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February 2011 Archives

February 3, 2011

EASL Job Bank

The EASL Lawyers in Transition (LIT) Job Bank has been updated! To view the Job Bank, please visit the EASL Lawyers in Transition group page on Linked In (www.linkedin.com).

The EASL LIT Job Bank on Linked In is an exclusive benefit for members of EASL. In order to view the Job Bank, you must request to join the EASL LIT group page on Linked In. To join, visit www.linkedin.com and search for NYSBA Entertainment Art and Sports Law Lawyers in Transition Committee under "Groups." After submitting your request to join the group, we will confirm that you are a member of EASL and your request will be granted.

February 8, 2011

The White House Will Propose New Digital Copyright Laws

See the 92 page report that is available at the White House website, at http://www.whitehouse.gov/sites/default/files/omb/IPEC/ipec_annual_report_feb2011.pdf.

February 9, 2011

EASL Job Bank - Updated Jobs Available

The EASL Lawyers in Transition (LIT) Job Bank has been updated! To view the Job Bank, please visit the EASL Lawyers in Transition group page on Linked In (www.linkedin.com).

The EASL LIT Job Bank on Linked In is an exclusive benefit for members of EASL. In order to view the Job Bank, you must request to join the EASL LIT group page on Linked In. To join, visit www.linkedin.com and search for NYSBA Entertainment Art and Sports Law Lawyers in Transition Committee under "Groups." After submitting your request to join the group, we will confirm that you are a member of EASL and your request will be granted.

February 18, 2011

The 15th Annual Fordham Sports Law Symposium on Current Legal Issues in Sports

Friday, April 1, 2011 9:00 am - 5:00 pm

Fordham Law School
James B.M. McNally Amphitheatre
140 West 62nd Street
New York, NY 10023

Keynote Speaker: Howie Roseman, Esq. '00; General Manager, Philadelphia Eagles

Panels Include:
•Damaging Impact: The long-term health effects of concussions and where future liability might lie

•Agents, Amateurism and Accountability: Legal and ethical questions arising from the relationships between lawyer/agents and the amateur athletes seeking their representation

•Collective Bargaining Agreements in Sports: Impending negotiations, potential lockouts, and the main sources of conflict between owners and unions

For price and registration information
visit http://law2.fordham.edu/ihtml/cal-2uwcp-calendar_viewitem.ihtml?idc=11557&template=cal

EASL Job Bank

The EASL Lawyers in Transition (LIT) Job Bank has been updated! To view the Job Bank, please visit the EASL Lawyers in Transition group page on LinkedIn (www.linkedin.com).

The EASL LIT Job Bank on Linked In is an exclusive benefit for members of EASL. In order to view the Job Bank, you must request to join the EASL LIT group page on Linked In. To join, visit www.linkedin.com and search for NYSBA Entertainment Art and Sports Law Lawyers in Transition Committee under "Groups." After submitting your request to join the group, we will confirm that you are a member of EASL and your request will be granted.

Pro Bono Update


"Dancing is like water, it floats away" -Merce Cunningham

EASL's Pro Bono Steering Committee Members Elissa Hecker and Carol Steinberg collaborated with the New York Foundation for the Arts (NYFA) to present a day long Saturday program on Legal Issues for Dance Companies in February, which generated unprecedented excitement and appreciation among the attendees and the panelists. The beauty of this program was that high level attorneys and innovators in the dance world donated their precious time to speak to the attendees about pressing legal issues that confront the dance community (see the program below for a list of speakers). Many of the attendees had been learning to enhance their professional development through NYFA's BUILD program, and were ready and eager for the legal advice that was given so creatively and generously. The attendance was terrific, and the feedback showed that the dance companies and choreographers who attended were grateful for the rich program (and want more).

Judith Prowda, joined by the Martha Graham Center's Artistic Director, Janet Eilber, gave the keynote address about the Martha Graham litigation and its lessons for dance companies today. The discussion highlighted the importance of determining ownership of the dance, having appropriate contracts to reflect this key decision, and protecting the legacy of the choreographer. The panels that followed on licensing and trusts and estates issues covered these key issues. The licensing panel, consisting of attorneys and an innovator in digital distribution of dance, provided essential legal information to the attendees in practical language. The next panel focused on protecting the legacy of the choreographer in a casual, yet extremely informative manner. Subsequent panels covered basics of setting up and running a business, with an exciting discussion of the pros and cons of using not-for-profit companies and, in the alternative, for-profit models for dance companies. The day concluded with a panel focused on using social media to maximize fan bases and audience attendance. Each panel found its unique and fascinating way to reach the attendees.

Feedback from those who attended showed that they greatly appreciated the advice they were given, and they want more. Their reaction highlights the need for more pro bono work to continue this wonderful process. For example, one attendee said that she needs pro bono counsel to work with her company on an ongoing basis. Another said that she learned so much and now has more questions (a good sign). More than one panelist said that this was the most enjoyable program they had been on or attended. Lane Harwell, Executive Director of Dance NYC (the service organization for the dance community) said, "It was a pleasure to be a part of this extraordinary event - so valuable to the dance community as it navigates legal hurdles and opportunities. Thank goodness there are lawyers out there who want to help! "

Kathy Kim, another Member of the Pro Bono Steering Committee and Stephanie Spangler, an EASL member, also worked behind the scenes with Caroline Camp of NYFA to make this event a success. NYFA's Peter Cobb, attorney, saxophone player, and Program Officer, provided magnanimous and invaluable support.
The attendees want more. Working with the dance community is an exciting and satisfying way to do pro bono work. Please be on the lookout for opportunities to participate through your email, the EASL Listserv, and/or the EASL Blog.

You will find this work as satisfying and enjoyable as we do.

*Introductory Remarks*
Michael Royce, Executive Director, NYFA
Peter Cobb, Program Officer, NYFA Learning/NYFA Consults, BUILD
Carol J. Steinberg, Esq., Co-Chair, EASL Pro Bono Committee; School of Visual Arts

* The Martha Graham Case: Determining Who Owns a Dance*
Judith B. Prowda, Chair, EASL Section, Senior Lecturer, Sotheby's Institute of Art, Law Office of Judith B. Prowda
Janet Eilber, Artistic Director, Martha Graham Center of Contemporary Dance

* Licensing: Contracting with Collaborators and Other Artists*
Cory Greenberg, Esq., Director of Operations & Special Projects, Alvin Ailey American Dance Theater
Marc Kirschner, Founder and General Manager, TenduTV
Christine A. Pepe, Esq., American Society of Composers, Authors & Publishers (ASCAP), Director of Legal Affairs

* Trusts and Estates: Protecting Your Legacy*
Timothy J. DeBaets, Esq., Cowan, DeBaets, Abrahams and Sheppard
Jean Davidson, Executive Director, New York Live Arts, (Bill T. Jones/Arnie Zane Dance Co. and Dance Theater Workshop Re-imagined.)
Terence Dougherty, Board Director and Corporate Secretary of New York Live Arts (Bill T. Jones/Arnie Zane Dance Company Re-imagined); General Counsel of the American Civil Liberties Union; Commissioner of the Women's Refugee Commission
Daniel Scott, Esq., Chadbourne & Parke LLP

* Business Entities and Accounting: Innovative Solutions*
Innes Smolansky, Esq., Law Office of Innes Smolansky
Lesley F. Rosenthal, Vice President, General Counsel & Secretary, Lincoln Center for the Performing Arts
Lane Harwell, Director, Dance/NYC
Brian S. Perkis, CPA

* How You Can Use Social Media to Build Your Brand and Avoid Some Legal Problems Along the Way*
Elissa D. Hecker, Esq., Co-Chair, EASL Pro Bono Committee; Law Office of Elissa D. Hecker
Erik Gensler, President, Capacity Interactive Inc.
Andrew Berger, Counsel: Tannenbaum Helpern Syracuse & Hirschtritt LLP

The Pro Bono Committee's Speakers Bureau also co-sponsored an event with Local 802, a member of the American Federation of Musicians, for a seminar on Legal Issues for Musicians. Christine Pepe, Director of Legal Affairs of the American Society of Composers, Authors & Publishers (ASCAP) and EASL's Music Committee Co-Chair, provided the attendees with a helpful overview of copyright law and the components involved when musicians are taking steps to protect their own work or properly use the other artists' works. Harvey Mars, in-house counsel from Local 802, complemented this seminar by discussing legal issues commonly encountered by musicians in the union, such as the topic of practicing music in one's residence with unwelcoming neighbors.

February 22, 2011

Blog for CLE Credits!

I want to remind all EASL Section members that we are offering the ability to Blog for free admission to an EASL Section CLE program.

EASL Section Members may write for the EASL Blog about a particular EASL CLE program and earn admission to that program free of charge in exchange for the blog entry, provided:

a) the Member had a prior blog (not for CLE) published on the EASL Blog within the past three (3) months, or had an article published in the EASL Journal within the past twelve (12) months;

b) the Member makes the request for approval to write for the Blog at least one week prior to the CLE program date; all such requests are made to the Editor of the EASL Blog, Elissa D. Hecker (eheckeresq@yahoo.com), who makes the final decision;

c) Members are limited to one blog-for-CLE per year; and

d) Annual Meeting CLE Programs, CMJ Programs, Annual Fall and Spring Meeting Programs are excluded.

e) In the event the blog is not submitted within two weeks of the program date, the blog-for-CLE offer is cancelled and the Member will be billed for the program; there will be no extensions.

We hope that many good writers will be interested in this wonderful program and participate.

Please let me know if you have any questions or would like to volunteer pursuant to the guidelines listed above.

Elissa D. Hecker, EASL Blog Editor

February 23, 2011

A Friday Night: Reflections on the Critiques of "Would the Bard have Survived the Web?"

By Mary Rasenberger

The excellent op-ed entitled "Would the Bard have Survived the Web?," written by Scott Turow, Paul Aiken, and James Shapiro (the Authors Guild's President, Executive Director and a member, respectively) and published in the New York Times on February 15th (available at: http://www.nytimes.com/2011/02/15/opinion/15turow.htm?_r=2), generated numerous responses and a great deal of controversy in the blogosphere. The op-ed took a look at the golden age of English theater in the late 16th and early 17th centuries when there was "a wave of brilliant dramatists", and described how the erection of walls around theaters (literal pay-walls) allowed theaters to charge theater-goers, which enabled playwrights and actors to get paid by the public for the first time, rather than only by patrons. When authorities knocked the walls down in the mid-17th century to silence the seditious political ideas they feared were being expressed within, the ability to make a living from playwriting came to an end for a time and so did the "explosion of playwriting talent." The article warned that if we allow the copyright system we currently have in place to crumble under prevailing attitudes and internet piracy, the explosion of creative talent we have today may likewise dwindle. A number of letters to the editor and blogs have criticized the op-ed and used it against copyright law generally. The primary arguments can be summarized as follows: (1) there was no copyright at the time of Shakespeare, so clearly money can be made without copyright, and (2) Shakespeare copied from others, showing that copyright law restricts rather than induces creativity.

The first point does not even merit a response, since the op-ed authors themselves describe how copyright developed a half century later, providing a new, more stable way for authors to make a living. The second point belies a complete over-simplification and misunderstanding of U.S. copyright law. Incorporating elements of a prior work into one's own is not necessarily infringement and has always been part of the creative process. Copyright law, as construed by the courts, has long-since accommodated this process through, among other doctrines, the substantial similarity test, lack of protection for ideas, facts, common expression, and scènes a faire, the fair use doctrine, and for older U.S. works, formalities that put a large number of works into the public domain, as well as the almost 80 pages of exceptions and limitations in the Copyright Act. As a copyright practitioner, rarely a day goes by when I don't tell a client, usually a copyright holder, that it is free to use elements of another's work in some manner or another. While the courts don't always get copyright right, they often do, and through the last two centuries they have demonstrated enormous flexibility in their applications of the copyright law as technologies have shifted, including expanding fair use considerably in a manner that reflects evolving practices and technological advancements.

While the analogy to Shakespearean theater in the op-ed was imperfect, as most analogies are, the point of the article was clear and an excellent one - that "a rich culture", such as we now have requires a large number of creative individuals - "authors and artists", who devote their careers to their art. Indeed, our Founders were wise enough to understand that a true democracy requires a proliferation of free expression, that individuals not be beholden to any patron including the government, and that this can only be achieved by allowing professional creators to earn money from their works on the open market. Copyright is a brilliant way to achieve that end. The Shakespearean era theater grew out of the literal pay-wall described in the op-ed; our vast, prolific culture today has largely grown out of copyright law, a legal pay-wall.

The Guild's op-ed acknowledges that there is a place for free creative work online; and certainly there are those who will create for free, as many of the responses also point out. Indeed, many professionals who make a living from their works often will produce, perform and/or distribute works for free for any number of reasons (marketing, friendship, philanthropy, or the desire to see a particular work "out there"). Copyright gives creators the flexibility to do that - to decide when they want to assert their rights. Yet that is not what the op-ed is talking about; rather, it reminds us that copyright law enables artists and authors to make a living and is why we have the tremendous creative output we have today -- just as the theater's literal pay-wall was key to the creative burst in the theater in Shakespeare's time.

Let me give you a concrete example. Friday, after finally having acknowledged that my son was too sick to join my husband skiing, I cancelled our plans and we found ourselves with a delightfully free weekend ahead of us. I worked late and, among other things, read posts critiquing the op-ed forwarded to me by my co-teacher at Fordham Law (of a seminar "Copyright Reconsidered - Authorship in Historical Perspective"). Pondering the posts, I signed off and decided to indulge myself for the rest of the evening: I went to the gym and watched a movie on TV. As I later realized, it had been a truly indulgent evening -- over the next four hours my two kids (ages 13 and 14) and I had consumed millions and millions of dollars' worth of copyrighted works.

First, my daughter and I listened to the radio on the way to the gym, switching stations to find songs one or both of us liked; we heard some hard rock that was too hard for me, the Rolling Stones, Pink Floyd, and Rihanna (my choice --over her eye rolling). At the gym, she listened to her iPod, with a collection of about 2000 songs -- post-1990 alt-rock, punk rock and hard rock (all legally downloaded). I watched and listened to music videos licensed by the health club chain. I surfed between 6 or 7 stations, including dance, top hits, rock, alternative, rap, and whatever was playing songs that would keep me moving, some of which were creative and fun - lots of great choreography, dancing and/or special effects. On the way home, we listened to Evanescence (I'd been watching one of their videos when my daughter came to find me and we started to talk about it), and an Angels and Airwaves song that my daughter had heard in the locker room and wanted me to hear, on her iPod. She also played me a Blink 182 song and another sister band of Angels and Airwaves to compare the music.

At home, my son suggested I watch the "The Other Guys" on video-on-demand (a superb, hilarious movie). He listened to his iTunes songs (a collection of pre-1980 rock, also legally downloaded) on the computer while playing Wii Ski (which has wonderful artwork - it makes you feel like you are there on the powder covered mountain). He also watched the George Lopez sitcom simultaneously while checking out interactive ski trail maps. My daughter took pictures on her digital camera of our new kitten, then edited them and added special effects using iPhoto and Picnik software, chatted with friends on Facebook, texted others, all while listening to her iTunes collection on her computer. Then, we all got into bed and read - different books. (I read Just Kids by Patti Smith - a testament to the artistic soul and the difficulties creators experience for their art. Thanks to copyright, Smith's and Mapplethorpe's days of privation when "just kids" paid off and they both were eventually able to make a living off of their art.)

As spoiled as we are with an abundance of creative content, our activities on Friday evening were not completely atypical for Americans. I am sure that even those who object to copyright laws and believe that somehow art gets produced without it, also have iPods full of songs, watch TV and movies, read books, and rely on a large assortment of software programs, and would feel deprived without this "content."

The reason why I describe all this is because it's important to bear in mind that it took hundreds of professional creators who work full-time honing their art so that we can enjoy it to produce what the three of us consumed in just one evening. At a minimum, the following full-time creative professionals were involved in creating our evening at home, most of whom you can assume need to earn a living:

• Recorded music: performers (lead and side musicians) and song writers for about 50 songs, amount to at least several hundred people.

• Music videos: recording artists, professional dancers (hundreds among all the videos), choreographers, sound engineers, directors, cinematographers amount to several hundreds of people for all of the videos combined.

• Movie and TV: screen writers (probably several for just the movie), actors (who clearly added some of their own creativity/improvisation), directors, editors, cinematographers, special effects artists, sound artists. Don't forget the scores and accompanying background music, which are in addition to the music listed above.

• Wii Ski: visual artists, computer programmers -a couple dozen at least, I'd guess.

• Computer programs (iPhoto, Picnik, digital camera, cell phone, interactive maps, Facebook ... among others) - involving dozens, if not hundreds of people

• Books: Each one probably took the author the equivalent of at least one year (and probably much longer) of full-time work, plus there may have been ghost writers, and editors likely played a creative role.

All of those people make a living doing their work and had to get paid (in most cases, not a heck of a lot but enough to make a living) - before the big bad media companies who are, according to some, ruining the world with copyright, made a cent of profit. Although I paid for every item of content where payment was required, my amortized costs for our evening were maybe $20.

How fortunate we are. We have access to so much wonderful and creative art that brings us together in the ways we share and experience it. Yet we take all this content and the shared experiences it provides us for granted. Try to imagine our lives without music everywhere we go, TV, movies, books, newspapers and software. (What if we didn't have music, movies, TV, and books to share and talk about with our teenage kids? The arts afford so many opportunities for sharing thoughts, feelings and learning - and the kids don't even realize it!) The reason that we are able to have access to an abundance of really great content is that we live in a country with so many creative people who have devoted their lives to their art -- and they can do so because we have copyright laws that work.

What if we couldn't support professional creators anymore because no one could afford to pay them - which, as the Authors Guild op-ed warns, could happen if it becomes impossible to make money on content because everyone is stealing it online? The op-ed authors' point is that we, as a culture, have been lulled into taking that kind of creative output for granted, but there is no guarantee it will continue. While it's certainly true that there will always be people who will create regardless, do we really want to rely on the creativity of kids, academics, moonlighters and retirees, or, blogs for our culture? Without copyright, we certainly wouldn't have anyone to underwrite the significant costs of creating film, videos, computer games or software - so just say good bye altogether to those arts. There are few creators who could afford the time to write a book, write or record original music, or choreograph if they had to find other ways to make a living.

Copyright propelled a huge explosion of creative output in America. The production of our creative works is so vastly more complex than any patronage system could muster, even if we were willing to give up expressive and artistic freedom - which we are not. Furthermore, creativity is one of the things we are really good at in this country. We excel at teaching our kids to think creatively in and out of school, and as a society at large. As a result, copyrighted works are one of our largest exports. Let's celebrate that creativity. Let's not let rhetoric and the imperfections of current copyright law diminish it. Rather, let's learn from the past and help steer copyright law so that it continues to morph to accommodate the evolving technologies and practices of our arts today.

Google Books Settlement - Deadline to File a Claim Extended

By Mary Rasenberger

After a year of almost complete silence from the court in the Google Books Settlement case, it has approved a stipulated request by the parties to extended the deadline for filing a "claim" for an upfront payment in the Google Book Settlement from the upcoming March 31, 2011 deadline until one year after the Court's final approval of the settlement to file.

Any author or publisher whose works were scanned by Google on or before May 5, 2009 may be entitled to claim a Cash Payment as compensation for the scanning. Google has agreed to pay for works it scanned prior to that date, at least US$60 per Principal Work, US$15 per Entire Insert, and US$5 per Partial Insert.

For more information on how to file a claim and to determine whether a book was scanned, go to the Google Books Settlement site at http://www.googlebooksettlement.com/

Per the court's order the following should soon appear on the Google Books Settlement site:
The parties amended the Settlement by extending the deadline to make a claim for a Cash Payment. The deadline has been extended from March 31, 201 1 to the one year anniversary of the date on which the Court grants final approval of the Settlement. (If the Court does not grant final settlement approval, then, of course, there are no longer any deadlines). Please visit www.googlebooksettlement.com and read the "Important Update" for details on how to make a simplified claim for a Cash Payment. Also, please visit that website periodically to learn when the Court has made its determination whether or not to grant final settlement approval.

The deadline to remove works from the Google databases remains unchanged. It is still April 5, 2011. An author or publisher may request that a book not be scanned or if it has already been scanned that it be deleted from the database. Google is only obliged to honor these requests if made prior to the April 5th deadline if the work has already been scanned. After April 5th, the author or publisher may request that no display uses, including display of snippets and display of the entire work for a fee, be made, but cannot prevent Google from making non-display uses such as indexing and data-mining.

Once a book is removed, the digital copies of it will not be accessible to Google, other than on back-up tapes or other electronic back-up storage media. There is no guarantee that it will later be added back in to the database if the rights holder changes their mind and decides that they want it included, as the book may have to be rescanned.

The case is still before Judge Chin, now sitting by designation in the Southern District of New York after being elevated to the Second Circuit, and the Amended Settlement Agreement is still awaiting approval. It is hoped that a decision will be forthcoming soon.

See the Authors Guild's announcement at:


February 24, 2011

EASL LIT Job Bank Updated

The EASL Lawyers in Transition (LIT) Job Bank has been updated! To view the Job Bank, please visit the EASL Lawyers in Transition group page on LinkedIn (www.linkedin.com).

The EASL LIT Job Bank on Linked In is an exclusive benefit for members of EASL. In order to view the Job Bank, you must request to join the EASL LIT group page on Linked In. To join, visit www.linkedin.com and search for NYSBA Entertainment Art and Sports Law Lawyers in Transition Committee under "Groups." After submitting your request to join the group, we will confirm that you are a member of EASL and your request will be granted.

About February 2011

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in February 2011. They are listed from oldest to newest.

January 2011 is the previous archive.

March 2011 is the next archive.

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