Volume 2, Number 1 Winter 2011 Contents ARTICLES Political Recoding of the Contemporary Celebrity and the First Amendment David Tan Antitrust & the Bowl Championship Series Nathaniel Grow Caught in the Copyright Rye: Freeing First Amendment Interests from the Constraints of the Traditional View Arlen W. Langvardt & Tara E. Langvardt Biting the Hand That Feeds: Why the Attempt to Impose Additional Performance Fees on iTunes is a Search for Dollars Without Sense Jesse A. Bland The Americans with Disabilities Act, The United States Anti-Doping Agency, and the Effort Toward an Equal Opportunity: A Case Study of the United States Anti-Doping Agency v. George Hartman Matter Travis Tygart & Anthony R. Ten Haagen Volume 2, Number 1 Winter 2011 Contents ARTICLES Political Recoding of the Contemporary Celebrity and the First Amendment 1 David Tan Antitrust & the Bowl Championship Series 53 Nathaniel Grow Caught in the Copyright Rye: Freeing First Amendment Interests from the Constraints of the Traditional View 99 Arlen W. Langvardt & Tara E. Langvardt Biting the Hand That Feeds: Why the Attempt to Impose Additional Performance Fees on iTunes is a Search for Dollars Without Sense 157 Jesse A. Bland The Americans with Disabilities Act, The United States Anti-Doping Agency, and the Effort Toward an Equal Opportunity: A Case Study of the United States Anti-Doping Agency v. George Hartman Matter 199 Travis Tygart & Anthony R. Ten Haagen EDITORIAL BOARD Editor in Chief Josh Podoll Executive Editor Executive Editor Executive Editoor Ben Glicksman Abigail E. Hackler Michael J. Mozes Submissions Chairs Production Chair Technical Chairs Jeremy Campbell Zachary Rosenthal Robin Achen David J. Kiefer Trisha Ananiades Annie Smith Michael Saltzman Faculty Liaison Online Editor Symposium Chair Jeffrey M. Monhait Brent Bernell Annie Villanueva Arrticle Editors Emilie K. Aguirre Sara Croll Eduardo Jose Casal Abraham Funk David J. Kiefer Kevin Lewis Jeffrey M. Monhait Brian Reider Zachary Rosenthal Matthew Vittone Dave Zucker Assistant Technical Editors Editors Robin Achen Trisha Ananiades Jeremy Campbell Brent Bernell Alexander Marcus Victoria Blohm Chandler Tanner Javier Peral Annie Villanueva Rose Yan Staff Daniel Adler William Brien Cynthia Chen Adam Derry Brandon Hammer Jenna Hayes Eugene Karlik Mike Kempinski Dov Kogen David Korn Adam L. Goodman Yen-Ju Judy Lai Hunter Landerholm Maia Lichtenstein Michael Lieberman Sara Lykken Michael McCauley Tom McMahon Yamile R. Nesrala Shafiq Poonja Matthew Rowen Sam Spears Anne E. Selden Gidon Slomowitz Austin Stack George Tsivin Kyle Watson Katie Weiss Justin Wiley Miles C. Wiley Harvard Journal of Sports & Entertainment Law Student Journals Office, Harvard Law School 1541 Massachusetts Avenue Cambridge, MA 02138 (617) 495-3146; [email protected] www.harvardjsel.com U.S. ISSN 2153-1323 The Harvard Journal of Sports & Entertainment Law is published semiannually by Harvard Law School students. Submissions: The Harvard Journal of Sports and Entertainment Law welcomes articles from professors, practitioners, and students of the sports and entertainment industries, as well as other related disciplines. Submissions should not exceed 25,000 words, including footnotes. All manuscripts should be submitted in English with both text and footnotes typed and double- spaced. Footnotes must conform with The Bluebook: A Uniform System of Citation (18th ed.), and authors should be prepared to supply any cited sources upon request. All manuscripts submitted become the property of the JSEL and will not be returned to the author. The JSEL strongly prefers electronic submissions through the ExpressO online submission system at http://www.law.bepress.com/expresso. Submissions may also be sent via email to [email protected] or in hard copy to the address above. In addition to the manuscript, authors must include an abstract of not more than 250 words, as well as a cover letter and resume or CV. Authors also must ensure that their submissions include a direct e-mail address and phone number at which they can be reached throughout the review period. Permission to Copy: The articles in this issue may be reproduced and distributed, in whole or in part, by nonprofit institutions for educational purposes including distribution to students, provided that the copies are distributed at or below cost and identify the author, the Harvard Journal of Sports & Entertainment Law, the volume, the number of the first page, and the year of the article’s publication. Whole Edition (Do Not Delete) 2/7/2011 9:49 AM Issue 1 1 Political Recoding of the Contemporary Celebrity and the First Amendment David Tan* ABSTRACT If the celebrity semiotic sign is recognized to represent the values of a majoritarian public, then the debate and opposition to these encoded ideals may be expressed by using the same signs in a “recoded” manner, and such counterpublic uses can therefore be categorized as “political speech.” Through an analysis of right of publicity claims, this Article suggests that in order for political speech to be given adequate breathing space, it would be beneficial to understand how the writings of Roland Barthes, Stuart Hall, Richard Dyer, and other cultural scholars can contribute to the articulation of a robust First Amendment defense regarding the uses of celebrity iconography. TABLE OF CONTENTS I. INTRODUCTION ...................................................................................... 2 II. OVERVIEW OF THE FIRST AMENDMENT ............................................... 8 A. Goals and Theories of the First Amendment ........................................ 8 B. Scope of Freedom of Speech ............................................................... 12 III. THE FIRST AMENDMENT DEFENSE IN A RIGHT OF PUBLICITY CLAIM ........................................................................................................... 17 A. Limited Guidance from the U.S. Supreme Court ................................ 19 B. Judicial Approaches ............................................................................ 21 1. Direct Balancing Approach in Russen and Cardtoons .................... 23 2. Transformative Elements Test in Comedy III ................................. 25 3. Predominant Purpose Test in Doe ................................................... 28 C. Interim Conclusions ............................................................................ 31 IV. IDENTITY POLITICS AND THE CELEBRITY: A CULTURAL STUDIES * PhD (Melbourne), LLM (Harvard), LLB BCom (Melbourne). Assistant Professor, Faculty of Law, National University of Singapore. I would like to express my heartfelt appreciation to Professors Andrew Christie and Andrew Kenyon at the University of Melbourne for their insight comments and advice on earlier drafts, and to acknowledge the research assistance of Matthew Dresden and Shawn Pelsinger. This article is based in part on a doctoral dissertation completed at the Faculty of Law, University of Melbourne. Copyright © 2011 by the President and Fellows of Harvard College. Whole Edition (Do Not Delete) 2/7/2011 9:49 AM 2 Harvard Journal of Sports & Entertainment Law / Vol. 2 PERSPECTIVE .................................................................................... 31 A. The Celebrity Personality as a Political Site of Interpretive Practice and Contested Meanings ..................................................................... 32 B. Using Celebrity Signs within First Amendment Doctrine ................... 37 1. Rethinking the Use of the Celebrity Sign as Political Speech ........ 37 2. Revisiting the Current Judicial Approaches .................................... 41 a. Direct Balancing Approach ......................................................... 44 b. Transformative Elements Test .................................................... 46 c. Predominant Purpose Test........................................................... 48 V. SUMMARY & CONCLUSIONS ................................................................. 50 I. INTRODUCTION The American flag is infused with symbolic values of nationhood.1 A burning cross connotes racial hostility emblematic of Ku Klux Klan ideology.2 The use of an image of a celebrity—like Oprah Winfrey or Tiger Woods—on a t-shirt may also possess sufficient communicative elements to convey “a particularized message . [clearly] understood by those who viewed it.”3 This Article argues that an expressive use of the celebrity persona, depending on its content, form, and context, may be categorized as “political speech” protected by the First Amendment. While links between the contemporary celebrity and political speech have been raised in existing scholarship that draws on cultural studies, this Article presents an original interdisciplinary contribution to First Amendment jurisprudence by utilizing cultural studies differently from most postmodern scholars who argue against the legal recognition of a right of publicity. Interdisciplinarity has become an influential force in legal studies, and its advantages have been well canvassed.4 However, some critiques can operate at a level of abstraction that does not allow any meaningful contribution to First Amendment doctrine, while others can commit to one to a reductionism that ignores key aspects of the First Amendment ethos.5 Rather than resort to interdisciplinarity to argue for greater limits on free speech rights,6 this Article proposes that free speech interests may be 1 E.g., Texas v. Johnson, 491 U.S. 397, 404–05 (1989);