2021 | VOL. 32 | NO. 1 Entertainment, Arts and Sports Law Journal A publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association Entertainment, Arts & Sports Law Section Thank you to our 2021 Entertainment, Arts and Sports Law Section Sponsor Entertainment, Arts and Sports Law Journal 2021 | Vol. 32 | No. 1 The Future for Federal Jurisdiction 48 Over Nazi Looted Art Restitution: Contents The Applicability of the Expropriation Exception of the Foreign Sovereign Immunities Act and the Availability Remarks From the Chair of International Comity Defenses for 3 Barry Werbin Foreign Sovereign Nations Deanna Schreiber Editor’s Note/Pro Bono Update 4 Elissa D. Hecker Networking Needs a Strategy To Be 54 Successful 5 Law Student Initiative Writing Contest Carol Schiro Greenwald The Phil Cowan–Judith Bresler Memorial 58 Full Stream Ahead: Intellectual Property 6 Scholarship Writing Competition Considerations for Online Streaming Gregory S. DeSantis NYSBA Guidelines for Obtaining MCLE 8 Credit for Writing Introducing the Horseracing Integrity 64 and Safety Act and a New Era of Racing Regulation New York State Bar Association Bennett Liebman 9 Entertainment, Arts and Sports Law Section 2021 Diversity, Equity and Inclusion Plan ANNUAL MEETING 2021 PROGRAM 72 Day One: Welcome and Introduction to 11 Sports and Entertainment Immigration: Programs New Administration, New Goals The Impact of COVID-19 on Sports: A Legal Michael Cataliotti 75 Perspective—Part II Dispute Resolution in the Arts in the Time Resolution Alley | Confidentiality in 88 of Coronavirus and Beyond 16 Arbitration Dispute Resolution in the Entertainment Theo Cheng 98 Industry in the Time of Coronavirus and Beyond Copyright Developments in 2020 19 Neville L Johnson and Douglas L. Johnson 109 Day Two: Welcome and Awards Writing Wrongs: Promoting Diversity and New York’s New Right of Publicity Law: 112 Inclusion in Book Publishing—Industry 23 Protecting Performers and Producers Background, Cultivating New Readers and Judith B. Bass Writers, and Working in Publishing Writing Wrongs: Promoting Diversity and 124 Inclusion in Book Publishing—The Role of 28 The Meghan Markle Media Show Is Not Lawyers and the Law in Diversity Initiatives Coming to London Town from the Perspective of General Counsel Amber Melville-Brown and Outside Counsel An Artwork by Any Other Name: An Krell’s Korner | You’re Watching FOX 42 Examination of Authenticators’ Role in 138 David Krell the Art Market and Suggested Legislative Improvements EASL Welcomes New Members Lawrence Keating 140 141 Section Committees and Chairpersons Entertainment, Arts and Entertainment, Arts and Sports Law Journal Sports Law Section Editor Section Officers Elissa D. Hecker Chair Law Office of Elissa D. Hecker Barry Werbin [email protected] Herrick Feinstein LLP Citation Editor 2 Park Ave Eric Lanter ([email protected]) New York, NY 10016-5675 [email protected] Vice-Chair Publication of Articles Ethan Y. Bordman Ethan Y. Bordman, PLLC The Journal welcomes the submission of articles 244 Godwin Ave of timely interest to members of the Section. Articles Ridgewood, NJ 07450-3720 should be submitted with biographical information [email protected] via e-mail in Microsoft Word format. Please submit Second Vice-Chair articles to: Andrew Howard Seiden Elissa D. Hecker Curtis Mallet-Prevost Colt & Mosle LLP 101 Park Ave, Ste 3500 Editor, EASL Journal New York, NY 10178-0061 [email protected] [email protected] Secretary This Journal is published three times a year for members of the Isaro L. Carter Entertainment, Arts and Sports Law Section of the New York The Carter Firm LLC State Bar Association. Mem bers of the Section receive the Journal without charge. The views expressed in articles published in 22919 Merrick Blvd this Journal represent those of the authors only, and not nec- Laurelton, NY 11413 essarily the views of the Editor, the Enter tainment, Arts and [email protected] Sports Law Section or the New York State Bar Association. Assistant Secretary We reserve the right to reject any advertisement. The New York Carol J. Steinberg State Bar Association is not responsible for ty po graph i cal or Law Firm of Carol J. Steinberg other errors in advertisements. 74 E. 7th St, Ste F3 Accommodations for Persons with Disabilities: New York, NY 10003 NYSBA welcomes participation by individuals with disabilities. [email protected] NYSBA is committed to complying with all applicable laws Treasurer that prohibit discrimination against individuals on the basis of disability in the full and equal enjoyment of its goods, services, Kathy Kim programs, activities, facilities, privileges, advantages, or accom- 101 Productions, Ltd. modations. To request auxiliary aids or services or if you have 260 W 44th St, Ste 600 any questions regarding accessibility, please contact the Bar New York, NY 10036-3900 Center at (518) 463-3200. [email protected] Publication Date: April 2021 Assistant Treasurer Cheryl L. Davis ©2021 by the New York State Bar Association. Author’s Guild ISSN 1090-8730 (print) ISSN 1933-8546 (online) 31 E 32nd St, Fl 7 New York, NY 10016-5583 NYSBA.ORG/EASL Remarks From the Chair By Barry Werbin Another COVID-19 milestone has passed. Just over intimate images (“revenge one year ago we gathered together to learn, network and porn”). Thanks to our Pub- enjoy comradery at our usual in-person Annual Meeting licity, Privacy and Media at the New York Hilton, as we had for many years. Faced Committee for planning this with the ongoing COVID-19 pandemic, this year’s An- excellent program on the nual Meeting was held virtually over two afternoons on new law, which is of utmost February 19th and 26th. Thanks to the dedication of our importance to EASL’s con- terrific EASL program planners and their hard work, our stituent markets. Annual Meeting proved to be as engaging and rewarding as our in-person programs, absent the missed socializing. Insofar as all NYSBA programs will remain vir- Our February 19th programs covered critical issues tual at least through June, facing some of EASL’s key market constituents. Our first we are continuing to plan program sponsored by our Sport Law Committee, “Part online CLE and informal 2—The Impact of COVID-19 on Sports,” focused on the non-CLE programs, as well uncertain path forward and potential long-term impact as co-sponsor programs of interest to our members that of the pandemic on world sports. Our second program, are sponsored by other NYSBA sections and committees. sponsored by our ADR and Fine Arts Committees, offered In the interest of expanding the reach of diversity and a deep dive into alternative dispute resolution and how it other programming, we are working on partnering with is well suited for the arts and entertainment industries. other professional bar associations and groups, such as the Copyright Society of the USA and various regional In keeping with the State Bar’s emphasis on sponsor- law schools. Mindful of the economic pain the COVID-19 ing programs that address diversity and expanding diver- pandemic has wreaked on many of our members, and in sity within Section membership and leadership position keeping with our goal of expanding the reach of our vir- ranks, EASL’s two February 26th programs were devoted tual programs, we are working with the NYSBA Section to diversity and inclusion in book publishing. The first Caucus to examine potential alternative pricing plans for of two panels examined systemic bias and other impedi- CLE and non-CLE programs. ments that have permitted racial inequality and injustice to continue in book publishing. A second panel examined Our Law Student Committee has been re-energized the role of in-house and outside counsel in addressing and plays an important role in creating awareness of such issues, positive changes that have been implemented EASL’s programs and membership benefits for law to combat these issues to date, and recommended actions students in the greater New York region. We encourage that can be taken going forward. all law students to join EASL, especially if you are inter- ested in any aspects of art, entertainment, and sports law. EASL answered the State Bar’s call to submit its Di- Student membership provides unique opportunities for versity Plan, which is published in full in this issue of the meeting and networking with experienced practitioners, Journal . We are grateful for the ongoing hard work of our writing for the EASL Journal and Blog, and keeping up Diversity Committee. EASL will continue to offer diversi- with important legal and business developments in the ty-oriented programs during 2021, as well as focusing on arts, entertainment, and sport law industries. increasing diversity among our membership ranks and committee chairs. Our Section remains fully engaged and energized as we slowly (and hopefully!) start to emerge from the Our first major post-Annual Meeting program, “Steal- pandemic. As chair, I am very proud of the amazing ing Your Image and the Grateful Dead: Amendments to work our Section has done, which would not be possible New York’s Right of Publicity Law,” took place on Febru- without the dedicated efforts of our committee co-chairs, ary 22nd. The program addressed New York’s new Right event planners and Executive Committee officers. I hope of Publicity law, which takes effect in May 2021, including you enjoy this spring issue of the EASL Journal, and we its enactment of new post-mortem rights, prohibitions look forward to presenting more value-added programs respecting the nonconsensual use of explicit and com- throughout the year, as we grow our statewide member- puter-generated depictions of individuals (“deep fakes”), ship ranks. and prohibitions against the unlawful dissemination of NYSBA Entertainment, Arts and Sports Law Journal | 2021 | Vol. 32 | No. 1 3 Editor’s Note/Pro Bono Update By Elissa D.