NYSBA SUMMER 2002 | VOLUME 13 |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 The first half of the new likely involve a Friday night social event, a cocktail year has been a very busy one party and dinner, and a Saturday program designed to for the EASL Section, with the earn members between six and eight CLE credits. The promise of much more to Saturday schedule will include meals, and we hope to come. Complementing a num- include a social event that day as well. The proximity to ber of excellent, well-attended New York City will give most of our members the committee programs hosted by option of either staying overnight on Friday night or our Section earlier this year are commuting to save costs. We are thrilled to bring back several more currently in the the retreat, which will have the dual purpose of enhanc- planning stages. ing social contacts among our Section members and sat- isfying a large portion of members’ CLE obligations. Before talking about some of these programs, I want to mention that our Executive Jay Flemma and Kenneth Nick have been exploring Committee is pursuing two new initiatives about which arrangements and anticipate selecting a date and organ- we are quite excited. First, we have decided to revive izing the program shortly. I encourage members to our Section retreat. While we are still working out check our Web site, http://www.nyeasl.org, periodically details, we anticipate that this retreat will take place this for information concerning this fall program. We hope to fall at a location within an hour of New York City. It will see many of you there! Inside Copyright Awareness Week 2002: New Trends in “New Use” Analysis ..................................................43 A Report of the Copyright Society of the USA’s Friends (Lesley Friedman, Melanie I. Breen and Ginger Anders) of Active Copyright Education (FA©E) Committee......................4 New York Choice of Law in Endorsement Contracts: Up and Running: The Phil Cowan Memorial Scholarship................8 Safe Harbor or Oxymoron? ............................................................48 Buyers Beware: Protecting Against the Risk of (James H. Schnare II) Purchasing Stolen Art ........................................................................9 Term Limits: Will the Supreme Court Do Harm? ............................61 (Jonathan Bloom) (Alan J. Hartnick) The Thin Line Between Love and Hate: After After La Cienega ............................................................................63 An Artist’s Battle Against the Music Industry ............................20 (Eric S. Goldman) (Eleanor M. Lackman) It Is Necessary to Update the New York State The Right of Privacy: Theatrical Financing Law ................................................................69 The Three Stooges Teach Tiger Woods a Lesson ........................25 (James H. Ellis) (Timothy B. Parlin and Martin D. Edel) Parody as Fair Use II: The Wind Done Got Away with It ..............71 Phat Fashions, LLC v. Phat Game Athletic Apparel, Inc. (Jay Flemma) and Phat Game, Inc. ............................................................................35 How to Cure Performance Anxiety ....................................................78 (Leah Weitzen) (Michael A. Einhorn) Will MOCA Leave a Bitter Taste? ........................................................36 Volunteer Lawyers for the Arts ............................................................83 (Richard Siegmeister) (Heather Beggs) ® Our second initiative is our exploration of a rela- decisions of note, industry news, membership informa- tionship with Volunteer Lawyers for the Arts, one of the tion, and a calendar of Section programs and links to leading pro bono organizations dedicated to artists, other sites. I am also happy to report that the Entertain- authors and entertainers. While Elissa Hecker and Elis- ment Law Reporter has permitted us to post some of its abeth Wolfe are still working out the details of our rela- content on our Web site as well, which provides our tionship, we are enthusiastic about the prospect of col- members with another source of high-quality informa- laborating with an organization that not only provides tion and commentary. valuable pro bono services to a segment of the same Finally, I want to close my remarks with just a few community as many of our members’ clients (and with examples of outstanding programs that were recently whom many of you may already have a relationship), hosted by some of our committees. The Literary Works but which has also established a reputation for provid- & Related Rights Committee held a program entitled ing excellent training to lawyers seeking to gain experi- “One Suit, Two Suit, Red Suit, Lawsuit: Is Dr. Seuss ence in the entertainment and art law fields. Once Gone With the Wind? The Future of the Parody again, I encourage Section members to check our Web Defense,” which explored parody as a fair use defense site for further information. to copyright and trademark infringement. Jay Kogan, Our Section continues to be revitalized with the Chair of that Committee, then collaborated with Jen- addition of new Executive Committee members and nifer Unter in “Mastering Your Own Domain: Fed Up new Committee Chairs. I am pleased to introduce five With Working for Others? Ready or Forced to Go it to you: Dan Marotta is our new Chair of the Music and Alone?,” the latest in Jennifer’s Young Entertainment Recording Industry Committee, Mary Ann Zimmer has Lawyers Committee’s continuing series designed to moved from Program Chair to Chair of the Motion Pic- provide guidance to new attorneys interested in a tures Committee, the aforementioned Kenneth Nick career in one of our Section’s fields. has hit the ground running as Mary Ann’s replacement Judith Prowda has had an active spring as the new as Program Chair, Judith Prowda has taken over as Chair of the Fine Arts Committee. She hosted a pro- Chair of the Fine Arts Committee, and Ayala Deutsch gram on style in copyright infringement cases in which replaces me as Co-Chair of the Committee on Profes- musicologist Judith Finell gave her perspective as an sional Sports. I look forward to working with all of expert witness. Judith followed that up with a presenta- them. tion by Professor David J. Bederman of Emory Law Our Journal and Web site continue to get rave School on the development of the law relating to arti- reviews! I believe that we have a record number of arti- facts and art works recovered from sunken shipwrecks. cles in this issue; not only do we have many outstand- With so much on the horizon, we hope that our Sec- ing “commissioned” articles, but we have also received tion members will join us at some of our upcoming numerous excellent unsolicited submissions, several of committee programs and at our Fall Meeting. which are published here. Jeffrey A. Rosenthal As I mentioned in my last column, the Web site is a terrific place to find searchable Journal articles, recent Catch Us on the Web at WWW.NYEASL.ORG 2 NYSBA Entertainment, Arts and Sports Law Journal | Summer 2002 | Vol. 13 | No. 2 Editor’s Note I am pleased to report mittee to all of the participants from this Section. You that the first annual Copy- helped to make this year’s ©AW a great success and right Awareness Week brought some of your passion for the importance of (©AW) was an enormous copyright to countless students. success, thanks to over- For more information regarding ©AW, please refer whelming support and par- to the Web site of the Copyright Society of the U.S.A. at ticipation nationwide, http://www.law.duke.edu/copyright/index.htm. including many members of Should you be interested in teaching about copyright this Section. ©AW activities awareness at any time, curriculum materials have been took place in over 150 ven- prepared for elementary, middle and high school class- ues across the country, and es, and are available at http://www.law.duke.edu/ there were almost 100 copyright/html/events/CAW2002.html and Friends of ©AW (organiza- www.copyrightkids.org. tions that donated funds and services), with our Section included among them. A proclamation was issued from This is a tremendous issue of the Journal, filled with Mayor Bloomberg’s office and Representative Coble articles of interest and import. As always, I encourage read a statement about the importance of the week into Letters to the Editor and submissions of articles. Please the Congressional Record. ASCAP held a very successful feel free to contact me with any ideas you may have. essay writing contest and the Grammy Foundation held The next deadline for the EASL Journal is FRIDAY, SEP- a program in Los Angeles. ©AW was featured in a TEMBER 27, 2002. show on National Public Radio, was included in teacher guides published by Scholastic and was the focus of Elissa D. Hecker conversations within organizations concerned with copyright across the nation. Hundreds of colorful Elissa D. Hecker is Associate Counsel to The posters, buttons and giveaways were distributed to stu- Harry Fox Agency, Inc., licensing subsidiary of The dents as reminders of the week. National Music Publishers’ Association, Inc., where As a matter of fact, several schools that had hosted she is involved with legal, educational and policy participants who spoke during the week have request- matters concerning the world’s largest music rights ed that ©AW be extended for a period of time. This is organization and the U.S. music publishing industry so important as the teachers, administrators and most trade group. Ms. Hecker is the Vice-Chair of the EASL importantly, the students, realized that the lessons Section. In addition to membership in the NYSBA, learned regarding the importance of copyright cannot Ms. Hecker is also a member of The Copyright Soci- be limited to just one week. Rather, it is a lifelong lesson ety of the U.S.A., Chair of the FACE Initiative chil- of pride in the law and respect for intellectual property.