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Nysba Summer 2014 | Vol NYSBA SUMMER 2014 | VOL. 25 | 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 WWW.NYSBA.ORG/EASL From the NYSBA Book Store Section Members get 20% discount* with coupon code PUB2200N Entertainment Law Fourth Edition “The defi nitive text in the burgeoning fi eld of entertainment law. It provides an in-depth analysis of the key issues currently confronting the practitioners of its various specialties. For both its breadth and depth, I highly recommend Entertainment Law to students, academics and professionals alike.” “This is a must for anyone who is seriously involved in the entertainment business.” EDITOR-IN-CHIEF Entertainment Law, Fourth Edition, updates and expands the Howard Siegel, Esq. coverage of the previous edition, including the historical changes in the music industry, and features a new chapter on Exhibitions. PRODUCT INFO AND PRICES 2013 / 986 pp., Edited by Howard Siegel, Esq., this book’s 10 chapters cover the looseleaf / PN: 40862 principal areas of entertainment law, including the Recorded Music NYSBA Members $140 Industry, Music Publishing, Television, Film, Commercial Theater, Non-members $175 Book Publishing, Minors’ Contracts, Personal Management, and Exhibitions. 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 The authors, from the New York, California and Nevada Bars, are shipping and handling offer applies to orders shipped within the continental U.S. Shipping and some of the most successful entertainment law practitioners in handling charges for orders shipped outside the the country. continental U.S. will be based on destination and added to your total. *Discount good until September 15, 2014 Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB2200N Table of Contents Page Remarks from the Chair .....................................................................................................................................................4 Editor’s Note .......................................................................................................................................................................5 Law Student Initiative Writing Contest ...........................................................................................................................7 The Phil Cowan Memorial/BMI Scholarship .................................................................................................................8 NYSBA Guidelines for Obtaining MCLE Credit for Writing .....................................................................................10 A Union for Football Players Blitzes Northwestern University .................................................................................11 (Paul Burmeister) 3D Printing, Secondary Liability, and Staying Ahead of Grokster ..............................................................................15 (Britton Payne) Has Idaho Dealt the Baseball Rule Its Third Strike? ....................................................................................................24 (Michael Crowley) Calculating Wagering Gains and Losses: A Statutory Interpretation of I.R.C. § 165(d) .........................................35 (Ning Yu Wu) Internet Piracy Developments: Recent Case Law, Voluntary Collaborative Solutions, and Proposals for Additional Remedies .............................................................................................................................................43 (Edward McCoyd) Future of Fair Use Is Present: Lois Greenfi eld v. Jill Pankey ...........................................................................................56 (Irina Tarsis) Automating Music Similarity Analysis in “Sound-Alike” Copyright Infringement Cases ...................................60 (Charlotte A. Tschider) Fixated on Garcia ...............................................................................................................................................................69 (Marc Jacobson and Marc Pellegrino) Direct Licensing Controversy: Will Publishers Be Able to License Public Performing Rights to Digital Music Services Directly (Instead of Through the Performing Rights Organizations) and What Are the Consequences for Songwriters? .................................................................................................................................72 (Steve Gordon) Entertainment Immigration: An Introduction to Employment-Based Immigrant Visas ........................................77 (Michael Cataliotti) Leslie S. Klinger v. Conan Doyle Estate, Ltd. .....................................................................................................................79 (Joseph Perry) Court of Arbitration for Sports Relevant Practice: An Analysis of the Most Important Swimming- Related Cases ................................................................................................................................................................82 (Sergey Yurlov) TV 101 .................................................................................................................................................................................84 (Nima Daivari) Krell’s Korner: Shipwrecked: A Legal Analysis of Gilligan’s Island ...........................................................................87 (David Krell) NYSBA Entertainment, Arts and Sports Law Journal | Summer 2014 | Vol. 25 | No. 2 3 Remarks from the Chair I am now six months into NYSBA’s CLE Department entitled: “Practicing Entertain- my tenure as Chair of EASL, ment Law in New York: What You Need To Know,” and the involved in all aspects of its Pro Bono Clinic at NYFA was held on June 3rd. In October, activities, and planning for we will again be providing panels and seminars as part of an exciting upcoming year as CMJ. Of course, neither the EASL Blog, nor the Journal, will summer approaches. I have be taking the summer off. survived chairing my fi rst Executive Committee meetings A social event by the Membership Committee is being (with the invaluable assistance planned for the summer. EASL membership can be a valu- of Diane Krausz) and I am able and fun social and networking group. Stay tuned for looking forward to many more. details. In a short period of time, We are closely monitoring several major cases, such as EASL has had three co-sponsored CLE events, all of which Aereo*, that will be decided shortly and I’m sure that EASL were tremendously exciting and successful, both in content will be actively involved in disseminating information and and in attendance. The second annual Cardozo Sports Law leading discussions on the outcomes. In addition, I am Symposium (co-sponsored with Cardozo and several other particularly happy to report that as a result of the efforts organizations) took place in March. The third (yes, third) of Judith Bresler, EASL has submitted a memorandum in annual seminar on the “Legal Aspects of Live Theatrical support of the proposed amendment to New York Arts Producing” (co-sponsored with CTI) and the panel on “In- and Cultural Affairs Law in regard to opinions concerning dependent Film Finance and Distribution” (co-sponsored authenticity, attribution and authorship of works of fi ne art. with Cardozo and the Metropolitan Black Bar Association) Lastly, I am looking forward to expansion of EASL’s both took place in April. Thank you to Anne Atkinson, Law School Liaison program under the stewardship of Jason Baruch, Diane Krausz and everyone else (I’m sure I Jason Aylesworth, to include not only more law schools, but have missed many names) who worked tirelessly to orga- to get the students and liaisons more actively involved in nize these events. I truly believe that EASL is becoming the EASL and EASL’s activities. pre-eminent presenter of seminars and educational events in the New York entertainment, arts and sports law legal I wish you all a good summer. community. Steve Rodner On May 21st, Barry Werbin and Mary Ann Zimmer *Decided 6/25/14. See nysbar.com/blogs/EASL. Post- presented the EASL Spring Meeting, which included Aereo: Has The Supreme Court Clouded the Future? by guests speaking about “Cutting-Edge Case Developments Barry Werbin, 7/3; Week in Review by Martha Nimmer, in Entertainment Law” and “Protecting and Enforcing 6/27 and U.S. Supreme Court Decision Favors Broadcast- Publicity Rights in Social Media.” In June, EASL also ran ers Over Aereo, by Barry Skidelsky 6/25. a full day entertainment law overview seminar for the Follow NYSBA and EASL visit on Twitter www.twitter.com/nysba and www.twitter.com/ nysbaeasl and click the link to follow us and stay up-to-date on the latest news from the Association and the EASL Section 4 NYSBA Entertainment, Arts and Sports Law Journal | Summer 2014 | Vol. 25 | No. 2 Editor’s Note Happy Summer reading! Pro Bono Update This issue is fi lled with inter- On March 29th, we hosted a roundtable discussion at esting and well written ar- ArtsWestchester and Kristine A. Sova led a conversation ticles concerning all aspects of about employees, interns, and general employee business entertainment, art and sports practices. It was a resounding success, and we are work- law topics. Please make sure to ing with ArtsWestchester to see if EASL can be helpful in visit the EASL Blog for regular other areas as well. updates,
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