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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 SUMMER 2005 | VOLUME 16 |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 Remarks From the Chair/Editor’s Note Remarks From the Chair In continuing with the theme of excellence among It is with a sad heart that EASL members, I am extremely pleased that Elisabeth I write to say that one of our Wolfe, Chair of our Pro Bono Committee, received one longtime Executive Commit- of the NYSBA President’s Pro Bono Service Awards. We tee members, James Henry are so proud of all of Elisabeth’s accomplishments, Ellis, who most recently Co- which help to make available pro bono opportunities for Chaired with Jason Baruch our members and their pro bono clients, and for raising our Theater and Performing EASL’s pro bono activities and programs to a nationally Arts Committee, passed recognized level. The President’s Pro Bono Service away on May 26th, at the age Awards were created more than ten years ago to honor of seventy-two. When I law firms, law students and attorneys from each judicial spoke with his daughter and district who have provided outstanding pro bono serv- asked if there was a specific ice to low income people. Elissa D. Hecker organization to which dona- In addition, our new Committee on Alternate Dis- tions could be made in Jim’s pute Resolution has launched itself with programs name, she mentioned the Parsons Dance Foundation. already held and many more underway. In addition, its Jim will be missed. Co-Chairs, Judith Bresler and Judith Prowda, are so * * * committed to making this Committee a success and an Inside NYSBA Guidelines for Obtaining MCLE Credit for Writing.......... 3 Attention, Enablers: Racing Drug Intervention Imminent............ 39 (Cheryl Ritchko-Buley) Law Student Initiative .......................................................................... 4 Domain Name Dispute Resolution .................................................. 47 Entertainment, Arts and Sports Law Section and BMI (Leonard D. DuBoff and Christy O. King) Offer Law School Scholarship........................................................ 5 Standing at the Crossroads: Compulsory Licensing Pro Bono Update.................................................................................... 6 and the Future of Online Music Distribution............................ 51 Indecency and Obscenity: Where’s the Line?.................................... 8 (Matthew F. Abbott) (Ryan Malkin) File-Sharing and Market Harm: An Economic Approach ............ 67 Broadcast Flag Update ........................................................................ 11 (Michael A. Einhorn, Ph.D.) (Barry Skidelsky) An Approach for Protecting Intellectual Property ........................ 77 Martignon and KISS Catalog: Can Live Performances (Philip Teplitzky and Steve Korn) Be Protected? .................................................................................. 15 Volunteer Lawyers for the Arts ............................................................ 80 (Brian Danitz) WWW.NYSBA.ORG/EASL excellent resource for EASL members, that they are tak- Editor’s Note ing an intensive training session at the Center for Medi- I would like to dedicate this issue of the Journal to ation in Law and immersing themselves in ADR. This Jim Ellis’s memory. His fervor for the arts was conta- way they will be better able to serve the membership gious, and he inspired many lawyers to become more through programs and events. Once they have acquired active in the theatrical world. the appropriate mediation training, the Co-Chairs intend to offer pro bono mediation services (under the As always, authors can obtain CLE credit from hav- auspices of the ADR Committee) to persons who would ing an article published in the EASL Journal. Articles otherwise not be able to afford them, in furtherance of and letters may be submitted with biographical infor- EASL’s mission to benefit the public good. We com- mation via email to me at [email protected]. mend and support their efforts. THE NEXT DEADLINE IS SEPTEMBER 16, 2005. On Thursday, October 27th, EASL’s Program and Young Lawyers Committees will be offering EASL’s Fall Elissa D. Hecker of the Law Office of Elissa D. Program, “Popcorn and Ethics.” This program will take Hecker, located at 90 Quail Close, Irvington, NY place in New York City, and it will offer all of the ethics 10533, practices in the fields of copyright, trademark credits needed for a two-year cycle. The program for- and business law. Her clients encompass a large spec- mat will include a screening of a film, followed by a trum of the entertainment world, including music panel discussion regarding the various legal ethics publishers, artists, producers, photographers, authors, issues raised in that film. The evening will conclude screenwriters, marketing and other companies and with a happy hour. I encourage all members to attend— spas. In addition to her private practice, Elissa is the presentation will be interesting and informative, Chair of the Entertainment, Arts and Sports Law and the happy hour will also offer an opportunity for (EASL) Section of the New York State Bar Association, our young entertainment lawyers to network with and Editor of the EASL Journal. She is also a frequent established practitioners. author, lecturer and panelist, a member of the Copy- In furtherance of our commitment to greater trans- right Society of the U.S.A (CSUSA) and a member of parency, we are also working closely with Albany to the Board of Editors for the Journal of the CSUSA. ensure that all EASL meetings, programs and events are Elissa is the recipient of the New York State Bar Asso- prominently posted on our website, so that members ciation’s 2005 Outstanding Young Lawyer Award. She can see what is planned for the upcoming seasons. can be reached at (914) 478-0457 or via email at: Every committee chair is committed to holding the best [email protected]. Elissa was previously Asso- possible programs, and the calendar has been rapidly ciate Counsel with The Harry Fox Agency, Inc. and its filling up with timely and interesting topics, replete parent company, the National Music Publishers Asso- with charismatic and informative speakers. ciation, Inc. 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 | Summer 2005 | Vol. 16 | No. 2 NYSBA Guidelines for Obtaining MCLE Credit for Writing Under New York’s Mandatory CLE Rule, MCLE • one credit is given for each hour of research or credits may be earned for legal research-based writing, writing, up to a maximum of 12 credits; directed to an attorney audience. This might take the • a maximum of 12 credit hours may be earned for form of an article for a periodical, or work on a book. writing in any one reporting cycle; The applicable portion of the MCLE Rule, at Part 1500.22(h), states: • articles written for general circulation, newspa- pers and magazines directed at nonlawyer audi- Credit may be earned for legal research- ences do not qualify for credit; based writing upon application to the CLE Board, provided the activity (i) produced • only writings published or accepted for publica- material published or to be published in the tion after January 1, 1998 can be used to earn form of an article, chapter or book written, credits; in whole or in substantial part, by the applicant, and (ii) contributed substantially • credit (a maximum of 12) can be earned for to the continuing legal education of the updates and revisions of materials previously applicant and other attorneys. Authorship granted credit within any one reporting cycle; of articles for general circulation, newspa- • no credit can be earned for editing such writings; pers or magazines directed to a non-lawyer audience does not qualify for CLE credit. • allocation of credit for jointly authored publica- Allocation of credit of jointly authored pub- tions shall be divided between or among the joint lications should be divided between or authors to reflect the proportional effort devoted among the joint authors to reflect the pro- to the research or writing of the publication; portional effort devoted to the research and • only attorneys admitted more than 24 months writing of the publication. may earn credits for writing. Further explanation of this portion of the rule is In order to receive credit, the applicant must send a provided in the regulations and guidelines that pertain copy of the writing to the New York State Continuing to the rule. At section 3.c.9 of those regulations and Legal Education Board, 25 Beaver Street, 8th Floor, New guidelines, one finds the specific criteria and procedure York, New York 10004. A completed application should for earning credits for writing. In brief, they are as fol- be sent with the materials (the application form can be lows: downloaded from the Unified Court System’s Web site, • the writing must be such that it contributes sub- at this address: http://www.courts.state.ny.us/ stantially to the continuing legal education of the mcle.htm (click on “Publication Credit Application” author and other attorneys; near the bottom of the page)). After
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