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Entertainment, Arts and Sports Law Journal a Publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association

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Entertainment, Arts and Sports Law Journal a Publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association NYSBA FALL/WINTER 2008 | VOL. 19 | NO. 4 Entertainment, Arts and Sports Law Journal A publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association Inside • 22008008 LLegislationegislation AAffectingffecting EEntertainment,ntertainment, AArtsrts aandnd SSportsports LLawaw • AApplyingpplying tthehe DDoctrineoctrine fforor HHireire aandnd JJointoint WWorksorks toto WWebeb ssiteite DDevelopmentevelopment • CConceptualonceptual AArtrt aandnd AArtrt TTheftheft • CCompulsoryompulsory MMechanicalechanical LLicensingicensing • CComparativeomparative AAnalysisnalysis oonn PPSPSP SSoftwareoftware CCasesases • TTiffanyiffany vv.. eeBayBay, tthehe PPerfecterfect 1100 CCasesases . aandnd mmoreore WWW.NYSBA.ORG/EASL EASLJournFallWinter08.indd 1 12/1/2008 12:05:50 PM From the NYSBA Book Store Entertainment Litigation Entertainment Litigation is a thorough exposition of the basics that manages to address in a simple, accessible way the pitfalls and the complexities of the fi eld, so that artists, armed with that knowledge, and their representatives can best minimize the risk of litigation and avoid the courtroom. Written by experts in the fi eld, Entertainment Litigation is the manual for anyone practicing in this fast-paced, ever-changing area of law. Contents 1. Contracts Without 8. The Safe Harbor Provisions of the an Obligation Digital Millennium Copyright Act and “X”.com 2. Artist-Manager Conflicts 9. Trademarks for Artists 3. Artist-Dealer Relations: EDITORS and Entertainers Representing the Peter Herbert, Esq. Visual Artist 10. Internet: A Business Owner’s Hinckley, Allen & Snyder LLP Checklist for Avoiding Web Site 4. Intellectual Property Overview: Boston, MA Pitfalls Right of Privacy / Publicity Elissa D. Hecker and the Lanham Act 11. Internet Legal Issues Law Offi ce of Elissa D. Hecker Irvington, NY 5. Anatomy of a Copyright 12. Litigating Domain Infringement Claim Name Disputes PRODUCT INFO AND PRICES 6. Digitalization of 13. Alternative Dispute Resolution 2007 / 232 pp., softbound Libraries / Google Litigation Appendices PN: 4087 7. Accrual of Copyright NYSBA Members $35 Infringement Claims Non-members $55 ** Free shipping and handling within the continental U.S. The cost for shipping and handling outside the continental U.S. will be added to your Co-sponsored by the New York State Bar Association’s Entertainment, Arts and order. Prices do not include applicable sales tax. Sports Law Section and the Committee on Continuing Legal Education Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0392 EASLJournFallWinter08.indd 2 12/1/2008 12:06:33 PM Table of Contents Page Remarks from the Chair .............................................................................................................................4 (Kenneth Swezey) Editor’s Note and Pro Bono Update ........................................................................................................5 Pro Bono Update EASL Section Pro Bono Committee......................................................................................................7 Law Student Initiative ............................................................................................................................... 8 The Phil Cowan Memorial/BMI Scholarship .....................................................................................9 2008 New York State Legislation Affecting Entertainment, Arts and Sports Law ..........................11 (Bennett Liebman) Television and Radio Update ..................................................................................................................18 (Barry Skidelsky) Sports Committee Report.........................................................................................................................22 (David H. Faux) Whatever Happened to the “Red Flag” Test?: Knowledge of Infringing Activity On— and the Burden to Police—User-Generated Sites After CCBill, Visa, Io and eBay ........................23 (Frank P. Scibilia and Vanessa Lan) Conceptual Art: Where Does the Artwork Lie? ....................................................................................29 (Judith Bresler) Applying the Doctrine of Work-for-Hire and Joint Works to Web Site Development ....................31 (Han Sheng Beh) Coloring Outside the Lines: The Register of Copyrights’ Recent Comments on Compulsory Mechanical Licensing in the Digital Marketplace ............................................................................44 (Keith C. Hauprich and Dan Coleman) Art Theft: The Isabella Stewart Gardner Museum Heist and an Investigation into Title and Statute of Limitations ..........................................................................................................47 (Shima Ebrahimi) Sounds Like a Lawsuit! Comparative Analysis of P2P Software Cases ..................................................................................51 (Alice JaKyung Choi) Re-examining Employee Assignment Agreements in Light of the Bratz Case ................................62 (Michael R. Graif) Volunteer Lawyers for the Arts ...............................................................................................................66 NYSBA Entertainment, Arts and Sports Law Journal | Fall/Winter 2008 | Vol. 19 | No. 4 3 EASLJournFallWinter08.indd 3 12/1/2008 12:06:41 PM Remarks from the Chair After a restful Fall/Winter how socially unacceptable conduct that occurs outside an season EASL is back in full swing athlete’s business obligations impacts the talent’s contrac- and there is much to report! tual obligations and success. I am thrilled about the con- We have also recently presented excellent CLE op- tinued success of our Pro Bono portunities, including the Alternative Dispute Resolution Committee’s partnership with Committee’s Mediation Luncheon, which covered basic its counterpart in the IP Section. mediation concepts, and the procedural and substantive Together, the committees coordi- details of how to best resolve arts- and entertainment-re- nated a very successful pro bono lated disputes without litigation. In addition, the Theatre legal clinic for members of the and Young Entertainment Lawyers Committees co-hosted Dramatists’ Guild, and are plan- a CLE panel discussing the rights and union issues in- ning several more clinics for this year and next. volved in bringing a Broadway show to television. Many other events are on the horizon, so be sure to check our EASL has and will continue to co-sponsor many big Web site for updates. events throughout the season. In October, in conjunction with the CMJ Music Marathon & Film Festival, we once In addition to our wonderful programs, we also again brought in an impressive panel of experts for our continue to grow and maintain a strong Executive Com- Music Business Law Seminar. The panelists discussed the mittee. I would like to welcome Kay Murray, who recently many critical legal issues affecting the future of the music joined us as the new Chair of the Committee on Liter- industry. We were especially excited to feature a keynote ary Works and Related Rights. Congratulations to Judith address by producer, author, founder and president of Prowda, who has been appointed as EASL’s liaison to the artist management company Gold Village Entertainment, new Dispute Resolution Section. I would also like to thank and all-around music industry legend, Danny Goldberg. David Faux, EASL’s Second District Representative, for or- Special thanks to Joyce Dollinger, Alan Barson and Tracy ganizing Punch/Counterpunch: Lawyering for the Boxer, Greco, and to all who volunteered to help out for their a unique event that spotlighted a fascinating niche within tireless work in putting this event together. the Sports Law community at the world famous Gleason’s Boxing Gym in Brooklyn. (see page 22 for more informa- In early November, in association with the New tion about this event.) Jersey State Bar Association, EASL co-sponsored Seton Hall’s Sports & Entertainment Law Symposium. This Our Annual Meeting is scheduled for January 26, 2009 program explored many interesting issues in the sports at the New York Marriott Marquis, and the Programming industry, including the legal and business issues related Committee is already hard at work. It is sure to be an out- to constructing and operating public and private sports standing event, so save the date on your calendars. I look and entertainment facilities, legal issues related to the forward to seeing everyone there. tension between athletes’ obligations to play the game and to tend to health concerns and serious injuries, and Kenneth Swezey Catch Us on the Web at WWW.NYSBA.ORG/EASL 4 NYSBA Entertainment, Arts and Sports Law Journal | Fall/Winter 2008 | Vol. 19 | No. 4 EASLJournFallWinter08.indd 4 12/1/2008 12:06:41 PM Editor’s Note and Pro Bono Update Thank you to all of the attor- Speakers Bureau neys who volunteered at our in- The Pro Bono Committee has joined forces with the augural pro bono legal clinic with Intellectual Property Law Section to form a Speakers Bu- the Dramatists Guild of America, reau to provide speakers on entertainment, art, and sports Inc. (“DG”). In conjunction with law issues for not-for-profi t organizations, art schools, the IP Section’s Pro Bono Com- local high schools, and other groups that can benefi t from mittee and its Chair, Brian Nolan, the wide and enormous expertise of our members. One of we organized a record number the most satisfying
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