly disclose its finances. With Al-Rumayyan serving as the chairman for the new joint entity, and PIF’s reputation for a lack of transparency, this would likely not be an optimal outcome.

Saudi Arabian investment in American culture is not coming—it is already here. But its benefits here of providing consistent wages for all professional golfers, making the game more available across the globe, and ultimately raising more money for charities, may be worth it. We should push for clarity, disclosure, and charitable giving when we can, in whatever form that may take.

(A.I.) Drake, The Weeknd, and the Future of Music

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By: Melissa Torres

A new song titled “Heart on My Sleeve” went viral this month before being taken down by streaming services. The song racked up 600,000 Spotify streams, 275,000 YouTube views, and 15 million TikTok views in the two weeks it was available. 

Created by an anonymous TikTok user, @ghostwriter977, the song uses generative AI to mimic the voices of Drake and The Weeknd. The song also featured a signature tagline from music producer Metro Boomin. 

Generative AI is a technology that is gaining popularity because of its ability to generate realistic images, audio and text. However, concerns have been raised about its potential negative implications, particularly in the music industry, because of its impact on artists. 

Universal Music Group (UMG) caught wind of the song and had the original version removed from platforms due to copyright infringement. 

UMG, the label representing these artists, claims that the Metro Boomin producer tag at the beginning of the song is an unauthorized sample. YouTube spokesperson Jack Malon says, “We removed the video after receiving a valid copyright notification for a sample included in the video. Whether or not the video was generated using artificial intelligence does not impact our legal responsibility to provide a pathway for rights holders to remove content that allegedly infringes their copyrighted expression.”

While UMG was able to remove the song based on an unauthorized sample of the producer tagline, it still leaves the legal question surrounding the use of voices generated by AI unanswered. 

In “Heart on My Sleeve”, it is unclear exactly which elements of the song were created by the TikTok user. While the lyrics, instrumental beat, and melody may have been created by the individual, the vocals were created by AI. This creates a legal issue as the vocals sound like they’re from Drake and The Weeknd, but are not actually a direct copy of anything. 

These issues may be addressed by the courts for the first time, as initial lawsuits involving these technologies have been filed. In January, Andersen et. al. filed a class-action lawsuit raising copyright infringement claims. In the complaint, they assert that the defendants directly infringed the plaintiffs’ copyrights by using the plaintiffs’ works to train the models and by creating unauthorized derivative works and reproductions of the plaintiffs’ work in connection with the images generated using these tools.

While music labels argue that a license is required because the AI’s output is based on preexisting musical works, proponents for AI maintain that using such data falls under the fair use exception in copyright law. Under the four factors of fair use, advocates for AI claim the resulting works are transformative, meaning they do not create substantially similar works and have no impact on the market for the original musical work.

As of now, there are no regulations regarding what training data AI can and cannot use. Last March, the US Copyright Office released new guidance on how to register literary, musical, and artistic works made with AI. The new guidance states that copyright will be determined on a case-by-case basis based on how the AI tool operates and how it was used to create the final piece or work. 

In further attempts to protect artists, UMG urged all streaming services to block access from AI services that might be using the music on their platforms to train their algorithms. UMG claims that “the training of generative AI using our artists’ music…represents both a breach of our agreements and a violation of copyright law… as well as the availability of infringing content created with generative AI on DSPs…” 

Moreover, the Entertainment Industry Coalition announced the Human Artistry Campaign, in hopes to ensure AI technologies are developed and used in ways that support, rather than replace, human culture and artistry. Along with the campaign, the group outlined principles advocating AI best practices, emphasizing respect for artists, their work, and their personas; transparency; and adherence to existing law including copyright and intellectual property. 

Regardless, numerous AI-generated covers have gone viral on social media including Beyoncé’s “Cuff It” featuring Rihanna’s vocals and the Plain White T’s’ “Hey There Delilah” featuring Kanye West’s vocals. More recently, the musician Grimes recently shared her support toward AI-generated music, tweeting that she would split 50% royalties on any successful AI-generated song that uses her voice. “Feel free to use my voice without penalty,” she tweeted, “I think it’s cool to be fused [with] a machine and I like the idea of open sourcing all art and killing copyright.”

As UMG states, it “begs the question as to which side of history all stakeholders in the music ecosystem want to be on: the side of artists, fans and human creative expression, or on the side of deep fakes, fraud and denying artists their due compensation.”

While the music industry and lawyers scramble to address concerns presented by generative AI, it is clear that “this is just the beginning” as @ghostwriter977 ominously noted under the original TikTok posting of the song. 

Art mishaps: Who Foots the Bill?

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Photo by Andrew Neel on Pexels.com

By: Nicholas Lipperd

One misstep at a museum social hour was all it took to destroy a $42,000 sculpture. Seconds after a museum patron accidentally bumped the pedestal, Jeff Koon’s porcelain “balloon dog” sculpture lay shattered on the floor. As onlookers watched in horror, the person who bumped it surely had one thing racing through her mind: will I have to pay for this? It was surely the same question asked by the parents of the twelve-year-old who tripped and accidentally put a fist through a $1.5 million painting in Taiwan. Exploring both practical effects and legal theories that apply to mishaps with museum patrons, this article comes to the conclusion that there is only minimal worry.

The majority of mishaps involving art end up being covered by insurance, but relying on insurance is never a straightforward and easy process. As damaged art claims are on the rise, the incentive for insurance companies to make claims a straightforward process continually shrinks. Further concerns arise if there are terms in the insurance contract that disclaim damage from patrons in certain instances. What if the museum is displaying the art for sale on consignment and does not obtain insurance, thinking to save a few pennies? This is certainly an option for museums, though states like Washington impose strict liability for damage on museums when selling art on consignment. While insurance removes most of the worry over museum mishaps, it is not a foolproof solution. 

Even if museums lack the safety net of insurance coverage, patrons likely need not fear the price tag of accidental damage. Any claims based on such damage will be governed by state tort law because museum patrons have traditionally been considered invitees. While many states have moved past such rigid categories in tort law with respect to third-party harm on public land, the categorization of invitee is still important to understand why liability will not likely fall on a museum patron.

A public invitee is a person who is invited to the property for a purpose for which the land is held open to the public. A museum thus owes a duty of care to museum patrons as invitees, and the museum is liable for injuries and damages caused by the condition of the museum. In layperson terms, this means if a museum failed to properly secure a priceless sculpture and a patron bumped it, it is the museum and not the patron who is responsible. This protection may not hold when the patron specifically recognizes a danger and fails to adhere to it, is trespassing, acts intentionally, or is otherwise acting negligently. The responsible museum-goer need not worry. Yet, these exceptions to invitee protection call in to question a few problematic situations.

If a patron’s actions in damaging art are truly intentional, there are not many defenses available. This is not particularly controversial; if one intends to destroy art, one should be held responsible. But when the action is intentional but the consequences are not, what then? The outcome may be uncertain. In one comical example, a museum janitor thought a contemporary art exhibit was simply trash and consequently “cleaned up” the exhibit by throwing it away. Luckily, the actions were viewed as an honest mistake by the museum, and she was not responsible for the cost. 

If museums have interactive exhibits, the patron is acting intentionally when interacting with the exhibit. When such exhibits invite the patron to physically engage with the art past merely pushing a button, greater risk of damage is inherent. Common sense would dictate that a patron who, hypothetically, breaks a lever on a piece of interactive art after being invited to push said lever, has not intentionally broken anything, despite the act being intentional. One legal theory that protects the patron here parallels the personal injury defense of assumption of risk. The museum is responsible for setting up any interactive exhibit and understands that the risk of damage is increased when inviting patrons to interact. While this protects patrons who act reasonably in such exhibits, a negligence standard may still be applied to their actions in fact-specific circumstances. 

Negligence may pose the most risk to museum patrons just as it does in many other social settings: when alcohol is present. It is increasingly common for museums to host special mixers or functions where alcohol is provided or available. “I just had one too many” is not a valid excuse in any setting and especially not at a museum. A patron’s actions will be judged as either responsible or negligent when compared to a sober adult in the same setting. While commercial hosts can be held liable for damages caused by the intoxication of the persons they serve if those persons are apparently under the influence of alcohol, this is fact-specific and not a protection to be relied upon when the liability for tens of thousands of dollars of damage may be called into question.

So if you plan on enjoying a nice afternoon at the museum, you shouldn’t spend much time worrying about covering the exorbitant cost of an unfortunate mishap. However, should you consider visiting a new interactive exhibit at your local glass museum after a few happy hour drinks, more caution is certainly warranted.