NYSBA FALL/WINTER 2007 | VOL. 18 | 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 Letter from the Chairman I began this column exactly gratitude to those selfl ess volunteers who are responsible one year ago by breathlessly pro- for the Section’s many successes. It is also a good time to claiming, “The EASL Section has take a step back and take stock of what makes the Sec- never had a more active year than tion tick. 2006,” and that “[t]his year alone, Historically, the EASL Section hosted an all-day the Section presented no fewer Annual Meeting on a Friday in January and a few com- than 16 substantive programs— mittee meetings throughout the year. These were usu- that’s almost one program every ally, but not always, well attended. In earlier years, the three weeks!” Section tinkered with holding annual Spring and Fall Well, I am delighted to report Meetings in upstate hotels, which, while well planned that in 2007, the Section and its Alan D. Barson and well intentioned, were poorly received by the mem- various committees have (oops) bership. Beginning three years ago, we shortened the done it again. Sixteen programs! That is an amazing Annual Meeting to an afternoon, moved it from Friday achievement, particularly given the timeliness of the top- to Monday during the NYSBA Annual Meeting and ics, prominence of the speakers and quality of the written added a sponsored cocktail reception. The results were materials distributed at the events. It is certainly appro- immediate and resoundingly positive. We then tried priate to devote this column to expressing our collective hosting a shortened Spring Meeting on a Monday morn- Inside Editor’s Note .............................................................................................3 Filmmakers as Jesting Pilate?: The Issue of Truth in (Elissa D. Hecker) Fact-Based Films ................................................................................31 NYSBA Guidelines for Obtaining MCLE Credit for Writing .............4 (John T. Aquino) Law Student Initiative ............................................................................. 5 Does the U.S. Need a Post-Mortem Right to Privacy? .......................34 (Marie-Andreé Weiss) The Phil Cowan Memorial/BMI Scholarship .......................................6 Court Erases Cablevision’s DVR Plans ................................................40 Expert Opinions and Liabilities in Art Law ..........................................7 (Joseph M. Hanna) (Judith Bresler) The Great Grape Group Gripe Performing Rights Redux ......................................................................14 French Winemakers Bring “Champagne” Campaign to (Keith C. Hauprich and Dan Coleman) la Peuple Americain .............................................................................42 The Politics of Fair Use ...........................................................................17 (Matthew David Brozik) (Denise I. Mroz and David Levenson) New York City Proposes Revised Film Permit Rules ........................45 Whose Stats Are They Anyway? Analyzing the Battle (Donald E. Bertrand) Between Major League Baseball and Fantasy Game Sites ..........21 Volunteer Lawyers for the Arts .............................................................47 (Stacey B. Evans) WWW.NYSBA.ORG/EASL EASLNewsFallWin07.indd 1 12/12/2007 3:42:48 PM ing in a central NYC location (the Yale Club) over a great Committee Meetings: cooked breakfast. This also worked well, and has become Committee on Alternative Dispute Resolution an annual undertaking. EASL’s co-sponsorship of the Fordham Sports Law Symposium in April each year has • February 22, 2007—“The Da Vinci Code: Cracking also become a staple in our calendar of events. Last year, the Case—An Imaginary Mediation” we added an all-day Fall Meeting in conjunction with the • April 18, 2007—“ADR for Intellectual Property CMJ Music Marathon and Film Festival, and this quickly Disputes” became our most high-profi le (if not our most ambitious) annual event. Currently under discussion are annual • October 23, 2007—“Damages Experts for Settlement events tied to the Tribeca Film Festival and the Lake or Arbitration” Placid Sports Film Festival in August, 2008. We have also learned, through experimentation, that the membership Committee on Copyright & Trademark really likes frequent, short, inexpensive, CLE-accredited • November 16, 2007—“Social Networking, User programs either during the lunch hour or early evening, Generated Content, and Digital Advertising: Evolv- with one or two speakers, in smaller venues and with ing Legal Issues” networking opportunities. Our committee chairs recog- nized that this model better serves the needs of commit- Committee on Fine Arts tee members, and went into hyper-drive planning and • May 7, 2007—“Estate Planning for Artists and Col- presenting them. lectors” We are privileged to have a dedicated and well-con- • June 7, 2007—“Fine Distinctions: The Basics of the nected Executive Committee (all of its members are listed Law of Fine Arts” on the last page of this and every Journal issue) who have been consistently prepared to break new ground in com- Committee on Motion Pictures mittee leadership, and the results of their efforts are there • May 17, 2007—“Current Copyright Issues in Film for all to see. For example, the Section’s fi nancial woes, and Television Law” which dogged us for years, are fi nally (and permanently) behind us. Membership, and more importantly, retention, Committee on Television and Radio is up. Committee membership and participation is way • March 6, 2007—“Reporter’s Privilege: The Impact up. Our focus on minority recruiting is showing tremen- of Recent High Profi le Cases” (This was a joint pro- dous promise. Pro bono activities are growing and ex- gram with the Committee on Litigation) panding. This Journal, always one of the Section’s crown jewels, has reached new plateaus of scholarly journalism, • September 27, 2007—“21st Century Promotions: institutional acceptance and circulation. Interest sparked What Every Lawyer Should Know” (This was a joint by the initiatives of the Section’s District Representatives program with the Motion Pictures Committee and the is on the increase. Our BMI-sponsored Phil Cowan Me- Young Entertainment Lawyers Committee) morial Scholarship law school writing competition has • December 11, 2007—“Viewer Discretion Advised: been reinvigorated and expanded. Media awareness of The Interaction of the Law and Standards & Prac- the Section and its activities has never been stronger. And tices in Broadcast, Cable and Internet” oh! The programs! So spoilt for choice are we. Committee on Theatre and Performing Arts Here is a recap of 2007: • February 6, 2007—“When Not-for-Profi t Theatres Section-wide Programs: Produce Commercial Productions—Legal & Ac- • January 22, 2007—Annual Meeting—“The Impact counting Perspectives” of Digital Technologies on the Entertainment Busi- • June 20, 2007—“The ABC’s of the APC: Will It ness” Run?” • April 20, 2007—The 11th Annual Symposium on I would be remiss for not acknowledging Section Current Legal Issues in Sports (co-sponsored by Liaison Juli Turner, and Kathy Heider, Christy Doug- Fordham Law School Sports Law Symposium) las and Lori Nicoll in the NYSBA Meetings Department • May 21, 2007—Spring Meeting—Stan Soocher’s in Albany, who provided us with indefatigable support “Entertainment Law in Review: 2006-2007” with coordinating the logistics of the Section’s meetings and programs as outlined above, and an extra shout-out • October 18, 2007—Fall Meeting—The 2nd Annual to Juli for organizing the ten or so Executive Commit- “Music Business Law Seminar” at CMJ Music tee meetings that were held this year. We also warmly Marathon and Film Festival 2007 (Continued on page 49) 2 NYSBA Entertainment, Arts and Sports Law Journal | Fall/Winter 2007 | Vol. 18 | No. 3 EASLNewsFallWin07.indd 2 12/12/2007 3:42:54 PM Editor’s Note EASL’s 20th Anniversary • worked on the planning stages of our Speaker’s 2008 will mark the 20th Bureau; and Anniversary of the EASL Sec- • reached out to countless attorneys and arts orga- tion. Thanks to the efforts of its nizations to publicize EASL’s commitment to pro founding members, subsequent bono services. Section and Committee Chairs and Offi cers and the EASL mem- She was also the instigator behind the acquisition of bership, the Section has grown the above-mentioned insurance coverage for pro bono exponentially from its original 20 volunteers. Elisabeth is a major reason as to why the members to almost 2,000 promi- EASL Section was the recipient of one of VLA’s esteemed nent attorneys today. Pro Bono Awards a few years ago, and we thank her for her hard work and endless energy in these pursuits. Among other things, the EASL Section is leading the Although we will miss her drive, determination and NYSBA in its innovative pro bono initiatives and provid- commitment to pro bono, we thank her for her years of ing interesting, timely and affordable CLE programs. service and hope to bring her aboard sometime again in In addition to its programming and events, the EASL the future. Section also provides its members with the EASL Journal, which is distributed both domestically and overseas. I am looking forward to working with a new Co- Chair and with the representatives from the IP Section. The EASL Journal will be publishing a special 20th Please look for more information regarding