NYSBA SPRING 2018 | VOL. 29 | 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 www.nysba.org/EASL Table of Contents Page Remarks from the Chair .....................................................................................................................................................3 Editor’s Note .......................................................................................................................................................................4 Pro Bono Update .................................................................................................................................................................4 Law Student Initiative Writing Contest ...........................................................................................................................6 The Phil Cowan Memorial/BMI Scholarship Writing Competition ...........................................................................7 NYSBA Guidelines for Obtaining MCLE Credit for Writing .......................................................................................9 Some Bills on the Hill in 2017 ..........................................................................................................................................11 (Cheryl Davis) Sports and Entertainment Immigration: Immigration by the Numbers and Some Recent Developments of Note .................................................................................................................................................14 (Michael Cataliotti) Resolution Alley: Considering Arbitration or Mediation for Licensing Disputes ..............................................19 (Theodore K. Cheng) Hollywood Docket: Essential Clauses for Drafting an Ironclad Release and Consent Agreement ...................23 (Neville L. Johnson and Douglas L. Johnson) Join an EASL Committee .................................................................................................................................................26 Theft or Transformation? Let Hip-Hop Breathe—Sampling as Fair Use ..................................................................27 (Caroline Barry) 2018 Annual Meeting Transcript .....................................................................................................................................37 A Case for Law as an Artistic Medium (Caroline Keegan) .........................................................................................................................................................73 “Anything Goes”: Regulating the Conduct of Money-Bundling Broadway Co-Producers ..................................79 (David Manella) New Hope from an Old Law? Rethinking Television Antipiracy Strategies in the Internet Protocol Television and Over the Top Era ................................................................................................................................89 (Raymond J. Dowd and Samuel Blaustein) The Light at the End of the Runway: Clarifi cation of the Conceptual Separability Test May Help Correctly Shift the Balance of Copyright Protection in Favor of Fashion Designers .........................................93 (Sean McGrath) Krell’s Korner: Space, Sitcoms and the 1960s .........................................................................................................100 (David Krell) The Entertainment, Arts and Sports Law Section Welcomes New Members ........................................................102 Section Committees and Chairpersons ........................................................................................................................103 Section Officers and Editor ............................................................................................................................................105 2018 Annual Meeting Photos .........................................................................................................................................107 2 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2018 | Vol. 29 | No. 1 Remarks from the Chair Welcome to my fi rst “Remarks from the Chair.” The in February at the Gibney Dance Center, our 7th Annual photograph below is of Mark Miller and myself congratu- Legal Aspects of Theatrical Production on March 27-28th lating each other, for his election as President of the New at the Actor’s Temple, the EASL Spring Meeting in May York State Bar Association, and for my election as the (Details TBD), and EASL’s always popular “Overview EASL Section Chair. Two solo lawyers in Manhattan mak- and Introduction to Entertainment Law” on June 13th ing good! (Details TBD). This last program is fi lled with substantive information and practice tips for both newly admitted The photo was taken during NYSBA’s Annual Meet- and experienced lawyers. ing week in late January 2018. On January 23rd, EASL presented two excellent continuing legal education pan- On EASL’s website, you can also access an archive of els. The fi rst addressed concerns that arise when enter- the EASL Journal or view the EASL Blog (both edited and tainment, visual, and performing arts related businesses managed by Elissa D. Hecker, a former EASL Chair, to decide to close for various reasons, and the second dealt whom we all also owe thanks), view membership rosters, with legal and business issues related to the proliferation join a committee, or participate in EASL’s online com- of audio-visual content distributed across multiple plat- munity (through which, in part, you can seek advice from forms, greater media competition, and changing business colleagues regarding perplexing problems or share help- models. ful contract forms and other documents). You can also read a brief biography about me. Thanks again to Beth Gould (EASL’s rock star liaison at NYSBA in Albany), my fellow EASL Annual Meet- If you would like to get more involved, have any ing program planning Co-Chairs (Irina Tarsis, Ethan questions or suggestions, or if I could be of help in any Bordman, Pamela Jones, Robert Siegel and Mary Ann way, please contact me directly at 212-832-4800 or bskidel- Zimmer), and of course to our superb panel moderators [email protected]. and speakers. Initial feedback from the packed house in attendance was very positive, with a few complaints that Thanks again for being an EASL member and for EASL’s 2018 annual program was not long enough! electing me as Chair at the start of our Section’s 30th year! I stand on the shoulders of a list of impressive predeces- If you were not able to attend the Annual Meeting, sors, including inter alia (as we lawyers often write) our a transcript of our program is in this issue of the EASL Immediate Past Chair Diane Krausz. Journal. However, it is no proxy for the good humor, food and drinks shared, and connections made, at the fi rst ever I look forward to hearing from, working with, and post-program networking reception co-sponsored by the seeing you all at one of the many events that EASL pro- EASL and Intellectual Property Sections. As that was sold vides for its members throughout the year. out well in advance; to avoid being shut out next year, please register early for our January 2019 annual program Best Regards, and reception. Barry Skidelsky During my tenure as EASL Chair, I hope to help increase the professional and personal benefi ts for all of our members, which in part can fl ow from more cross-pollination or collaboration among EASL members, other NYSBA Sections, and additional organizations related to entertainment, arts and sports. EASL will continue to develop and present not only relevant and affordable CLE programs, but also more committee meetings, informal breakfasts and brown bag lunches, networking receptions, and other fun social events. Additional contemplated initiatives include increased efforts to create more job and work opportunities, mentoring, internship programs and pro bono clinics. The best way to stay on top of all this is by visit- ing the EASL website (www.nysba.org/easl), where you can explore our calendar of upcoming EASL events—such as the Pro Bono Clinic that took place NYSBA Entertainment, Arts and Sports Law Journal | Spring 2018 | Vol. 29 | No. 1 3 Editor’s Note This issue sadly bids adieu to the wonderful Imme- Elissa D. Hecker diate Past Chair, Diane Krausz, and welcomes our new practices in the fi elds and enthusiastic Chair, Barry Skidelsky. Barry has endless of copyright, trade- energy and great plans for the EASL Section, as you can mark and business see from his Remarks and speech at the Annual Meeting. law. Her clients encompass a large This issue is full of quality content. For those of you spectrum of the enter- who were unable to attend the Annual Meeting, or those tainment and corpo- who did attend and want a refresher, this issue includes rate worlds. the Transcript, in addition to the BMI/Phil Cowan Me- morial Scholarship winning articles, and a Law Student In addition to Initiative piece. We also have the next installments of our her private practice, wonderful columnists, who write on issues concerning Elissa is also a Past our fi elds, as well as larger issues in the legal and political Chair of the EASL spectrum. These authors cover the spectrum from immi- Section, Co-Chair and gration to legislation. creator of EASL’s Pro Bono Committee, Editor of the EASL Blog, Editor of Entertainment Litigation, Coun- Please feel free to email