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November 5, 2012

Pole Dancing Not an Artistic Performance Under New York Law

By Marie-Andree Weiss

The New York Court of Appeals ruled on October 23th that a New York club is not exempt from paying sales taxes on pole and lap dances performed there. The case is interesting, as the judges had to question whether exotic dancing may indeed be considered a dramatic or musical arts performance by New York Tax Law and thus exempt from sales tax under Tax Law § 1105(f)(1).

Nite Moves is an adult club located in the Town of Colonie in Albany County. It is described on its own web site as an "Albany Strip Club" and "the hottest gentleman's club in the Capital District with many exotic dancers. It also boasts having "the largest staff of adult dancers in the Albany area" and being "the only gentleman's club in Albany with fully nude private dancers."

Customers have to pay an admission fee to enter the club, where they can see dancers performing on stage, using a pole. They may chose to pay an extra fee for a private lap dance performance in one of the club's private rooms. Dancers perform part of their acts dressed in costumes, which standards are set by the club, and part of their acts in the nude.

Nite Moves was audited in 2005 by the Division of Taxation, which found that both the door admission charges allowing patrons to see dancers on stage, and the sales of private dances were subject to sales tax, which Nite Moves had not paid. The club sought a redetermination, arguing that the dances performed both on stage and in the private rooms were "dramatic or musical arts performances" and thus are exempt from taxation under New York Tax Law § 1105 (f) (1). This law imposes a tax of four percent on admission charges above ten cents for "places of amusement," but provides an exception for "dramatic or musical arts performances."

The Administrative Law Judge agreed with the club's argument, and found that Nite Moves was not taxable under § 1105 (f) (1). The judge also rejected the Division of Taxation's argument that the club should be taxed under § 1105 (f) (3), which imposes a tax on cabaret charges, and under § 1105 (d) (1), which taxes the sale of drinks in restaurants, taverns and similar establishments.

However, that decision was reversed by the Tax Appeals Tribunal (the Tribunal), and the club commenced a CPLR Article 78 proceeding to challenge the Tribunal's determination. The Third Judicial Department of the Appellate Division of the New York Supreme Court affirmed the judgment of the Tribunal and the club appealed.

Are Pole and Lap Dancing... Well...Dancing?

Pole dancing is fast becoming a popular fitness activity in the U.S., and, as mentioned by the appellant's attorney when appearing in front of the Court of Appeals, may soon become an Olympic sport. As such, it is not a discipline which can be learned overnight. Dancers use the pole as a vertical beam to perform a variety of different moves and spins around the pole, and sometimes rather acrobatic inverted moves. However, a new dancer may learn a basic routine in an hour or two, especially if she had former training in other dances.

Under 1105 (f) (1), admission charges for places of amusement are taxable, and such places include carnivals, but also athletic exhibits, according to 20 NYCRR 527.10. Therefore, neither stating that pole dancing is a sport, nor that it is some 'Hoochie Coochie' dance performed at a fair, are efficient arguments for the petitioner.

New York Tax Law § 1101 (d) (5) defines an admission charge for purposes of the tax exemption of New York Tax Law § 1105 (f) (1) as "[a]ny admission charge paid for admission to a theatre, opera house, concert hall or other hall or place of assembly for a live dramatic, choreographic or musical performance."

Are Pole Dancing and Lap Dancing Choreographed?

For the Court of Appeals, in order to qualify for the exemption, petitioner had to prove that the fees paid by patrons to see the dancers "constituted admission charges for performances that were dance routines qualifying as choreographed performances" (Opinion p. 3).

New York Court of Appeals Judge Smith said during the debate that the New York Tax Law uses "dance" as a synonym for "choreographic" (Transcript p. 15).

Chief Judge Lippman asked during the argument in front of the Court of Appeals: "Is there a difference between the ballet dancer and these pole dancers in terms of their artistic value or their benefit to the world? And could that be the basis for what the tribunal found, or does it have nothing to do with that?"(Transcript p. 25).

Judge Smith asked the attorney of the Commissioner of Taxation and Finance during the argument: "I could imagine the possibility that something other than dance goes on in those rooms once in a while. But you're really saying they weren't dancing, or you're just saying it wasn't very high class dancing?" (Transcript p. 26)

He answered that dancing was only one component of the adult entertainment provided by the club, and, when dancers where not on stage, they also mingled with customers and performed lap dances, noting that the Tax Appeals Tribunal "reasonably concluded that just sitting and moving in a patron's lap is not a choreographed performance" (Transcript p. 27).

Counsel for the club argued that "the State of New York doesn't get to be a dance critic" and "has no business differentiating between the Bolshoi and what [the club] do[es]" (Transcript p. 30).

The petitioner had introduced as evidence in front of the Tribunal YouTube clips of pole dancing routines used as inspiration by its dancers, and stated that its dancers often used such resources available over the Internet to learn new techniques and new dance moves to be used in their pole routine.

Nite Moves had also presented as evidence the expert opinion of Dr. Judith Hanna, a professor at Maryland University who has extensively studied exotic dancing, and she "stated as her expert opinion that the video [of dancers performing at the club] represented choreography, or arrangement, of about 61 different moves with them and variation patterns with repetition. She identified the use of locomotion, gesture, pole, mirror and floor work at variable levels in response to music."

However, the Tribunal dismissed her interpretation of what constitutes choreographed performance as "sweeping," adding that if one accept her definition, "all one needs to do is to move in an aesthetically pleasing way to music, using unity, variety, repletion, contrast, transition."

All there is? One can argue that, to the contrary, that this is quite difficult, and that moving "in an aesthetically pleasing way to music" is quite difficult, especially if one wants to engage a paying audience, as anybody who ever danced on a public stage can attest.

The expert did not convince the Third Department either, which stated that "petitioner failed to meet its burden of establishing that the private dances offered at its club were choreographed performances." The Court of Appeals noted that the \Tribunal had articulated a rational basis for discriminating the expert, as she had stated that dances performed privately and publicly were the same, even though she had not observed what occurred in the private rooms (p. 4).

Indeed, one can regret that Dr. Hanna did not describe the dances performed at the Albany club, whether privately or publicly, using specific choreographic terms used in pole dance or jazz dancing. Pole dance uses a specific vocabulary, understood by all pole dancers, such as the "fireman spin," or the "inverted scorpio." Even lap dancing may be choreographed, using the chair, and the customer's lap as a prop, such as done, for example, in jazz dance.

Maybe a bona fide pole dancer and/or instructor would have been a more convincing witness, and would have been able to break down the video presented by the club using specific choreographic terms.

Is Improvised Dancing Art?

Judge Smith also asked the attorney for the Commissioner of Taxation and Finance during the debate whether in his opinion only choreographed dances were exempt, not improvised dance, and the representative said yes (transcript p. 22). However, improvisation of a dance is also choreographed, albeit done at the spur of the moment, and only dancers trained in their art are able to improvise and still capture the attention of the public. Chief Judge Lippman asked this question during the argument: "Wouldn't you say that the most creative performers are often ones who don't have every move choreographed before they start, and that creative artistic people, particularly in the dance mode, certainly there are many instances of that - - - are kind of creative? They're designing their moves as they go along, although they have a whole repertoire of different moves that they might have. Isn't that couldn't that be ... artistic or choreographic? (Transcript p. 23-24)

Judge Smith wrote in his dissent that it would be absurd to suggest that the Legislature meant to tax improvised dance, but not choreographed dance, noting, however, that this was not what the Court of Appeals' opinion had stated.

Pole Dancing May Very Well Be Dancing After All

The Court of Appeals ruled against the petitioner. However, it can be argued that whether pole dancing or lap dancing is carefully choreographed, or improvised on the spur of the moment, it is still dance. Judge Smith wrote in his dissent that "[i]t does not matter if the dance was artistic or crude, boring or erotic. Under New York Tax Law, a dance is a dance" and regretted that the majority have "implicitly defined the statutory words "choreographic... performance" to mean "highbrow dance"" (Dissent p. 2).

Judge Smith continued by stating that, while he himself found this particular form of dancing "distasteful," he nevertheless thought of it as a dance under New York Tax Law. Such dance should not be taxed based on its level, or lack thereof, of cultural and artistic value. Doing so would be, according to Judge Smith, like taxing Hustler magazine, but not the New Yorker. Indeed, dance is speech, and thus protected by the First Amendment. Even nude dancing was recognized by the Supreme Court in 1975 in Doran v. Salem Inn, Inc.

Taxing exotic dancing, while exempting other types of dance is discrimination according to Judge Smith and thus would "surely be unconstitutional."

Tax Appeals Tribunal Decision: http://www.nysdta.org/Decisions/821458.dec.htm

New York Appellate Decision: http://decisions.courts.state.ny.us/ad3/decisions/2011/509464.pdf

Appellant's brief: http://www.andrewmccullough.org/pdf/Nitemoves.br1A.pdf

Transcript of the argument in front of the Court of Appeals:


Opinion of the New York Court of Appeals Decision , and Judge Smith's dissent:


November 6, 2012

EASL Fall Meeting

Thursday, November 15, 2012
The Cornell Club
6 East 44thStreet
New York City

3:30PM-6:45PM: CLE Program
6:45PM - 8:45PM Cocktail Reception

Panel One: "Best Practices to Protect Entertainment Assets in a Bankruptcy"

How can you be protected should a bankruptcy suddenly disrupt the intended results of an entertainment-related business transaction? A licensor's bankruptcy could result in a licensee having difficulty asserting its rights or facing unexpected competition from new licensees. A songwriter who sold his copyright catalogue may be left with a worthless claim in a publisher's bankruptcy. By the time the bankruptcy is filed, it's too late to protect your rights. But what can you do in advance?

Join three leading lawyers from Curtis Mallet-Prevost Colt & Mosle LLP for an insightful panel discussion on the principles of bankruptcy in the entertainment industry, including the impact of recent cases changing the landscape, and how those principles affect rights in entertainment transactions.

The panel will feature three key elements:
Bankruptcy principles applicable to IP assets.
Recent changes likely to alter the treatment of entertainment assets in U.S. bankruptcies
Hypothetical scenario to identify the effect of various transaction structures on the rights and obligations of the IP creator and the IP distributor in bankruptcies.

Lynn P. Harrison 3rd, Esq., Partner and Co-Chair, Restructuring & Insolvency Group
Andrew H. Seiden, Esq., Partner and Chair, Entertainment & Media Practice Group
Eric J. Stenshoel, Esq., Counsel, Intellectual Property Group

Panel Two: "E-Books: The Sequel--Rights, Wrongs and Realities"

Traditional publishers are battling e-book companies in court, the government is suing traditional publishers and Apple over e-book pricing, and authors and publishers are regularly facing off in deal-making in the ever-evolving world of e-books, enhanced e-books, apps and self-publishing. In our second panel this year, we will hear from experts including a founder of a leading independent electronic publisher and counsel for a publisher in United States v. Apple. We will also get an inside look at transactional issues in a mock negotiation between counsel for an author and counsel for an e-book publisher.

Arthur Klebanoff, CEO, Rosetta Books, President, Scott Meredith Literary Agency, NY
Joel M. Mitnick, Esq., Partner, Sidley Austin, NY
Kim G. Schefler, Esq., Partner, Levine Plotkin & Menin, NY
F. Robert Stein, Esq., Law Office of F. Robert Stein, Of Counsel, Pryor Cashman, NY

Judith B. Bass, Esq., Law Offices of Judith B. Bass, NY
Kenneth N. Swezey, Esq., Partner, Cowan DeBaets Abrahams & Sheppard, NY

Under New York's MCLE rule, this program is pending approval for up to 3.0 MCLE Credit hours in the area of professional practice. This program is not transitional and does not qualify for credit for newly admitted attorneys.

For more information, contact: bgould@nysba.org

The last day to pre-register online is November 15, 2012.

November 8, 2012

Pro Bono Help Requested from the Art Dealers Association

Jo Laird, on behalf of the Art Dealers Association writes:

I am writing to ask for your help.

As you know, a significant number of galleries in Chelsea were badly damaged during the storm. Galleries suffered structural and physical damage, and a great deal of art was destroyed. There is some real concern that some of the galleries will not be able to re-open for some time. Some of the smaller and most financially fragile ones may not make it back.

In the wake of the storm, the Art Dealers Association has identified legal services as one of the most crucial needs for these galleries. Patterson Belknap has agreed to provide pro bono services to these smaller and most needy galleries in their applications for relief -- insurance and FEMA claims, emergency government loans, etc.

It would be great if you and your firms could pitch in. I don't know how many of you have made it down to Chelsea in the last week, but it's been both heartbreaking and inspiring. Heartbreaking because the neighborhood was so
badly hit. Inspiring because of the energy of the people working to rebuild their galleries and save and salvage works oart.

I know that most of you have probably already contributed to broader relief efforts. This is a way that we can do our part to help the community we serve."

If you wish to help, please contact Jo Laird directly at jblaird@pbwt.com.

November 16, 2012

Week in Review

By Martha Nimmer

A World Without Commercials?

Late last week, the U.S. District Court for the Central District of California denied a request by News Corp.'s Fox Broadcasting unit to block Dish Network Corp.'s Hopper digital video recorder service and its AutoHop feature before a copyright infringement suit concerning those services can be decided. Dish's Hopper digital video recorder (DVR), introduced in March, records all major prime time television shows and then stores them for eight days after their first broadcast. The AutoHop service, a potential Godsend for people who do not enjoy watching TV commercials, allows viewers to skip all commercials recorded during the prime time broadcasts, without having to fast-forward manually through the commercials.

Although this initial ruling in the case of Fox Broadcasting v. Dish Network, 12-04529, U.S. District Court, Central District of California (Los Angeles) was filed under seal, both Dish and Fox issued separate responses to U.S. District Judge Dolly Gee's decision. Dish Network applauded the ruling, referring to it as "a victory for common sense and customer choice." Dish's general counsel also invoked the 1984 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, decision, commenting that this recent ruling "underscores the U.S. Supreme Court's 'Betamax' decision, with the court confirming a consumer's right to enjoy television as they want, when they want." Fox, in stark contrast to the optimism evinced by Dish, lamented Judge Gee's ruling, stating, "we are disappointed the court erred in finding that Fox's damages were not suitable for a preliminary injunction." An attorney for Fox has confirmed Fox's intention to appeal the ruling.


Unnecessary Roughness?

Rashard Mendenhall is perhaps best known for being a Pittsburgh Steelers running back, and Charlie Sheen rose to fame in the 1980s as the star of movies such as Platoon, Wall Street and Major League. What could these two celebrities possibly have in common, other than their notoriety? Until recently, both men were endorsers for Hanesbrands, the parent company of Hanes and Champion sportswear. Mendenhall and Sheen are also no strangers to controversy. In March 2006, Sheen commented on a radio interview that "It seems to me like 19 amateurs with box-cutters taking over four commercial airliners and hitting 75 per cent of their targets feels like a conspiracy theory. It raises a lot of questions." Rashard Mendenhall also made controversial marks in regards to the death of Osama bin Laden. In 2011, Mendenhall tweeted "What kind of person celebrates death? It's amazing how people can HATE a man they have never even heard speak. We've only heard one side." It is this tweet that led Hanesbrands to terminate Mendenhall's contract to promote Champion sportswear. Hanesbrands alleges that this comment violated the morals clause contained in the company's endorsement deal with Mendenhall. Now, Mendenhall is suing Hanesbrands, claiming that the company breached his contract.

Morals clauses are common in the entertainment business; the vast majority of movie studios and companies that contract with actors, musicians, athletes and other notable figures retain some contractual protection that permits them to terminate the contract "upon controversy." Mendenhall's contract contained a typical morality clause that prohibited the running back from engaging in activities that would bring the company "into public disrepute, contempt, scandal or ridicule." The clause failed to specify, however, what Mendenhall was permitted--or prohibited--from saying on his personal Twitter account. It is this ambiguity that has led Mendenhall to argue that Hanesbrands "went outside" of its termination right, and acted arbitrarily and unreasonably in ending the sportswear endorsement deal with Mendenhall. To support the finding that the apparel company acted unreasonably and treated him unfairly, Mendenhall has sought documents from Hanesbrands showing how "the company has treated endorsers such as Mr. Sheen." Mendenhall's goal in making that discovery request is to prove that Hanesbrands treated him differently from other endorsers--such as Sheen--without good reason, despite the similarity between the two controversial remarks and the public's outcry to it. Mendenhall's suit is primed to determine just what celebrity endorses may say on Twitter, without running afoul of morality clauses, and to what extent companies may enforce such clauses differently among their endorsers.


Trouble in Tinseltown

Turning now to Tinseltown, the National Conference of Personal Managers, Inc. (NCOPM)--a Las Vegas-based trade association--has brought suit in federal court, seeking declaratory and injunctive relief that the Talent Agencies Act (TAA) of California violates the United States Constitution. Specifically, the NCOPM argues in National Conference of Personal Managers, Inc. v. Edmund G. Brown that the TAA runs afoul of Article 1, Sections 8 and 10, the 13th Amendment and the Due Process and Equal Protection Clauses of the 14th Amendment. Briefly stated, the TAA requires that any individual acting as a talent agent must be licensed by the State Labor Commissioner, and is subject to state oversight, including office inspections and records review. The essential purpose of the law is to protect artists from employers posing as employment counselors and making false promises about procuring work; the passage of the law in 1978 reflected a growing understanding in the California legislature of the mounting complexity involved in talent procurement and the entertainment business, particularly in the state of California. Despite these noble purposes, the TAA, some critics say, has been used by artists who want to avoid paying commissions to their managers.

Turning to the constitutional arguments proffered by the petitioner, the NCOPM disputes the "vague, uncertain and inconsistent provisions and enforcement of the TAA," stating that the law violates the substantive due process right to notice and a reasonable opportunity "to know what is required and what is prohibited . . . By Defendants under the TAA." Specifically, the plaintiff points to the fact that the "procure employment" language in the Act has never been defined by any court, and thus lends itself to uncertainty and ambiguity. Additionally, the plaintiff argues that the Act amounts to involuntary servitude, as it forces the plaintiff to forfeit his right to be paid for his labor, or face being convicted of a crime.

Although the TAA appears to have been well-intentioned, ambiguities in the law and almost 100 years of piecemeal interpretations of predecessors to the TAA have resulted in injustice and uncertainty on the part of talent managers in the entertainment industry.

Read the full complaint here: http://www.scribd.com/doc/113104861/Ncopm-Complaint-v-Aglc-of-CA#

Easter Comes Early for Cadbury

Now, to the other side of the pond. Earlier this week, the High Court of England and Wales dismissed an appeal by Swiss multinational Nestlé to prevent the registration of the color purple for use in connection with chocolate products. The case of Société Des Produits Nestlé S.A. v Cadbury UK Ltd [2012] EWHC 2637 sprang from the 2004 trademark application filed by Cadbury UK Limited (Cadbury) with the United Kingdom trademark registry. Although initially rejected by the registry, Cadbury was able to prove that the color purple--specifically, Pantone 2685C--had acquired distinctiveness through use. The trademark was registered on May 2008; three months later, Nestlé opposed the trademark application. The registry objected to Nestlé's opposition, and the Nestlé appeal to the High Court followed.

Nestlé's main objection to the registration focused on whether the mark, as applied for, was "a sign capable of being represented graphically." Nestlé argued in the negative, averring that the description of the trademark fell short of satisfying the criteria laid out in the case of Sieckmann (C-273/00). This case set out the parameters for when a mark can be said to be capable of being represented graphically; specifically, Sieckmann requires that the description of the mark be clear, precise, self-contained, easily accessible, intelligible and objective. The High Court judge disagreed with Nestlé, stating that the language of Cadbury's trademark registration was not impermissibly vague under the Sieckmann framework. In so stating, the court dismissed Nestlé's appeal.

This case should bring to mind for American attorneys the case of Qualitex Co. V. Jacobson Products Co., Inc., 514 U.S. 159 (1995). In Qualitex, a unanimous Supreme Court held that a color; here, greenish-gold, could fulfill the requirements for trademark registration under the Lanham Act, as long as the color had acquired secondary meaning.


November 21, 2012

Pepperdine University School of Law Straus Institute for Dispute Resolution


In July 2012, the Straus Institute announced a new initiative focusing on dispute resolution in the areas of Entertainment, Media & Sports (EMS@Straus). The aim of EMS@Straus is to provide a center for speakers, conferences, trainings/classes, and externships in this area, including inter-disciplinary coursework and other programming such as Speaker Events, Industry Expert Conversations and is in the process of organizing Continuing Legal Education Conferences and webinars. The leaders of the Project have been working closely with the Editors of Pepperdine Law School's Law Review and also the University's Center for Entertainment Media and Culture on innovative new symposia in these fields. The members of Pepperdine's Sports and Entertainment Law Society (SELS), bar association and other professional and industry groups are actively involved in the development and coordinated staging of these activities.

A summary of EMS@Straus Activities includes:

Launch of EMS@Straus: Summer 2012 Program in London

EMS@Straus launched in July 2012 with a 2-week intensive course on Olympic & International Sports Dispute Resolution in London, on the eve of the 2012 Olympic Games. The class was taught by Pepperdine Sports Law Professor Maureen Weston, and Jeff Benz, Esq., former general counsel for the U.S. Olympic Committee (USOC) and arbitrator with the Court of Arbitration for Sport (CAS). Among the many experts to meet with the students were Michael Beloff, QC, an English barrister and arbitrator specializing in international sports law, the Athlete Ombudsman, Associate General Counsel, and Chief of Security with the United States Olympic Committee, and General Counsel and three deputy attorneys from the London Organizing Committee for the Olympic Games. The students visited and met with officials from the U.K. Anti-Doping Agency, Sport Resolutions, Inc., NBA London, British Olympic Association, and Human Rights Watch. Cultural excursions included visits to Parliament, a tour of legal London, Chariots of Fire theater; the National Gallery, a private tour of Arsenal Futbol Stadium, and a trip to Olympic Park.


Industry Speakers

As part of a comprehensive Project to develop and enhance the School of Law's offerings to students and graduates, the Straus Institute's Entertainment Media and Sports Dispute Resolution Project (EMS@Straus) has been working with the Sports and Entertainment Law Society's (SELS) leaders to bring industry expert speakers to campus for luncheon briefings on the work they do, current industry issues and to advise on career paths based on their own professional experiences.

Beginning in September, once or more per month during the Fall 2012 Term, these industry experts have come to campus to participate in such briefings and spoken on the following topics:

Eyal Aharonov, Entertainment Lawyer, Attorney at Aharonov Law Group. Formerly at Trancas International Films, Inc., Adamson Ahdoot LLP, Doniger Burroughs APC. J.D., Entertainment, Entrepreneurship at Pepperdine University School of Law

Laura McDonald, Entertainment Lawyer, Independent Artist Management, Denver Music Examiner @ Examiner.com. J.D., Pepperdine University School of Law, B.A., University of Notre Dame.

Catherine Baggett, Entertainment Lawyer, Music Business & Legal Affairs at The Walt Disney Company. Formerly with Rhino Entertainment, The Walt Disney Company, Carroll, Guido & Groffman LLP. J.D., Pepperdine University School of Law
Topic: Carving Your Path in the Entertainment Industry; Recent Grads Weigh In _____________________¬____________

Rodney Smith, Distinguished Professor of Law, Director of Center for Sports and Law Policy, Thomas Jefferson School of Law, San Diego
Topic: Gladiators in the 21st Century; Violence and Injuries in Athletics

Vikki Karan, Head of Client Services, William Morris Endeavor, Beverly Hills. Previously at The Endeavor Agency, NYU Stern School of Business, Virus 23. J.D., Law, Entertainment, International Entertainment Law at Pepperdine University School of Law
Topic: The World of an Agent

Steven Stern, Senior Vice-President of Music at APM Music, Los Angeles. Previously with Media Ventures with Hans Zimmer. Education: Music Theory and Classical Guitar at the Peabody Conservatory of Music, Film Music Composition at Berklee College of Music
Topic: Law and Custom Music Houses

Josh Luchs, Former NFL Player Agent. Author of Illegal Procedure; A Sports Agent Comes Clean on the Dirty Business of College Football.
Topic: Confessions of an Agent

Gordon Firemark, Solo Entertainment Law Practitioner, Los Angeles. Previously Entertainment Law Update Podcast, Academy for New Musical Theater. J.D., Law, Southwestern University School of Law
Topic: Ahead of the Curve; Utilizing Technology in a Solo Entertainment Law Practice

Paul Friedman, Senior Vice-President of Music Affairs, SONY Pictures Entertainment, Culver City. Previously with King, Holmes, Paterno & Berliner, LLP; Codikow, Carroll, Guido & Groffman; Fox Music. MBA at Tulane University- A.B. Freeman School of Business
Topic: Studio Development, Licensing and Use of Music in Film, Television and Digital Platforms

EMS & Pepperdine Law Review Symposium on College Sports

After a break for the examination period and the holidays, these luncheon speaker programs will resume in January 2013 and continue throughout the Term. On April 5, 2013, EMS@Straus, lead by Faculty Director and Law Professor Maureen Weston, working in partnership with the Pepperdine Law Review and its Symposium Editor, Michael Wood, will be hosting a symposium entitled The New Normal in College Sports: Realigned and Reckoning at the Law School.


Professor Weston's Fall 2012 Sports Law class included not only a study of the many legal issues involved in amateur, professional, and Olympic/International Sports, the students also engaged in mock preliminary injunction hearings, collective bargaining and salary contract negotiations, and policy review hearings, and each student presented findings and recommendations from their individual research and writing projects. In addition, the class included visits with key industry experts, including:

Danny Sussman, established Hollywood Talent Manager at Brillstein Entertainment Partners, formerly with William Morris Agency in Beverley Hills, who spoke on the topic of "The Business of the Sports and Entertainment Business."

Robert Hacker, V.P. of Business & Legal Affairs at FOX Sports, speaking about "Representing the Sports Network: Negotiations, Legal Issues, New Media."

Brian Halloran, NCAA Committee on Infractions, speaking on "NCAA Infractions Process: Investigation, Enforcement, Sanctions" and

William Nix, former V.P., Legal & Business Affairs for NBA Properties and currently Chairman of the Creative Projects Group, speaking on the topic of "Intellectual Property Licensing, Sponsorship and Marketing in Professional, Olympic and Collegiate Sports."

Site visit to the Pepperdine Athletic Department, and meeting with Athletic Director Dr. Steve Potts and Associate Director/Compliance Brian Barrio to learn about the many aspects of operating a college athletic program.


Pepperdine students Amanda Fletcher, Kara Ritchey, Sandy Ciel, and Jessica Johnson participated in the Entertainment Law Negotiation Competition at Southwestern University Law School. Brad Raboin, a School of Law Alum 2012, helped with coaching the team. The students worked hard in their preparations of representing the role of counsel for an entertainment production company in negotiations with talent and a television network contract. 24 teams from across the country competed. Entertainment industry lawyers served as judges and gave helpful and positive feedback to our students.

In January 2013, Dan Paret, SELS President, and Kevin Dulaney will represent Pepperdine at the Tulane Baseball Arbitration Competition.

In November 2013, under the supervision of Patty Hayes and Co-Chairs, Kristine Gamboa and Jessica Johnson, Pepperdine hosted its 15th Annual National Entertainment Moot Court Competition with twenty-four law schools competing from around the United States.


For information on how to become an EMS@Straus/SELS guest speaker or classroom visiting expert speaker on campus, or to recommend one, please contact:

Daniel Paret, SELS President, daniel.paret@pepperdine.edu

Jeffrey Welsh, SELS Vice President, jeffrey.d.welsh@gmail.com

William Nix, Managing Director, Entertainment, Media and Sports Dispute Resolution Project at the Straus Institute for Dispute Resolution and Chairman, Creative Projects Group. wnix@pepperdine.edu

Maureen Weston, Professor of Law and Faculty Director of the Straus Institute of Dispute Resolution's Entertainment, Media and Sports Dispute Resolution Project maureen.weston@pepperdine.edu

For further information on EMS@Straus or SELS, please access the following:



SELS Twitter: https://twitter.com/PepperdineSELS

SELS Facebook: http://www.facebook.com/groups/12758458410/

November 28, 2012

NYC Dance Response Fund Grants

Greetings from Dance/NYC:

In response to Hurricane Sandy and to early field testimony collected by Dance/NYC and its colleagues in service and grantmaking, the Mertz Gilmore Foundation has established a NYC Dance Response Fund to be administered by Dance/NYC, a branch of Dance/USA, the national service organization for professional dance.

This first NYC dance-specific investment in our city's recovery is being launched with a leadership commitment of $200,000 from the Mertz Gilmore Foundation.

Through strategic, immediate granting of low-dollar relief funds, the NYC Dance Response Fund will help the field to meet emerging needs and keep moving and lifting the spirits of our city. Of special value to the smallest and most economically fragile dancemakers, the initiative will complement arts-wide and geography-specific recovery efforts.

As an arts responder, Dance/NYC has been collecting stories as they come in and working with the wider arts service community to direct NYC dance artists to tools and resources to rebuild. Thank you to those of you who have shared your stories with Dance/NYC and participated in other survey efforts to make the case for funding.

Selection Process

NYC Dance Response Fund grants, from $1,000 to $5,000, will be awarded to New York City-based nonprofit organizations and fiscally sponsored projects of The Field, Fractured Atlas, New York Foundation for the Arts, New York Live Arts, and Pentacle focused on the creation or performance of dance. Successful applicants will have incurred identifiable costs due to Hurricane Sandy not otherwise covered by insurance or other sources, including:

• Unpaid artist fees (e.g., performance, rehearsal, or teaching fees cancelled as a result of suspended

• Travel expenses (e.g., unplanned airfare, lodging);

• Lost sales (e.g., returned event tickets, class fees, uncollected rental fees); and

• Property damage (e.g., costumes, sets, equipment, space) not covered by insurance.

Applications will be accepted and processed by Dance/NYC, in partnership with the Mertz Gilmore Foundation, on a first-come first-served basis until all funds are expended. Priority will be given to those who articulate a clear need for reimbursement to rebuild. These are discrete funds and will not impact other Mertz Gilmore Foundation giving priorities.

All applications should be submitted electronically to MGFDanceResponse@dancenyc.org and include: a one-page statement of need; documentation of identifiable costs; and proof of nonprofit or fiscal sponsorship status. Questions may be addressed to Leigh Ross at lross@dancenyc.org. For more information, visit dancenyc.org/resources/news.php?id=322.

Join the conversation on Twitter at @DanceNYC #sandydance.

Our thoughts are with you. Be well, and keep dancing.
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November 30, 2012

Week in Review

By Martha Nimmer

More Time in the Penalty Box for Hockey Fans?

Much to the dismay of hockey fans across North America, the National Hockey League (NHL) has cancelled another round of games, this time nixing regular season games through December 14th, as well as the All Star Game scheduled for January 27, 2013. Fans fear, however, that the entire season may be the next thing on the NHL's chopping block, as was the case with the 2004-05 hockey season. This fear comes on the heels of continued disagreement between the NHL and the NHL Players' Association (NHLPA), the union for professional hockey players in the NHL. The NHLPA, according to its website, is charged with enforcing fair terms and conditions of employment for NHL members.

This latest NHL lockout stems from NHL owners' desire to reduce the players' union total hockey-related revenue percentage from 57 to 46%. The League's initial plan would also eliminate signing bonuses and would require that yearly salaries be the same for every year of a player's contract. Additionally, the proposed deal would also eliminate salary arbitration, according to reports from The New York Post.

On Wednesday, the players' union submitted its own proposal, which was subsequently rejected, leaving the owners and players at odds once again. Gary Bettman, commissioner for the NHL, commented that the two sides still remain "far apart." In this most recent proposal, the NHLPA offered to "link the players' share to revenue in the league's preferred percentage-based system," a move that some onlookers considered a substantial concession to the NHL. The lockout, however, continued.

Although the NHL and the NHLPA have yet to reach an agreement, most parties can easily agree that the latest rounds of game cancellations have resulted in millions of dollars of lost revenue. Commissioner Bettman said last week that the "damage incurred from the lockout has resulted in the league losing between $18 to $20 million by the day."

For more up to date information on this story, visit: http://espn.go.com/nhl/story/_/id/8665720/nhl-cancels-games-dec-14-plus-all-star-weekend

Fancy (and Fake?) Footwork

Earlier this month, shoe designer Charles Philip Shanghai filed suit against the Gap in federal court in Los Angeles, alleging trademark infringement and dilution. Charles Philip Shanghai, referred to simply as "Charles Philip" on the insoles of his designer slippers and moccasins, is seeking damages from Gap and is demanding that the California-based apparel company cease manufacturing and selling the copied footwear.

The Charles Philip loafers have been spotted on the feet of celebrities such as Jessica Alba, Rihanna, and other well-heeled stars, and retail for $135 to $160. In contrast, the Gap loafers cost less than $50. A notable feature of the Charles Philip shoes is the blue and white striped lining on the inside of the walls of the shoe. Previously, the Gap loafers in question sported a similar blue and white striped lining, and were referred to on the Gap website as the "Phillip Moccasin Slipper" and the "Phillip Slipper." (One wonders whether the addition of the second L in Gap's "Phillip Slippers" was intentional or a mere coincidence.) The loafers and slippers currently for sale from Gap, however, no longer have the striped lining and are not marketed under the name "Phillip."

For trademark law practitioners and fashionistas, this case should bring to mind the more than year-long legal battle wherein celebrity shoe designer and footwear demigod Christian Louboutin sued Yves Saint Laurent (YSL) over its use of red soles on the bottoms of its red high-heeled pumps. In that case, concluded in September, a federal appeals court held that Louboutin had a valid and enforceable trademark for the use of red outsoles, but only when the rest of the shoe was painted in a different color, thereby preserving YSL's right to create monochromatic red footwear.


Katt Williams' Onstage Meltdown

Katt Williams is no stranger to legal woes, and is now facing new legal troubles following a bizarre and disturbing onstage meltdown earlier this month in Oakland, California. When audience members arrived to the comedian's performance on November 16th at the Oracle Arena, they expected about an hour of stand-up comedy from the celebrity perhaps best known for his roles in the movie Friday After Next and the television show Wild 'N Out. Instead, Williams took off his clothes, confronted audience hecklers and attempted to fight three audience members before (mercifully) ending the show after just 10 minutes. Williams' own security team actually had to remove him from the stage. Attendees, who paid between $33 to $94 for tickets were, unsurprisingly, not happy. Luckily for audience members, Brian Herline, one of the attendees, has brought suit against Williams and promoter Live Nation Worldwide, Inc. for "failing to perform." The suit, filed on November 21st in Alameda County Superior Court, alleges breach of contract, unjust enrichment and violation of California's unfair competition law. The plaintiff, who is filing for class action status, seeks punitive damages and a refund of the ticket price paid for the November 16th performance.

Read the full complaint here: http://www.tidrick.com/Complaint-KattWilliams.pdf


50 Shades of Copyright Infringement

Given the content of E.L. James' bestseller, 50 Shades of Grey, it was only a matter of time until someone decided to make a pornographic version of the book (although some may contend that the book itself already borders on the pornographic). Nevertheless, that did not prevent Smash Pictures, Inc. from going forward with an adult adaptation of the novel. Smash Pictures executive Stuart Wall explained the "artistic reasoning" behind his company's decision to go forward with the porn version: ""Since they are going to make a mainstream [film] of the books, too, dabbling in the adult world we're choosing to go with a XXX adaption which will stay very true to the book and its S&M-themed romance."

The Fifty Shades trilogy traces the erotic relationship of Anastasia Steele, referred to as a "naive college graduate", and Christian Grey, "a wealthy but tormented entrepreneur." The first book in the trilogy was released in the United States in April 2012, and has met with dramatic commercial success. According to the plaintiffs' complaint, worldwide sales of the books have exceeds more than 40 million copies, and all three books have been on the New York Times Paperback Trade Fiction Bestseller list. Given the books' acclaim, Universal Studios, which shelled out $5 million this year to acquire the movie rights to the series, is not pleased that Smash Pictures has made a XXX version of the book. In fact, Universal Studios and the publisher of Fifty Shades of Grey, Fifty Shades Limited, have joined in a suit to stop the "willful attempt to capitalize on the reputation of the book." Filed on Tuesday in the Central District of California, the plaintiffs allege that Smash and other defendants lifted "exact dialogue, characters, events, story and style" from the 50 Shades series. In fact, Universal and Fifty Shades Ltd. aver that the XXX adaption "is not a parody, and it does not comment on, criticize, or ridicule the originals. It is a rip-off, plain and simple." To wit, the plaintiffs' complaint contains pages and pages of side-by-side comparison of dialogue from the book and dialogue of the opening scene of the XXX adaptation. In addition to a claim of copyright infringement, the plaintiffs also raise trademark dilution, false designation of origin, false advertising and unfair competition claims, in addition to causes of action arising under California law.

Read the full complaint here: http://www.scribd.com/doc/114947086/Complaint-Fifty-Shades-Limited-v-Smash-Pictures


It's A Pirate's Life For Me

And now, for something completely different: Richard O'Dwyer, 24 year old British student and founder of TVShack, has avoided extradition to the United States, at least for now. In January of this year, a judge in the United Kingdom ordered O'Dwyer's extradition to the United States to face legal action here for online piracy, specifically, profiting from links he provided on his personal website to free movies and television programs. In response to the extradition order, Wikipedia founder Jimmy Wales launched a campaign to stop O'Dwyer's extradition. If extradited, O'Dwyer faced 10 years in prison in the United States. Luckily for O'Dwyer, however, he will only have to pay a nominal fine and travel to the U.S. to execute the agreed to deferred prosecution agreement.


A Case of the Cyber Mondays

Every Monday after Thanksgiving, still in a tryptophan-induced haze, millions of Americans log onto their computers to find online deals on countless products, from iPods to Coach handbags to DVDs of Homeland. A darker side to this flood of e-commerce is the growing number of companies and individuals selling counterfeit merchandise online. Luckily for consumers, however, Immigration and Customs Enforcement is on the case. In connection with cyber Monday, customs officials seized over 130 domain names allegedly selling counterfeit merchandise, such as NFL jerseys and Adobe software. According to an ICE official, "among the domain names seized was a site selling DVDs of 100 Years of Disney," despite the fact that studio was founded 89 years ago. Other seized sites include chapdvdwholesale.com, dvdhood.com, dvdboxsetwholesale.com, dvdsetshop.com and tvdvdset.com, as well as obamasell.com.

According to U.S. officials, 2012 "marks the third year that ICE has timed domain name seizures to Cyber Monday." This year, ICE officials also coordinated seizure efforts with authorities in Belgium, the United Kingdom, Denmark, France and Romania. The focus of customs officials was on seizing "sites selling pirated trademarked goods as opposed to those trafficking in streaming movies and file sharing."


About November 2012

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in November 2012. They are listed from oldest to newest.

October 2012 is the previous archive.

December 2012 is the next archive.

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