UCLA Law Review Volume 55, Issue 5

Substantially Modifying the Visual Artists Rights Act: A Copyright Proposal for Interpreting the Act's Prejudicial Modification Clause

After years of petitioning by artists and art enthusiasts, the passage of the Visual Artists Rights Act of 1990 finally conferred upon U.S. artists certain moral rights long enjoyed by their European counterparts: the personal, noneconomic rights that artists hold in their works. Specifically, the Act forbids the destruction of works that are “of recognized stature” and modifications of works if such modification would be “prejudicial to [the artist’s] honor or reputation.” The Act, judicial opinions, and academic commentaries, however, have not defined the meaning of the prejudicial modification clause. This Comment suggests that the adoption of a “substantial modification” standard, drawing from the copyright doctrine of “substantial similarity,” provides a useful framework for objectively determining prejudicial modification. Under the proposed substantial modification standard, only quantitative or qualitative modifications that are sufficiently significant would be considered prejudicial to the artist. In conducting a substantial modification analysis, a decisionmaker would evaluate the quantitative component of a modification, including the amount, duration, and observability of the modification, as well as the qualitative component of a modification, including changes to the expression or feeling conveyed by a work. Modifications that are merely quantitative in nature would be considered presumptively non-prejudicial unless the plaintiff could show that the quantitative change alone resulted in prejudice. A plaintiff’s showing of any qualitative modification, on the other hand, would result in a rebuttable presumption in favor of prejudice. The proposed standard organizes the Act’s patchwork of protections and exceptions into a cohesive whole, provides a framework for efficient adjudication by litigants, judges, and juries, and conforms with the legislative history of the Act, the current U.S. copyright regime, and the traditional moral rights doctrine.

Lawyers on Horseback? Thoughts on Judge Advocates and Civil-Military Relations

Uniformed lawyers—judge advocates—are uniquely situated at the heart of the American civil-military relationship. A recent article published in this law review argued that this placement has hindered military operations and disrupted civilian control over the military; left unaddressed, it will negatively affect the nation’s ability to fight and win future wars. This Essay takes issue with such assertions. In fact, judge advocates foster appropriate civil-military relations. They participate in the development and application of policy in a manner that enhances civilian control over military affairs. Moreover, judge advocates are singularly well-placed to ensure that civilian leadership preferences are fully understood and followed by the military on the battlefield. The Essay concludes by forcefully rejecting any suggestion that judge advocates pose an obstacle to operational success, charging that those who make such claims reveal their lack of operational experience.

Priceless? The Economic Costs of Credit Card Merchant Restraints

Merchants pay banks a fee on every credit card transaction. These credit card transactions cost American merchants an average of six times the total cost of cash transactions. The variation in fees among credit cards is also large, with some cards, such as rewards cards, costing merchants twice as much as others. The largest component of the fee merchants pay goes to finance rewards programs, which in turn generate more credit card transactions. Although merchants finance the rewards programs, they derive no benefit from them. Rather than generating additional sales, rewards programs merely induce consumers to shift transactions from less expensive payment systems to more expensive rewards credit cards. Why, then, do all consumers pay the same price for purchases, regardless of the means of payment? The answer lies in a set of credit card network rules known as merchant restraints. Merchant restraints prohibit merchants from accepting certain credit cards selectively and from pricing goods and services according to cost of payment. These restraints thus prevent merchants from signaling to consumers the costs of different payment methods. Accordingly, consumers never internalize the costs of their choice of payment system. Merchant restraints thus encourage more credit card transactions at a higher price than would occur in a perfectly efficient market. The restraints also permit card issuers to externalize the costs of rewards programs to merchants and, ultimately, to consumers who do not use rewards cards. This Article argues that merchant restraints distort competition within the credit card industry and among payment systems in general. Further, merchant restraints’ economic justifications are unfounded, and they should be banned as antitrust violations.

The Return of Seditious Libel

Does the First Amendment protect a speaker’s interest in reaching a particular audience if the expressive activity occurs in a traditional public forum? The intuitive answer to this question might be “yes” or “usually,” but the federal courts have taken a decidedly different approach—at least when the intended speech is political protest and the intended audience includes high-ranking government officials or political party leaders. Indeed, so long as government efforts to squelch political dissent invoke the talisman of “security” and are facially content and viewpoint neutral, the Speech and Assembly Clauses of the First Amendment have proven remarkably ineffective at protecting an individual’s right to protest in a location physically proximate to incumbent government officials—even in a traditional public forum. This Article questions whether genuine security concerns actually motivate the censoring of political dissent. It posits instead that judges have wrongly permitted local, state, and federal officials to equate the government’s dignity interests with its national security interests. In short, avoiding embarrassment as a result of media coverage, as much as genuine concern about public safety, undergirds decisions to squelch dissent proximate to the venues in which major political theater occurs. This practice of censoring core political speech to avoid embarrassing incumbent politicians constitutes a limited return of the doctrine of seditious libel, which also equated the embarrassment of government officials with harm to national security. Consistent with the oft-forgotten Petition Clause of the First Amendment, which proclaims “the right of the people . . . to petition the Government for a redress of grievances,” this Article argues that citizens should have a right to bring grievances to the personal attention of their ostensibly democratically accountable government. As an historical matter, the First Amendment right of petition carried with it absolute immunity from prosecution for seditious libel: Citizens could bring complaints, both in person and in groups, to government officials to seek a redress of grievances without fear of reprisal. In the early years of the Republic, however, the Petition Clause fell into desuetude because abolitionists engaged in what pro-slavery members of Congress characterized as “abusive” petitioning of the federal government to abolish the practice of human slavery. The Petition Clause has never recovered from this most odious legal and political banishment. This Article argues that federal courts should restore the relevance of the Petition Clause by using it to establish a qualified right to demonstrate in public forums within the sight and hearing of government officials and party leaders.

Rethinking Work and Citizenship

This Article advances a new approach to understanding the relationship between work and citizenship that comes out of research on African American and Latino immigrant low-wage workers. Media accounts typically portray African Americans and Latino immigrants as engaged in a pitched battle for jobs. Conventional wisdom suggests that the source of tension between these groups is labor competition or the racial prejudice of employers. While these explanations offer useful insights, they do not fully explain the intensity and longevity of the conflict. Nor has relevant legal scholarship offered a sufficient theoretical lens through which this conflict can be viewed. In the absence of such a theory, opportunities for solidarity building are lost and normative solutions in the context of immigration and antidiscrimination law reform are unsatisfying. This Article critiques existing theories of the link between work and citizenship for failing to attend to the realities of immigration, job differentiation within the universe of low-wage work, and the extent to which a group’s race, formal citizenship status, and history affect its relationship to work. This Article fills this gap by arguing that citizenship—defined broadly as “belonging” in the broader community—provides an additional lens for understanding interactions between African American and Latino immigrant low-wage workers. This nuanced, context-based theory of citizenship, which is grounded in insights from Critical Race Theory, immigration scholarship, and constitutional law, reveals profound differences in the way that African Americans and Latino immigrant workers who appear to be similarly situated in the low-wage context conceive of and experience work, providing a more accurate window into the conflict between them. It also highlights important similarities and convergences in the paths to the workplace taken by these groups, pointing to unique opportunities for increased solidarity between low-wage African American and Latino immigrant workers on the job.

Cities Inside Out: Race, Poverty, and Exclusion at the Urban Fringe

Are county governments capable stewards of urban life? Across the country, millions of low-income households live in urban enclaves that rely on county government for their most proximate tier of general purpose local government. Material conditions in many of these neighborhoods are reminiscent of early twentieth-century rural poverty, while others are a dystopic vision of twenty-first century urbanity, with clusters of housing tucked in between landfills, industrial plants, and freeways. This Article provides a vocabulary and a conceptual baseline for understanding this national pattern of unincorporated urban areas and presents a qualitative study of these neighborhoods in California, Texas, Florida, and North Carolina. It explores the governmental status of these communities, and asks, for the first time, whether two tiers of general purpose local government—a city and a county—offer urbanized areas greater participatory voice, stronger protection from undesirable land uses, improved collective services, and greater housing choice than county rule alone. Providing a framework for evaluating local government, this Article posits that housing-market mobility, neighborhood habitability, and political voice are the three pillars of adequate local government. By this metric, we can no longer assume that county governments are equivalent to municipalities.