Pace I.P., Sports & Entertainment Law Forum Volume 4 Article 1 Issue 1 Winter 2014 March 2014 Pace Intellectual Property, Sports & Entertainment Law Forum, Volume 4, Issue 1, Winter 2014 Follow this and additional works at: http://digitalcommons.pace.edu/pipself Recommended Citation Pace Intellectual Property, Sports & Entertainment Law Forum, Volume 4, Issue 1, Winter 2014, 4 Pace. Intell. Prop. Sports & Ent. L.F. (2014). Available at: http://digitalcommons.pace.edu/pipself/vol4/iss1/1 This Full Issue is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace I.P., Sports & Entertainment Law Forum by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. Pace Intellectual Property, Sports & Entertainment Law Forum, Volume 4, Issue 1, Winter 2014 Abstract Thank you for downloading the first digital edition of the Pace Intellectual Property, Sports & Entertainment Law Forum. As you scroll through the pages of this issue, you may notice the Forum has a new look. Recognizing the significant advancements in technology that have revolutionized the legal field in the past few years, the Volume 4 Editorial Board sought to update and adapt the Forum to be accessible digitally, formatting the issue for tablets and e-readers. As you read, take advantage of clickable Tables of Contents and links to online sources throughout the issue. This full issue is available in Pace I.P., Sports & Entertainment Law Forum: http://digitalcommons.pace.edu/pipself/vol4/iss1/1 Pace Intellectual Property, Sports & Entertainment Law Forum Volume 4 Winter 2014 Issue 1 EMERGING ISSUES IN UNIQUE AREAS OF PATENTS, COPYRIGHT, ART, SPORTS & ENTERTAINMENT LAW ARTICLES New York’s Taxable Lap Dancing …at a Strip Club Near You! Harvey Gilmore Reports of Its Death Are Greatly Exaggerated: eBay, Bosch, and the Presumption of Irreparable Harm in Hatch-Waxman Litigation Kenneth C. Louis I’m the One Making the Money, Now Where’s My Cut? Revisiting the Student-Athlete as an “Employee” Under the National Labor Relations Act John J. Leppler Slaves to Copyright: Branding Human Flesh as a Tangible Medium of Expression Arrielle Sophia Millstein Shutting Down the Pharmacy on Wheels: Will Lance Armstrong’s Admission Impact the Practice of Doping in Professional Cycling? Kristina Fretwell Don’t Get SLAMmed into Nefer Nefer Land: Complaints in the Civil Forefeiture of Cultural Property Victoria A. Russell “Meet Me Halfway”: Arm Wrestling and the Law Thomas M. Byron Pace Intellectual Property Sports & Entertainment Law Forum Volume 4, Issue 1 Winter 2014 © 2014 by Pace Intellectual Property, Sports & Entertainment Law Forum in the compilation, formatting and arrangement of this issue. All Article copyrights are held by their respective authors. The Pace Intellectual Property, Sports & Entertainment Law Forum (e-ISSN 2329-9894) is published biannually by the students of Pace University School of Law. Editorial and business offices are located at Pace University School of Law, 78 North Broadway, White Plains, New York 10601. Contact the Forum via e-mail: [email protected], or through Twitter @PIPSELF. The Pace Intellectual Property, Sports & Entertainment Law Forum published this issue online in March 2014. Views expressed in articles published in the Forum are solely the authors’ and are not attributable to the Forum, its Editors, the School of Law, or Pace University unless expressly stated. The submission of unsolicited manuscripts is invited. Manuscripts should be double spaced in 12 point Times New Roman font with footnotes at the bottom of each page. Electronic submissions saved in .doc or .docx format are preferred. Citations conform to The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n et al. eds., 19th ed. 2010). PIPSELF Website: http://digitalcommons.pace.edu/pipself The PIPSELF Blog: http://pipself.blogs.law.pace.edu. Suggested Citation: PACE INTELL. PROP. SPORTS & ENT. L.F. PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM Members of the Forum 2013-2014 Editor-in-Chief DANIELLE MEEKS Managing Editor DANA HALBER Acquisitions Editor Technology Editor PATRICK VANHALL SHEENA MALIK Articles Editors STEPHEN CONLON LEVI GLICK Associate Editors RIKKI BAHAR KAMILAH MITCHELL APRIL BOOKER DANIEL NASTASI SETH COTLER JENNIFER PACHECO SAMANTHA GARRISON MICHELLE ROBINSON ZACHARY HOLZBERG MARTHA RODRIGUEZ ALEXIA MICKLES WHITNEY KATE SULLIVAN Founders of the Forum CAESAR LOPEZ ’12 KRISTIN LUCIANO ’12 CHRISTOPHER PSIHOULES ’12 JENNETTE WISER ’12 PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM Volume 4 Winter 2014 Issue 1 Table of Contents ARTICLES New York’s Taxable Lap Dancing …at a Strip Club Near You! ... 3 Harvey Gilmore Reports of Its Death Are Greatly Exaggerated: eBay, Bosch, and the Presumption of Irreparable Harm in Hatch-Waxman Litigation .................................................................................... 33 Kenneth C. Louis I’m the One Making the Money, Now Where’s My Cut? Revisiting the Student Athlete as an “Employee” Under the National Labor Relations Act .................................................... 73 John J. Leppler Slaves to Copyright: Branding Human Flesh as a Tangible Medium of Expression .............................................................. 135 Arrielle Millstein Shutting Down the Pharmacy on Wheels: Will Lance Armstrong’s Admission Impact the Practice of Doping in Professional Cycling? ................................................................ 177 Kristina Fretwell Don’t Get SLAMmed into Nefer Nefer Land: Complaints in the Civil Forefeiture of Cultural Property ..................................... 209 Victoria A. Russell “Meet Me Halfway”: Arm Wrestling and the Law .................. 261 Thomas M. Byron Editor’s Note Thank you for downloading the first digital edition of the PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM. As you scroll through the pages of this issue, you may notice the Forum has a new look. Recognizing the significant advancements in technology that have revolutionized the legal field in the past few years, the Volume 4 Editorial Board sought to update and adapt the Fo- rum to be accessible digitally, formatting the issue for tablets and e-readers. As you read, take ad- vantage of clickable Tables of Contents and links to online sources throughout the issue. This year marks the fourth anniversary of PIPSELF, as the Forum is known colloquially to the Pace community. In four short years, PIPSELF has grown considerably, thanks to the dedication and de- termination of past and present Editorial Boards. From the inaugural volume, featuring compositions compiled by and prepared for publication solely by the four founding members, the journal has ex- panded to feature a fully staffed Editorial Board and a roster of Associate Editors. The staff of PIPSELF has worked diligently this year selecting and preparing innovative and en- gaging articles concerning emerging issues in the fields of intellectual property, sports, and entertain- ment law for this issue, and we look forward to pub- lishing our second issue this spring. We encourage our readers to feel welcome to send comments and feedback: e-mail us at [email protected] or visit our Twitter @PIPSELF. — Danielle Meeks Editor-in-Chief Volume 4 1 PACE UNIVERSITY SCHOOL OF LAW PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM Volume 4 Winter 2014 Issue 1 Article New York’s Taxable Lap Dancing …at a Strip Club Near You! Harvey Gilmore* * Professor of Taxation and Business Law at Monroe College, The Bronx, New York; B.S., Hunter College of the City University of New York (1987), M.S., Long Island University (1990), J.D., Southern New England School of Law (1998), LL.M., Touro College Jacob D. Fuchsberg Law Center (2005). 3 PACE INTELL. PROP. SPORTS & ENT. LAW FORUM Vol. 4.1 (2014) New York’s Taxable Lap Dancing Abstract In today’s difficult economic times, state gov- ernments are more hard pressed than ever to come up with new sources of revenue to at least stay reve- nue neutral. Leave it to the perpetually money- hungry State of New York to come up with this gem of an idea for generating tax revenues: In 2005, the New York State Department of Taxation and Fi- nance attempted to impose sales tax on a nightclub’s offering of exotic dancing to its customers. This re- sulted in one nightclub instigating a legal challenge to the state’s attempt to impose sales taxes on exotic dancing. This resulted in the matter of 677 New Loudon Corp. v. State of New York Tax Appeals Tri- bunal, which was ultimately decided by the New York Court of Appeals in October 2012. Table of Contents INTRODUCTION ............................................................. 5 I. THE FACTS ........................................................... 5 II. THE ISSUE ............................................................ 6 III. THE MAJORITY OPINION ...................................... 7 IV. THE DISSENTING OPINION ................................. 11 V. WHAT IS DANCE AND WHAT IS CHOREOGRAPHY, THEN? ................................................................ 13 VI. SIMILAR ACTIVITIES TREATED DISSIMILARLY: ARKANSAS WRITERS’ PROJECT, INC. V. RAGLAND........................................................... 14 VII. IS NUDE DANCING REALLY ENTITLED TO FIRST AMENDMENT PROTECTION? YES, BUT… ............ 18 IIX. JUDICIAL ANTIPATHY TOWARDS NUDITY ............ 22 A. The Ridiculous, Illogical “Secondary