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NYSBA Entertainment, Arts and Sports Law Journal | Summer 2012 | Vol NYSBA SUMMER 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 IInsidenside • Electronic Rights in Publishing • EBook Antitrust Suits • Mobile App Data Trap • Need for Smartphones Allows Apple and Google to Act Like Big Brother • Trends and Developments Impacting Entertainment Entrepreneurs • Cult Brands and Trademark Dilution • Legal Issues in the NFL’s Salary Cap Reductions • Bringing Broadcast Television to the Internet • University Liability Exposure in Club Sports • Effi cacy of the 1954 Hague Convention • Trademark Protection for the University of Alabama and Freedom of Expression for New Life Art, Inc. • A Glance at Graffi ti Ownership • Racetrack Management Is Shown the Door • Wheaton v. Peters WWW.NYSBA.ORG/EASL NEW YORK STATE BAR ASSOCIATION Section Members From the NYSBA Book Store > get 20% discount* with coupon code PUB1478N 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 September 5, 2012. 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB1478N 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 Law Student Initiative Writing Contest .........................................................................................................................12 The Phil Cowan Memorial/BMI Scholarship ...............................................................................................................13 NYSBA President’s Section Diversity Challenge, EASL Diversity Committee—First Place Winner Leadership Conference Luncheon—May 10, 2012 ..................................................................................................15 (Judith B. Prowda) Contract Issues Relating to Electronic Rights in Publishing .......................................................................................16 (Jonathan I. Lyons and Jeff Kleinman) EBook Antitrust Suits Against Apple and Book Publishers .......................................................................................20 (Joel L. Hecker) Mobile App Data Trap: Potential Causes of Action in the Web’s Newest Wild West .............................................23 (Jason Emile Carlie) Suing Ourselves: How Our Need for Smartphones Allows Apple and Google to Act Like Big Brother ............32 (Christy Foley) Crowdfunding: Trends and Developments Impacting Entertainment Entrepreneurs ...........................................38 (Ronald L. Barabas) Cult Brands and Trademark Dilution ............................................................................................................................41 (Alena Benowich) Dropping the Ball: Legal Issues in the NFL’s Salary Cap Reductions .......................................................................50 (Thomas Grove) Bringing Broadcast Television to the Internet: Aereo’s Legal Challenges ................................................................58 (Danielle Clout) Defense Wins the Game: An Analysis of University Liability Exposure in Club Sports ........................................66 (Paige Dowdakin) Protecting the World’s Heritage: Evaluating the Effi cacy of the 1954 Hague Convention ....................................80 (Marcia Zelman) Maintaining a Delicate Balance: Trademark Protection for the University of Alabama and Freedom of Expression for New Life Art, Inc. ..........................................................................................................................83 (Madalyn Darnell) Graffi ti: A Stolen Art? A Glance at Graffi ti Ownership ...............................................................................................86 (Lindsey A. Lovern) Finally, It Is Racetrack Management That Is Shown the Door! ..................................................................................90 (Chris E. Wittstruck) Krell’s Korner: Oh Copyright, My Copyright: The Story of Wheaton v. Peters .........................................................92 (David Krell) NYSBA Entertainment, Arts and Sports Law Journal | Summer 2012 | Vol. 23 | No. 2 3 Remarks from the Chair Welcome to the EASL Our thanks to Second Vice-Chair Diane Krausz for coor- adventure! In the recent past, dinating this program, along with Britton Payne, Richard many of our members have Garza and Gary Roth. had their reality augmented What would Spring be without a visit to the Whitney and learned how to handle Museum for its Biennial? That’s what our Young Enter- copyrights in estate plan- tainment Lawyers Committee had to be thinking when ning; they toured the Whitney they, along with our Fine Arts Committee, organized Museum and played Wii at a guided tour on May 6th. In full bloom, the Whitney the Galway Hooker (yes, you was celebrating the current state of contemporary art in read that correctly); they were America. Thanks to Ezgi Kaya, Kibum Kim, and Judith enlightened by Professor Stan Prowda for providing us a most pleasant way to start a Soocher and educated on the Sunday afternoon. topic of Manga (Japanese com- ics)…from Bushwick to Buffalo, EASL is one to watch. As for accolades, the award goes to…EASL’s Diver- What next? I’m so glad you asked. First though, you sity Committee for meeting and exceeding the Diversity should know what EASL has been up to in a bit more Challenge put forth by New York State Bar Association detail. President Vincent Doyle. At the NYSBA Section Lead- ers Conference in May, EASL’s Immediate Past Chair, In case you weren’t aware, art fl ourishes in Bushwick, Judith Prowda, accepted the award for “Diversity Chal- Brooklyn, and EASL is there. This Spring the Fine Arts lenge Champion” on behalf of the Section. This award Committee, Chaired by Judith Prowda, in cooperation acknowledged EASL among the top 10 NYSBA Sections with EASL’s Second District and its representative, Innes for excellence in developing best practices encouraging Smolansky, and Carol Steinberg, with the Pro-Bono Steer- diversity. A deserving tribute to our EASL Diversity Com- ing Committee, organized an introductory program for mittee Co-Chairs: Anne Atkinson and Cheryl Davis, and artists and lawyers focusing on copyright basics, fair use, the Committee members (or “team” as Anne fondly refers and artist/dealer consignment agreements. Held during to them), Rob Thony, Asia Sanders, Rich Boyd, Rakhi Ba- Bushwick’s annual “Open Studios,” a true community hadkar, Nyasha Foy, Elissa Hecker, Jessica Thaler, Judith art experience, the legal panel presentation was just the Prowda, and myself. The tireless efforts of the “team” and right balance for the combined audience of artists and leadership, with support from EASL Executive Commit- attorneys. Art also fl ourishes in Buffalo as members of tee members, made great events happen, including two the NYSBA House of Delegates (HOD) learned this year outstanding programs with the Black Entertainment and at its March meeting held in Buffalo, New York. Along Sports Lawyers Association and the Metropolitan Black with NYSBA business, the Albright-Knox Art Gallery and Bar Association, on Reality TV and Sports, respectively, the Burchfi eld Penney Art Center were part of the HOD along with the
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