NYSBA FALL/WINTER 2012 | VOL. 23 | 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 IINSIDE:NSIDE: SSOCIALOCIAL MMEDIAEDIA AANDND MMOREORE WWW.NYSBA.ORG/EASL From the NYSBA Book Store Section Members get 20% discount* with coupon code PUB1621N Entertainment Litigation Entertainment Litigation is a thorough exposition of the basics that manages to address in a simple, accessible way the pitfalls and the complexities of the fi eld, so that artists, armed with that knowledge, and their representatives can best minimize the risk of litigation and avoid the courtroom. Written by experts in the fi eld, Entertainment Litigation is the manual for anyone practicing in this fast-paced, ever-changing area of law. Contents 1. Contracts Without 8. The Safe Harbor Provisions of the an Obligation Digital Millennium Copyright Act and “X.”com EDITORS 2. Artist-Manager Conflicts 9. Trademarks for Artists Peter Herbert, Esq. 3. Artist-Dealer Relations: and Entertainers Hinckley, Allen & Snyder LLP Representing the Boston, MA Visual Artist 10. Internet: A Business Owner’s Checklist for Avoiding Web Site Elissa D. Hecker 4. Intellectual Property Overview: Pitfalls Law Offi ce of Elissa D. Hecker Right of Privacy / Publicity Irvington, NY and the Lanham Act 11. Internet Legal Issues PRODUCT INFO AND PRICES 5. Anatomy of a Copyright 12. Litigating Domain 2007 / 232 pp., softbound Infringement Claim Name Disputes PN: 4087 6. Digitalization of 13. Alternative Dispute Resolution Libraries / Google Litigation NYSBA Members $35 Appendices 7. Accrual of Copyright Non-members $55 Infringement Claims $5.95 shipping and handling within the continental U.S. The cost for shipping and handling outside Co-sponsored by the New York State Bar Association’s Entertainment, Arts the continental U.S. will be based on destination and Sports Law Section and the Committee on Continuing Legal Education and added to your order. Prices do not include applicable sales tax. *Discount good until December 31, 2012 Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB1621N 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 Court Approves E-Book Antitrust Consent Decree Against Apple and Book Publishers .....................................15 (Joel L. Hecker) Social Media and Litigation: A Marriage Made in Hyperspace .................................................................................19 (Andrew B. Delaney and Darren A. Heitner) Counseling Statutory Successors Regarding Copyright Termination .......................................................................26 (Carrie Casselman) Does Registering Multiple Works in a Single Application Limit Remedies for Copyright Infringement? .........33 (Steve Gordon) Intellectual Property: A Two-Edged Sword ..................................................................................................................36 (Cheryl Davis) Of All the Lawsuits, in All the Courts, in All the World, They Had to Settle This One: What We Didn’t Learn About Rights of Publicity and Social Media from Bogart v. Burberry ...........................39 (Cassidy Merriam) Golan and Mayo: Practical Tips for Intellectual Property Owners and Users ...........................................................43 (Theodore K. Cheng, Stephanie S. Spangler and Lee V. Pham) Reselling Resale Royalties to America—A Path Forward for the Equality for Visual Artists Act? .......................49 (Daniel Ilan and Megan Prunella) Dollars and No Sense: The Disparate Impact of Student-Athlete Non-Payment on Minorities, and How O’Bannon v. NCAA Could Solve It ............................................................................................................56 (Amber J. Slattery) Two Films, One Law: An Analysis of Social Deviance in Gender, Family, or the Home (Etudes 7) .....................62 (Carmen M. Cusack) Music Licensing for Film and Television in the Digital Age .......................................................................................76 Krell’s Korner: The Quiz Show Scandal: Real vs. Reel ................................................................................................77 (David Krell) NYSBA Entertainment, Arts and Sports Law Journal | Fall/Winter 2012 | Vol. 23 | No. 3 3 Remarks from the Chair Where does the time go? Each year our Membership Committee collaborates Summers are always too short, with another of our committees to create a program that the fall season often seems to reaches beyond our usual focus. This year’s collaboration whiz by, and before you know with the Fine Arts Committee produced Matters of Art it, it’s the new year. This com- Finance: Exploration of Art Loans & Art Investment Funds. ing new year, however, will be Program Chairs Judith Prowda and Jessica Thaler invited one to savor for EASL as our leaders in the fi elds of art and fi nance to discuss where Section turns 25. In the mid- the two worlds overlap and investment strategies for the 1980s, a small group of lawyers global marketplace. Filled to capacity, the program, held formed the Committee on at Herrick Feinstein LLP, attracted a broad audience of Entertainment Law of the New practitioners. York State Bar Association. Led Moving ever forward, the same committee that intro- by Marc Jacobson, this legal duced us to Augmented Reality last spring enlightened us community grew and was recognized by NYSBA as the on Kickstarting the Next Generation of Video: Legal Challenges Entertainment, Arts and Sports Law Section in 1988, and and Opportunities in the Gaming Landscape. Copyright and Marc became our fi rst Chair. Now, with an average of Trademark Committee Co-Chairs Jay Kogan and Britton 1,700 members and growing each year, EASL is a leader Payne organized this program focusing on the mobile on many fronts, including pro bono services and diversity gaming boom (think—Angry Birds) and the unexpected initiatives. We are fortunate to have several of our found- success of crowd-funding. Bringing together veteran ing members continue guiding the Section into the future. video game lawyers and current game developers, Britton Among them are Pamela Cathlyn Jones, Mary Ann Zim- Payne moderated the discussion and focused on the new mer, and, of course, our Founding Chair, Marc Jacobson. dynamic of legal representation in copyright and trade- An early objective of the Committee was to provide mark law evolving with these developments. a forum for thoughtful discussion and camaraderie In addition to EASL Section programs, in September among colleagues in the entertainment fi elds, as well as we joined forces with the NYSBA Committee on Continu- assess relevant legislation (current and proposed) and ing Legal Education to produce an association-wide pro- perhaps develop legislative proposals for consideration gram titled Introduction to Sports Law. Co-sponsoring the by our law-makers. While these objectives have remained event was our Section’s Sports Committee, Co-Chaired by constant over the past 25 years, those thoughtful discus- Ayala Deutsch, Matthew D. Pace, and Kathleen Wu. The sion groups have evolved into a myriad of CLE pro- lineup of panelists, coordinated by Program Chair Mat- grams addressing topics in the courts and trends in the thew D. Pace, answered the questions: What does it mean to industries, and we have become increasingly active in practice sports law? and In what capacities do sports lawyers legislative review and comment. This year, thanks to our operate? As always, good questions lead to more ques- Membership Committee, co-chaired by Ethan Bordman, tions, and, as a result, our Sports Committee presented a Jessica Thaler, and Rob Thony, we have also increased our sequel CLE on Emerging Issues in Sports in November. real-time, real-life, in-person social networking opportu- nities, encouraging colleagues to spend some time getting An increasingly important element to our practices to know each other over refreshments and noshes after is that of mediation, and we are very appreciative that selected CLE programs. EASL’s Alternative Dispute Resolution Committee is mindful of the need to maintain profi ciency in this area. Here are some of the recent highlights: On October 3rd, this committee offered an instructive The EASL Summer Social, organized by Ethan Bord- program, Effective Representation in a Mediation. Program man and Jessica Thaler, was held at the Banc Café in Man- Chair (and EASL