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NYSBA SPRING 2020 | VOL. 31 | 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 In This Issue n A Case of “Creative Destruction”: Takeaways from the 5Pointz Graffiti Dispute n The American Actress, the English Duchess, and the Privacy Litigation n The Battle Against the Bots: The Legislative Fight Against Ticket Bots ....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. Table of Contents Intellectual Property Rights and Endorsement Agreements How Trademark Protection Intersects with the Athlete’s EDITORS Right of Publicity 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: PUB347N Table of Contents Page Remarks From the Chair ........................................................................................................................................................ 4 Editor’s Note | Pro Bono Update ........................................................................................................................................ 5 Law Student Initiative Writing Contest .............................................................................................................................. 7 The Phil Cowan Memorial Scholarship Writing Competition ....................................................................................... 8 NYSBA Guidelines for Obtaining MCLE Credit for Writing ....................................................................................... 10 SPORTS AND ENTERTAINMENT IMMIGRATION: SCOTUS, Travel Bans, Bull Riders, Dancers, and Athletes ................11 (Michael Cataliotti) ResOLUTION ALLEY: Desperately Seeking Diversity in ADR .......................................................................................... 17 (Theodore K. Cheng) A Case of “Creative Destruction”: Takeaways from the 5Pointz Graffiti Dispute .................................................. 20 (Louise Carron) HOLLYWOOD DOCKET: Recent Interesting Cases ............................................................................................................... 25 (Nelville L. Johnson and Douglas L. Johnson) The American Actress, the English Duchess, and the Privacy Litigation .................................................................. 30 (Amber Melville-Brown) CAST Act: Small Claims, High Hopes .............................................................................................................................. 42 (Michael B. Smith) Pop-Up Stays Up ................................................................................................................................................................... 47 (Tin-Fu (Tiffany) Tsai) Annual Meeting Award Photos .......................................................................................................................................... 49 Transcript from Annual Meeting Program ....................................................................................................................... 51 The Battle Against the Bots: The Legislative Fight Against Ticket Bots ..................................................................... 94 (PCMS winner Jennifer Sherman) Characters in Captivity? Defining the Scope of Trademark Protection for Public Domain Characters ............. 99 (PCMS winner Brandon A. Zamudio) Protecting Your Most Valuable Asset: Your Clients ...................................................................................................... 107 (Lynn Lavender) KRELL’S KORNER: The 1919 Chicago White Sox, Kenesaw Mountain Landis, and Eight Men Out...................... 109 (David Krell) The Entertainment, Arts and Sports Law Section Welcomes New Members .........................................................111 Section Committees and Chairpersons ........................................................................................................................... 112 Remarks From the Chair By Barry Werbin What I thought was the “final” draft of these remarks, We were hard at work all optimistic and set to go to print, was unexpectedly de- planning the Spring Meet- railed after New York was shut down from the COVID-19 ing for May 21st, which had pandemic and the world changed, seemingly overnight. to be cancelled, along with My revised remarks here are now a mix of emotions—ex- many other EASL and State citement and gratefulness to serve as EASL’s new Chair Bar programs. Nevertheless, as we enter the third decade of the 21st Century, coupled we are planning at least two with sadness and disbelief at the horrific loss of life segmented online CLE pro- brought upon us by the pandemic. grams for a virtual Spring Meeting later this Spring. But New Yorkers are resilient and strong, and they get In addition, our Committee going when things get tough, helping each other through Chairs have been reaching unprecedented times. We honor all those amazing doctors out to their members to stay and health care workers across the country who have put in touch and come up with Journal their own lives at risk week after week. I hope this creative virtual programs, both CLE and non-CLE. NYS- issue finds you and your loved ones safe and healthy, as BA’s new EASL website interface will now make it easier we slowly start to focus on getting back to normalcy, while for Committee Chairs to connect with their members grieving all we have lost. through the Online Community portal. With the pandemic On behalf of the entire Section, I want to express having wreaked havoc on businesses, including within the thanks and appreciation to my namesake predecessor, sports and entertainment fields, as of this writing we are Barry Skidelsky, who as Immediate Past Chair did a terrific planning at least one webinar program on the impact of job easing us through the end of the millennium’s second the pandemic on those industries. decade and setting us on a positive course. Other virtual programs have taken off amidst the Despite the challenges brought on by the pandemic, “stay at home” mandate. Although the Pro Bono Clinic the EASL Section, including its Executive Committee, has was unable to move forward in person, our Pro Bono continued to function virtually using Zoom and other on- Steering Committee has been working in conjunction with line tools to maintain its connection to its members. NYFA and VLA on free webinars to help artists and those in the entertainment businesses weather issues that have At the time the pandemic hit, we were well on our arisen with the pandemic. In addition, EASL’s Diversity way to making 2020 one of the most productive terms Committee co-sponsored the Metropolitan Black Bar for the Section and its members. EASL’s Annual Meeting Association’s April 22nd webinar “Representation Op- program on January 28th was a sell-out, with two enlight- portunities for Attorneys in Esports Post COVID-19” and ening panels discussing legal and business aspects of The our Alternative Dispute Resolution Committee arranged a Digital Distribution Revolution in film, TV, videogames, successful ADR webinar CLE that took place in May. and esports, followed by another engaging panel discuss- ing the ethical implications of changing roles of attorneys, Although our annual two-evening EASL/CTI Theater agents, and managers in the entertainment field. Planning Producing event had to be cancelled, we are optimistic the Annual Meeting takes enormous effort and dedication, that it will go forward sometime in early Fall of this year. and I want to thank our Executive Committee members Our always-anticipated annual Music Business Law Confer- Judith Bass, Anne Atkinson, and Sarah Robertson for all ence is in the planning stages as well. their hard work as Program Chairs. As Chair,
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