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June 2011 Archives

June 1, 2011

Seeking Authors

EASL's Publications Committee is seeking authors for its upcoming book about sports law - In The Arena.

Chapters will focus on the following issues and topics: NCAA and college/university athletic rules; arena football; right of publicity and privacy of athletes; doping; eminent domain; Pete Rose/gambling and the Baseball Hall of Fame; Title IX; Insurance; and medical safety issues (i.e. concussions and helmets). We are also accepting other suggestions regarding topics. Please note that this topic list is preliminary and subject to change. The target date for publication is 2013.

The book's editors are Elissa D. Hecker and David Krell.

Elissa is former Chair of the EASL Section, Co-Chair of EASL's Pro Bono Committee, Chair of EASL's Publications Committee and Editor of the EASL Journal and Blog. Elissa also co-edited the popular NYSBA books Entertainment Litigation: Know the Issues and Avoid the Courtroom and Counseling Content Providers in the Digital Age.

David Krell is The Writing Guy™. He is the writer of Krell's Korner, an article series in the EASL Journal. David has also written more than 60 articles and 100 commentaries about popular culture.

Please email Elissa at eheckeresq@yahoo.com if you are interested in contributing to this book.

Maria Pallante Appointed as Register of Copyrights

By Mary Rasenberger

Today, concluding an 8 month search, the Librarian of Congress, Dr. James H. Billington, announced the appointment of Maria A. Pallante as the new Register of Copyrights.

Maria has been Acting Register since January 1st of this year following the retirement of long-time Register Marybeth Peters at the end of 2010.

Until her recent appointment as Acting Register, Maria served as Senior Advisor to the Librarian following two senior positions in the Copyright Office. She was the Associate Register for Policy and International Affairs from December 2008 to October 2010 and Deputy General Counsel from January 2007 to December 2008. While in those positions, Maria was instrumental in developing and implementing domestic and international policy initiatives, including policies relating to copyright exceptions for the reading disabled, orphan works, Google books and the gap in termination provisions under the copyright law. Before returning to the Copyright Office in 2007, Maria had already had a long, esteemed career in copyright law, including a former stint at the Copyright Office as Policy Advisor in 1996-97 and serving as intellectual property counsel and director of licensing for the Guggenheim Museums, on the legal staffs of the Writers Guild and the Authors Guild, as well as in private practice.

"The position of Register of Copyrights is extremely important to the copyright community, the Library of Congress and the United States, and requires a significant skill set," said the Librarian of Congress.

The Register of Copyrights, as director of the Copyright Office of the Library of Congress, administers the U.S. Copyright Office and is responsible for all administrative functions and duties under the U.S. Copyright Act, including overseeing the copyright registration system. In addition, the Register (i) advises Congress on national and international issues relating to copyright, (ii) provides information and assistance to Federal departments and agencies and the Judiciary on national and international issues relating to copyright, (iii) participates in meetings of international intergovernmental organizations and meetings with foreign government officials relating to copyright, including serving as a member of United States delegations as authorized by the appropriate Executive branch authority, (iv) conducts studies and programs relating to copyright and related matters, and (v) performs any other function vested in the Copyright Office by law, including educational programs conducted cooperatively with foreign intellectual property offices and international intergovernmental organizations and any other functions as Congress may direct.

We wish Maria the very best in her new position.

June 14, 2011

Pro Bono Clinic

Elissa D. Hecker
EASL Pro Bono Steering Committee

On Wednesday, August 10th, the EASL and IP Sections will be co-sponsoring a Pro Bono Clinic at the New York Foundation for the Arts (NYFA). The Clinic will take place between 4:00 and 7:00 p.m. at NYFA's offices in Dumbo, at 20 Jay Street, 7th Floor, Brooklyn.

If you would like to volunteer for one or more of the 30 minute time slots, please email me at eheckeresq@yahoo.com and specify your contact information (name, firm/company, phone number and email address), which time slot(s), area(s) of expertise, and whether you are an EASL and/or IP Section member. In addition to the usual entertainment, arts and business related questions that we receive from potential clinic clients, we are particularly interested in attorneys who have experience with incorporating and working with 501(c)(3) not-for-profit companies. Please so advise if this is an area of expertise for you as well.

If you do not have pro bono liability insurance, you may be covered under EASL and IP's policy for this Clinic. Please also notify me if you need such coverage.

June 16, 2011


Tuesday, June 28, 2011

Sotheby's Institute of Art
570 Lexington Avenue, 6th Floor
(Between 50th & 51st Streets)
New York, NY 10021

11:30 a.m. to 1:30 p.m. (Lunch will be served at 11:30 a.m--Program starts at 11:45 a.m.)

2.0 MCLE Credits in Professional Practice

Co-Sponsored by the Fine Arts and Lawyers in Transition Committees of the Entertainment, Arts and Sports Law Section of the New York State Bar Association

Speakers: Evan Barr, Esq., Darlene Fairman, Esq., Jane Levine, Esq. and Jim McAndrew

Program Committee Chairs:
Judith Prowda, Fine Arts Committee
Leila Amineddoleh and Stephanie Khalifa, Lawyers in Transition Committee

Description: The New York State Bar Association's Entertainment Art & Sports Law Section invites you to a panel discussion on the topic of Cultural Heritage Law. Our panel includes distinguished attorneys and art law experts Evan Barr (successful cultural heritage property litigator, and lead attorney on the landmark case United States v. An Antique Platter of Gold), Darlene Fairman (attorney at Herrick Feinstein who litigated the repatriation of antiquities to the Republic of Turkey), Jane Levine (in-house counsel at Sotheby's), and Jim McAndrew (former Senior Special Agent with U.S. Customs Services and U.S. Department of Homeland Security, and currently a forensic specialist at the law firm of Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt).

Take advantage of this rare opportunity to hear these well-known experts discuss and answer your questions related to cultural heritage law.

$25 for members
$35 for non-members
$15 for students

PLEASE REGISTER AT www.nysba.org/EASL062811 by June 27, 2011.

If you prefer to register in by telephone, please call our toll-free number at 1-800-582-2452.

For more information, contact Leslie Scully at lscully@nysba.org

June 28, 2011

Video Games, Even Violent Ones, Are Protected by the First Amendment

By Marie-Andrée Weiss

The U.S. Supreme Court decided by 7 to 2 in Brown v. Entertainment Merchants Association that video games, even violent ones, are protected by the First Amendment.

Representatives of the video game and software industries had challenged a California statute barring selling violent video games to minors. The U.S. District Court for the Northern District of California concluded that the statute violated the First Amendment and permanently enjoined its enforcement. The Ninth Circuit affirmed, and the Supreme Court granted certiorari last year.

Justice Scalia, writing for the majority, affirmed that:

"Like the protected books, plays, and movies that preceded them, video games communicate ideas--and even social messages--through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection."

This decision is not surprising if one remembers that the Supreme Court struck down last year in U.S. v. Stevens a federal law criminalizing the commercial creation, sale, or possession of certain depictions of animal cruelty "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed," holding the law to be an impermissible content-based restriction on speech. Justice Scalia wrote that Stevens controls Brown.

Indeed, both laws are similar. Just as the federal law in Stevens, the California law prohibits the depictions of unsavory acts, not the actual commission of these acts. Cal. Civ. Code Ann. §§1746-1746.5 (West 2009) prohibits the sale or rental of "violent video games" to minors, that is, video games which would feature "killing, maiming, dismembering, or sexually assaulting an image of a human being." Disgusting acts indeed,"but disgust is not a valid basis for restricting expression", wrote Justice Scalia.

Indeed, "as a general matter ... government has no power to restrict expression because of its message, its ideas, its subject matter, or its content" (Ashcroft v. American Civil Liberties Union, 2002). There are however some exceptions and the content of speech may be restricted in a few limited areas, such as obscenity and fighting words.

The California statute only prohibits video games depicting such acts "in a manner that ... [a] reasonable person ... would find appeals to a deviant or morbid interest of minors, [or]... is patently offensive to prevailing standards in the community as to what is suitable for minors, [or if] the game, as a whole ... lack[s] serious literary, artistic, political, or scientific value for minors." Yet Justice Scalia wrote, somewhat caustically, that "mak[ing] violent-speech regulation look like obscenity regulation... does not suffice" as the obscenity exception to the First Amendment only covers depictions of "sexual conduct" (Miller v. California, 1973).

Speech about violence is not obscene, and therefore protected by the First Amendment, even though the California statute "mimics" a New York law prohibiting the sale to minors of sexual material that would be obscene from the perspective of a child, which the Supreme Court upheld in Ginsberg v. New York (1968). Justice Scalia noted that the United States does not have "a longstanding tradition... of specially restricting children's access to depictions of violence..." and added that children's books, such as the famous Grimm's Fairy Tales "contain no shortage of gore," reminding us that "Hansel and Gretel (children!) kill their captor by baking her in an oven."

Since the California statute imposes a restriction on the content of protected speech, the standard of review was strict scrutiny, and thus the statute must be justified by a compelling government interest and be narrowly drawn to serve that interest. California could not however, convince the Court of a direct causal link between violent video games and harm to minors, nor could it convince that the statute restrictions were justified by the substantial need of parents wishing to restrict their children's access to violent video games but who are not able to do so.

The opinion can be found at http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf.

About June 2011

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

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