NYSBA SPRING 2019 | VOL. 30 | 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 In This Issue n Playola—New Tech, Familiar Deception n Fixation on Flesh: Why Tattoos Should Not Garner Copyright Protection n Street Art: Is Copyright for “Losers©™“ n When Do Copyright Claims Accrue? n Contracts With Minors in New York and California n Pro Bono Update ....and more 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 field of sports law. Written by dozens of sports law attorneys and medical professionals, In the Arena: A Sports Law Handbook is a reflection 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. Section Table of Contents Members get 20% Intellectual Property Rights and Endorsement Agreements discount* with coupon code How Trademark Protection Intersects with the Athlete’s EDITORS Right of Publicity PUB9167N Elissa D. Hecker, Esq. Collective Bargaining in the Big Three David Krell, Esq. Agency Law Sports, Torts and Criminal Law PRODUCT INFO AND PRICES 2013 | 539 pages Role of Advertising and Sponsorship in the Business of Sports PN: 4002 (Print) Doping in Sport: A Historical and Current Perspective PN: 4002E (E-Book) Athlete Concussion-Related Issues Non-Members $80 Concussions—From a Neuropsychological and Medical Perspective NYSBA Members $65 In-Arena Giveaways: Sweepstakes Law Basics and Compliance Issues Order multiple titles to take advantage of our low flat Navigating the NCAA Enforcement Process 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: PUB9167N Discount valid until May 2, 2019. 2 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2019 | Vol. 30 | No. 1 Table of Contents Page Remarks from the Chair ................................................................................................................. 4 Editor’s Note ..................................................................................................................................... 7 Pro Bono Update .............................................................................................................................. 8 Law Student Initiative Writing Contest .................................................................................... 10 The Phil Cowan Memorial Scholarship Writing Competition ............................................. 11 NYSBA Guidelines for Obtaining MCLE Credit for Writing ............................................... 13 When Do Copyright Claims Accrue? ....................................................................................... 14 (Jonathan Bloom) Playola – New Technology, Familiar Deception ..................................................................... 19 (Scott Connolly) Fixation on Flesh: Why Tattoos Should Not Garner Copyright Protection ...................... 25 (John Mixon) Street Art: Is Copyright for “Losers©™”? A Comparative Perspective on the French and American Legal Approach to Street Art ....................... 31 (Louise Carron) Sports and Entertainment Immigration: Immigrants? Who Needs ‘Em?! Oh, America, That’s Right ..................................................................... 38 (Michael Cataliotti) 2019 Annual Meeting Transcript ................................................................................................ 43 Entertainment Contracts with Minors in New York and California .................................. 75 (Neville L. Johnson and Douglas L Johnson) The Top 25 Greatest Law Songs of All Time ............................................................................ 77 (Judah S. Shapiro) Krell’s Korner: Holy Copyright Audit, Batman! ..................................................................... 80 (David Krell) The Entertainment, Arts and Sports Law Section Welcomes New Members .................. 83 Section Committees and Chairpersons ..................................................................................... 85 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2019 | Vol. 30 | No. 1 3 Remarks from the Chair Introduction focused on transactions, and the second on litigation Welcome to 2019! (both of which were organized by Judith Bass and Anne As I enter the midpoint Atkinson)—and from a third CLE panel on ethics for en- of my two-year term as tertainment and other lawyers (which was organized by Chair of the Entertain- Ron Minkoff). Congratulations and thanks again to the ment, Arts and Sports organizers, the program planners who also helped, and of Law (EASL) Section, I course the panelists! look back with pride to the accomplish- ments achieved—which were made possible by the hard work and dedication of EASL’s Executive Committee, invaluable contributions of our CLE program planners and speakers, and, of course, participation by Section members like you. Thank you all! As we all look forward and head into 2019—the 50th anniversary of inter alia the first Led Zeppelin album (remember LPs?), the first Boeing 747 jumbo jet flight, Apollo 11’s Eagle moon landing, the Stonewall riots, Prior to the panels, Scott Connolly and John Mixon installation of the first ATM (which was at Rockville Cen- (two students at Saint John’s Law School, a serendipitous ter on Long Island), the first message sent over Arpanet occurrence) were also announced as winners of EASL’s (forerunner of the Internet), the incorporation of Walmart, annual Phil Cowan Memorial Scholarship writing compe- and the Jimi Hendrix concert I was at on New Year’s Eve tition for law students (again co-sponsored by BMI). Each 1969 in the Fillmore East—I remain grateful for the oppor- received a $2,500 scholarship and free EASL membership tunity to serve as EASL’s Chair, and to continue working for 2019. Both of Scott’s and John’s articles are also includ- with an amazingly talented, collaborative and collegial ed in this issue of the Journal. group so focused on creating or enhancing professional In addition, those present at our Annual Meeting and personal value for our fellow Section members and were advised of a special discount made available to for the creative community at large. EASL members who might be interested in attending this year’s South by Southwest (SxSW) program to be held from March 8th through 17th in Austin, Texas. EASL’s Rosemarie Tully and Diane Krausz have also planned a special CLE program to take place at SxSW on March 14th. Networking Immediately following the conclusion of EASL’s 2019 Annual Meeting, about 100 or so of us migrated over to Bill’s Burger Bar in nearby Rockefeller Center for a fun 2019 Annual Meeting networking cocktail reception (an open bar with premium liquor and tasty food), which for the second consecutive As those of you who personally attended it know, year was jointly sponsored by the Intellectual Property EASL’s 2019 Annual Meeting held on January 15th at Section. A good time was had by all, and some valuable the Hilton in NYC (as part of NYSBA’s Annual Meeting connections were made. week) was a huge success, with several survey results going so far as to say “best ever.” If you missed it, a tran- script of EASL’s program is included in this issue of the Upcoming Events EASL Journal. You may already know that the EASL and IP sec- tions of NYSBA also collaborate from time to time on pro The transcript includes presentations from two CLE bono clinics—such as the recent one from February 23rd panels on underlying rights and adaptations—the first 4 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2019 | Vol. 30 | No. 1 at Hunter College in New York City, organized by Elissa committees and other activities, and to enable a succes- Hecker for the Dance/NYC Symposium. EASL conducts sion plan for future Section and NYSBA leaders. many pro bono clinics, such as for visual artists and musi- cians. We would like to do more, but need your help. These Guidelines include budgets and goals set for each EASL committee to hold four meetings, programs or EASL remains eager to work with members, other events per year (e.g., CLE programs, breakfast or brown NYSBA Sections, law schools, and additional organiza- bag lunch meetings, telephone conference calls, social or tions on pro bono clinics, CLE programs, networking or networking events, etc.), with limits imposed for each social, and other events. We constantly seek to explore committee chair to serve no more than three consecutive new ways to best serve not only our members but also years (and thus provide additional opportunities for other the creative community and others, while we continue