NYSBA SPRING 2010 | VOL. 21 | 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 Inside • Repatriation of Artwork Displaced During the Holocaust • When a Copy Work May Become Transformative for Fair Use Purposes • Trademark Injunctions in Franchise Actions • A Call to Reform Art Auction House Regulations • A Right to Publicity in Mug Shots • The Communications Decency Act • Music Tax or ISP Fee Party? • EASL Section Annual Meeting Transcript • The Day the Lone Ranger Lost His Mask WWW.NYSBA.ORG/EASL NEW YORK STATE BAR ASSOCIATION From the NYSBA Book Store > COMING SOON! Counseling Content Providers in the Digital Age A Handbook for Lawyers For as long as there have been printing presses, there have been accusations of libel, invasion of privacy, intellectual property infringements and a variety of other torts. Now that much of the content reaching the public is distributed over the Internet, television (including cable and satellite), radio and fi lm as well as in print, the fi eld of pre-publication review has become more complicated and more important. Counseling Content Providers in the Digital Age provides an overview of the issues content reviewers face repeatedly. EDITORS Kathleen Conkey, Esq. Counseling Content Providers in the Digital Age was written Elissa D. Hecker, Esq. Pamela C. Jones, Esq. and edited by experienced media law attorneys from California and New York. This book is invaluable to anyone entering the fi eld of pre-publication review as well as anyone responsible for vetting the content of their client’s or their fi rm’s Web site. PRODUCT INFO AND PRICES 2010 / approx. 440 pages, Table of Contents softbound / PN: 4063 Introduction; Defamation; The Invasion of Privacy Torts; Right of Publicity; Other News-gathering Torts; Copyright Infringement; E-Mail [email protected] to receive pricing Trademark Infringement; Rights and Clearances; Errors and Omissions and ordering information as soon as Insurance; Contracting with Minors; Television Standards and this book is available. (Anticipated Practices; Reality Television Pranks and Sensitive Subject Matter; publication date is June, 2010) Miscellaneous Steps in Pre-Broadcast Review. ** Free shipping and handling within the continental U.S. The cost for shipping and handling outside the continental U.S. will be added to your order. Prices do not include applicable sales tax. Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0747 Table of Contents Page Remarks from the Chair .....................................................................................................................................................4 (Judith B. Prowda) Editor’s Note .......................................................................................................................................................................6 (Elissa D. Hecker) Pro Bono Update .................................................................................................................................................................7 Law Student Initiative Writing Contest .......................................................................................................................... 8 The Phil Cowan Memorial/BMI Scholarship .................................................................................................................9 NYSBA Guidelines for Obtaining MCLE Credit for Writing ......................................................................................11 Is There Any Way Home? A History and Analysis of the Legal Issues Surrounding the Repatriation of Artwork Displaced During the Holocaust ......................................................12 (David S. Gold) Could This Be Legal Alchemy? When a Copy Work May Become Transformative for Fair Use Purposes ...........................................................26 (Andrew Berger) Dollars to Donuts: The Dark Side of Trademark Injunctions in Franchise Actions ................................................29 (Matthew David Brozik) The House Always Wins: A Call to Reform Art Auction House Regulations ..........................................................32 (Jacqueline Tate) A Right to Publicity in Your Mug Shot? Maybe if You Are Lindsay Lohan .............................................................39 (Britt Simpson) An Intellectual Approach to the Communications Decency Act ...............................................................................43 (Alan J. Hartnick) Taxation Without Qualifi cation: Music Tax or ISP Fee Party? ....................................................................................46 (James “Mitch” Mitchell) Entertainment, Arts and Sports Law Section Annual Meeting ..................................................................................51 Volunteer Lawyers for the Arts .......................................................................................................................................92 Krell’s Korner: The Day the Lone Ranger Lost His Mask ...........................................................................................94 (David Krell) NYSBA Entertainment, Arts and Sports Law Journal | Spring 2010 | Vol. 21 | No. 1 3 Remarks from the Chair I am honored and privi- mittee; Edward H. Rosenthal, partner at Frankfurt Kurnit leged to serve as the new Klein & Selz PC; Joseph Salvo, Senior Vice President and EASL Chair for the next two Global General Counsel of Hit Entertainment; and Eric years. S. Brown, partner at Franklin, Weinrib, Rudell & Vassallo PC. The panelists engaged in a spirited discussion about For the benefi t of those character rights, how to license and expand a character’s who do not know me, I divide image, and what happens when the character’s owner’s my professional life among ac- rights expire. ademic, law practice and ADR services. I am Senior Lecturer Our second panel, “Players Off the Field… How Do in Art Law and Ethics & Policy You Protect Your Client When Negotiating an Athlete- in the Art Profession at Sothe- Driven Merchandising, Endorsement, or New/Traditional by’s Institute of Art Master’s Media Deal?,” featured leading sports marketing and of Art Business Program in legal experts. Michael Bracken of Cowan DeBaets Abra- New York. In my law practice, I concentrate in intellectual hams & Sheppard LLC did a fantastic job moderating a property, art and entertainment law, and represent artists, talented panel, including Terry Prince, Director, Legal and galleries and other arts organizations (not-for-profi t and Business Affairs, Creative Artist Agency Sports; Ethan Or- private), as well as authors and other creative individuals linsky, General Counsel, Major League Baseball; Stepha- in publishing, as well as business entities in commercial nie Vardavas, Assistant General Counsel, Nike; and Peter transactions. In the past several years, I have also devel- Welch, Vice-President and Counsel, Take-Two Interactive oped an ADR practice, and serve as mediator for the New Software. York State Commercial Division and Volunteer Lawyers for the Arts, and as arbitrator for the American Arbitra- In addition to Ken’s hard act to follow, I am also the tion Association. third woman Chair of EASL, and have two pairs of very high heels to follow. I have very big shoes to fi ll, following our Immediate Past Chair Kenneth Swezey, who solidifi ed our Section in Our fi rst woman Chair, Judith Bresler (2000-2002), my the midst of challenging economic times. mentor and dear friend, is truly a leader and role model of excellence and accomplishment in the legal profession. During Ken’s tenure as Chair he managed to Together Judith Bresler and I co-founded and co-chair the bring the Section’s budget out of the red and well into the EASL Committee on ADR. Judith also initiated the BMI/ black. He encouraged a redoubling of pro bono efforts Phil Cowan Memorial Scholarship for law students. She within the New York City arts community. During his never ceases to amaze all of us with her capacity for fresh term, our Section launched the Entertainment, Arts and ideas. Sports Law Blog, which has become an important outlet for members of our practice area to share important legal Elissa Hecker, our second woman Chair (2004-06), developments from all corners of the entertainment busi- was the recipient of the Young Lawyers Award in 2005, ness. Additionally, Section membership has increased, has been our Journal Editor for 10 years, started our we have fostered ongoing relationships with important widely read blog last year, and edited two EASL-related industry players, and we have sponsored, organized and legal handbooks published by the Bar Association. Elissa presented many enormously popular CLE programs, in- also co-founded and is a member of the Pro Bono Steering cluding the Annual Entertainment Business Law Seminar Committee and has generated superb programs for EASL in conjunction with CMJ. lawyers to donate legal services. Our Annual Meeting, held at the Hilton and co- I look forward to working with a wonderful group chaired by our innovative and tireless Program Co-Chairs of offi cers: Vice Chair Rosemarie Tully (and I point out Tracey P. Greco-Meyer of dELIA*s, Inc. and Rebecca A. that this is the fi rst time EASL has had both a woman Frank of Patina Restaurant Group, was a resounding suc- Chair and Vice-Chair), Treasurer Diane Krausz, Secretary cess, with two outstanding and timely panels. (See page Monica