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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 2005 | VOLUME 16 |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 Remarks From the Chair/Editor’s Note The EASL Section’s Annual Meeting was a resound- publishing the transcript of the programs for EASL Sec- ing success. I want to thank tion members, which appears in this issue of the Journal. everyone who helped to In addition, the EASL Section has created a standing organize, coordinate and put committee devoted to Alternative Dispute Resolution together the programs, and (“ADR”). We are very excited about this new resource for the moderators and for EASL Section members. Although the ADR Commit- speakers who generously tee is in its infancy, we are working closely with the gave their time for interest- NYSBA’s Committee on ADR, and include in this issue ing, entertaining and often an article from the Chair of that Committee, Elayne controversial panels. For the Greenberg in order to give a background into the vari- first time in the history of the ous ADR options that are available to practitioners. Section, we partnered with the NYSBA’s MCLE Depart- We are also excited to publish the paper that was ment and as a result, the Elissa D. Hecker awarded the first Phil Cowan/BMI Memorial Scholar- Annual Meeting programs ship. Rinil Routh, a student at New York Law School, were recorded and will be made available for purchase. won a $2,500 scholarship for a paper regarding the For more information, please refer to the nysba.org web- Copyright Term Extension Act, and what she believes site. Of course, we are also continuing the tradition of Inside Pro Bono Letter: Proposal by Working Group on Definition The Role of ADR in Preparing and Trying the Civil Lawsuit........30 of Pro Bono Service ..........................................................................3 (Elayne E. Greenberg) NYSBA Guidelines for Obtaining MCLE Credit for Writing ..........4 Record-Label Names as Trademarks: Enforceable Law Student Initiative .......................................................................... 5 or Expendable? ................................................................................40 (Jessica R. Friedman) Entertainment, Arts and Sports Law Section and BMI Offer Phil Cowan Memorial Law School Scholarship................ 6 The Need for a Performance Right ....................................................49 (Ann Chaitovitz) The Eldred Act: Contradiction to the “Progress of Science”............7 (Rinil Routh) Royalty Auditing Issues Arising Under Recording Artist Agreements ......................................................................................50 Court Excludes Use of Multiplier in Calculation of (Chris Hull, CPA) Copyright Infringement Damages................................................12 (Joel L. Hecker) Indecent Proposals: Why the Most Recent FCC Indecency Crackdown Risks Crossing the Center Line into an Iron Fistful of Dollars—An Artist’s Infringement Case Oncoming First Amendment Showdown ..................................54 Against Camel Cigarettes ..............................................................14 (Robert Corn-Revere and Ronald London) (Michiko Stehrenberger) Entertainment, Arts and Sports Law Section Annual Meeting ....61 The Work-for-Hire Doctrine and the “Creative Genius” in the Wake of Martha Graham School & Dance Foundation, Inc. Volunteer Lawyers for the Arts ............................................................ 98 v. Martha Graham Center of Contemporary Dance, Inc. ................20 (Judith Beth Prowda) are the long-term effects of the rulings upholding its written both from a legal analysis and plaintiff’s view- constitutionality. point regarding the use of multipliers in the calculation of copyright infringement damages, three articles In addition, on page 3, is the letter that Elisabeth devoted to different aspects of the music industry, the Wolfe and I wrote in support of the NYSBA’s expanded continuation of our series of articles devoted to the definition of pro bono. As you will see, we not only Martha Graham decision, an article about the FCC’s rul- believe that the definition of pro bono services should ings in 2004, and the most recent program information be greatly expanded to include other, non-traditional from VLA. services, but we also urge the NYSBA to lobby for the awarding of MCLE credits for services that fall under Once more, please be advised that authors can that expanded definition. Information regarding the obtain CLE credit from having an article published in NYSBA’s position is available on its website. the EASL Journal. Articles and letters may be submitted with biographical information via e-mail to me at Finally, I want to thank those members of the EASL [email protected]. Section who participated in Copyright Awareness week, by volunteering via e-mail, speaking in classrooms, or monitoring MENC’s Bulletin Board. Copyright Aware- THE NEXT DEADLINE IS MAY 13, 2005. ness week was a resounding success, continuing with the mission of the Copyright Society of the USA and the Elissa D. Hecker works on legal, educational and EASL Section, as its partner, in furthering the impor- policy matters concerning many aspects of copyright, tance of copyright education. trademark and corporate law. In addition to her activi- ties in the EASL Section, Elissa is also a frequent lec- Editor’s Note turer and panelist, a member of the NYSBA’s Commit- tees on CLE and Publications and a member of the I am pleased to provide you with what I believe is a Copyright Society of the U.S.A. and its Journal’s very comprehensive EASL Journal. Included in this Board of Editors. Elissa is the recipient of the New issue (in addition to what is listed above) are a wide York State Bar Association’s 2005 Outstanding Young range of topics, including a companion set of articles Lawyer Award. REQUEST FOR ARTICLES If you have written an article, or have an idea for one, please contact Entertainment, Arts and Sports Law Journal Editor: Elissa D. Hecker, Esq. 90 Quail Close Irvington, NY 10533 [email protected] Articles should be e-mailed or submitted on a 3½" floppy disk, preferably in Microsoft Word or WordPerfect, along with a printed original and biographical information. 2 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2005 | Vol. 16 | No. 1 New York State Bar Association One Elk Street, Albany, New York 12207 • 518/463-3200 • http://www.nysba.org ENTERTAINMENT, ARTS AND SPORTS LAW SECTION MEMBERS-AT-LARGE OF EXECUTIVE COMMITTEE 2004-2006 Executive Committee Alan J. Hartnick Leonard Orkin ELISSA D. HECKER Peter Herbert Gary F. Roth Chair 51 West 86th Street Suite 405 November 29, 2004 New York, NY 10024 212/721-8166 ALAN D. BARSON Vice-Chair Law Office of Alan D. Barson 853 Broadway Cynthia Feathers Suite 1001 New York, NY 10003 NYSBA 212/254-0500 FAX 212/937-2297 One Elk Street JUDITH B. PROWDA Secretary Albany, NY 12207 15 West 75th Street New York, NY 10023 212/496-8658 KENNETH N. SWEZEY Re: Proposal by Working Group on Definition of Pro Bono Service Assistant Secretary Cowan DeBaets et al 41 Madison Avenue 34th Floor Dear Cynthia: New York, NY 10010 212/974-7474 FAX 212/974-8474 STEPHEN B. RODNER We are writing on behalf of the Entertainment, Arts and Sports Law (EASL) Section in support of Treasurer Pryor Cashman et al the NYSBA’s position to broaden the definition of Pro Bono service. As you are aware, the 410 Park Avenue New York, NY 10022 EASL Section has set up a flagship Pro Bono program for both the NYSBA as a whole and for 212/326-0150 FAX 212/798-6344 our members. Two years ago, we established a Pro Bono Committee within the Section, which is CAMERON A. MYLER CLE Compliance Officer comprised of a Committee Chair and a liaison from each EASL Committee. The Pro Bono Frankfurt, Kurnit, Klein & Selz 488 Madison Avenue Committee was created because we believe that giving back to the community is good for a New York, NY 10022 212/826-5545 plethora of reasons, including the benefit to the community, individual attorney and to the SECTION DELEGATE: Judith A. Bresler reputation of the legal field as a whole. Limiting the definition of Pro Bono to litigation and other Steven H. Richman DISTRICT REPRESENTATIVES: similar services would turn away those who are eager to do “good”. FIRST DISTRICT Stanley Rothenberg SECOND DISTRICT Vacant We have found that attorneys are more than willing to volunteer their time to do Pro Bono work, THIRD DISTRICT Vacant as we have defined it within the Section’s activities. Our Pro Bono activities (which draw FOURTH DISTRICT Paul V. Sciocchetti tremendous support) include staffing clinics at the Volunteer Lawyers for the Arts, providing FIFTH DISTRICT Gary A. Hall speakers for inner-city and other schools regarding legal and legal-related issues, providing SIXTH DISTRICT James A. Salk opportunities for attorneys to become involved with inner-city sports and mentoring programs, SEVENTH DISTRICT Mark A. Costello and creating a separate mentor program that matches senior attorneys with junior attorneys on a EIGHTH DISTRICT David E. Parker variety of Pro Bono matters. NINTH DISTRICT Arnold A. Gurwitch TENTH DISTRICT Rosemarie Tully The EASL Section supports the broad policy statement of the NYSBA, as we have seen in ELEVENTH DISTRICT Eric M. Berman practice the breadth of services that attorneys are willing to provide as volunteers. We also TWELFTH DISTRICT Vacant believe strongly in the reformation of the current CLE rules, in that the broadening of the FOUNDING CHAIRMAN: definition of Pro Bono service should work hand-in-hand with the broadening of CLE credits that Marc Jacobson FORMER CHAIRS: should be available for those attorneys who provide Pro Bono. Eric R. Roper Howard Siegel Philip M. Cowan John R. Kettle, III Please do not hesitate to contact us if you have any questions about our position. Samuel L. Pinkus Timothy J. DeBaets Judith A. Bresler Jeffrey A. Rosenthal Best regards, STANDING COMMITTEE CHAIRS: COPYRIGHT and TRADEMARK Jay Kogan, Co-Chair Neil J. Rosini, Co-Chair FINE ARTS Judith B.
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