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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 SPRING 2012 | VOL. 23 | 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 Inside • Pro Sports Diversity • Celebrity Tweeting • Use of Art Images in Gallery and Auction Catalogues • Courts’ View of “Borrowing” • Racial Discrimination in Theatrical Casting • EASL Annual Meeting Program Transcript • Venue Safety and Security • Major League Soccer and the Single Entity Defense • The Premier League Decision and the Future of Sports Broadcast Licensing • Online Sports Betting • The FTC’s Green Guidelines • Social Networking • Salvaging Titanic WWW.NYSBA.ORG/EASL NEW YORK STATE BAR ASSOCIATION Section Members From the NYSBA Book Store > get 20% discount* with coupon code PUB1402N Counseling Content Providers in the Digital Age A Handbook for Lawyers For as long as there have been printing presses, there have been accusations of libel, invasion of privacy, intellectual property infringements and a variety of other torts. Now that much of the content reaching the public is distributed over the Internet, television (including cable and satellite), radio and fi lm as well as in print, the fi eld of pre-publication review has become more complicated and more important. Counseling Content Providers in the Digital Age provides an overview of the issues content reviewers face repeatedly. EDITORS Counseling Content Providers in the Digital Age was written Kathleen Conkey, Esq. and edited by experienced media law attorneys from California Elissa D. Hecker, Esq. and New York. This book is invaluable to anyone entering the fi eld Pamela C. Jones, Esq. of pre-publication review as well as anyone responsible for vetting PRODUCT INFO AND PRICES the content of their client’s or their fi rm’s Web site. 2010 / approx. 430 pages, softbound / PN: 4063 Table of Contents Introduction; Defamation; The Invasion of Privacy Torts; Right $50 NYSBA Members of Publicity; Other News-gathering Torts; Copyright Infringement; $65 Nonmembers Trademark Infringement; Rights and Clearances; Errors and Omissions Insurance; Contracting with Minors; Television Standards and $5.95 shipping and handling within the continental Practices; Reality Television Pranks and Sensitive Subject Matter; U.S. The cost for shipping and handling outside the continental U.S. will be based on destination and Miscellaneous Steps in Pre-Broadcast Review. added to your order. Prices do not include applicable sales tax. Get the Information Edge *Discount good until May 25, 2012. 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB1402N Table of Contents Page Remarks from the Chair .....................................................................................................................................................4 (Rosemarie Tully) Editor’s Note .......................................................................................................................................................................6 (Elissa D. Hecker) NYSBA Guidelines for Obtaining MCLE Credit for Writing .......................................................................................7 Pro Bono Update .................................................................................................................................................................8 Letter to NYSBA President Vincent E. Doyle III ...........................................................................................................10 (Judith B. Prowda) EASL Mentoring Program ...............................................................................................................................................13 EASL Diversity Initiative—Reality TV CLE Recap ......................................................................................................15 (Rob Thony) Law Student Initiative Writing Contest .........................................................................................................................16 The Phil Cowan Memorial/BMI Scholarship ...............................................................................................................17 EASL Reception: Michael R. Bloomberg Award ...........................................................................................................19 Getting in the Game: 2011 Report Shows Ups, Downs in Pro Sports Diversity ......................................................20 (Joseph M. Hanna and S. Philip Unwin) Talent on Twitter: Legal Issues for Employers from Celebrity Tweeting ..................................................................26 (Jenna Bass Levy) Use of Art Images in Gallery and Auction Catalogues: Copyright Minefi eld and Practical Advice ....................35 (Barry Werbin) Google, Richard Prince, and Gagosian: The Courts’ 2011 View of “Borrowing” and What It Portends for the Arts ........................................................39 (Carol J. Steinberg) The Gershwins’ Porgy and Bess: A Case Study of Racial Discrimination in Theatrical Casting .............................44 (Patrick Siler) Entertainment, Arts and Sports Law Section Annual Meeting Program Transcript ...............................................52 Reasonably Foreseeable Mayhem: The Law of Venue Safety and Security ..............................................................89 (Steven A. Adelman) Antitrust in the Realm of Sports: Major League Soccer and the Single Entity Defense .........................................93 (Bryan A. Green) One Continent, One Sport…One Channel? The Premier League Decision and the Future of Sports Broadcast Licensing in Europe .....................................97 (Eric C. Schonberg) On the Legality of Online Sports Betting .....................................................................................................................102 (Ryan M. Rodenberg and Jordan R. Bass) The FTC’s Green Guidelines and Their Impact on the Future of Fashion and Sustainable Style .......................106 (Emily Schall) Social Networking ...........................................................................................................................................................117 (Mark Grossman) Krell’s Korner: Salvaging Titanic ..................................................................................................................................119 (David Krell) NYSBA Entertainment, Arts and Sports Law Journal | Spring 2012 | Vol. 23 | No. 1 3 Remarks from the Chair I am honored to be serving by the membership along with District Representatives, as Chair of the Entertainment, Delegates and one Alternate Delegate to the NYSBA Arts and Sports Law Section House of Delegates. for 2012–2014. Our member- In addition, the winners of the 2011 BMI/Phil Cowan ship now exceeds 2,000, a Memorial Scholarship competition were announced. milestone for EASL, and I am EASL holds this writing competition on a yearly basis, confi dent that it will continue and it is open to law students of accredited laws schools to grow in number and excel- within New York State and Rutgers University Law lence in programming as we School, Seton Hall Law School, and up to 10 other se- continue to break new ground lected accredited law schools throughout the country on in the areas of diversity, pro- a rotating basis. Each year this competition grows, and gram integrity, and interna- we are continuously impressed with law student submis- tional initiatives. sions. This year the scholarship submissions were espe- Our year in EASL is off to a fabulous start. The EASL cially outstanding and contemporary, and the winners Program during the January 2012 NYSBA Annual Meet- Patrick Siler, St. John’s University School of Law (“The ing in Manhattan had a record number of attendees, due Gershwins’ Porgy and Bess: A Case Study of Racial Dis- in no small part to our stellar Program Co-Chairs Judith crimination in Theatrical Casting,”see p. 44) and Eric C. Bass, Ethan Bordman, Diane Krausz, and Carol Steinberg. Schonberg, New York Law School (“One Continent, One The two-part program focused on Literary Publishing Sport…One Channel? The Premier League Decision and (E-books, and New Models of Publishing) and Trending the Future of Sports Broadcast Licensing in Europe,”see Topics in Licensing and Branding. The programs were p. 97), each received a scholarship of $2,500. Both papers informative, timely, thought-provoking, ground-breaking are published in this edition of the EASL Journal, and I am and well received (see p. 52 for the full transcript of the confi dent you will enjoy reading them. Many thanks go Annual Meeting). Post program, many of us walked a to our Scholarship Committee Co-Chairs, Judith Bresler, short distance over to the EASL Cocktail Reception held Hon. Barbara Jaffe, and Gary Roth for organizing this at the exquisite offi ces of UBS, where we were entertained wonderful opportunity for law students, and to the mem- by the delightful music of Karl Kramer (keyboard and bers of the Committee for their participation in judging horn) and Larry Goldman (bass). We also enjoyed a tour the papers. of the UBS Art Collection, a unique opportunity arranged In addition to the BMI/Phil Cowan Memorial Schol- by our Immediate Past Chair Judith Prowda in concert arship competition, our EASL Journal acknowledges law with our Program Co-Chairs. To our UBS hosts, Richard student articles on a regular basis through its Law Stu- Grassey, Kristine Flyntz and Nora Reitemeyer, we offer dent Initiative (LSI). Law students who
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