27th Annual Entertainment Law Issue May 2011 /$4 EARN MCLE CREDIT PLUS Inverse Ratio Rule Studio in Copyright Self-Dealing page 29 page 36 Net Neutrality page 9 Joint-Work Copyrights page 14 Rights of Publicity in Video Games page 17 STARSTAR POWERPOWER Los Angeles lawyers Bradford S. Cohen and Kyle R. Neal offer advice on structuring charitable activities by entertainers page 22 SOUTHWESTERN LAW SCHOOL Expand your knowledge and distinguish yourself with Southwestern Law School’s unique graduate program LL.M. in ENTERTAINMENT AND MEDIA LAW The <rst LL.M. program of its kind in the country Full-time and part-time options available NEW ONLINE OPTION Drawing on the resources of the DONALD E. BIEDERMAN ENTERTAINMENT AND MEDIA LAW INSTITUTE, Southwestern’s exciting LL.M. Program in Entertainment and Media Law features a broad range of over 45 entertainment, media, sports and intellectual property law courses and seminars taught by leading legal experts in these areas. With the launch of the online version in partnership with Kaplan Legal Education, students have the option of attending classes on campus in Los Angeles or online from anywhere in the world. For the CAMPUS!BASED option, contact: For the ONLINE option, contact: Tamara Moore Professor Bridgette de Gyarfas Associate Director of the Biederman Institute Director of the Online LL.M. in Entertainment and Media Law Program Tel: (213) 738-6602 Tel: (213) 738-5790; (888) 729-9950 (outside the United States) Email: [email protected] Email: [email protected] Southwestern Law School 3050 Wilshire Blvd. Los Angeles, CA 90010 www.swlaw.edu/academics/llm EXCLUSIVELY F A M I L Y L A W Walzer & Melcher LLP is known for its expertise in handling complex divorce cases and premarital agreements. The firm is committed to resolving contested cases by settlement. Where that cannot be achieved, the firm provides strong and effective representation in litigation. Peter M. Walzer Christopher C. Melcher Leena S. Hingnikar Jennifer L. Musika Woodland Hills, California (818) 591-3700 www.walzermelcher.com www.drprenup.com FEATURES 22 Star Power BY BRADFORD S. COHEN AND KYLE R. NEAL Celebrities can choose from among a variety of vehicles, including private foundations and donor-advised funds, to realize their philanthropic goals 29 More or Less BY LEE S. BRENNER AND SARAH L. CRONIN In copyright infringement analyses only an original work’s protectible elements should be included Plus: Earn MCLE credit. MCLE Test No. 203 appears on page 31. 36 The Red and the Black BY ROMAN M. SILBERFELD AND BERNICE CONN Media consolidations since the repeal of the Fin-Syn rules have heated the controversy over profit participation agreements Los Angeles Lawyer DEPARTMENTS the magazine of the Los Angeles County 8 Barristers Tips 17 Practice Tips Bar Association If you have to ask if it’s insider trading, it Defining liability for likeness of athlete probably is avatars in video games May 2011 BY PATRICK HUNNIUS BY JAMES J. S. HOLMES AND KANIKA D. CORLEY Volume 34, No 3 9 Practice Tips 44 Closing Argument COVER PHOTO: TOM KELLER The Comcast case and the fight for Net Is a ZIP code really personal neutrality identification information? BY PATRIC M. 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KELLY JOHN P. LECRONE KENNETH K. LEE A. J. Hazarabedian Artin N. Shaverdian JONATHAN D. LIBBY Glenn L. Block Bernadette M. Duran PAUL MARKS AMY MESSIGIAN MICHELLE MICHAELS COMM. ELIZABETH MUNISOGLU RICHARD H. NAKAMURA JR. (PAST CHAIR) CARMELA PAGAY DENNIS PEREZ ADAM J. POST GARY RASKIN (PAST CHAIR) JACQUELINE M. REAL-SALAS (PAST CHAIR) DAVID A. SCHNIDER (PAST CHAIR) STEVEN SCHWARTZ MAYA SHULMAN THOMAS J. SPEISS III ALYSON SPRAFKIN HEATHER STERN THOMAS H. VIDAL JEFFREY D. WOLF KOREN WONG-ERVIN STAFF Publisher and Editor SAMUEL LIPSMAN Senior Editor LAUREN MILICOV Senior Editor ERIC HOWARD Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA LONERO BEKAS Sales and Marketing Coordinator AARON J. ESTRADA Administrative Coordinator MATTY JALLOW BABY Copyright © 2011 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is pro- hibited. Printed by R. R. Donnelley, Liberty, MO. 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PANSKY Immediate Past President DON MIKE ANTHONY Executive Director SALLY SUCHIL Associate Executive Director/Chief Financial Officer BRUCE BERRA Associate Executive Director/General Counsel W. CLARK BROWN It’s More Than Just a Referral BOARD OF TRUSTEES CHRISTOPHER C. CHANEY It’s Your Reputation MARRIAN S. CHANG BRIAN S. CURREY LINDA L. CURTIS Make the Right Choice JEFFERY J. DAAR ANTHONY PAUL DIAZ LOUIS R. DIENES Personal Injury • Products Liability BEATRIZ D. DIERINGER DANA M. DOUGLAS Medical Malpractice • Insurance Bad Faith MIGUEL T. ESPINOZA TANYA L. FORSHEIT CHRISTINE C. GOODMAN Referral Fees per State Bar Rules JOSHUA G. HAMILTON JACQUELINE J. HARDING ANGELA S. HASKINS BRIAN D. HUBEN www.cdrb-law.com TAMILA C. JENSEN 310.277.4857 DIANE L. KARPMAN SAJAN KASHYAP MICHAEL K. LINDSEY SARAH E. LUPPEN The More You Know About Us, HON. RICHARD C. NEAL (RET.) ANNALUISA PADILLA The Better Choice You Will Make ANN I. PARK THOM H. PETERS DAVID K. REINERT DEBORAH C. SAXE BRUCE IRA SULTAN JULIE K. XANDERS AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC. CENTURY CITY BAR ASSOCIATION CULVER-MARINA BAR ASSOCIATION EASTERN BAR ASSOCIATION OF LOS ANGELES COUNTY GLENDALE BAR ASSOCIATION IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES JOHN M. LANGSTON BAR ASSOCIATION KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SAN GABRIEL VALLEY BAR ASSOCIATION SANTA CLARITA BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA 10100 Santa Monica Blvd., Suite 2460, Los Angeles, California 90067 SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC. I SOUTHEAST DISTRICT BAR ASSOCIATION 310.277.4857 office 310.277.5254 fax SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION www.cdrb-law.com WHITTIER BAR ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES Los Angeles Lawyer May 2011 5 JUDGE LAWRENCE W. CRISPO (RETIRED) unaway production is not a new issue in California. Los Angeles Lawyer has published articles on this R topic in previous Entertainment Law special issues. For many years various groups urged the California Legislature to enact tax incentives in an effort to stem run- away produciton. In Febuary 2009, the legislature adopted its first film and televi- sion tax incentive program. Administered by the California Film Commission, the program provides for up to $500 million in production tax incentives to be allocated from July 1, 2009, through June 30, 2014. In theory, the program provides $100 million in tax incentives each year for five years. California’s tax incentive program differs from the programs in many other states. The program contains significant limitations on the types of expenditures that Mediator Arbitrator qualify for incentives. For example, almost all above-the-line expenditures for a film or television project do not qualify. Moreover, the production budget maximum for motion pictures is $75 million. As a result, a significant portion of the overall costs of a production does not qualify for any of the incentives—including costs for Referee actors, directors, and producers.