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NYSBA Entertainment, Arts and Sports Law Journal | Summer 2013 | Vol

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NYSBA Entertainment, Arts and Sports Law Journal | Summer 2013 | Vol NYSBA SUMMER 2013 | VOL. 24 | NO. 2 Entertainment, Arts and Sports Law Journal A publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association IInsidenside • Fair Use in Appropriation Art • American Broadcasting Companies v. Aereo • Proper Use of Unpaid Interns • Changing the Classifi cation of Child Models • League Ownership of Teams • An Analysis of DMCA § 4001 • What to Consider When Counseling • Digital Music Thrift Stores Bands • Redefi ning “Control” Within the • The NHL and Player Safety Copyright Act • Copyright Law and Innovation • Nazi-Era Looted Art Disputes WWW.NYSBA.ORG/EASL NEW YORK STATE BAR ASSOCIATION In The Arena: A Sports Law Handbook Co-sponsored by the New York State Bar Association and the Entertainment, Arts and Sports Law Section As the world of professional athletics has become more competitive and the issues more complex, so has the need for more reliable representation in the fi eld of sports law. Written by dozens of sports law attorneys and medical professionals, In the Arena: A Sports Law Handbook is a refl ection of the multiple issues that face athletes and the attorneys who represent them. Included in this book are chapters on representing professional athletes, NCAA enforcement, advertising, sponsorship, intellectual property rights, doping, concussion-related issues, Title IX and dozens of useful appendices. Table of Contents Intellectual Property Rights and Endorsement Agreements How Trademark Protection Intersects with the Athlete’s Right of Publicity EDITORS Collective Bargaining in the Big Three Elissa D. Hecker, Esq. Agency Law David Krell, Esq. Sports, Torts and Criminal Law PRODUCT INFO AND PRICES Role of Advertising and Sponsorship in the Business of Sports 2013 | 574 pages | softbound Doping in Sport: A Historical and Current Perspective | PN: 4002 Athlete Concussion-Related Issues Non-Members $75 Concussions—From a Neuropsychological and Medical Perspective NYSBA Members $60 In-Arena Giveaways: Sweepstakes Law Basics and Compliance Issues Navigating the NCAA Enforcement Process Order multiple titles to take advantage of our low fl at rate shipping charge of $5.95 per order, regardless of the number of items shipped. $5.95 shipping and Title IX handling offer applies to orders shipped within the continental U.S. Shipping and handling charges for Mascots: Handle With Care orders shipped outside the continental U.S. will be based on destination and added to your total. An Introduction to European Union Sports Law Dental and Orofacial Safety Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB2023 Table of Contents Page Remarks from the Chair .....................................................................................................................................................4 Editor’s Note .......................................................................................................................................................................7 Law Student Initiative Writing Contest ...........................................................................................................................8 The Phil Cowan Memorial/BMI Scholarship .................................................................................................................9 NYSBA Guidelines for Obtaining MCLE Credit for Writing .....................................................................................11 Pro Bono Update ...............................................................................................................................................................12 Registering Multiple Musical Works in a Single Copyright Registration .................................................................13 (Marc Jacobson and Marc Pellegrino) Circuit Court Finds Fair Use in Appropriation Art and Reverses Copyright Infringement Decision .................17 (Joel L. Hecker) How to Use Unpaid Interns the Right Way (and Keep Litigation at Bay) ................................................................21 (Kristine A. Sova) League Ownership of Teams, Confl icts of Interest, and Personnel Exchanges .......................................................23 (Lewis Kurlantzick and B.J. Pivonka) What Non-U.S. Athletes, Entertainers, and Agents Need to Know About U.S. Taxes and How to Reduce Them ..........................................................................................................................................36 (Robert S. Fink and Wilda Lin) It’s a Family Affair: What You Should Consider When Counseling Bands..............................................................41 (Daniel Scott and Paul Gutman) Failure to Warn: The National Hockey League Could Pay the Price for Its Pursuit of Profi t at the Expense of Player Safety ..................................................................................................................................45 (Timothy J. Geverd) Cat and Mouse: The Interplay of Copyright Law and Innovation in the Internet Age ..........................................57 (Jonathan Bloom) The Intersection of Immigration and Entertainment Law ..........................................................................................65 (Michael Cataliotti) Over-the-Top, Over Their Heads: The Need for Legal Reform in Light of American Broadcasting Companies v. Aereo .............................................68 (Joshua Bloomgarden) A Model for Success: Why New York Should Change the Classifi cation of Child Models Under New York Labor Laws .....................................................................................................................................83 (Craig Tepper) Redefi ning the Reel Residual Problem: An Analysis of DMCA § 4001 and an Alternative Approach to Union Residual Payments ..................................................................................98 (Marissa Crespo) Digital Music Thrift Stores Violate Copyright Law ...................................................................................................105 (Jessica Jones Ross) The Right and Ability to Sue: Redefi ning “Control” Within § 512(c) of the Copyright Act and a Plan to Revive a Right of Action for Restitution .........................................................................................110 (Matthew R. Yogg) Will the U.S. Supreme Court Provide Insight to Nazi-Era Looted Art Disputes? .................................................120 (Leila Amineddoleh) The “Suite” Smell of Success: A Potential Change to Chinese Law and Its Impact on the U.S. Art Market .....122 (Amber J. Slattery) TV 101 Fairly Fair Use .............................................................................................................................................................125 (Nima Daivari) Krell’s Korner: Babe Ruth: Sultan of Sweets ...............................................................................................................128 (David Krell) NYSBA Entertainment, Arts and Sports Law Journal | Summer 2013 | Vol. 24 | No. 2 3 Remarks from the Chair Thank you, EASL! After 25 During the luncheon that years, you are still as vibrant followed, we acknowledged and welcoming as ever, and our appreciation to all of the you know how to celebrate Past Chairs of EASL, each of with style. whom has made his or her mark on the Section’s evolu- On May 6th, EASL formal- tion and success, building on ly celebrated its 25 years as a what had come before and Section with a day-to-evening innovating along the way. Past event to remember. During Chairs in attendance were Alan the day, members gathered at Barson, Tim DeBaets, Judith The Warwick Hotel for some Bresler, and Marc Jacobson, the engaging CLE, a fabulous last of whom was our Found- luncheon, and collegiality at its best. The evening was ing Chair. As a surprise, we reserved for cocktails, dinner and entertainment in the presented Marc with a gift and company of colleagues, friends, spouses, and the like. commended his early vision The day started with an of EASL— that of fostering “Introduction to Art Law,” dialogue among entertainment presented by EASL Past Chair attorneys in an atmosphere Judith Bresler, and Assistant of inclusion and purpose. It Secretary Carol Steinberg. was quite touching when all Judith led us through a chal- those in the room stood and lenging hypothetical involving applauded him in heartfelt a wealthy, art-collecting client, appreciation; it was a great mo- his acquisition of an expen- ment for EASL. sive painting via auction, an The program continued with our featured luncheon aggressive auctioneer, and a speaker, Jeff Gewirtz, Executive Vice President of Busi- challenge to the authenticity of ness Affairs and Chief Legal Offi cer of the Brooklyn Nets the work. The and the Barclays Center. Interviewed audience was intrigued as Judith invited by our own Jessica Thaler, Jeff gave us a members to use their lawyering skills to peek inside professional sports, live-event predict the outcome. The audience com- arenas, and the myriad of disciplines one plied and the exchange among colleagues has to be familiar with to keep all the balls was lively (and fun!), with Judith sum- in the air, so to speak. Jeff’s eloquence ming up and presenting the result. Carol and humor, and the animated exchanges Steinberg followed with an absorbing between him and Jessica, were thoroughly discussion on what might be considered enjoyed by all. transformative (and fair use) in appropri- ation art, using
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