intellectual property

At the top of their game: College sports and the quandary of athletes’ financial compensation

One of the highlights of attending The University of Tulsa College of Law is having an opportunity to collaborate with faculty members on scholarly projects. Rising 3L Carter Fox recently wrapped up work with Professor Ray Yasser on an examination of the contentious issue of whether or not college athletes ought to be paid to play. Their discussion and proposed solution are slated to appear as a co-authored piece in the fall 2021 issue of the Harvard Journal of Sports and Entertainment Law (JSEL).

Entitled “Third-Party Payments: A Reasonable Solution to the Legal Quandary Surrounding Paying College Athletes,” Fox and Yasser’s essay – which the JSEL editors called a “fantastic article” when they accepted it – grapples with the NCAA’s “amateurism rules,” which prohibit student-athletes from receiving any compensation related to their athletic prowess. Many college athletes, coaches and members of the public feel this situation is unfair, noting that in 2016-17, the NCAA raked in over $1 billion in revenue. However, the athletes who played a vital role in generating this revenue do not receive any of that money beyond their scholarship awards, room and board, books and a cost-of-attendance stipend.

Sports law and fair p(l)ay

Fox, whose father coached high school football and wrestling, has been a long-time sports fan. Following graduation from TU Law, he hopes to pursue a career in litigation in Tulsa.

University of Tulsa College of Law student Carter Fox
Carter Fox

While his undergraduate degree from the University of Arkansas is in history and political science, as a TU Law student Fox has been able to channel his deep-seated interest in sports directly into his juris doctor studies. “Sports law is particularly interesting,” he noted, “because it’s not necessarily a specific type of law. Instead, sports law incorporates nearly every aspect of the law – from torts, to antitrust to constitutional questions.”

In January 2019, Fox began working as a research and graduate assistant for Yasser, a highly regarded expert in sports law. “Carter Fox is, to use a sports metaphor, a ‘natural,’” commented Yasser. “He’s a gifted writer, hard working and dependable, sees legal issues clearly and analyzes them artfully. It’s also great that he shares my interest in sports law-related issues. I’ve kidded him that we live at the intersection of Sports Avenue and Law Street.”

Retired University of Tulsa College of Law Professor Ray Yasser
Ray Yasser

Fox and Yasser’s JSEL article arose out of their collegial relationship and the ongoing conversations the two men had about the unfairness of the NCAA’s amateur model. “What’s most interesting to me about the issues surrounding compensating college athletes is that the whole collegiate amateur scheme is something uniquely American,” remarked Fox. “It’s not really replicated in any other country.”

Fox contends that, if the same restrictions were applied in a business setting, they would “almost certainly” violate antitrust laws. “However, our courts have created standards that uniquely apply in the sports context for analyzing anticompetitive rules. The fun and challenging part with our article was formulating a solution that a court would accept and that would also help athletes.”

Third-party payments

“It seems fairly safe to say that, despite ongoing litigation, the NCAA model is not going to be entirely replaced anytime soon,” noted Fox and Yasser. The ingenious solution the pair propose for this legal quandary is a third-party payment system. This, they argue, is a workable compromise between direct “pay-to-play” remuneration for athletes by universities and a strict no-payment policy – a “staple of American sport.”

Under Fox and Yasser’s third-party payment system, student athletes would be permitted to capitalize on their own names and likenesses. They could use their personal fame to garner endorsements, sponsor products and negotiate commercial deals. “It is fundamentally unfair that household names like basketball star Zion Williamson, who has over 2.7 million Instagram followers, cannot take advantage of their own intellectual property rights while the NCAA rakes in millions of dollars by utilizing his name and likeness.”

Benefits

In their JSEL article, Fox and Yasser identify four main benefits of a third-party payment system:

  1. Athletes could negotiate in the open marketplace for the rights to their own intellectual property.
  2. The free market could determine an athlete’s financial value.
  3. The need for payments from college donors would be eliminated, which would go a long way to blocking the steering of athletes into particular programs.
  4. Colleges’ ability to fund Olympic sports, such as wrestling, would not be undermined.

“In essence,” Fox and Yasser argued, “the third-party system is a reasonable solution that could address many of the serious issues regarding pay-to-play by maintaining the status quo between colleges and student athletes.” At the same time, they maintain, it would allow athletes to reap the rewards for their prowess and fame.


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TU Law copyright expert awarded Law and Public Affairs fellowship at Princeton University

The Program in Law and Public Affairs (LAPA) at Princeton University recently announced its 2020-21 fellows. Among the recipients of this prestigious fellowship is The University of Tulsa College of Law’s Chapman Distinguished Professor of Law Robert Spoo. This LAPA fellowship follows the Guggenheim fellowship he held three years ago.

University of Tulsa Law Professor Robert Spoo
Professor Robert Spoo

“On behalf of everyone at TU Law, I congratulate Bob on his well-deserved LAPA fellowship,” said TU Law Dean Lyn Entzeroth. “Bob is not only a wonderful colleague but also an outstanding scholar, teacher and mentor. We will miss him while he is at Princeton, but we wish him a healthy and productive year of research and writing.”

“Robert Spoo is a leader in several different fields,” noted Simon Stern, a professor of law and English at the University of Toronto. “These include literary modernism, copyright, and law and literature. A former editor of the James Joyce Quarterly, he went on to litigate a remarkable, precedent-setting dispute against the Joyce estate. Bob’s work has changed our thinking in all the areas he works on. Being a LAPA fellow will enable Bob to build on his influential research in Without Copyrights: Piracy, Publishing, and the Public Domain (Oxford UP, 2013).”

Lawful pirates and 19th-century U.S. publishing

The book to which Stern referred is the first sustained study of a practice in American book publishing called the courtesy of the trade, or trade courtesy. During his LAPA year, Spoo will further explore the courtesy norms that nineteenth-century American publishers fashioned to fill the U.S. copyright vacuum for foreign authors’ works.

These courtesy norms arose because, for much of the nineteenth century, foreign authors did not have copyright protection in the United States. As a result, publishers in this country could reprint and sell the works of non-American authors with complete impunity.

Cover of Lovell's Library pirated edition of Dr. Jekyll and Mr. Hyde
Lovell’s Library’s pirated edition of R.L. Stevenson’s “The Strange Case of Dr. Jekyll & Mr. Hyde” (ca. 1886)

“How maddening it must have been in 1870,” Spoo remarked, “to enjoy copyright protection in one’s own country – Britain, say – but to lack it entirely in the United States with its enormous English-speaking population and high literacy rate. Works by such famous, best-selling authors as Charles Dickens and Wilkie Collins were regularly and swiftly annexed by the world’s busiest, hungriest public domain. And nothing could be done about it. American reprinters were immunized as lawful pirates.”

Courtesy among pirates

While formal intellectual property (IP) rights did not exist in the United States for foreign authors, America’s publishing pirates recognized that unregulated competition among themselves would not be a healthy practice for their industry. More profit could be gained by self-regulated coordination.

“The result, emerging in the 1830s and 1840s,” explained Spoo, “was trade courtesy, a process by which publishers agreed to recognize informal property rights in literary texts that enjoyed no formal protections. Thus, if publisher A laid claim to a novel by George Eliot, publisher B would recognize that claim so long as its own association with Walter Scott went unchallenged. Turn-of-the-century publisher Henry Holt, whose extensive archive is held at Princeton, put his finger on it when he observed that trade courtesy was ‘a brief realization of the ideals of philosophical anarchism – self-regulation without law.’”

Cover of Seaside Library's pirated edition of Dr. Jekyll and Mr. Hyde
The Seaside Library’s pirated edition of R.L. Stevenson’s “Strange Case of Dr. Jekyll and Mr. Hyde” (1886)

For his LAPA project, Spoo intends to build on the foundation he laid in Without Copyrights by working on “a thoroughly empirical, archive-based study of American publishers who pioneered trade courtesy to achieve self-regulation and, at the same time, promoted affordable books, literacy and social change.”

But Spoo also intends his study to shed light beyond the publishing industry’s stage. A full understanding of courtesy and lawful piracy offers “valuable, unexpected glimpses into many other facets of nineteenth-century America, such as book manufacturing, the spread of foreign culture through cheap printing, economic protectionism and copyright isolationism in an age of expanding IP internationalism.”

Even more broadly, Spoo situates his upcoming explorations in conversation with other “negative IP spaces” that scholarship has uncovered in recent years. These include domains as diverse as fashion design, stand-up comedy and roller derby. “I hope that my study will also enrich our understanding of private norms and the ways they can be used to regulate ruinous competition and other selfish behavior along the lines that James Acheson has uncovered with lobster-trapping and Robert Ellickson has documented with regard to cattle trespass.”

 

 

Are you interested in intellectual property (IP) law past, present and future? TU Law offers first-class training in this diverse and vibrant field. In fact, in August we will welcome a new IP expert to our faculty. Apply to our JD program today to get your career underway.

 

 

 

Intellectual property expert set to join TU Law faculty

The University of Tulsa College of Law community is eagerly awaiting the arrival of a new colleague this coming summer. In August, Elizabeth (Betsy) Rosenblatt will be joining the law school as a professor of law.

After receiving a JD from Harvard Law School in 1999, Rosenblatt – who grew up in New England – spent the next decade practicing law at a big firm in Los Angeles. Eventually discerning what she described as a “calling” to be a professor, from 2009 to 2018 Rosenblatt served as an associate professor of law at Whittier Law School in Costa Mesa, California, where she was also the director of the school’s Center for Intellectual Property Law. Currently, Rosenblatt is a visiting professor of law at UC Davis School of Law.

In this Q&A, we get to know a little more about Rosenblatt, her interests in and out of the law, thoughts about impactful teaching and what she’s looking forward to about living here in Tulsa.

You are an expert in several areas of the law, including intellectual property, copyright law, patent law and civil procedure. What drew you to these topics? What are some of your specific interests in these areas?

I was initially drawn to intellectual property law because of my own interest in the arts. My first degree was a BA in music and Russian from Williams College, and I was a musician all through college and law school. I played in all sorts of musical groups, conducted a jazz band and even wrote a symphony.

Well, I thought that practicing intellectual property law might be a little bit like being a musician. I was completely wrong! They are very, very different.

Elizabeth (Betsy) Rosenblatt in an office in front of bookshelvesBut I found myself loving intellectual property law for what it offers: constant opportunities to learn new things. For every patent case, there is a new kind of technology to learn about. For every copyright case, there is a new creative work to discover. For every trademark case, there is a new set of industry and market dynamics to explore. The law in these fields is young and constantly changing as the technologies of information transfer, creation and innovation transform our world. There’s always some new problem to solve, question to answer or beautiful possibility to explore.

Spending almost a decade as a litigator made teaching civil procedure a natural fit for me. As someone who loves thinking about systems, teaching civil procedure provides opportunities to think about the intimate relationship between our systems of civil dispute resolution and larger questions of justice and fairness. Students who litigate after they graduate come back to me and say, “I do civil procedure for a living now!” That makes me feel good.

Speaking of students, you include a good deal of experiential learning in your courses. Would you shed some light on your teaching styles and methods? What do you love about teaching?

My favorite times are those “light bulb moments” when students find connections between things they didn’t know were related. Those moments are incredibly empowering, and they demonstrate why “thinking like a lawyer” is such a versatile skill. I want my students to discover the analytical frameworks behind what they’re learning and recognize that law is not a monolith — it’s an ever-changing set of frameworks that they have the power and responsibility to improve. I want them to use those frameworks to find not only answers but also new questions they didn’t know they had.

Different people learn in different ways, and I’ve found that learning-by-doing is a crucial aspect of learning to be comfortable with legal reasoning and the skills that students will need in the world. I include simulations and assignments in my classes so that students can see the context of what they’re learning and apply it to real-world questions. I call on students so that everyone has the empowering experience of being right in public.

You have so many interests in and connections to the world beyond academia. Would you give us a glimpse of some of those?

I love teaching and being a scholar. One of my favorite things about being a professor is being part of a larger scholarly conversation among academics from around the world, so I go to a lot of conferences. But I don’t want my conversation to be just with other professors. So, I also participate in lots of other sorts of gatherings, such as fan conventions, game conventions, literary societies and San Diego Comic Con.

Professor Rosenblatt and fellow attorneys and law professors at San Diego Comic Con (July 2019)
Prof. Rosenblatt (second from left) presented “Comic Book Law School 3030: Super Lawyers Unite!” with a panel of fellow attorneys and law professors at San Diego Comic Con (July 2019)

I’m actually a big nerd. You name the nerdy interest, I probably do it. I love television, comic books, fanfiction, tabletop games like Dungeons & Dragons, watching football games and going to everything from Shakespeare to experimental theater. I also love making things; for example, I crochet, design games, cook and make cheese as a hobby. And I love hiking, gardening and other outdoorsy things. All of these interests end up informing my teaching and scholarship, sometimes in unpredictable ways. For example, being a lifelong fan of Sherlock Holmes has let me to write law review articles and other scholarly pieces on intellectual property ownership of Sherlock Holmes.

In the community, I volunteer as the legal chair of a nonprofit called the Organization for Transformative Works, which supports and advocates for fans, especially those who create and enjoy fanworks, such as fanfiction and fanart. Among other things, we do legal advocacy, support academic work in the field of fan studies, help preserve fan histories and operate a well-known site called the Archive of Our Own. I’m very proud of that work and feel privileged to have met and worked with so many amazing creative people, including the stellar group of volunteer lawyers and professors on our legal team.

What are you looking forward to about life in Tulsa?

I’ve been near the coasts for most of my life, and I definitely have a lot to learn about Tulsa. I am really looking forward to getting to know the faculty and students at TU Law and the university generally. In my visits to campus, I’ve gotten to meet with a few students and staff and a number of faculty members, and all have been tremendously welcoming. I can tell it’s a fantastic community, and I’m happy to be joining it.

As for Tulsa, I am excited to explore its bookstores, game shops, galleries, coffee spots and hiking trails. I am particularly looking forward to connecting with the vibrant creative and arts communities in Tulsa. I know there are fantastic things happening in the city and I look forward to discovering them!