NYSBA SPRING 2009 | VOL. 20 | NO. 1 Entertainment, Arts and Sports Law Journal A publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association Fashion Design • A Position Against Copyright Law in Also Inside Fashion Design • Copyright Enforcement • Antitrust Implications of TEAM • Fashion Design and the Need for Intellectual • Golf Course Design Property Protection • Losers by AKO • Fashion Design: Art That Is Still Unrecognized • First Amendment Issues of Nudity in Art in the U.S. • Wealth Nation WWW.NYSBA.ORG/EASL Your key to professional success… A wealth of practical resources at www.nysba.org • Downloadable Forms organized into common The Entertainment, Arts and Sports practice areas Law Journal is also available online • Comprehensive practice management tools • Forums/listserves for Sections and Committees • More than 800 Ethics Opinions • NYSBA Reports – the substantive work of the Association • Legislative information with timely news feeds • Online career services for job seekers and employers • Free access to several case law libraries – exclusively Go to www.nysba.org/EASLJournal to access: for members • Past Issues (2000-present) of the Entertainment, Arts and Sports Law Journal* • Entertainment, Arts and Sports Law Journal Searchable Index (2000-present) • Searchable articles from the Entertainment, The practical tools you need. The resources you demand. Arts and Sports Law Journal that include links Available right now. to cites and statutes. This service is provided Our members deserve by Loislaw and is an exclusive Section member nothing less. benefi t* *You must be an Entertainment, Arts and Sports Law Section member and logged in to access. Need password assistance? Visit our Web site at www.nysba.org/pwhelp. For questions or log-in help, call (518) 463-3200. For more information on these and many other resources go to www.nysba.org Table of Contents Page Remarks from the Chair .............................................................................................................................4 (Kenneth Swezey) Editor’s Note ...............................................................................................................................................5 (Elissa D. Hecker) Pro Bono Update .........................................................................................................................................6 (Monica Pa) Law Student Initiative ............................................................................................................................... 8 NYSBA Guidelines for Obtaining MCLE Credit for Writing ..............................................................9 The Phil Cowan Memorial/BMI Scholarship ...................................................................................10 Report from the Television and Radio Committee ...............................................................................11 (Barry Skidelsky) Landmark Settlement in Authors Guild et al. v. Google Class Action ....................................................12 (Jan F. Constantine and Isabel Howe) A Position Against Copyright Law in Fashion Design ........................................................................14 (Shirley Willett) Problems with the Piracy Paradox: Rebutting the Claim That Fashion Designs Do Not Need Intellectual Property Protection .................................................................................16 (Tiffany Walden) Fashion Design: The Work of Art That Is Still Unrecognized in the United States .........................27 (Biana Borukhovich) Entertainment, Arts and Sports Law Section Annual Meeting ..........................................................36 Fair Use and YouTube: Adapting Copyright Enforcement to the Burgeoning Volume of Transformative User-Generated Content .....................................................................................78 (Bryan Georgiady) TEAM: Together Every Club in a Professional Sports League Achieves More Collectively— But What Are the Antitrust Implications? .........................................................................................84 (James J. Paterson) Taking a Mulligan: Moral Rights and the Art of Golf Course Design ...............................................92 (Ryan C. Steinman) Losers by AKO ...........................................................................................................................................99 (Paul Stuart Haberman) The First Amendment and the Issue of Nudity in Art ......................................................................103 (Shima Ebrahimi) Wealth Nation: Times May Truly Be A-Changin’ ...............................................................................107 (Daniel J. Scott) Volunteer Lawyers for the Arts .............................................................................................................110 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2009 | Vol. 20 | No. 1 3 Remarks from the Chair It was a pleasure to see tion and deal mediation, for newly admitted attorneys. everyone at the Annual Meeting “The Nuts and Bolts of Entertainment Law Litigation” and Cocktail Reception. Great panel, also co-sponsored by VLA, advised artists on the thanks to Tracey Greco, Co-Chair basics of entertainment law litigation, including how to of our Programming Committee, draft and reply to cease-and-desist letters, how to initi- for all her work in organizing ate a lawsuit and what to do when one is fi led against two dynamic panels of experts you, how to fi nd a lawyer if you want to sue someone or to discuss pressing issues and need to defend against a lawsuit, and what happens once countervailing views surrounding litigation has been initiated. the proposed Design Piracy Act It has been a busy start to the year and the EASL and fi lm tax incentives in New calendar is already jam packed with events and programs York and other states. In addition to the panels, we also for the upcoming season. In addition, we are excited had the honor of introducing the winners of the 2008 Phil about our forthcoming second book, presently entitled Cowan/BMI Memorial Scholarship. On behalf of EASL’s The Media Law Handbook. The Handbook will present a Executive Committee, sincerest congratulations to Bryan comprehensive breakdown of the major legal issues fac- N. Georgiady, a third year at Syracuse University College ing attorneys representing content providers as well as a of Law, and Ryan C. Steinman, a third year at New York current statement of the law, with valuable citations to the Law School, for their impressive work. Overall it was an most recent cases and statutes. The book is scheduled to exciting and informative day for all of us. be completed later this year. I would also like to congratulate and commend the There is much to look forward to in the coming Pro Bono Committee on its continued commitment to months so keep checking the website for upcoming providing practical training within the entertainment events. I look forward to seeing all of you again soon. community. Its VLA co-sponsored “One-Day Negotiation Training” clinic provided an overview of basic and more advanced negotiation skills, including contract negotia- Kenneth Swezey The Entertainment Law Reporter has gone online at www.EntertainmentLawReporter.com Technology is revolutionizing the entertainment industry. Its impact on the music business is the most dramatic so far, though the movie business is close behind. Book and periodical publishers are feeling technology's effects too. Even the Entertainment Law Reporter has not been immune. So, after more than 27½ years of traditional publishing in print, the Entertainment Law Reporter is available online, free-to-the-reader, at www.Entertainment LawReporter.com. Simply navigate your browser to the Reporter's website, and that month's articles will be there, waiting for you to read. In fact, new articles will be posted many times each month, just as soon as they are written, to get the information to you more quickly than was possible with a monthly print publication. 4 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2009 | Vol. 20 | No. 1 Editor’s Note This Spring issue is replete ment with Google. In addition, there are sports articles with interesting and informa- concerning antitrust implications in professional sporting tive articles written by attorneys, leagues when collective actions between member teams members of the fashion industry and their leagues may cross the boundary of antitrust laws, and law students (one of whom and questions for the new Commissioner of the New York is this issue’s LSI winner, Tiffany State Athletic Commission as to whether she will continue Walden) regarding the state of her predecessor’s record of administrative suspensions. fashion. Those articles, combined Furthermore, there is an interesting piece about the with the transcript from the An- First Amendment and the issue of nudity, and an analysis nual Meeting, where the fi rst of how the traditional recording contract may be updated panel focused on aspects of how to refl ect where the music business may be heading, intellectual property laws may or may not be tailored to namely with Live Nation deals. protect the rights of designers, makes this a predominantly As always, please feel free to e-mail me your articles, fashion-focused issue. Letters to the Editor, or comments. In addition, there was an excellent, close competition Elissa