NYSBA FALL/WINTER 2013 | VOL. 24 | NO. 3 Entertainment, Arts and Sports Law Journal A publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association IInsidenside • E-Book Antitrust Conspiracy • Transformative Use Test • Knoedler Obituary (1957-2011) • Proving Secondary Liability • How to Obtain Indie Film Financing • New York County Intellectual Property Rights • Equity Funding Under the JOBS Act • The “Disquieter” Doctrine • The NFL Concussion Settlement • Union/Guild Membership • YouTube Monetization • Reality Show Participant Agreements • Keller v. Electronic Arts and the Future of • Stalag 17, Hogan’s Heroes, and Copyright College Sports Video Games Infringement WWW.NYSBA.ORG/EASL NEW YORK STATE BAR ASSOCIATION Section Members get 20% discount* with coupon code In The Arena: PUB2055N A Sports Law Handbook Co-sponsored by the New York State Bar Association and the Entertainment, Arts and Sports Law Section As the world of professional athletics has become more competitive and the issues more complex, so has the need for more reliable representation in the fi eld of sports law. Written by dozens of sports law attorneys and medical professionals, In the Arena: A Sports Law Handbook is a refl ection of the multiple issues that face athletes and the attorneys who represent them. Included in this book are chapters on representing professional athletes, NCAA enforcement, advertising, sponsorship, intellectual property rights, doping, concussion-related issues, Title IX and dozens of useful appendices. Table of Contents Intellectual Property Rights and Endorsement Agreements How Trademark Protection Intersects with the Athlete’s Right of Publicity EDITORS Collective Bargaining in the Big Three Elissa D. Hecker, Esq. Agency Law David Krell, Esq. Sports, Torts and Criminal Law PRODUCT INFO AND PRICES Role of Advertising and Sponsorship in the Business of Sports 2013 | 574 pages | softbound Doping in Sport: A Historical and Current Perspective | PN: 4002 Athlete Concussion-Related Issues Non-Members $75 Concussions—From a Neuropsychological and Medical Perspective NYSBA Members $60 In-Arena Giveaways: Sweepstakes Law Basics and Compliance Issues Order multiple titles to take advantage of our low fl at rate shipping charge of $5.95 per order, regardless Navigating the NCAA Enforcement Process of the number of items shipped. $5.95 shipping and handling offer applies to orders shipped within the Title IX continental U.S. Shipping and handling charges for orders shipped outside the continental U.S. will be Mascots: Handle With Care based on destination and added to your total. An Introduction to European Union Sports Law *Discount good until December 31, 2013 Dental and Orofacial Safety Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB2055N Table of Contents Page Remarks from the Chair .....................................................................................................................................................4 Editor’s Note .......................................................................................................................................................................6 Law Student Initiative Writing Contest ...........................................................................................................................7 The Phil Cowan Memorial/BMI Scholarship .................................................................................................................8 NYSBA Guidelines for Obtaining MCLE Credit for Writing .....................................................................................10 Pro Bono Update ...............................................................................................................................................................11 (Elissa D. Hecker, Carol Steinberg, Kathy Kim and Irina Tarsis) Apple Guilty of E-Book Antitrust Conspiracy and Enjoined from Objectionable Conduct ..................................13 (Joel L. Hecker) Knoedler Obituary (1857-2011): Select Legal History of the Oldest American Art Gallery ...................................15 (Irina Tarsis) How to Obtain Indie Film Financing .............................................................................................................................19 (Donovan A. Rodriques) Equity Crowdfunding Under the JOBS Act—Past, Present, and Future ..................................................................21 (Adam Beasley) The NFL Concussion Settlement: A Win for Both Sides? ............................................................................................30 (Carrie Anderer) YouTube Monetization .....................................................................................................................................................36 (Jordan Greenberger and Elizabeth Cohen) It’s in the Game: Keller v. Electronic Arts and the Future of College Sports Video Games ......................................39 (Michael W. Rosen) Courts Sideline Competition in Favor of Transformative Use Test ...........................................................................42 (Alexandra Goldstein) Proving Secondary Liability Against a Brokerage and Its Broker .............................................................................46 (Ashli Weiss) Emerging Issues in New York County Intellectual Property Rights Enforcement ..................................................49 (David M. Szuchman and Jeremy Apple) Entertainment Immigration: Visas for International Artists, Entrepreneurs, and Corporate Entities .................52 (Michael Cataliotti) The “Disquieter” Doctrine: German Law and Responsibilities of File-Sharing Websites ......................................56 (Ed McCoyd) Union/Guild Membership for the Creative Entertainment Industry Member— Sometimes, Getting What You Wish For… ...............................................................................................................66 (Diane Krausz) TV 101 The Reality of Reality Show Participant Agreements .............................................................................................68 (Nima Daivari) Krell’s Korner: I Know Nothing!: Stalag 17, Hogan’s Heroes, and Copyright Infringement ....................................72 (David Krell) NYSBA Entertainment, Arts and Sports Law Journal | Fall/Winter 2013 | Vol. 24 | No. 3 3 Remarks from the Chair Change is in the air—and Communicating the old-fashioned way (in person, it is all good. While change is face to face) at an EASL summer program was the order sometimes viewed as unpleas- of the day, with the distinction of speakers and attendees ant—that is, until we gain speaking different languages. EASL was very fortunate familiarity with the new and to have the opportunity to present the fundamentals of appreciate its usefulness—it is several entertainment law disciplines to a delegation from inevitable. At EASL, I like to China comprised of Chinese arts leaders. At the invita- think of change more as evolu- tion of the New York Foundation for the Arts (NYFA), tion; not strictly survival of the EASL Offi cer Carol Steinberg assembled a stellar panel of fi ttest, but rather survival of speakers to present an overview of how the entertainment what works best for the mem- business operates in the United States, particularly New bership as a whole. So, while York. The event was held at the NYFA offi ces in Brooklyn. we continue to provide the The presentation was translated by three interpreters, things that work best (interesting and timely programs each taking turns throughout the day, one of whom was for our members, outstanding publications and an engag- EASL member Shannon Zhu. The full-day program began ing blog, networking events, and the occasional social with an overview of not-for-profi t and commercial theatre outing), we will begin to explore an entirely new way of operations by Robert Freedman and Lesley Rosenthal. communicating with each other through the New York Lincoln Center was used as a model, illustrative of not- State Bar Association’s enhanced website. As a NYSBA for-profi t operations. James Klaiber discussed in some de- Section, EASL will have its own social community pages tail the different types of intellectual property recognized where members will be able to interact with other mem- in the U.S. and how each relates to the entertainment bers and the membership at large in real time, as well as industry. Tim DeBaets (a former EASL Chair) discussed access EASL’s blog, calendar of events, and past Journal the elements of bringing a foreign dance production to the issues, all in one easy-to-navigate spot. I encourage each U.S. and stressed the importance of effectively negotiat- of you to take a look at the new site and post a comment ing the contract with the promoter, as that agreement will with your thoughts about how we may best utilize our dictate the deal throughout. Next up was Pamela Jones, EASL online community. who outlined how an idea becomes a television program. When discussing the pitching of a program to a network, Pamela referred to the typical “sizzle reel.” This phrase “As a NYSBA Section, EASL will have challenged the translators, but humor prevailed, and the its own social community pages where gist was well received. Last up were the team comprised members will be able to interact with of EASL Offi cer Diane Krausz and Jason Aylesworth, who summarized the division of rights and structure of income other members and the