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February 2010 Archives

February 1, 2010

Christoph Büchel's VARA Victory

By Monica Pa

On January 27, 2010, the First Circuit Court of Appeals issued an important decision protecting the scope of artists’ rights under the Visual Artists Rights Act (“VARA”), 17 U.S.C. § 106A. In this much-publicized lawsuit, the Swiss artist Christoph Büchel was commissioned by the Massachusetts Museum of Contemporary Art Foundation, Inc. (“Mass MOCA”) to construct a mammoth art installation, roughly the size of a football field, entitled “Training Ground for Democracy” (“Training Ground”). The work included several major components, such as a vintage movie theater interior, a house, a variety of vehicles, a burned out 737 aircraft fuselage, and a bomb carousel. Mass MOCA was solely responsible for the cost of acquiring these items for the installation, which ultimately amounted to an upwards of $300,000 (nearly twice its initial budget) for materials and labor. Remarkably, the parties never memorialized the terms of their relationship or their understanding as to the intellectual property rights at issue. Communications between the artist and the museum became so strained that the artist refused to continue working on the unfinished installation. The museum, nevertheless, continued putting together the work in accordance with Büchel’s latest instructions. Unable to convince Büchel to return to the project, on May 21, 2007, Mass MOCA filed a complaint in federal court seeking a declaration that it was entitled to exhibit this unfinished work and a retraining order preventing Büchel from interfering. Büchel responded with a five-count counterclaim, asserting, among other things, that showing his unfinished work would violate his rights under VARA.

In July 2008, Judge Michael A. Ponsor in the District Court of Massachusetts ruled in favor of Mass MOCA, 565 F. Supp. 2d 245 (D. Mass. 2008), holding that VARA did not protect unfinished works of art. As such, the museum was entitled to show the Training Ground work so long as it included an accurate disclaimer. In any event, Büchel’s rights of attribution and integrity under VARA were not implicated by the museum’s conduct. The district court then dismissed Büchel’s copyright claims, finding that the display of “covered components of an unfinished installation” was neither an infringement of Büchel’s exclusive right to publicly display his work or to create derivative copies. Accordingly, the district court entered judgment in favor of the museum and dismissed all five of Büchel’s counterclaims.

In a substantial victory for artist rights advocates, the First Circuit reversed. Most important, Judge Lipez, writing for the unanimous panel, held that the “statute’s plain language extends its coverage to unfinished works”, as well as the statute’s history and purpose. The court concluded that Büchel’s rights in his Training Ground work “were protected under VARA, notwithstanding its unfinished state.” VARA protects an artists “right of integrity” which allows the artists to prevent distortions, mutilations or modifications of their works that are prejudicial to their reputation or honor. The record contained “sufficient evidence to allow a jury to find that Mass MOCA’s actions [namely modifying the “Training Ground” work over his objections] caused prejudice to Büchel’s honor or reputation.” The court, however, dismissed Büchel’s right of attribution claim. Since VARA’s protection for a right of attribution is only enforceable through injunctive relief, this claim was moot because the Training Ground work no longer existed after the museum dismantled it.

This decision is also notable for its copyright holding. Acknowledging the intersect between VARA and the Copyright Act, the First Circuit held that the record revealed a factual dispute as to whether Mass MOCA violated Büchel’s exclusive right to publicly display his work when it repeatedly and deliberately showed Büchel’s unfinished works on numerous occasions to various individuals without his permission. The court, however, held that because Büchel’s counsel did not adequately develop the claim that the museum’s modification of the Training Ground work constituted the creation of an unauthorized derivative work, this copyright right was waived on appeal. This case was remanded for further proceedings on Büchel’s reinstated VARA and copyright claims. In a recent statement to the press, Büchel’s counsel has indicated that Büchel, now represented by the Volunteer Lawyers for the Arts, Wachtell, Lipton, Rosen & Katz in New York City, and K&L Gates LLP in Boston, intends to litigate this case “to the fullest extent possible.”

This litigious debacle has, interestingly, reemerged in Büchel's other works. At the latest Art Basel Miami Beach show in December 2007, he presented a smaller version of the Training Ground work, which featured litigation papers and correspondence about the failed show. Reportedly, this work was purchased by a collector for $250,000, and donated to the Hamburger Bahnhof museum in Berlin.

February 8, 2010

TV Writers Settle Decade-Long Age Discrimination Litigation

By Barry Skidelsky, Esq. (co-chair NYSBA/EASL/TV-Radio Committee; contact: bskidelsky@mindspring.com or 212-832-4800).

On January 22, 2010, 17 television networks and production studios and 7 talent agencies settled 19 of 23 separate class actions filed in Los Angeles Superior Court, based on alleged intentional and unintentional age discrimination in the selection, employment and representation of television writers. As three companion cases had previously settled, Creative Artists Agency (CAA) is left as the lone holdout.

The procedural history of the TV writers’ cases (which is set forth in Alch et al v. Time Warner Entertainment et al, 122 Cal. App. 4th 339 (2004), subsequent history omitted), began in 2000 as a federal court action under applicable federal law, including the Age Discrimination in Employment Act (which generally protects workers aged 40 or more). That action was dismissed with leave to amend in 2002. Rather than pursue their federal case, Plaintiffs then instead filed 23 separate complaints in California state court, based on state law statutes involving fair employment, civil rights and unfair competition. The parties litigated aggressively over 10 years in the trial courts before five different judges, during which period 20 of the named plaintiffs died and five different appeals ensued, two of which reached the California Supreme Court (primarily involving class certification and discovery matters). Although the past decade saw thousands of pages of documents produced and thousands of interrogatories answered, discovery was still at an incipient stage and the class not yet certified. Thus, with final resolution still years away, the parties agreed (without any admission of liability by defendants) that it made sense to now bring these protracted cases to a close and obtain preliminary approval of the settlement.

The amount of the settlement is $70 million, the largest-ever settlement in the history of age discrimination litigation. Of that sum (two-thirds of which is to be funded by insurance carriers), about $25 million is expected to be paid to plaintiffs’ counsel; and, about $2.5 million is to be set aside into a so-called Fund for the Future to be created (which intends, inter alia, to make loans and grants to TV writers). The remainder of the record-breaking settlement sum is to be paid pursuant to a single formula to class members, which includes both professional and aspiring writers, subject to withholding taxes and union pension or health and welfare deductions as may be appropriate (interestingly, the Writers Guild was not a party to this litigation).

Writers who believe they were unlawfully denied a TV writing opportunity during the class period (from October 22, 1996 to January 22, 2010) and want a piece of this pie must file a claim form (available at www.tvwriterssettlementadmin.com) no later than April 13, 2010. A final approval hearing of the TV writers’ settlement is scheduled for May 5, 2010, in L.A. Superior Court.

It should also be noted that the United States Equal Employment Opportunity Commission (EEOC) has reported a significant uptick in age discrimination complaints. The latest figures show that for the 2008 fiscal year, 24,582 charges of age discrimination were filed with the agency, almost a 29% increase over the prior year, and by far the largest number of such charges filed in the past 10 years. No employer, not even a law firm, is immune. In fact, on January 28, 2010, the EEOC filed an age discrimination complaint in federal court in Manhattan (SDNY) against the nationally known law firm of Kelly Drye and Warren, the details of this action being beyond the scope of this article. Suffice it to say that, without doubt, the difficult economic circumstances we all face today is having a disparate impact (no pun intended) on baby boomers and other older workers; and, all employers (including law firms) would be well advised to review and improve their hiring and other employment practices.

February 9, 2010

Rescheduled - Seton Hall University School of Law, Sports and Entertainment Law Journal 2010 Sports & Entertainment Law Symposium

Seton Hall University School of Law, Sports and Entertainment Law Journal

Presents: 2010 Sports & Entertainment Law Symposium
Newark, New Jersey

The SHU Law Journal of Sports and Entertainment Law Symposium has been rescheduled from its original date, which had to be cancelled due to inclement weather.

New Date: April 12, 2010

Time: 8am-3:45pm

Registration: is required and can be completed at: http://law.shu.edu/Students/academics/journals/sports-entertainment/symposium/registration.cfm.

Panels will remain the same, with the exception of a few speakers.

Keynote: Lou Lamoriello, CEO and GM of the New Jersey Devils

5 NYCLE Credits (full day attendance required) $100

General Public $25

Free Admission for Students

Breakfast & Lunch will be provided to all attendees

More details to follow along with the official list of panelists.

If you have any questions, please contact Brett Theisen at brett.theisen@gmail.com

February 10, 2010


Judith B. Prowda of New York is the new chair of the Entertainment, Arts and Sports Law Section of the New York State Bar Association.

Prowda, a native Binghamtonian, received her undergraduate degree from Sarah Lawrence College and earned her law degree from Fordham University School of Law. She also received an LL.M. from New York University School of Law, an M.A. in International Relations from Johns Hopkins University School of Advanced International Studies, an M.A. in French Literature from Middlebury College and a Certificate from l’Institut d’Etudes Politiques in Paris. She was the first Research Fellow at the Engelberg Center on Innovation Law and Policy at New York University School of Law.

Prowda is senior lecturer at Sotheby's Institute of Art in New York, where she teaches Art Law and Ethics & Policy in the Art Profession in the graduate level Art Business program. She also is an attorney, mediator and arbitrator in New York, concentrating in copyright, art and entertainment law, as well as a recognized leader in the intellectual property field. She has advised a law firm in Paris on U.S. copyright law, and has consulted at the World Intellectual Property Organization in Geneva. Prior to studying law, she was a reporter in the World Section at Time Magazine and French-English interpreter at the U.S. Department of State.

A member of the State Bar’s House of Delegates, Prowda served as Vice-Chair of the Entertainment, Arts & Sports Law Section and has been a member of its Executive Committee since 2000. She chairs the Fine Arts Committee and co-chairs the Section’s Committee on Alternative Dispute Resolution, which she co-founded. She previously was a member of the Committee on Media Law. In 2005, she was honored by the State Bar’s Committee on Alternative Dispute Resolution for her outstanding contribution to the advancement of alternative dispute resolution in New York. She also is a member of the Dispute Resolution Section as well as the Entertainment, Arts and Sports Law Section’s liaison to the Executive Committee of the Dispute Resolution Section.

A frequent speaker and commentator on art law, copyright, and dispute resolution topics, Prowda has published numerous articles in law journals and won prestigious awards. She is a member of the Art Law Committee of the New York City Bar Association and has served on the Copyright & Literary Property and Entertainment Law Committees. She is on the Roster of Neutrals, New York State Supreme Court Commercial Division and a member of the Commercial Panel of the American Arbitration Association and the Mediation Register, U.S. Bankruptcy Court (Eastern District of New York). She also is a member of the International Literary and Artistic Association and the Editorial Board of the Journal of the Copyright Society of the U.S.A.

February 15, 2010

Justice Department's Statement of Interest - Google Books Case

By Mary Rasenberger

A careful reading of the Statement of Interest filed in the Google Books case by the Justice Department last week shows a harsher assessment than was evident in its earlier filing. The government’s brief rejects the amended settlement agreement (“ASA”), finding that the parties’ attempts to cure the issues the government identified in its earlier brief do not go nearly far enough: “Despite this worthy goal [trying to create a mechanism to allow for lawful large-scale book digitization], the United States has reluctantly concluded that the use of the class action mechanism in the manner proposed by the ASA is a bridge too far.”

Given the stakes and pressures that were likely put to bear on the government, it is an incredibly strong document. It will be remarkable if Judge Chin (or his successor in the case, if he is moved up to the Second Circuit soon) approves the ASA as-is, even after the substantial responses filed by the parties.

The government’s main issue with the ASA is that it uses the class action suit to create a far-reaching commercial arrangement that looks far into the future (indeed in perpetuity) and far beyond the claims off the suit. It does this by granting Google legal rights that it never could have obtained through a private arrangement or through a judicial resolution of the suit – and these legal rights fly in the face of “the core principle of the Copyright Act that copyright owners generally control whether and how to exploit their works during the term of copyright.” Secondarily, providing these rights, the government argues, confers significant, possibly anti-competitive advantages to Google.

The government’s September 18th brief focused on the anti-competitive concerns and more technical class action issues, and did so in an equivocal enough way that it left room for the parties to make the minor changes they did in the ASA and be able to wipe their hands with a straight face. The recent brief, in contrast, does not mince words and hits hard on the underlying problem many objectors have with the ASA - it attempts to use the class action process to get around the existing legal system rather than to support it. As Marybeth Peters, the Register of Copyright, has said, and many have repeated: the settlement turns copyright on its head. It creates a whole new legal system of opt-out regime for the benefit of a single entity, which is totally at odds with copyright’s grant of exclusive rights to authors.

To summarize the government’s brief at a very high level, there are three key objections to the ASA:

1. Class action law does not permit settlements to replace commercial transactions that go far beyond the claims at issue in the case or restructure the law;

2. The settlement turns copyright on its head by creating an opt-out regime for the vast majority of works at issue; and

3. Granting an across-the-board license to Google for non-commercial works on an opt-out basis creates potential anti-competitive advantages, as no competitor will be able to obtain those rights, especially in the case of unclaimed works.

At the same time, the government is rightly sympathetic with the parties’ attempt to use the class action process in this way. The current law and practice is arguably defective, and makes mass-digitization, even when it serves a good public purpose, impossible to do legally. Orphan works legislation might help some, as would collective licensing arrangements or perhaps a statutory license for libraries. But you don’t have to be a class action lawyer to know that Rule 23 (the civil procedure rule allowing for class action lawsuits) is not intended to be used to create new law. We have one mechanism for fixing the law in this country – legislation. As judges in countless cases have said: you have a problem with the law, take it to Congress.

Sure, it’s been impossible in recent years to pass copyright legislation, but that doesn’t mean we get to amend the law ourselves in class action lawsuits.

For those interested in more detail, I’ve summarized some of the specific arguments in the government’s February 4th Statement of Interest below. The arguments are made in the context of two separate sets of laws: class action law and antitrust law.

Class Action Law Related Issues

The Government’s brief states: “The Supreme Court has cautioned that 'Rule 23… applied with the interests of absent class members in close view, cannot carry the large load of restructuring legal regimes in the absence of congressional action – however sensible that restructuring might be.'”

The arguments regarding non-compliance with the Rule 23 class action rules are some of the more interesting and compelling ones raised in the case. The Rule 23 law gets at some of the smell test issues in this case, described above – i.e., even though it sounds good, it looks good, it doesn’t smell quite right. It seems at odds with some of our underlying basic legal principles to allow a class action law suit filed by a small group of associations and individuals, who admittedly do not represent all author and publisher class members throughout the world or even the U.S., to take away hundreds of thousands (if not millions) of individuals’ rights without their consent. It’s even odder when you consider that the law suit was brought to enforce those very rights.

It turns out, according to one Justice (and certain other objectors, e.g., Microsoft, Amazon, Scott Gant) that the class action law does have standards, if not crystal clear ones, that don’t necessarily promote this kind of sweeping conversion of rights.

Both the parties’ and the government’s briefs discuss the standards set forth in the Supreme Court’s Firefighters case (Local Number 93, Int’l Assoc. of Firefighters v. City of Cleveland, 478 U.S. 501 (1986)). Under Firefighters and its progeny, the Court may approve a settlement that meets the following three-prong test: (1) the settlement springs from and serves to resolve a dispute with the Court’s subject matter jurisdiction, (2) the settlement comes within the general scope of the case made in the pleadings, and (3) it furthers the objectives of the law on which the complaint was based. The government concludes that:

1. It’s difficult to see how this settlement meets the first prong in that it resolves future claims by absent class members for activities well beyond the facts underlying the complaint;

2. The ASA does not meet the second prong because it creates a business relationship that covers future conduct that goes way beyond the claims in the complaint and provides Google with benefits that it never could have obtained through the litigation itself or even through a privately negotiated deal (i.e., the opt-out for non-commercial works); and

3. The ASA does not further the objectives of copyright law, but is inconsistent with the policy of Copyright Act, which provides for exclusive rights and not opt-outs.

The government concedes that a settlement of a class action may go “somewhat” beyond the conduct complained of in the complaint, but can’t go so far as “to abridge or enlarge substantive rights” and “usurp the legislative function.”

The government further states that the ASA does not remedy the lack of adequate representation of the interests of a large number of members (namely, unclaimed work owners, foreign rightsholders) in the settlement negotiations, and that appointing a fiduciary with limited powers for unclaimed works at the Registry does not solve the problem. It also exhorts the Court to look more closely at the notice provided to potential class members to determine if it was adequate, specifically requesting that the Court “undertake a searching inquiry to ensure both that a sufficient number of class members have been or will be reached and that the notice provided fives a complete picture of the broad scope of the ASA…”

Last, the government raises concerns about Attachment A of the ASA. Attachment A is a sub-agreement that controls potential disputes between authors and publishers, mainly regarding possession of rights and splits, and supersedes all agreements between publishers and authors, even foreign ones. The government notes that there may be a conflict of interest between subclasses of authors and publishers, which raises “serious questions” regarding adequacy of representation under Rule 23.

Antitrust Issues

The antitrust issues discussed in the brief are essentially the same ones addressed in the government’s September 18th brief; and they are the primary issues that the parties attempted to address in the ASA’s amendments. The government states that the parties made “constructive revisions” to address these potential anti-competitive problems, but that the amendments do not go far enough to remedy:

1. The creation of an industry-wide revenue-sharing formula at the wholesale level applicable to all works;

2. The setting of default prices and the effective prohibition on discounting by Google at the retail level; and

3. The control of prices for orphan books by the known publishers and authors with whose books the orphan books likely will compete.

With respect to the first issue, the government notes that the ASA gives Google the right to renegotiate the wholesale revenue split with rights holders, but only for commercially available works. The government believes that the carve-out for non-commercial works may render the amendment somewhat meaningless, given the fact that the vast majority of works at issue are not commercially available under the ASA’s definition and that this will be especially true if the publishers take commercially available books out of the settlement, as many have suggested they will do.

The government also does not believe that the “fixes” regarding the use of pricing algorithms go far enough to prevent a de facto horizontal agreement. It analogizes the publishers’ and authors’ agreement to allow Google to price the works (using its algorithms) to the delegation of pricing to a common agent - a practice found to be unlawful. Far preferable would be actual bilateral negations than the ability to opt-out of the default use of algorithms.

The government’s biggest concern, however, relates to the pricing of orphan works, since the Registry’s board, consisting primarily of commercial publishers and authors, would have the ability and incentive to limit competition from unclaimed works. The parties have responded to this criticism (also in the government’s September brief) by providing in the ASA for an “Unclaimed Works Fiduciary,” but this fiduciary’s powers are limited – for instance, he or she will not have the ability to set prices for works, or renegotiate splits. As such, the government does not believe the appointment of fiduciary cures the underlying problem.
Last and most importantly perhaps, the government finds that the amendments do not address Google’s de facto exclusive rights to use orphan and rights-uncertain works. The government states that no other entity will have the ability to offer these works legally. Although the ASA attempted to address this concern by expressly allowing resellers to provide access to these works, the government does not equate these reseller rights with the right Google has to freely exploit orphan and other unclaimed works. It concludes: “the reseller clause cannot create new competitors to Google.”

So now what?

The government’s brief advises the Court that the public interest would best be served by direction from the Court encouraging the continuation of settlement discussions between the parties. But if we can be realistic for a moment – what are the chances of Google agreeing to all of the concessions that Justice’s analysis would require to make the settlement copasetic? Google has made it clear that, from its perspective, the opt-out for out-of-print works, and especially the orphans, is essential to the deal. If you read the government’s brief carefully, it does not appear that its cumulative objections all could be adequately addressed without getting rid of the opt-out for non-commercial works. The government does state, however, that if the opt-out is retained, Google should be required, among other things, to conduct a search for unclaimed work prior to their use, similar to the reasonable search requirement in the last iterations of the orphan works bill. Google has publicly stated that, although it supports orphan works legislation, that legislation would not provide it with the flexibility it would need to create the inclusive database envisioned.

Briefs Filed in Support of the Amended Settlement Agreement in the Google Books Case

By Mary Rasenberger

An impressive number of pages were filed this past Thursday (February 11, 2010) by the parties in the Google Books Search case in support of the amended settlement agreement (“ASA”). Only a week after the Justice Department filed its brief, both Google and the named Plaintiffs (publishers and authors collectively) filed briefs worthy of fat binder clips. The Plaintiffs' briefs alone comprise nearly 250 pages, including a 170 page Supplemental Memorandum Objecting to Specific Objections (and with the numerous declarations and exhibits the parties' papers amount to over 2,500 pages altogether).

The briefs remind the Court of the benefits of and support for the settlement, and as would be expected, address the government’s concerns set out in its February 4th Statement of Interest. Google’s brief addresses the government’s objections in great detail supported by substantial case law; the brief also discusses a somewhat random, handful of objections filed by others (fairness to third parties, burden of determining whether a book was registered, inaccuracies in the database, security, and time limit on removal).

The Plaintiffs’ principal brief makes some compelling arguments as to why the ASA is preferable to the alternative outcomes in this case (e.g., protracted litigation, the risk of an on/off decision) and why the settlement is reasonable in light of the case. It summarizes the ASA and its benefits and takes on some of the Rule 23 and other concerns raised by the government. The Plaintiffs’ supplemental brief appears to take on the entire catalog of objections filed by all objectors with standing. Impressive as it is, the supplemental brief may have bit off more than it could chew. Some of the responses, some even to significant objections, come off as non-responsive or conclusory. Moreover, the same objections in some cases are addressed separately in the two briefs, not always completely consistently. They don’t always cross-reference arguments made in the other brief (e.g., the discussion of adequacy of notice in the supplemental brief seems very conclusory if not read alongside the discussion in the principal brief, which is not referenced).

For instance, in response to arguments that the ASA cannot bind foreign members of the class because (1) the law is at odds with that of other countries and (2) the Court lacks personal jurisdiction, the Plaintiffs state in the supplemental brief (pp. 61-63) that members of the class can be bound so long as notice meets the Rule 23 requirements, and that notice was compliant (here referencing their arguments as to why it was compliant). Admittedly, I have not read the cases they cite, but maybe they could explain why compliant notice would address these concerns.

In response to Justice’s and others’ concerns about the fact that Google alone will have the right to offer orphan works (i.e., books for which a copyright owner cannot be located) and the impossibility for others to obtain the rights to the orphans and enter that market, in the Supplemental Motion (pp 149-150), the Plaintiffs summarily respond: "This argument relies on unsupported and illogical speculation that the subset of out of print [orphan] books is so uniquely valuable and desired that other subscription products will be unable to compete with the Institutional Subscription."

Considering that the government and many others viewed this as a significant issue, the response seems flippant. Of course, a subscription database that includes all books, including out-of-print books for which no owner has come forward, is much more valuable than one that is created on an opt-in basis and so would not include orphans. As a library, which one would you chose? And if these works don’t increase the value of the database, then why is the opt-out so crucial to the settlement? Why does Google insist it needs these out-of-print works (a huge portion of the books at issue in the settlement)? If the out-of-print, unclaimed works really are so valueless, then make them available to Google on an opt-in basis and 95% of the objections go away.

Some odd responses aside, the parties’ recent briefs keep the ball in play. Perhaps most interestingly, filing these briefs indicates that the parties do not intend to go back to the negotiating table again as the government recommended. Moreover, the briefs contain some solid, convincing arguments. They are worth a thorough read for the interested – who have a lot of free time. (It does feel like reading the original settlement agreement all over again.) Most importantly, one hopes that Judge Chin will have the time to read it all. He may just want to run for the hills when he sees all that paper. I mean the Second Circuit.

The briefs have good table of contents, as you’d expect. One approach to reading the briefs is to do so on a topic by topic using the table of contents, rather than try to read them in linear fashion. And for those of us who’d love to see a list of all objections filed in the case, the supplemental brief serves as a pretty good proxy.

February 16, 2010


Coming up on March 4, Billboard is having its 9th Annual Music & Money Symposium at the St. Regis in NYC and it is offering EASL Section members a special promotional rate to attend the conference.

Please use the promo code: LAW for the special rate of $749 (a $450 savings).

Now in it's 9th year, this one-day event brings together the best minds from the music, legal, financial and Wall Street communities for an in-depth examination of the financial realities with which the music industry is contending.

This annual event attracts almost 250 top-level executives from record labels, publishing firms, marketing and promotion companies, as well as artist managers, attorneys, accountants, strategic advisors, distributors, financial services, analysts and consulting firms.

Keynote Interviews With C-Level Executives
Informative Panel Sessions Featuring:
Media Investors, Music Publishers, Equity Groups, Venture Capitalists,
Digital Music Executives & Brand Marketers
Networking Receptions...and More!


February 20, 2010

Remarks from Judith Prowda, EASL Section Chair

Remarks from the Chair

I am honored and privileged to serve as the new EASL Chair for the next two years.

For the benefit of those who do not know me, I divide my professional life among academic, law practice and ADR services. I am Senior Lecturer in Art Law and Ethics & Policy in the Art Profession at Sotheby’s Institute of Art Masters of Art Business Program in New York. In my law practice, I concentrate in intellectual property, art and entertainment law, and represent artists, galleries and other arts organizations (not-for-profit and private), as well as authors and other creative individuals in publishing, as well as business entities in commercial transactions. In the past several years, I have also developed an ADR practice, and serve as mediator for the New York State Commercial Division and Volunteer Lawyers for the Arts, and as arbitrator for the American Arbitration Association.

I have very big shoes to fill, following our Immediate Past Chair Kenneth Swezey, who solidified our Section in the midst of challenging economic times.

During Ken's tenure as Chair he managed to bring the Section's budget out of the red and well into the black. He encouraged a redoubling of pro bono efforts within the New York City arts community. During his term, our Section launched the Entertainment, Arts & Sports Law Blog, which has become an important outlet for members of our practice area to share important legal developments from all corners of the entertainment business. Additionally, Section membership has increased, we have fostered ongoing relationships with important industry players, and we have sponsored, organized and presented many enormously popular CLE programs, including the Annual Entertainment Business Law Seminar in conjunction with CMJ.

Our Annual Meeting, held at the Hilton and co-chaired by our innovative and tireless Program Co-Chairs Tracey P. Greco-Meyer of dELIA*s, Inc. and Rebecca A. Frank of Patina Restaurant Group, was a resounding success, with two outstanding and timely panels. The first panel, titled “From Conception to the Public Domain or Perhaps to Infinity and Beyond: The Life Cycle of Fictional Characters,” was moderated by Jay Kogan, Vice President Business & Legal Affairs and Deputy General Counsel of DC Comics (and Co-Chair of EASL’s Copyright & Trademark Committee), and featured Neil J. Rosini, partner at Franklin, Weinrib, Rudell & Vassallo PC and Co-Chair of EASL’s Copyright & Trademark Committee; Edward H. Rosenthal, partner at Frankfurt Kurnit Klein & Selz PC; Joseph Salvo, Senior Vice President and Global General Counsel of Hit Entertainment; and Eric S. Brown, partner at Franklin, Weinrib, Rudell & Vassallo PC. The panelists engaged in a spirited discussion about character rights, how to license and expand a character’s image, and what happens when the character’s owner’s rights expire.

Our second panel, “Players Off the Field … How Do You Protect Your Client When Negotiating an Athlete-Driven Merchandising, Endorsement, or New/Traditional Media Deal?”, featured leading sports marketing and legal experts. Michael Bracken of Cowan DeBaets Abrahams & Sheppard LLC did a fantastic job moderating a talented panel, including Terry Prince, Director, Legal and Business Affairs, Creative Artist Agency Sports; Ethan Orlinsky, General Counsel, Major League Baseball; Stephanie Vardavas, Assistant General Counsel, Nike; and Peter Welch, Vice-President and Counsel, Take-Two Interactive Software.

In addition to Ken’s hard act to follow, I am also the third woman Chair of EASL, and have two pairs of very high heels to follow.

Our first woman Chair, Judith Bresler (2000-2002), my mentor and dear friend, is truly a leader and role model of excellence and accomplishment in the legal profession. Together Judith Bresler and I co-founded and co-chair the EASL Committee on ADR. Judith also initiated the BMI/Phil Cowan Memorial Scholarship for law students. She never ceases to amaze all of us with her capacity for fresh ideas.

Elissa Hecker, our second woman Chair (2004-06), was the recipient of the Young Lawyers Award in 2005, has been our Journal Editor for 10 years, started our widely read blog last year, and edited two EASL-related legal handbooks published by the Bar Association. Elissa also co-founded and is a member of the Pro Bono Steering Committee and has generated superb programs for EASL lawyers to donate legal services.

I look forward to working with a wonderful group of officers: Vice Chair Rosemarie Tully (and I point out that this is the first time EASL has had both a woman Chair and Vice-Chair), Treasurer Diane Krautz, Secretary Monica Pa; and Assistant Secretary Jason Baruch. I will continue to serve as a Delegate to the House of Delegates, along with Bennett Liebman and with David Faux as Alternate.

My first order of business as Chair-nominee was to nominate a District Representative for each of the 13 Judicial Districts in New York State – for the first time in EASL history! We will now hear voices from all around the State. This list of District Representatives (approved at the Annual Meeting) is as follows:

First Alan J. Hartnick
Second Innes Smolansky
Third Bennett Liebman
Fourth Edward Flink
Fifth Jaime Mavie Previte
Sixth Mark Dodds
Seventh Mark A. Costello
Eighth Leslie Mark Greenbaum
Ninth Alan D. Barson
Tenth Rosemarie Tully
Eleventh David Faux
Twelfth Lauren Fae Silver
Thirteenth Daniel C. Marotta

One of my goals is to focus on current legislation with a committed group of people (similar to our dynamic Pro Bono Steering Committee) and to make recommendations when appropriate. I would like the District Representatives to be involved in this effort. I have appointed Bennett Leibman to serve as Co-Chair with Steven Richman.

I am excited to announce that I have already formed four new Committees within EASL. First, I would like to recognize the outstanding work done by Judith Bresler (as mentioned above) and Gary Roth, who co-founded and co-chair the Phil Cowan Memorial/BMI Scholarship. Since its founding in 2005, the Scholarship has been awarded to student winners of a writing competition. By giving this Scholarship initiative the status of a Committee, we will strengthen our ties with law schools throughout the State and country and continue to find a talented pool of law students to participate in the competition.

In addition, mindful of the difficult job market affecting many of our members, I have formed a new and dynamic EASL Lawyers in Transition Committee and appointed as Co-Chairs Saryn Leibowitz and Leila A. Amineddoleh. As part of its mission, the EASL Lawyers in Transition Committee will hold programs (possible topics will include job search strategies, re-entering the job market, networking, mentoring) and create a job bank to connect job seekers and employers. As part of the mentoring program, the Committee will initiate a "lifeline" system, where a new attorney is matched with a more experienced attorney in order to learn the basics of practice that are not taught in law school. The EASL Lawyers in Transition Committee will also organize a series of informal breakfast panels/lectures, inviting attorneys from different areas of the entertainment, art and sports areas of practice to discuss their experience with our members. Possible topics include "Basics of the USPTO and Trademark Prosecution," "Trademark Docketing Systems," "Filing with the U.S. Copyright Office," and "Beginning an Action -- How to File a Complaint in County, State, and Federal Court."

The third new committee is the Digital Media Committee, co-chaired by Vejay Lalla and Andrew Seiden. The scope of this Committee will include all out-of-home media (i.e., non-traditional advertising venues apart from television, radio and theatrical motion picture).

The fourth new committee is the Ethics Committee, chaired by Pery D. Krinsky, who concentrates his practice on attorney ethics and criminal law. As part of its mission, the EASL Ethics Committee will address ethics issues encountered by attorneys in their day-to-day practice in the diverse fields of entertainment, art and sports law. Indeed, as the legal profession enters a new and more “global” decade, lawyers are facing challenging questions concerning when, where and how the “practice” and the “business” of law are interconnected. Many of these novel questions – having local, national and international dimensions – will need to be considered, some for the first time, in the context of the much anticipated, newly adopted “New York Rules of Professional Conduct” (effective April 1, 2009). In order to further examine some of these “high-impact” ethics issues, the EASL Ethics Committee will organize a series of informal discussions and formal (and always sought after) Continuing Legal Education ethics programs, inviting experts in the fields of entertainment, art, sports, criminal and ethics law to discuss multi-faceted ethics questions such as trans-jurisdictional lawyering, the unauthorized practice of law and multi-disciplinary practices.

I have also appointed Cameron Myler and Ken Swezey as new Co-Chairs of the Committee on Literary Works, and Edward Rosenthal and Barry Werbin to Co-Chair the Committee on Publicity, Privacy & Media.

One of the many strengths of EASL is our wide range of wonderful Committee programs, both CLE and non-CLE, which are usually held in NYC. I hope to make many of those programs available to members who are unable to attend through the creation of DVDs and webcasting. On March 24, 2010, I inaugurated this initiative by having a videographer tape the Committee on Fine Arts program entitled “Egon Schiele's Dead City: Current Issues In Nazi Art Looting and Recovery.” The program featured guest speaker Raymond Dowd, Esq. of Dunnington, Bartholow & Miller LLP.

Three years ago, the NYSBA President challenged each Section to grow by 10 percent by December 31, 2010. In 2008 EASL had 1,592 members. On February 2, 2010 our membership was at 1,689. Doing the math, we need only 58 new members to meet the three year, 10 percent challenge of 1,748 and I believe we can do that and more. I am hoping that we will top 2,000 members by the end of my term as Chair.

I look forward to serving as Chair of EASL, along with the other EASL Officers, members of the Executive Committee, and colleagues in Albany – Doug Guevara, Pam McDevitt, Carolyn Clayton, Lori Nicholl, Barbara Beauchamp – and everyone else.

I would like to hear from EASL members throughout the State and to invigorate the Section by extending its reaches to every corner of the State and beyond, and to work hard to serve not only EASL members, but the New York bar and the public.

About February 2010

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in February 2010. They are listed from oldest to newest.

January 2010 is the previous archive.

March 2010 is the next archive.

Many more can be found on the main index page or by looking through the archives.