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Entertainment, Arts and Sports Law Journal NYSBA SUMMER 2011 | VOL. 22 | 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 Inside • Martha Graham: Who Owns a Dance? • Appropriation Art • Cariou v. Prince • Responsibility for “Copycat” Acts • Constitutional Limits on Awards of Statutory Damages • The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act • The Role of Live Musicians on Broadway • States Bet on Changes to Gambling Laws to Boost Slumping Economies • Extending Copyright Protection for Motion Picture Titles • The International Olympic Committee and Intellectual Property Rights • Black Swan • Park Life v. Koons • The Erie Doctrine and the Designated Hitter Rule • Carson Productions vs. Here’s Johnny Portable Toilets, Inc. WWW.NYSBA.ORG/EASL NEW YORK STATE BAR ASSOCIATION Section Members From the NYSBA Book Store > get 20% discount* with coupon code PUB1175N 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 the content of their client’s or their fi rm’s Web site. PRODUCT INFO AND PRICES 2010 / approx. 430 pages, Table of Contents softbound / PN: 4063 Introduction; Defamation; The Invasion of Privacy Torts; Right of Publicity; Other News-gathering Torts; Copyright Infringement; $50 NYSBA Members Trademark Infringement; Rights and Clearances; Errors and Omissions $65 Nonmembers Insurance; Contracting with Minors; Television Standards and Practices; Reality Television Pranks and Sensitive Subject Matter; $5.95 shipping and handling within the continental U.S. The cost for shipping and handling outside the Miscellaneous Steps in Pre-Broadcast Review. continental U.S. will be based on destination and added to your order. Prices do not include applicable sales tax. Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB1175N Table of Contents Page Remarks from the Chair .....................................................................................................................................................4 (Judith B. Prowda) Editor’s Note .......................................................................................................................................................................6 (Elissa D. Hecker) Pro Bono Update .................................................................................................................................................................7 KEYNOTE The Martha Graham Case: Determining Who Owns a Dance ..................................................................................8 (Judith B. Prowda) Law Student Initiative Writing Contest .........................................................................................................................12 The Phil Cowan Memorial/BMI Scholarship ...............................................................................................................13 NYSBA Guidelines for Obtaining MCLE Credit for Writing ......................................................................................14 Appropriation Artist Guilty of Copyright Infringement ............................................................................................15 (Joel L. Hecker) Appropriation Art Again Under Attack ........................................................................................................................19 (Monica Pa) Cariou v. Prince: Fair Use or Unfair? ...............................................................................................................................23 (Judith Bass) Freedom of Speech in Entertainment: Can the Entertainment Industries Be Held Responsible for “Copycat” Acts? ....................................................28 (Ethan Bordman) What Are the Constitutional Limits on Awards of Statutory Damages? ..................................................................46 (Andrew Berger) Where for Art Thou, Tax Deduction? .............................................................................................................................51 (Megan E. Dodge) It’s the Pits: The Role of Live Musicians on Broadway in Question (Again) ...........................................................53 (Nathan A. Sheffi eld and Timothy Pedergnana) Ante Up: States Bet on Changes to Gambling Laws to Boost Slumping Economies ..............................................58 (Kenneth Wind) Extending Copyright Protection for Motion Picture Titles .........................................................................................63 (Stacy Wu) International Olympic Committee Domination: How the IOC Received Unparalleled IP Rights and Lessons for Other Organizations ........................................................................................................................68 (Thomas Grove) Black Swan Odyssey Continues, but Why? ....................................................................................................................80 (Irina Tarsis) A Bark Worse Than His Bite: Park Life v. Koons .............................................................................................................85 (Morgan Jacobs) Level Playing Fields and Parallel Tracks: A Look at the Development of the Erie Doctrine and the Designated Hitter Rule ............................................89 (Ian Group) Krell’s Korner: When Johnny Comes Marching Into Court: Carson Productions vs. Here’s Johnny Portable Toilets, Inc. .................................................................................99 (David Krell) NYSBA Entertainment, Arts and Sports Law Journal | Summer 2011 | Vol. 22 | No. 2 3 Remarks from the Chair There have been several on June 20th, entitled “Revisiting Form D—Theatrical Of- exciting new developments ferings and What You Need to Know,” featuring attorneys this spring. One of EASL’s Gary Emmanuel and Mark Beigelman. This event was most pressing themes is diver- held at UBS. sity. In response to President In April, our Fine Arts Committee, which I chair, Vincent Doyle’s initiative, organized a behind-the-scenes tour of Sotheby’s, Inc., EASL was among the fi rst where we met with auction house specialists and toured Sections to form a Diver- the American Art and Photography exhibits. The follow- sity Challenge Team, initially ing month, we held a panel entitled “Fair Use and Visual comprised of Anne Atkinson, Art: Recent Developments,” which I moderated. This was Rakhi Bahadkar, Elissa Hecker, a lively and engaging discussion on two recent cases fo- Jessica Thaler, Rosemarie Tully cusing on copyright infringement and fair use involving and myself. As a member of photographers and visual artists: Patrick Cariou v. Richard the House of Delegates, I was thrilled to hear our Section Prince, Gagosian Gallery, Inc., Lawrence Gagosian, and Rizzoli lauded for our commitment to diversity at the House of International Publications, Inc., 2011 U.S. Dist. LEXIS 29070 Delegates meeting on June 25th. (S.D.N.Y. Mar. 11, 2011); and Shepard Fairey and Obey Giant We were already focusing our attention to diversity, Art v. The Associated Press, Civil Action No.: 09-01234, fi led creating a Diversity Committee in early spring, chaired by 2/9/09 (S.D.N.Y.). Panelists included Judith B. Bass (Law Anne Atkinson. Anne was recently appointed as Co-Chair Offi ce of Judith B. Bass), Daniel Brooks (Schnader Har- of the Membership and Diversity Committee, which has rison Segal & Lewis LLP), Meir Feder (Jones Day), and been split into two Committees, with Rosemarie Tully and Claudia Ray (Kirkland & Ellis LLP). Jessica Thaler as Co-Chairs of the Membership Commit- The following month, the EASL Lawyers in Transition tee and Anne as Chair of the Diversity Committee. Anne Committee (Leila Amineddoleh, Stephanie Khalifa, Co- will be building on her experience on the Executive Com- Chairs) joined forces with the Fine Arts Committee to of- mittee of the NYSBA Corporate Counsel Section, where fer an informative program on cultural heritage property, she has been involved in diversity initiatives. Rosemarie entitled “A Snapshot of Cultural Heritage Property Law.” and Jessica will continue in their roles building member- This popular event featured Evan Barr (Steptoe & John- ship, which continues to grow as attorneys recognize the son), Darlene Fairman (Herrick Feinstein), James McAn- enormous value of EASL in their practices. In the coming drew (former Senior Special Agent with U.S. Department year, we will be developing a comprehensive diversity of Homeland Security and currently Forensic Specialist at plan, including expanding diversity of Section member- the law fi rm of Grunfeld, Desiderio,
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