Is China The Next Bollywood?

For those English language lovers, the word “synecdoche” (pronounced si-NEK-də-kee) is a figure of speech in which a word is used to represent the whole of something else. Thus, the city of Hollywood, California represents, figuratively, the whole of the film industry. For the Indian film industry, there is the cleverly devised “Bollywood,” an obvious play on the California city, with the B for Bombay in lieu of the H in Hollywood. Now that China looks to expand its already burgeoning film industry, perhaps the next figure of speech in the movie world will be Sinewood (pronounced SEE-nay-wood) from the prefix “sino” which refers to China or the Chinese people, and a definite play on the word “cine,” which means film.

China is currently the 2nd largest economy in the world, only behind the United States. And if things continue to go as they are in China’s film industry—last year the sale of tickets to movies in China grew a prodigious 50%—China box office revenues will top those of the United States by 2017. Long thought the consummate pirate of movies and DVD’s and a real threat to the worldwide film industry, China is now considered a welcome force on the movie-making stage.

So how has China become a respected leader in films rather than a confirmed pirate of them? To answer this question, a look at some recent developments is required. Unlike here in the US, China derives 80% of film-related revenues from the box office. The political move in the East from a communist society to a more democratic-socialist one has created an exploding middle class, and a hungry population of urbanites who relish going to the movies. In fact, this phenomenon is not only seen in China but in more and more countries as they adopt western styles. For example, from its early history in 1913 to present, Bollywood has become an international sensation, especially after director Danny Boyle’s 2008 blockbuster, Slumdog Millionaire.

Well, it certainly helps to have some major players like China’s richest man, Wang Jianlin, scooping up AMC Theatres and Legendary Entertainment, and Jack Ma of Alibaba, through Alibaba Pictures, getting behind the financing Hollywood hits. Given the extraordinary growth in box office, as well as the huge online user base in this Asian juggernaut—estimated at 650 million—China is set to become an international powerhouse in all aspects of film production, distribution, and licensing.

Not surprisingly, the move in this direction came about with the adoption of a film law aimed at reducing piracy and box-office fraud. With the imposition of strict penalties for these violations, China has sent a welcoming message to Hollywood, opening the door to enhanced relations and laying the groundwork for continued investment, theatre expansion, increased joint-ventures, and foreign acquisitions.

There are some problems, however, with this new expansion in the People’s Republic. For one, China is still intent on preserving its cultural identity. Although the country is no longer seen as a repressed, communist dictatorship, China has a long way to go before becoming completely westernized—if ever—from a cultural, economic, and ideological perspective. As much as the country is respected by its western counterparts for its economic dominance in the world market, China is still seen as a propaganda-driven behemoth that, if not checked, could seek world dominance. Insofar as its new film law goes, China makes clear that no movie should ever compromise sovereignty or national unity. Without doubt, the state still reserves the right to censor films and discipline any actors who engage in morally corrupt or unethical behavior. Indeed, China is still a nation bent on preserving every vestige of its long and rich cultural heritage.

As Chinese moguls continue to set sights on foreign film-making acquisitions, Hollywood lopes along, seeking to adjust to the new world economy and the prospects of increasing globalization. And while China continues to open 20 new theaters a day to accommodate the growing demand of movie lovers, and Wang Jianlin eyes his next possession, Hollywood and Bollywood realize they are no longer the only kids on the block.

Given these developments in the Chinese film industry, it would be no surprise if the United States woke up one day to see that it is not the only country with a Walk of Fame dedicated to celebrities. In fact, if China’s leaders can temper a little their staunchly held attitudes of control over film-making, while easing up on the forced provincialism that these beliefs impose, the People’s Republic might soon be known more for its blockbuster movies than its finely crafted silk.
Ben Gleitman is a second-year law student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal. He is an active member of the Entertainment Law Society and works in-house at a digital media company. Ben looks forward to a career in entertainment law.

Lost in Wonderland: How Courts and the USPTO Continue to Struggle with Defining Patentable Subject Matter in a Post-Alice World

In the last few years US patentability standards have remained unclear, and in some cases, become even more confusing. With the November election looming, a lame duck session following, and the signing of the TPP a few months prior, now is the time to act and resolve this uncertainty. With such an uncertain market, patent applicants and holders alike are left with lack of motivation to invent, and fear for the protection of their inventions, which they spent so much time and money to invent and protect.

The complication of patentable subject matter under 35 USC §101 began over six years ago under Bilski v. Kappos.[1] With Bilski, the Court almost eliminated business method patents, and nearly overturned the previous “useful, concrete, and tangible result” test from State Street Bank.[2] The Bilski case left in-tact the machine-or-transformation test, while also limiting it as only one method in determining patentability of a process. By not defining what constitutes a transformation, and not leaving practitioners with a clear test to apply, Bilski left a lot of questions unanswered.

In 2012, Mayo[3] made its way to the Supreme Court, once again asking for the Court’s input on patentability, except this time in the diagnostic method context. Mayo laid a new two-part test for determining patentability: first, is the patent directed to a patent ineligible concept?[4] If the patent is directed to a patent ineligible concept–such as an abstract idea–then there is a question of whether the claims contain significantly more than just the patent ineligible concept.[5] With this test, diagnostic method patents became very hard to obtain or uphold as valid, leading to much invalidity litigation for patents once thought to be well protected. As for the Mayo test’s applicability to other types of patents and future use of the test, the Supreme Court once again remained silent.[6]

The next patentability case came to the Supreme Court only a year later, but did not offer any real tests going forward. Ass’n for Molecular Pathology v. Myriad Genetics, Inc.,[7] drew a patentability line on gene patents, holding naturally occurring DNA patents ineligible while declaring non-naturally occurring DNA patents eligible. The Court left open the question of patentability for alterations of generic materials, or methods involving generic materials.[8] Despite this categorical distinction added to patentability, no real test was endorsed, and confusion remained in the patent community.

Unfortunately, the Court’s most recent attempt to clarify what constitutes patentable subject matter did not help to clarify things, and struck a critical blow to software and business method patents. The case was Alice Corp. v. CLS Bank Int’l,[9] and it led to what many consider the US Supreme Court’s “ . . . most impactful decision of the 2013-2014 term.”[10] Alice invalidated the financial software patents at issue, and proved to practitioners that the Mayo Test would apply to patent eligibility questions going forward.[11] Furthermore, the Court found that mere recitation of well-known financial principles on a generic computer is not enough to transform an abstract idea into a patent eligible concept.[12] As litigation sprung across the country, patent holders saw wide-spread invalidation of software and business method patents.[13] In 2014, the USPTO released a set of “Interim Guidelines for Subject Matter Eligibility,”[14] which attempted to incorporate the language of Alice and other prior Court decisions into an examiner’s patentability analysis. With these new guidelines came a widespread rejection of new business method, software, and particularly, financial software patent applications under 35 USC §101. With this added confusion, Courts continued to struggle to find any patents of this type valid,[15] until DDR Holdings, LLC v.,[16] in which patents directed at solving Internet based challenges were found to be valid, despite being used by a business. This case premised itself by narrowing its own scope, and making sure the patentability analysis was very fact specific to its case.[17]

This case may have at least in part helped prompt the 2015 USPTO Update on Patentability Guidelines,[18] which in turn helped calm the patent market. It was no longer near impossible to get a business method or software patent, and the USPTO even provided examples of patent ineligible ideas v. patent eligible ones. Despite this, the view in the courts seemed less optimistic, with widespread invalidation of these patents still occurring.

The courts finally found another exception to invalidity in Enfish v. Microsoft.[19] Enfish found software patents to be non-abstract, essentially skipping the 2nd prong of the Mayo test, since “Software can make non-abstract improvements to computer technology . . . .”[20] Although this improved the outlook for patents of this type, this was not the golden key to patentability that many hoped for, as it was caveated by TLI Communications v. AV Auto.[21] TLI again invalidated patents of this variety, finding what the court called patents comprising classifying and storing digital images, to be abstract ideas without an added inventive concept to transform the abstract ideas into patentable inventions.[22] In order to clarify the apparent sharp contrast between the two cases, the USPTO again issued Updated Subject Matter Guidelines, and even a memo discussing the two cases.[23] Viewing the discussion in the memo comparing the cases, there may still be a door to patentability via Enfish, despite being somewhat narrowed following the TLI case.

The final case worth mentioning is Rapid Litigation v. CellzDirect,[24] in which a distinction was drawn between laws of nature and methods involving those laws of nature. The patents for freezing a class of liver cells was found to be patent eligible. The material in the claims was not directed to a patent ineligible concept of the liver cells surviving a freezing and thawing process, but rather to the inventive process of performing this action itself.[25] Again the USPTO issued a memo outlining its views on this case, and a related Sequenom v. Ariosa case.[26]

Despite all of this recent litigation, the patentable subject matter question remains unclear. In particular, software and business method patents are still in limbo, and diagnostic methods seem to be currently patent ineligible. As for the USPTO, they are currently seeking further input from the public on patent subject matter eligibility.[27] The USPTO will host two round-table discussions, one in November and one in December, in order to discuss these issues.[28] Determining patentable subject matter is a major issue that must be resolved in order to keep the patent system intact, and keep the US as a world leader in patent law and innovation. With the current state of things, people such as David Kappos, ex-director of the USPTO, have gone so far as to call upon Congress to completely repeal 35 USC §101.[29] Since the courts and the USPTO have been attempting to define patentable subject matter, it may be time for Congress to add their input to the discussion. The lame duck session following the November election may provide this opportunity. Traditionally, the lame duck session has provided opportunity for controversial issues to be raised, and increasingly, Congress is relying more heavily upon this period, as accountability is traditionally lower at this time.[30]

Now, while a complete repealing of 35 USC §101 may be an extreme measure, a reexamination of the language of the statute is not so extreme. Perhaps the US can look to broaden the patentability standard by taking some of the broader patentability language from the Trans-Pacific Partnership, which the US signed in February of 2016.[31] Member countries were given two years to implement domestic laws implementing TPP policy. Even if Congress cannot come to terms with the TPP, they may still be able to enumerate a test within a statute, or broaden the language of 35 USC §101, eliminating some of the confusing judicially created exceptions to patentability. With all of these factors happening in the next couple of years, now is the time to act and bring more certainty to the patentability doctrine.


Ryan Thorne is a second-year law student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal. He has an electrical engineering background and is looking forward to a career in patent litigation and prosecution after graduation.

[1] Bilski v. Kappos, 561 U.S. 593 (2010).

[2] State St. Bank & Trust Co. v. Signature Fin. Group, Inc., 525 U.S. 1093 (1999).

[3] Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012).

[4] Id. at 1293–95.

[5] Id. at 1294.

[6] See generally id.

[7] Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (U.S. 2013)

[8] Id. at 2119–20.

[9] Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014).

[10] Kevin R. Casey & Kevin B. Anderson, The Supreme Court’s six-pack of patent cases, 27.3 Intell. Prop. & Tech. L. J. 9, 9–13 (2015).

[11] Jesse Adland, Alice Corp v. CLS Bank International: challenges in identifying patentable subject matter, 26.12 Intell. Prop. & Tech. L. J. 20, 20–24 (2014).

[12] See generally Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014).

[13] See Where Do We Stand One Year After Alice?, Law360 (June 17, 2015, 8:27 PM),


[15] See, e.g.,

[16] DDR Holdings, LLC v., L.P., 773 F.3d 1245 (Fed. Cir. 2014).

[17] See generally id.


[19] Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016).

[20] Id. at 1335.

[21] TLI Communs. LLC v. AV Auto., L.L.C. (In re TLI Communs. LLC Patent Litig.), 823 F.3d 607 (Fed. Cir. 2016).

[22] See generally id.


[24] Rapid Litig. Mgmt. v. CellzDirect, Inc., 827 F.3d 1042 (Fed. Cir. 2016).

[25] Id. at 1050.


[27] Dennis Crouch, USPTO Seeks Further Public Input on Patent Subject Matter Eligibility, PatentlyO (October 14, 2016),


[29] Daniel Cole, Should Section 101 of the Patent Act be Removed, IPWatchdog (June 23, 2016),

[30] James Wallner & Paul Winfree, The Implications of Regular Lame-Duck Sessions in Congress for Representative Government, Heritage,

[31] Trans Pacific Partnership trade deal signed in Auckland, BBC (Feb. 4, 2016),

The History of FCC Exclusivity Rules

In light of a recent FCC proposal to abrogate the exclusivity rules which prevent a cable provider from reproducing a program where a broadcaster has obtained exclusive rights, this post will discuss the history and justification of these rules.

A. The Early History of Non-duplication and Syndicated Exclusivity Rules

Broadcasters cannot transmit another broadcaster’s signal without consent.[1] Originally, this restriction was not applied to community antenna television (“CATV” or “Cable”) because the Federal Communications Commission (“FCC”) did not believe that CATV fell within its jurisdiction. This was because CATV did not use public airwaves to transmit its signal. Eventually, the FCC feared that CATV’s impact on broadcasters could be great, and as a result, the Supreme Court held that the “F.C.C. could exercise jurisdiction over cable to the extent that such oversight was ‘reasonably ancillary’ to its duties to regulate broadcast television.”[2]

With this assertion of jurisdiction, the FCC required CATV to obtain consent from a broadcaster before retransmitting a signal.[3] Broadcast stations would not grant retransmission consent because cable was broadcast television’s main competitor.[4] This freeze forced cable companies to bargain, supporting copyright legislation in exchange for regulations allowing cable’s growth in major markets.[5] The 1971 “Consensus Agreement” resulted in the FCC adopting additional measures to foster cable’s growth while protecting the interests of broadcast television and copyright holders.[6] In particular, the FCC now requires cable operators to delete programs from signals imported into major markets on the request of local broadcasters who had purchased exclusive rights to the programs.[7] Thus, the first network non-duplication and syndicated exclusivity rules were put into place.

B. Copyright Payments

The issue whether or not copyright protections extended to cable was first addressed in Fortnightly Corp. v. United Artists Television, Inc.[8] There, the court held that cable providers fell within the classification of a viewer as opposed to a broadcaster, and therefore did not violate a copyright owner’s rights when retransmitting their works.[9] This was affirmed in Teleprompter Corp. v. Columbia Broadcasting System.[10] The Teleprompter court acknowledged the economic impact cable had on the market,[11] but insisted upon a legislative solution to the economic dilemma broadcasters and copyright holders faced with respect to cable providers.[12] The belief relied on by the Teleprompter courtthat the commercial relationship between broadcasters and program suppliers (copyright holders) was not harmed by cable retransmission—was finally addressed in the above mentioned “Consensus Agreement”.[13]

As stated, this agreement involved all the major industry players and placed limited copyright liability on cable providers, who agreed to voluntary regulation under the FCC.[14] The copyright legislation the Consensus Agreement referred to was later embodied in the Copyright Act of 1976.[15] In the Act, Congress provided that the retransmission of a broadcasted performance was subject to copyright protection.[16] Additionally, Congress established the compulsory license regime.[17]

C. The Later History of Network non-duplication and Syndicated Exclusivity Rules

In an effort to protect local broadcasters and encourage program diversity, the FCC enacted rules regarding: (a) a distant signal importation limitation; (b) syndicated rules; (c) and must carry rules.[18] These rules, in conjunction with the compulsory license regime, restricted cable’s use of copyrighted works and more evenly distributed the value of a program between the program creator, broadcaster and cable provider.[19] Thus, “the value of the retransmission of works on cable was captured through the value of exclusivity if the work was not retransmitted, or by the compulsory copyright royalties if it was.”[20]

However, the exclusivity rules were repealed by the FCC in 1980,[21] leaving the cable industry free from regulation while still paying less than market price for copyrights under the compulsory license. By 1988, Cable became such a dominant force in the market place that the FCC, having “a realization of the role which copyright value plays in balancing the entire framework”, reintroduced the exclusivity rules.[22]

The FCC determined that the deregulation of the cable industry allowed cable companies to, under the compulsory license, “obtain programming at a reduced rate, which was then retransmitted in direct competition with broadcasters.”[23] The result, the FCC argued, was that the compulsory copyright gave cable companies an unfair advantage and hampered the development of diverse programming.[24]

To find a better balance among all the parties and promote competitiveness, the Cable Television Consumer Protection and Competition Act of 1992 “directly confers on broadcasters the right to retransmission compensation, while the cable compulsory license provision of the Copyright Act prevents the copyright owners from directly receiving the value of retransmission from cable operators.”[25] Congress intended for this to allow broadcasters and cable providers to remain competitive and establish the actual value of retransmission.[26]

D. Latest FCC News

Most recently, with the passage of the Satellite Television Extension and Localism Act Reauthorization, the FCC has issued an order proposing to eliminate exclusivity rules.[27] Many opposed to this action fear that if the exclusivity rules are eliminated while the compulsory license remains, cable providers will “be given a free ride to retransmit copyrighted material without paying for it and in disregard of exclusive rights that broadcasters have bargained for.”[28] However, this argument ignores the creation of retransmission consent regime of the 1992 Cable Act.[29] Now, the FCC argues, the exclusivity granted by these rules is managed through contract, abrogating the need for such rules.


Stuart Anello is a second year law student at Cardozo. Before law school, Stuart was the guitarist for Navy Band Northeast, performing throughout the northeast 14 states. Now a law student, Stuart works for ASCAP and hopes to pursue a career advocating for songwriters and performers.

[1] 47 U.S.C. § 325 (1988).

[2] Patrick Murphy, Retransmission Consent: A Mixed Signal for Cable Copyright, 17 Colum.-VLA J.L. & Arts 237, 240 (1993) at 240; see also United States v. Sw. Cable Co., 392 U.S. 157 (1968).

[3] See Notice of Proposed Rulemaking and Notice of Inquiry (CATV) 2 F.C.C.2d 417 at 432 (1965); see also Note, Jacqueline A. Layton, The Right to Cable Royalties and the Divisibility of Copyright: Understanding the Interaction, 74 Minn. L. Rev. 1137 (1990).

[4] Id. at 1143 n. 42; See also Note, Lorna Veraldi, Cable Television’s Compulsory License: An Idea Whose Time Has Passed?, 25 N.Y.L. SCH. L. REV. 925 at 933 (1980).

[5] Id. at 934; see also Cable Television Report and Order, 36 F.C.C.2d 143 (1972) (stating that “now a consensus has been hammered out by the principal industries themselves and they have agreed to support legislation that resolves the remaining aspect of the copyright issue, that of copyright payments.”).

[6] 36 F.C.C.2d at 165-68; see also Veraldi, supra note 4.

[7] Veraldi, supra note 4 at 935.

[8] Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968).

[9] Murphy Supra, note 2.

[10] Teleprompter Corp. v. Columbia Broadcasting System, 415 U.S. 394 (1974).

[11] Murphy Supra, note 2.

[12] See id.; see also Columbia Broadcasting System, 415 U.S. at 414.

[13] Murphy, Supra, note 2.

[14] Id.

[15] Id.

[16] 17 U.S.C. §111(b) (2014).

[17] 17 U.S.C. §111(d) (2014).

[18] Id.

[19] Id.

[20] Id. at 251.

[21] In the Matter of Cable Television Syndicated Program Exclusivity Rules in the Matter of Inquiry into the Econ. Relationship Between Television Broad. & Cable Television, 79 F.C.C.2d 663, 665 (1980) (ordering to delete exclusivity rules and not adopt cable retransmission consent.).

[22] In the Matter of Amendment of Parts 73 & 76 of the Commission’s Rules Relating to Program Exclusivity in the Cable & Broad. Indus., 3 FCC Rcd. 5299 (1988).

[23] Murphy Supra, note 2 at 254.

[24] In the Matter of Compulsory Copyright License for Cable Retransmission, 4 FCC Rcd. 6562 (1989).

[25] Murphy Supra, note 1; see also Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992) (codified in scattered sections of 47 U.S.C.).

[26] Murphy, supra note 2 at 263-64.

[27] Tom Wheeler, Upgrading Media Rules to Better Serve Consumers in Today’s Video Marketplace, (Aug. 12, 2015, 12:00 PM),

[28] Bill Lake, The Time Has Come to End Outdated Broadcasting Exclusivity Rules, FCC.Gov (Sept. 22, 2015),

[29] Id.

Boycotting the Super Bowl: NFLPA’s Opportunity to Right Contractual Wrongs and Obtain Bargaining Power

Football is by far America’s most popular sport.[1] The National Football League’s (“NFL”) revenue is projected to be $13.3 billion in the 2016 season,[2] and has grown by nearly 50% since 2010.[3] This is more than any of their competing sports leagues. As of July 1, 2016, Major League Baseball (“MLB”) grosses the second highest revue total at $9.5 billion, followed by the National Basketball Association (“NBA”) at $4.8 billion, and the National Hockey League (“NHL”) at $3.7 billion.[4]

What’s more impactful about the NFL’s revenue figure is that the NFL has substantially fewer opportunities to monetize their success due to a shorter season than their competing leagues. At sixteen regular season games per team, NFL organizations play substantially fewer regular season games than the MLB’s 162 and both the NHL and NBA’s 82.

Yet, despite being the nation’s highest grossing and most popular sport, NFL players make, on average, less money per season than the NBA, MLB, and NHL.[5] NBA players receive the highest average salaries at $5.15 million per year, followed by MLB players at $3.2 million, NHL players at $2.4 million, and NFL players at $1.9 million.[6]

Due to football’s physical gameplay, there are substantially greater health risks to its players as compared to the other major sports leagues.[7] In particular, Chronic Traumatic Encephalopathy (“CTE”) poses a severe risk to football players.[8] In September 2015, it was revealed that 96% of deceased professional football players tested positive for CTE.[9] CTE is a progressive degenerative brain disease that results in individuals that have a history of repeated brain trauma.[10] According to the National Institute for Occupational Safety and Health, professional football players are also more likely to die from Alzheimer’s disease and Amyotrophic Lateral Sclerosis (“ALS”).[11]

While the risks of playing football are substantial, the fiscal rewards pale in comparison to those of other sports. Due to the severe physical impact football has on the human body, NFL players typically have a career of just 3.2 years.[12] Due to short career times, players have a very limited window to reap fiscal rewards during their NFL playing career, which makes labor strikes incredibly difficult. According to a 2011 study of all 2010 NFL rosters,[13] just 600 out of the leagues 1,888 players accrued five or more years in the NFL, with just 134 players accumulating 10 years or more in the league.[14]

Placed in a precarious position to fight for players’ right to guaranteed contracts, increased minimum contracts, and added player safety precautions, the National Football League Players Association (“NFLPA”) must look to the 1994-1995 MLB strike as an example of how to obtain bargaining power and ensure the physical and fiscal protections of their players.

During 1994 and 1995, MLB players instituted an in-season strike, which resulted in the cancellation of the last month of the regular season, the entire postseason, and the World Series.[15] This was the first time the World Series was cancelled in 90 years and resulted in nearly a $1 billion loss for management.[16] While damaging to teams and players who were chasing championships and individual records,[17] the strike was instrumental in instituting revenue sharing among the teams.[18] Now, there are over 120 MLB players making $10 million per season or more, all in guaranteed contracts.[19]

Section 4(a) of the Norris-LaGuardia Act (“NLGA”) entitled “Enumeration of specific acts not subject to restraining orders or injunctions” provides that no federal court shall have jurisdiction to issue a restraining order, temporary injunction, or permanent injunction for any cases evolving from a labor dispute for ceasing or refusing to perform any type of work in relation to employment.[20] Consequently, the Eighth Circuit held that the Act can be a tool for both employees and employers in labor disputes.[21]

With legislative and historical support, I believe the players should boycott the Super Bowl to obtain bargaining power in their fight for positive change and player protections. The Super Bowl is unlike any event in American television. The 2015 Super Bowl was watched by more than 114 million people[22] and the cost for a 30 second television ad was $4.5 million.[23] Under such circumstances, advertisers and the media conglomerates that pay the NFL billions of dollars a year are the institutions with the greatest power in this labor relationship. However, such an impactful, poignant, and public display of labor unrest will undoubtedly project these transgressions to the forefront of public discussion and bring to light the troublesome relations that exist in the NFL today. While contempt and criticism will be immense, the 1994-1995 MLB strike demonstrates that an opportunity for greater players’ rights is available to the NFLPA and should be utilized.


Matthew LoBello is a second-year student at the Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal. He is an active member of the Business Law Society and is interested in a career in corporate law.

[1] Darren Rovell, NFL most popular sport for 30th year in row, ESPN (Jan. 26, 2014),
[2] Id.
[3] Jason Belzer, Thanks To Roger Goodell, NFL Revenues Projected To Surpass $13 Billion In 2016, Forbes (Feb. 29, 2016, 11:10 AM),
[4] Which Professional Sports Leagues Make the Most Money? (July 1, 2016),
[5] Tony Manfred, Two Charts That Expose How Badly NFL Players Get Paid, Business Insider (Sep. 5, 2013, 1:12 PM),
[6] Id.
[7] Kevin Voight, 11 most dangerous sports your child can play, Fox News Health (June 27, 2014),
[8] Evan Wexler, How CTE Affects the Brain, Frontline (Oct. 8, 2013),
[9] Alex Reimer, Do NFL Fans Care About Player Safety? Forbes (Jan. 12, 2016, 2:09 PM),
[10] What is CTE? Boston University CTE Center,
[11] Joshua Wortman, Pro Football Players Have 4-Times Greater Risk of ALS and Alzheimer’s, Breaking Muscle,
[12] Tom Ziller, Why NBA players get paid so much more than NFL stars, SB Nation (July 2, 2016, 11:47 AM),
[13] Jason Lisk, NFL Career Length and Average Age versus Average Life Expectancy, The Big Lead (April 22, 2011, 2:30 PM),
[14] Id.
[15] Associated Press, 1994 strike was a low point for baseball, ESPN, (Aug. 10, 2004),
[16] Id.
[17] Matt Snyder, 1994 MLB strike cost several players chances at history, CBS Sports (Aug. 11, 2014),
[18] See Associated Press, supra note 15.
[19] USA Today,
[20] Norris-LaGuardia Act, 29 U.S.C.A. §104 (1932).
[21] Sam Farmer, NFL lockout to remain in place after court decision, The Baltimore Sun (July 8, 2011, 5:02 PM),
[22] TV viewership of the Super Bowl in the United States from 1990 to 2016, STATISTA,
[23] Id.


Video Game Studios: Be Mindful of What You Say at E3

No Man’s Sky is an action-adventure survival video game in which a player is free to explore an uncharted universe comprised of 18 quintillion planets, nearly each one unique with procedurally generated terrain, flora, and fauna.[1] The game, published by Hello Games (HG) and distributed by Sony Interactive Entertainment America (SIEA), has been widely reviewed since its release in August, receiving such praises as “magnificent,” “unprecedented,” “incredible,” and “an experience unlike anything a game has ever delivered, or one that we’re ever likely to see again.”[2] With such rave reviews, it may be surprising to learn that within weeks of its release, many disappointed customers returned the game and sought refunds for digital copies.[3]

Following NMS’s release, outraged consumers and reviewers in the U.S. immediately commenced discussion in public forums regarding potential false advertising claims against HG and SIEA.[4] In the U.K., the Advertising Standards Agency received actual complaints from citizens since NMS’s release and finally responded to these claims in October by commencing an investigation into HG.[5] So, why would consumers file suits against HG and SIEA over an “incredible” and “unprecedented” product? The answer may lie in a 2014 press conference at E3.

The Electronic Entertainment Expo, known as E3, held in Los Angeles each year.

The Electronic Entertainment Expo, known as “E3,” is an annual trade fair held by the Entertainment Software Association, open only to those connected to the video game industry and members of the press. Video game developers attend E3 to showcase the most anticipated and groundbreaking announcements for upcoming games and hardware, as it is easily the most important show in the industry. By building up hype at E3, many video game titles and products can later gain, not only a following, but also dedicated customers by means of pre-orders up until their release dates.  In this sense, products are often sold, both literally and figuratively, months or years before they hit store shelves or digital download servers. Further, larger production and marketing budgets have necessitated reaching broader audiences. To garner the attention of that audience, marketing messaging lead times have grown increasingly longer in order to build the necessary hype to stand out in the crowded marketplace. To that end, developers and publishers have turned to making promises of features and key selling points of their products throughout production. These promises can and have sometimes led to legal disputes.

In the summer of 2014, SIEA (then, Sony Computer Entertainment America) and HG announced NMS by screening a gameplay trailer and holding a press release at E3, where their woes may have began.[6] As the name suggests, gameplay trailers are often purported to display actual gameplay footage—what users are likely to see and hear during their experiences playing a game. Consumers and critics allege that the NMS trailer shown at E3, which supposedly showcased a world which was procedurally-generated live at the event, had actually been manufactured beforehand.[7] A polished and artificial demonstration is not new to video game consumers. When attempting to demonstrate aspects that are allegedly randomized or otherwise unpredictable, however, it contradicts the entire nature of the presentation when a developer uses pre-built segments of the game. This deception was one of consumers’ initial criticisms.

At E3 and thereafter, a spokesman for HG continued to publicly describe captivating features of NMS that have since been found to be absent or incorrectly described. For example, developers described a multiplayer experience in a universe so vast that players were unlikely to encounter one another by chance. However, players testing this theory discovered that they were unable to meet at all.[8] In fact, after the release of the game, consumers in Europe had discovered that the multiplayer designation icon on NMS packaging had been covered with stickers—in essence, removed.[9] Since its release, NMS players have identified over forty-three instances of undelivered features, complete with links to the sources of each claim.[10]

A sticker removed from No Man Sky's packaging, covering the game's multiplayer designation.
A sticker removed from No Man Sky’s packaging, covering the game’s multiplayer designation.

Though no one has yet brought forth a claim in the U.S. against HG or SIEA for NMS advertisements, consumers in the past have already done so under similar circumstances.

False Advertising Claims Against Video Game Companies

Ladore v. Sony Computer Entertainment America, LLC.[11]

In 2014, plaintiff Douglas Ladore, purchaser of the game Killzone: Shadow Fall, brought a class action suit against Sony Computer Entertainment America, alleging fraudulent or misleading representations of in-game multiplayer graphics. Killzone was advertised to render graphics in native 1080p in both single and multiplayer modes of gameplay (one such advertisement included a gameplay trailer at E3).[12] Though it displayed in 1080p in both modes, the engine only rendered individual frames in 1080p in the single player mode. In multiplayer mode, however, developers used methods such as interpolation[13] to make it appear that the resolution was the same. Ladore alleged that Killzone’s actual multiplayer graphics did not measure up to marketing claims and that, having been exposed to such claims and reading the same claims on the product’s packaging, he had relied on them in his decision to make the purchase. He alleged that, if not for those claims and the accompanying packaging, he would not have purchased Killzone or would otherwise have paid less for it.

Sony filed to dismiss the case under F.R.C.P. 12(b)(6), for failure to state a claim, which the court refused. Ladore’s claim met requirements for a false advertising claim;[14] however, the court found that it failed to allege a non-economic loss suffered, as is required under California’s economic loss rule.[15] The case was settled in May 2015.

Perrine v. Sega of America, Inc.[16]

Two named plaintiffs sought a class action certification to represent consumers who pre-ordered Aliens: Colonial Marines (ACM) against Sega and Gearbox. As with issues related to NMS, these claims were in relation to allegedly misleading demo versions of ACM presented at E3 in 2011. Plaintiffs alleged that Sega and Gearbox developed an advanced version of the game that was non-retail and presented to consumers as actual gameplay. This version, they alleged, implemented use of artificial intelligence and a game engine than in the delivered product itself.

Sega negotiated a $1.25 million settlement with Perrine and Locke that is contingent on the court’s grant of class certification for the plaintiff. Meanwhile, Gearbox moved for dismissal. The court found too many complications in the complaint to grant class certification, including the fact that plaintiffs could not determine exactly which advertisements purported “actual gameplay,” and that it would be too difficult to identify consumers who had been deceived by the advertisements. Plaintiffs agreed to dismiss Gearbox with prejudice, while Sega’s potential settlement remains tentative.[17]

McMahon v. Take-Two Interactive Software, Inc.[18]

Take-Two Interactive Software, Inc. and Rockstar Games, Inc. faced legal action for advertisements and packaging for Grand Theft Auto V (GTAV), which announced that the game would feature extensive multiplayer features. These features, however, were unavailable for several weeks following the game’s release date.[19] Due to this discrepancy, the plaintiffs McMahon and Bengston brought forth a class action lawsuit, asserted under California’s Unfair Competition Law and False Advertising Law. The district court dismissed the suit, finding that the defendants never claimed the online features would be available immediately to all users and that consumers suffered no substantial loss. The appellate court reversed and remanded the decision, finding instead that the advertising claimed it would potentially be unavailable to some users, when it was not actually available to any users at all. They noted that, “The district court erred by failing to construe plaintiffs’ allegations that these representations were misleading in the light most favorable to plaintiffs.”[20] The plaintiffs may now file an amended complaint.

What Does This Mean for Video Game Producers?

 Implications for Future Litigation

Several cases like these have been brought forth against multiple video game companies both in the U.S. and abroad.[21] Often, as is demonstrated by those discussed above, if such cases are not dismissed by the court they are dismissed by the parties themselves and settled outside of court. Though such settlements may rob future litigators of precedent, these cases provide guidance by highlighting several considerations for future litigation. First, as seen in Ladore, claims under tort law are likely to fail due to the California economic loss rule. Second, judges in Perrine and McMahon commented on complications related to class certification—it is difficult to identify the classes of consumers who have been duped by specific advertisements. Incidentally, this may be the case with NMS,[22] as the court arguably cannot identify which users’ purchasing decisions were influenced by their ability to find one planet amongst 18 quintillion in the NMS universe featuring details showcased in advertisements. In addition, whether video games can be considered a “good” under the Consumers Legal Remedies Act is up for debate, as it was in both Perrine and McMahon.

Video Game Companies’ Unique Relationships with Consumers

Companies in the video game industry do something that is virtually undone in any other industry: throughout the production cycle, they share explicit details with consumers on dozens of aspects of an unreleased product. Such details can include gameplay modes, plot, art, actual gameplay footage, technological specifications and potential technological advances. This inside look generates the type of excitement and loyalty that can garner record-breaking profits.[23] However, because of the nature of these products—their existence within the realm of both art and technology, which require creativity and innovation with unpredictable results—unexpected changes to the product invariably must occur. Video game consumers are used to polished trailers, dropped features during production, and delayed releases; however, “the culture of truth-bending gets worse with every successive E3,”[24] giving rise to dissatisfaction. This, combined with the pre-order culture associated with gaming, places these companies in a precarious position in regards to false advertising.

While the legitimacy of such claims is up for debate, prominent lawyers who specialize in legal issues related to video games such as Ryan Morrison and Stephen McArthur, warn that “the biggest impact here will be that it sends a message to other game companies to be careful about what they put in their trailers and not to oversell their games with unrealistic ‘gameplay footage.’”[25]

 Heeding the Warning

Since the onslaught of consumer backlash, HG, SIEA, and Steam have taken steps to alleviate the situation with NMS. Such measures include: providing refunds, even to those who have downloaded the game digitally and have played over 50 hours, changing packaging, and revising the game description on the Steam online store. It is unclear whether this will be enough to counteract the damage and dissuade consumers from bringing forth claims in the US.

Regardless of what occurs in regards to McMahon, Perrine, and No Man’s Sky, the message is clear. Video game developers: Be careful what you promise, especially at E3.


Vida Djaghouri is a second-year law student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal. She is an active member of the community, serving as president of both the American Constitution Society and Cardozo’s Law and Internet Club. Her focus is on intellectual property and privacy and data law issues. Vida is an avid gamer and is particularly interested in legal issues related to the industry.





[1] No Man’s Sky Website.

[2] Reviews for No Man’s Sky. Metacritic.

[3] Erik Kain. No, Getting A ‘No Man’s Sky’ Refund Doesn’t Make You A ‘Thief.’ Forbes. Sept. 1 2016,

[4] No Man’s Sky Discussion Board. Steam Community.

[5] Amanda Hudgins. No Man’s Sky and the Trickiness of Advertising a Procedurally-Generated Game. Killscreen. Oct. 04, 2016.

[6] No Man’s Sky Gameplay Trailer | E3 2014 | PS4. YouTube.

[7] Shane Corfield. Hype, False Advertising, and Refunds: A Look at the No Man’s Sky Controversy. Aug. 28, 2016. Informed Pixel.

[8] Tom Marks. Two No Man’s Sky players manage to meet, but apparently can’t see each other. PC Gamer. Aug. 09, 2016

[9] Graham Smith. No Man’s Sky Limited Edition Boxes Have Sticker Covering “Online Play” Icon. Aug. 11, 2016. Rock Paper Shotgun.

[10] Reddit user “Cymen90.” Where’s the No Man’s Sky we were sold on? A BIG list of things that are missing with sources, links and quotes. Also, dubious advertisement (x-post from r/nomansskythegame). Sept. 2016. Reddit.

[11] Ladore v. Sony Computer Entm’t Am., LLC, 75 F. Supp. 3d 1065 (N.D. Cal. 2014)

[12] A more technical discussion of the distinctions between rendering and display resolutions within the context of this case:

[13] Definition of interpolation: In computer graphics, it is the creation of new values that lie between known values. For example, when objects are rasterized into two-dimensional images from their corner points (vertices), all the pixels between those points are filled in by an interpolation algorithm, which determines their color and other attributes (see graphics pipeline). Another example is when a video image in a low resolution is upscaled to display on a monitor with a higher resolution, the missing lines are created by interpolation. In a digital camera, the optical zoom is based on the physical lenses, but the digital zoom is accomplished by algorithms (see interpolated resolution). From:

[14] 15 U.S.C. § 1125

[15] Seely v. White Motor Co., 63 Cal. 2d 9, 403 P.2d 145 (1965). “In actions for negligence, manufacturer’s liability is limited to damages for physical injuries and there is no recovery for economic loss alone.”

[16] Perrine v. Sega of Am., Inc., No. C 13-01962 JSW, 2013 WL 6328489 (N.D. Cal. Oct. 3, 2013)

[17] This settlement remains tentative as of June, 2015.

[18] McMahon v. Take-Two Interactive Software, Inc., 640 F. App’x 669, 671 (9th Cir. 2016)

[19] Anne Bucher. Grand Theft Auto False Advertising Class Action Revived By 9th Circ. Feb. 29, 2016. Top Class Actions.

[20] See McMahon

[21] See In re: Nvidia GTX 970 Graphics Chip Litigation, Case No. 4:15-cv-00760, in the U.S. District Court for the Northern District of California. See also Branden DORRANCE individually and on behalf of all other similary situated, Plaitntiff, v. ELECTRONIC ARTS, INC. A Delaware Corporation and Sony Computer Entertment America, Lc, a Delaware Limited Liability Company, Defendants., 2011 WL 6433339 (Cal.Superior). Complaint filed in 2011 for false advertising claim related to Battlefield 3. For background on this filing, see: See also (UK examples) Wolfenstein: The New Order. Dungeon Keeper:

[22] Matt Sayer. We talk to lawyers about the No Man’s Sky false advertising investigation. Oct. 2016. PC Gamer.

[23] Grand Theft Auto V broke the record for profits on the release date of any game, earning over $1 billion within 3 days of release.

[24] Brendan Caldwell. Hype Check: Debunking E3’s Marketing. June 15, 2016. Rock Paper Shotgun.

[25] Matt Sayer. We talk to lawyers about the No Man’s Sky false advertising investigation. Oct. 2016. PC Gamer.

Free Speech Implications of Apple’s Patent for Infrared Tech That Can Remotely Disable Video and Photo Recording

Apple is accustomed to being a controversial pioneer in the tech world. Yet, a patent it was recently awarded is garnering more than the usual interest, and not for positive reasons. The patent entitled “[s]ystems and methods for receiving infrared data with a camera designed to detect images based on visible light,”[1] essentially discloses a method for a smartphone’s camera to receive data over infrared waves that could alter the functionality of an iPhone.[2] The patent drawing sheets suggest that the technology be used to disable photography and video capture at live concerts and theater events.[3] A theater or concert venue wishing to employ the technology can be equipped with an infrared transmitter which can emit an infrared signal instructing individual iPhones in the premises to disable video recording capabilities.[4] At a first glance, this technology appears to be only a step from technology currently used to curtail bootlegging at live events, such as requiring patrons to place their cellphones in a pouch that prevents the phone from recording.[5] However, commentators instantly suspected that this technology was different, prompting some to ask whether the technology could eventually be used by the federal government or the police to block photo and video recording at a political protest or another sensitive event, making recording of these events impossible.[6] The use of the newly patented technology in this manner has the potential to affect our First Amendment right to free speech, while simultaneously affecting copyright law. However, a prospective litigant attempting to challenge the use of the technology on First Amendment grounds would face numerous challenges.

In order to satisfy the Article III’s “Cases” and “Controversies” requirement, a litigant must demonstrate that they have standing to sue.[7] To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.”[8] Courts also recognize doctrines of mootness, ripeness, and political question as prudential limitations on Article III standing.[9] In Clapper v. Amnesty International, Amnesty International challenged a law that permitted federal government officials to acquire foreign intelligence information by intercepting communications between US citizens and those in foreign countries.[10] The plaintiffs alleged that their work engaged them in sensitive international communications with individuals who they believe are likely targets of surveillance, which in turn had a chilling effect on their communications.[11] The Supreme Court held that the plaintiffs’ claims were too speculative and that allegations of future injury are insufficient to establish an injury in fact.[12] A plaintiff attempting to bring a case challenging the government’s use of the new technology at this time would lack standing for the same reasons that the plaintiffs in Clapper lacked standing, allegations of potential future injury are insufficient for purposes of Article III standing.[13]

Additionally, the prudential limitation of ripeness would remove standing in any case brought at this time. A case is not ripe if the dispute is insufficiently developed and is instead too remote or speculative to warrant judicial action.[14] In Laird v. Tatum, the United States Supreme Court dismissed for lack of ripeness a claim in which the plaintiff accused the U.S. Army of alleged unlawful “surveillance of lawful civilian political activity.”[15] The Court determined that the plaintiffs’ claims of a “chilling effect” on the exercise of their First Amendment rights rested on fear of future punitive action based on results of surveillance and the “speculative apprehensiveness” that the army may misuse the information in a way that would directly harm the plaintiffs and did not amount to objective current harm.[16]

Although the federal government and its agents do not have access to the technology at this point, it is easy to imagine a hypothetical scenario in which an officer of the federal government utilizes the infrared technology to prevent iPhones from recording at a sensitive event. However, even if this scenario existed, a court would dismiss a suit challenging the government policy preventing iPhones from recording, as it “leave[s] open ample alternative channels for communication of the information” as required by the First Amendment.[17] Though some iPhone users may not see other smartphones as reasonable alternatives to an iPhone, the fact is that other smartphones are capable of recording videos and taking pictures. As long as the infrared technology’s reach is limited to iPhones, consumers may avoid a conflict by purchasing another brand of smartphone. Moreover, the traditional media news networks provide yet another reasonable alternative. While Apple’s newly patented technology capable of preventing iPhones from recording video is certainly troubling, its use does not violate the First Amendment.

David Forrest is a second-year law student at Benjamin N. Cardozo School of Law and a Staff Editor of the Cardozo Arts & Entertainment Law Journal.

[1] U.S. Patent No. 9,380,225 (issued Jun. 28, 2016).

[2] See Kevin A. Rieffel, Can Apple’s New Infrared Patent Really Disable Your iPhone? IP Watchdog (July 6, 2016)

[3] See U.S. Patent supra note 1 at sheet 5.

[4] See Rieffel, supra note 2.

[5] See e.g. Geoff Edgers, Alicia Keys is done playing nice. Your phone is getting locked up at her shows now., The Washington Post (June 16, 2016) See also

[6] See Shanika Gunaratna, Apple’s new patent could disable your iPhone camera, CBS News (June 29, 2016)

[7] Clapper v. Amnesty Int’l. USA, 133 S. Ct. 1138, 1146 (2013).

[8] Id. at 1147.

[9] See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006).

[10] See Clapper, supra note 7 at 1146.

[11] See Id.

[12] See Id. at 1155.

[13] See Id.

[14] See Laird v. Tatum, 408 U.S. 1, 16 (1972).

[15] See Id. at 4.

[16] Id. at 13.

[17] McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014).

The NBA Can Take A Play Out Of The NFL’s Disciplinary Policy

Derrick Rose was recently sued in federal civil court because he and two friends allegedly gang-raped a woman. A federal civil trial was held in California in which Jane Doe is suing Rose and his friends for sexual battery. The trial for the August 2013 incident was held October 14 , just before the start of the NBA season.[1]

Allegedly, Rose and his friends broke into his ex-girlfriend’s house and took turns raping her while she was in and out of consciousness. The woman, referred to as Jane Doe, claims she was too drunk to give consent. She sued Rose in civil court for 21.5 million dollars.[2]

Rose admits that he and his friends engaged in group sex with Jane Doe that night, but he maintains that she was not drunk and that Rose and his friends were welcomed into her home and that she initiated sex with them.[3] Rose requested sexual activities from Jane Doe consistently throughout their relationship, including requests for group sex. The night of the alleged rape, Doe texted Rose, “u need to come to me right now.”[4] Doe did not seek medical attention or law enforcement following the alleged rape. A criminal investigation is open but Rose has not been arrested.[5]

On October 19,  Rose and his two friends were found not liable by a jury. Rose’s attorney, Mark Baute, stated “We’re very happy that the system worked.”[6] “All three men were innocent from day one.” While, the plaintiff’s attorney stated, “I think it’s a shame for women, for this country, that a celebrity can come into court and slut-shame a woman like my client.”[7]

The NBA will have to make a decision on whether they should suspend Derrick Rose for a portion of the season. If the NBA believes that this is just a case of extortion, then in all likelihood Rose will not be suspended. If Rose does lose this civil proceeding though, the NBA may act and suspend Rose.[8] Rose has admitted to group sex in his testimony. Although group sex is not illegal, this situation that Rose is in is not a good look for the NBA. The NBA has the power to discipline players for off-court conduct in order to protect the best interest of the game of basketball under Article 35 of the CBA.[9] Similarly, the NFL has broad authority to suspend their players for off the field actions under Article 46 of their CBA. [10] The NFL has recently used this provision to suspend players such as Tom Brady and Ray Rice. Roger Goodell holds NFL players to a higher standard than the criminal justice system does.[11] Derrick Rose would almost certainly be suspended if he was in the NFL. Although this is a civil suit, the Derrick Rose situation is very bad press for the NBA and Adam Silver can take the initiative and suspend Derrick Rose for his actions. But, suspending Rose could have its consequences. Adam Silver has to be careful. NFL players do not favor Goodell’s broad disciplinary power and are fighting to take this power away. If Adam Silver wants to keep his power and keep his good relationship with the players, then he has to be careful with his suspensions.

Joel Krooks is a second year law student at Benjamin N. Cardozo School of Law and a staff editor of the Cardozo Arts & Entertainment Law Journal. He is a sports enthusiast who hopes to pursue a career as a sports lawyer.

[1] See Adrienne Lawrence, What you need to know about the Derrick Rose case, ESPN, (Oct. 4, 2016)

[2] See id.

[3] See id.

[4] Tim Cato, The specifics of the Derrick Rose rape case, as explained by lawyers, SB Nation, (Sep 16, 2016)

[5] See Michael Mccann, Legal strategies for Derrick Rose, accuser ahead of rape civil trial, Sports Illustrated, (Oct. 4, 2016)

[6] Derick Rose, two friends found not liable in sexual assault civil trial, ESPN, (Oct. 19, 2016)

[7] Id.

[8] See Justin Gloria, NBA Rumors: Derrick Rose to miss season, suspended by Knicks due to gang rape case?, Sports Rageous, (Sept. 2, 2016)

[9] See National Basketball League Collective Bargaining Agreement (Aug, 2014)

[10] See National Football League Collective Bargaining Agreement (Aug. 4, 2011),

[11] Brent Shrotenboer, Why are fewer NFL players being arrested? USA Today (Dec. 18, 2015)


Making Music Accessible: Closed Captions in Light of California Court Ruling on The Duties of Film Studios

Is it unreasonable for deaf moviegoers to expect that song lyrics might be included in film captions and subtitles? On Wednesday, September 28, 2016, a California District court found that it was, when it granted summary judgment to a group of movie studios named in a class action lawsuit filed by the Alexander Graham Bell Association (“the Association”)  for the Deaf and Hard of Hearing.[1] The Association filed the claim on the grounds that the studios’ distribution of their works with less-than-complete captions amounted to false advertising and a civil rights violation against the hard of hearing. The court found that a “reasonable consumer” would have no reason to believe that there was full captioning of a given film, and that the Association cannot prove the intentional discrimination required to mount a civil rights claim.[2]

The court acknowledged that whether the film should include these lyrics and whether they must are two distinct issues, but the determination of what to include in a caption is part of the movie making process, and is up to the studio. The court described how the examples provided by the Association show that, in circumstances where music with lyrics played, important dialogue was spoken, such that the dialogue and not the lyrics ought to be captioned, and, thus, captions on a film are a matter of creative choice for the studio.[3] Studios have also made arguments that there are certain technical challenges that come with including captions on their programming,[4] though given that the technology is always being improved, this argument strikes as fairly weak. For the purpose of practicality, it may be that this is indeed an accurate summation of the obligations in the creation of film captions. In setting up a form of disability accommodation as something subject to first amendment protection and creative license, however, it leaves open the possibility of failing to provide adequate accommodation where otherwise required because it somehow infringes on the aesthetics of someone’s vision.

The court adopts a “reasonable person” standard with regard to caption expectation and thus minimizes the role of disability on reliance on the accuracy of the captions. Unclear in the decision is the extent to which a “reasonable person” suggests a “reasonable person who is deaf/hard of hearing,” but the implication is that it is the more general standard. This language could potentially invite future insufficient disability accommodations, because the reasonable person who is not hard of hearing has few, if any expectations with regard to captions, because they simply do not need them to understand the movie. The court rejects the characterization of the deaf community as a vulnerable population because the case from which the Association cites, Lavie v. Proctor & Gamble Co. (2003), refers to vulnerable populations as those that are easily persuaded by false advertising, like small children. If vulnerability hinges on inability to perceive a piece of media for it’s message, then one would think the definition would encapsulate individuals who cannot hear the musical accompaniment to a film, which in many circumstances could communicate important information. This narrow reading of what constitutes “vulnerability” will likely bar other individuals with varying disabilities from lodging a successful claim on these grounds.

The court found that the Association’s argument that they relied on the studio’s captions of the movies because there is no alternative did not prove reliance, but rather the opposite, that the hard of hearing would purchase the DVDs regardless of the quality of the captions and thus do not rely on their quality when making their purchase at all. This argument then suggests that reliance would be predicated on choice, that a consumer in this case would have had to have chosen only to buy films where they believed the captions to be superior. This argument fails to imagine circumstances in which an individual would purchase entertainment media that he or she could not fully enjoy, namely that film and television are hugely important elements of modern human culture, where failure to participate can leave one isolated.

The court presents accommodation as something subject to creative license. While this ruling permits the studios to continue leaving out song lyrics from captioning, it should not be read as giving license for minimal accommodation. The recent growth in prominence of the Deaf West Theatre Company both in the revival of the musical Spring Awakening on Broadway,[5] and their featuring in Ingrid Michaelson’s music video for the song “Hell No,”[6] suggests that music can be presented to the deaf and hard in hearing in ways that can be appreciated by any “reasonable person” as creative and engaging entertainment. Given the prevalence of online streaming, computerized glasses,[7] handheld devices, and others, it simply does not follow that there is no way in which the lyrics of background music might somehow be incorporated for the benefit of deaf audiences. If the takeaway from this ruling is that the studios have creative license when it comes to accommodation, then moving forward one may hope that this creativity is employed to implement new and more effective ways of enhancing the film-watching experience for the deaf and hard of hearing, rather than to make a “creative decision” to do only the bare minimum.


Arielle Vishny is a second year law student at the Benjamin N. Cardozo School of Law and a staff editor of the Cardozo Arts and Entertainment Law Journal. She is passionate about law and the music industry, and can be found on LinkedIn.

[1] Gardner, Eriq, “Studios Beat Lawsuit Over Non-Captioning of Song Lyrics in Movies and Television,” The Hollywood Reporter Esq. (Sept. 29, 2016, 12:36 PM),

[2] Christie Anthony et. al. v. Buena Vista Entertainment Inc., 2:15-cv-09593-SVW-JPR (C. D. Cal. Sept. 28, 2016).

[3] Id.

[4] Lawler, Frank, “Netflix sued for lack of captions on streaming videos,” Gigaom (June 17, 2011, 8:41 AM)

[5] Spring Awakening The Musical,


[6] Michaelson, Ingrid, “Hell No,” (2016)


[7] Herbert, Geoff “Regal’s new closed caption glasses finally make movies enjoyable for deaf and hard-of-hearing,” (June 23, 2013, 4:51 PM)

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