NYSBA SUMMER 2016 | VOL. 27 | 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 www.nysba.org/EASL NEW YORK STATE BAR ASSOCIATION From the NYSBA Book Store > Counseling Content Section Providers in the Members get 20% discount* Digital Age with coupon code PUB8383N A Handbook for Lawyers For as long as there have been printing presses, there have been accusations of libel, invasion of privacy, intellectual property infringe- ments and a variety of other torts. Now that much of the content reach- ing the public is distributed over the Internet, television (including cable and satellite), radio and film as well as in print, the field of pre-pub- EDITORS lication review has become more complicated and more important. Kathleen Conkey, Esq. Counseling Content Providers in the Digital Age provides an overview of Elissa D. Hecker, Esq. the issues content reviewers face repeatedly. Pamela C. Jones, Esq. Counseling Content Providers in the Digital Age was written and edited by experienced media law attorneys from California and New York. This book is invaluable to anyone entering the field of pre- PRODUCT INFO AND PRICES publication review as well as anyone responsible for vetting the content 2010 / 480 pages, of a client’s or a firm’s Web site. softbound / PN: 4063 $55 NYSBA Members Table of Contents $70 Non-members Introduction; Defamation; The Invasion of Privacy Torts; Right of Publicity; Other News-gathering Torts; Copyright Infringement; $5.95 shipping and handling within the continental U.S. The cost for shipping and handling outside Trademark Infringement; Rights and Clearances; Errors and Omissions the continental U.S. will be based on destination Insurance; Contracting with Minors; Television Standards and Prac- and added to your order. 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Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB8383N 2 NYSBA Entertainment, Arts and Sports Law Journal | Summer 2016 | Vol. 27 | No. 2 Table of Contents Page Remarks from the Chair .....................................................................................................................................................4 Editor’s Note .......................................................................................................................................................................5 Pro Bono Update .................................................................................................................................................................6 Law Student Initiative Writing Contest ...........................................................................................................................7 The Phil Cowan Memorial/BMI Scholarship Writing Competition ...........................................................................8 NYSBA Guidelines for Obtaining MCLE Credit for Writing .....................................................................................10 Building an Anthology from Ephemera: The Legal Issues of Constructing a Political Art Archive ....................11 (Scotti Hill) Three Cheers for Proper Benefits: The Improper Employment Classification of NFL Cheerleaders ...................15 (Robert Burney) Balancing an Individual’s Right of Publicity with Another’s Right to Protected Speech for the Greater Good ....................................................................................................................................................21 (Lindsay Butler) The Art of Taxing Capital Gains......................................................................................................................................24 (Giovanna Quattrone) Street Art and VARA: The Intersection of Copyright and Real Estate ......................................................................26 (Barry Werbin) Hollywood Docket: One-Sided World ........................................................................................................................32 (Neville L. Johnson and Douglas L. Johnson) TV’s Secret Revenue Stream ............................................................................................................................................35 (Pamela Jones) Legal Issues Arising from Recent Doping Scandals.....................................................................................................39 (Sergey Yurlov) New York’s First Pari-Mutuel Law and Its Ramifications ..........................................................................................43 (Bennett Liebman) Sports and Entertainment Immigration: Equity Crowdfunding by Immigrant Investors .............................50 (Michael Cataliotti) Resolution Alley: Making an Appearance: Being Present and Engaged at the Mediation Session ..................53 (Theodore K. Cheng) Krell’s Korner: Milton Berle’s Lifetime Contract .....................................................................................................56 (David Krell) NYSBA Entertainment, Arts and Sports Law Journal | Summer 2016 | Vol. 27 | No. 2 3 Remarks from the Chair I am told that Steinberg of the Fine Arts and Pro Bono Committees also you will be reading offered a program titled “Legal Primer for Artists: Leasing this, my second letter Commercial and Residential Space and Dealing with Tax from the Chair, at the Issues” at NYFA. As usual, the Fine Arts Committee and end of the summer of its Co-Chairs continue to offer amazing programs that my first year, which educate both lawyers and artists in many areas of law, means, in EASL’s including those that affect real day-to-day living issues. case, giving you an As I write this, our annual music seminar, scheduled update of programs tentatively for October 14, is in full planning mode, with past and taking a much momentum building from last year’s successful leap of faith that and popular program. Our first-time partnership with the several programs, Rights Tech Summit took place on July 26, thanks to Joyce scheduled to occur Dollinger, and planning for our CLE seminars at both after the submission deadline for this, will go as planned. Comic Con and BroadwayCon, as well as the rest of our By publication time, EASL will have produced a new fall/winter programming is currently in development. variation of “Introduction to Entertainment Law” for all members of the NYSBA, and a seminar at Dorsey and Our Executive Committee meetings have been well Whitney introducing the legal and business consider- attended, and very special thanks are owed to Jason ations of “Native Advertising,” with thanks to the Digital Aylesworth and his great work with our law students Media and the Literary Works and Related Rights Com- (who are always interested in internships throughout the mittees. year); Steve Richman and Marc Jacobson for their ongo- ing and dedicated legislative work; Rosemarie Tully and Throughout June and July, several committees held Steve for working overtime with me, and my Executive members-only non-CLE events, including one set up by Committee Officers for their very active and extremely Irina Tarsis for the International and the Fine Arts Com- helpful support at all times and hours of the day (liter- mittees, which offered the first of several in a special ally). series of artist studio visits. The visits are intended to expose art attorneys to “behind the scenes of the cre- ative process and spark a discussion of particular legal Diane Krausz topic(s) of interest to the contemporary artists operating in an international art market.” Judith Prowda and Carol Looking for Past Issues of the Entertainment, Arts and Sports Law Journal? http://www.nysba.org/ EASLJournal 4 NYSBA Entertainment, Arts and Sports Law Journal | Summer 2016 | Vol. 27 | No. 2 Editor’s Note Happy Summer! I hope that you enjoyed a beautiful summer, and are reading this Journal somewhere wonderful, while you can still relax. I am happy to include the first of many Hollywood Docket columns by Neville L. Johnson and Douglas L. Johnson, esteemed entertainment and business litigators from California. This issue contains an amalgam of articles concerning EASL-related subjects. I encourage all of you who read to contribute submissions as well. Please feel free to contact me directly with ideas for articles and blogs. Hope to see you next at an EASL program. Elissa Elissa D. Hecker practices in the fields of copyright, ter Coordinators, and Assistant Editor and a member of trademark and business law. Her clients encompass the Board of Editors for the Journal of the CSUSA. Elissa a large spectrum of the entertainment and corporate is a repeat Super Lawyer and recipient of the CSUSA’s worlds. In addition to her private practice, Elissa is also inaugural Excellent Service Award. She can be reached at a Past Chair of the EASL Section, Co-Chair and creator (914) 478-0457, via email at [email protected] of EASL’s Pro Bono Committee, editor of the EASL Blog, or through her website at www.eheckeresq.com. editor of Entertainment Litigation, Counseling Content Providers in the Digital Age, and In the Arena; a mem- ber of the Board of Editors for the NYSBA Bar Journal, The next EASL Journal deadline is Chair of the Board of Directors for Dance/NYC, a Trust- Friday, September 30, 2016 ee and member of the Copyright