NYSBA SUMMER 2003 | VOLUME 14 |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 Remarks from the Chair After much anticipation, I am Following a cocktail reception and dinner on Friday ecstatic to report on the over- night, Judge Rakoff educated and entertained the audi- whelming success of our Spring ence with thoughts about digital rights in the Internet Conference. Many months of age. Moments after Judge Rakoff concluded his remarks, planning by a number of our our always-on-the-job editor, Elissa Hecker, persuaded Executive Committee members, him to provide us with a copy of his speech for publica- led by Kenny Nick and Jay tion, which you will find in this issue. Flemma, went into our program, Not only did our conference attract interest from which was held on March 28th within and outside the Section, but we were honored to and 29th at the Doral Arrowwood host at our program both the President of the NYSBA, Resort in Rye Brook, New York. Lorraine Power Tharp, and the President-Elect, A. The highlight of the program was the keynote Thomas Levin. It was interesting to hear them speak address by The Honorable Jed S. Rakoff, United States about NYSBA-wide matters of interest, as well as District Judge for the Southern District of New York. planned changes in Albany and how they may affect our Inside Sixth Circuit Opinion in Rosa Parks v. LaFace Records Demonstrates Limits of Rogers v. Grimaldi Protection......................42 Editor’s Note ..................................................................................................3 (Brian Geller) Law Student Initiative Winners ..................................................................4 In a Post-Napster World: The Music Industry’s Ongoing The Phil Cowan Memorial Scholarship ....................................................5 Battle Against Illicit File Sharing ........................................................48 Thanks for the Memories..............................................................................6 (Todd Gillman) (Lorraine Power Tharp) From Whom the Bell Tolls: It Tolls Not for Free ....................................52 Looking Forward ..........................................................................................7 (Mark Avsec) (A. Thomas Levin) Do Proposed Database Laws Protect Information Rather Copyright Law and the Internet..................................................................9 Than Investment? ..................................................................................58 (Hon. Jed S. Rakoff) (Alan J. Hartnick) EASL Pro Bono Update ..............................................................................12 Understanding the Deal: Strategies for Drafting and Negotiating the (Elisabeth K. Wolfe) Entertainment Related Contract ..........................................................61 (Daniel M. Pomerantz) Parks v. LaFace Records: A Symbol of Freedom Subverts Freedom of Speech ................................................................................15 The Grokster Decision: It’s a Bird! It’s a Plane! (Jonathan Bloom) It’s Supernodes?!? ....................................................................................66 (Jay Flemma) Public Domain Material—No Credit Necessary ....................................25 (Joel Hecker) On the Brink of Change: An Examination of the Music Industry’s Business Practices ..................................................................................71 Fan Violence: How to Prevent It, How to Punish It ..............................27 (Brian Mencher) (Dan Messeloff) Facing the Music—The Evolving Role of Record Companies..............76 Privacy or Piracy—Weighing the Interests of Internet (Valerie Kennedy) Users with the Interests of Copyright Owners ................................31 (Julie Block) Upcoming VLA Programs ..........................................................................78 Section. One of these changes, a reallocation of seats in of Pennsylvania and Eric Goldman of Sendroff & Asso- the House of Delegates, will result in the EASL Section ciates spoke about various ethical dilemmas many prac- being granted an additional delegate. titioners often face in these fields. Our Saturday session began with fireworks, as Not only did our conference provide a terrific edu- Robert Donnelly and John Luneau debated the topic cational experience (as well as seven CLE credits), but it “Whose Songs Are They Anyway: When Congress was a unique opportunity for our members to meet Repealed Its Work-For-Hire Provisions Favoring Record each other in a relaxed setting with numerous opportu- Labels, Did It Pave the Way for Artists to Recover Their nities for networking and socializing, including at our Music?” Our animated speakers, and moderator Jay Friday night cocktail party and dinner, casually at the Flemma, provided not only a detailed PowerPoint pre- resort’s bar after the Friday night program, and at sentation describing the legal framework of the dispute, breakfast, lunch and breaks on Saturday. It was easy to but they also added sharp remarks about this highly see why other sections have found their fall or spring controversial subject. conferences to be the highlights of their annual calen- dars, and what we have been missing for the past sev- We next had a series of breakout programs to eral years. ensure that the diverse practice areas in our Section were represented. Jeffrey H. Epstein spoke about the As a result of this program’s success, the Executive Madrid Protocols; Richard Caples, Tim DeBaets (for- Committee has decided to continue the Spring Confer- mer Section Chair), Jim Ellis (Chair of our Committee ence as an annual program. We are currently exploring on Theatre and Performing Arts) and Katherine Forrest possible locations and dates for next spring that will discussed “Ownership Rights for Creative Works in again provide Section members with the option to stay Light of the Martha Graham Decision”; Mark Lee joined overnight or travel from New York City within an hour us from California to discuss legal issues he has or less. Look for a mailing and check out our Web site encountered in connection with the marketing and within the next few months for further details. licensing of Tiger Woods; and Alan Barson (Section Sec- The only other item I want to highlight is our pro retary), Janine Natter and Kim Youngberg spoke about bono initiative, which has become a model not only “Advance Deal Points in Record and Producer Deals.” within the NYSBA, but around the country. Some of our Following a lunch break, we had a session geared pro bono activities, which include our alliance with Vol- to our young lawyers in which Jon Fine (counsel at The unteer Lawyers for the Arts, in which our members Random House Group and former counsel for “Satur- participate in Section-organized clinics, have received day Night Live”), Michael Simon (Senior Vice President national publicity. For example, we will be featured in of Licensing at The Harry Fox Agency, Inc. and former an article in the ABA’s Bar Leader. Given that our Pro general counsel at Razorfish) and Kevin Shapiro (coun- Bono Committee, chaired by Elisabeth Wolfe, is barely sel to the rock group Phish) spoke about their experi- a year old, it is exciting to think about the opportunities ences and provided tips to those interested in pursuing for our continued growth in this area. similar careers. Members who missed this session With a number of new projects in the planning should be on the lookout for future “Breaking In . .” stages, there should be much more to report in the near programs that Jennifer Unter’s Young Lawyers Com- future (perhaps by the time this issue arrives) and I mittee regularly hosts. would encourage members to continue to monitor our Finally, we concluded with a panel on “Conflicts of Web site, <http://www.nysba.org/easl>. Interest in the Sports and Entertainment Industries,” in Jeffrey Rosenthal which Professor Kenneth Shropshire of the University Get CLE Credit! Next EASL Journal Deadline: Friday, September 26, 2003 2 NYSBA Entertainment, Arts and Sports Law Journal | Summer 2003 | Vol. 14 | No. 2 Editor’s Note This issue of the Journal Supreme Court decision regarding the Lanham Act and continues our Law Student public domain material in Dastar Corp. v. Twentieth Cen- Initiative, which is designed tury Fox Film Corp. to bridge the gap between I am honored that Hon. Jed S. Rakoff, U.S. District law students and the enter- Judge for the Southern District of New York, has provid- tainment, arts and sports law ed the Journal with a copy of his remarks from the EASL communities and shed light Section’s Spring Conference. It was wonderful to hear on students’ diverse perspec- them in person, and I am sure that for those of you who tives in these practice areas. I were not able to attend, this will be an interesting was extremely excited to insight into Judge Rakoff’s views about copyright law have received a number of and the Internet. excellent submissions on a variety of topics, and have As you will see from Elisabeth Wolfe’s Pro Bono selected two authors as our LSI winners. Julie Block, a Update, the Pro Bono Committee has exploded with third-year law student at St. John’s University School of activity. The EASL Section is continuing to participate in Law, writes about the privacy and piracy arguments its extremely successful clinics with VLA, and is work- stemming