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Theater and Performing Arts Archives

October 22, 2010

WHAT DOES IT MEAN TO SAY - "I WANNA BE A PRODUCER"?? THE NATIONAL FOOTBALL LEAGUE PRESENTS "LOMBARDI" on BROADWAY

By Diane Krausz and Jennifer Bellusci

On September 21st, the National Football League (NFL) "touched down" on Broadway as a first time producer with the play "Lombardi", about the revered football coach Vince Lombardi who transformed the Green Bay Packers " into one of the NFL's most formidable championship franchises and Lombardi into the archetype for the all-American coach." (The New York Observer 9/10/10) Since the Green Bay Packers, the football team Lombardi coached is a name and logo significantly featured both in the Play and its proposed marketing and merchandising campaign, licensing the right to use the Green Bay Packers' logo, name and brand is essential element required both in the play and for its marketing and advertising campaign. Also, Lombardi's "lead" or main producer, Tony Ponturo, has a long and very strong history in sports and marketing, including employment with the NFL, and clearly understands how the NFL's endorsement as producer, and the marketing through its 32 franchise teams, would be an enormous promotional boost to the Play in markets that most Broadway shows never even attempt to approach. This does not even take into account the legitimacy and prestige that the NFL name provides as an authentic sports history certified event.

Therefore, the addition of the NFL as a Producer to Lombardi is of great value to the marketing and promotion of the play, particularly to an audience that is usually not regarded as "theater friendly", e.g., the sports fan.

The publicity and news regarding the play have reported that the NFL has made no actual direct financial contribution in exchange for its producer credit and participation. There is no doubt, however, that, in exchange for its enormous contribution in marketing, promotion and advertising support, both in using its own internal resources and in additional special advertising and marketing, the NFL is most deserving of a standard producer's gross royalty and net profit participation, including in any ancillary rights that may occur after the initial Broadway production.

In most cases, to earn a producer or associate producer credit, a individual or entity will raise a certain amount of the capital investment required to fund the play, or invest his/her/its own funds. In other instances, a producer will contribute "sweat equity" or some other form of consideration that translates into an investment and producer credit. On occasion, a producer has made a significant "in kind" donation where a bond with a union, such as Equity, has been guaranteed or posted by a producer/investor. The NFL, in the case of "Lombardi", has more than provided its fair share by contributing the licensing rights of its franchises and advertising support, both of the standard theater type and of a much more expanded variety, such as internet advertising on all team sites and large billboard ads, as well as other more sports-oriented marketing programs. According to Brian McCarthy of NFL Properties, the NFL is also sponsoring several special evenings at the theater, including a "retired players" night in the beginning of the play's run. Mr. McCarthy assures me that the NFL has access to a standard industry right of "house seats", e.g., orchestra tickets, usually in the first ten rows, available for purchase by producer each performance at retail cost, available up to 48 hours notice prior, although he would not comment on whether or the amount of the percentage of gross and net percentage participation the NFL had in the weekly box office proceeds of the play and subsidiary rights.

Among members of the theater community, particularly those who work on Broadway, the type of new audience members that the NFL name and franchise could potentially attract would certainly be welcome.

January 7, 2011

Spider-Man Can't Turn Off the Critics

By Bennett Liebman

On December 28, 2010, New York Post reporter Michael Riedel (Riedel had previously been very critical of the production of the musical. See "And Spider-Man's Latest Troubles Are ..." New York Magazine, December 29, 21010 http://nymag.com/daily/entertainment/2010/12/and_spider-Tman_latest_troubles.html; Michael Riedel, "Bono, You too Should Care," New York Post, December 24, 2010) was denied his seat for the preview to the Broadway musical "Spider-Man: Turn off the Dark."

As described by Riedel:
As I was making my way down the aisle, a security guard approached and said, "Sir, may I see your ticket?"
I was wary, but showed it to him anyway.
"You can't sit here, sir," he said.
Suspecting that I was about to be thrown out of the theater on my ear (can't imagine why!), I stood my ground. "That seat is empty, and it's mine," I said as I scrambled over several sets of knees.
A few minutes later, the guard returned, this time with a house manager.
"I'm going to have to move you, sir," the manager said.
When I asked why, he said -- and I quote -- "For safety issues."
It really doesn't get any better than this, I thought. I didn't budge. The house manager reiterated: "I have another seat for you, sir, but I must move you for safety reasons." (Italics mine.)
I took out my notebook, identified myself as a reporter and asked why my seat in row D -- D for death, I guess -- wasn't safe. The color drained from the manager's face and, after conferring with the security guard, he said: "Sir, this seat has been sold twice. I have another seat for you, and I will give you a full refund."
Things were getting fishier by the minute, but I wasn't going to move.
"Sir, we cannot start the show until you move," the manager said. "If you do not, I will have to call the police..."
As the manager escorted me to the balcony, I said, "Look, are you banishing me to the balcony because I'm Michael Riedel of the New York Post?"
"I did not know who you were, sir, until you told me," he said.
My ego deflated, I plopped down into my new seat -- a lousy one, up in the rafters, against the wall. I fired a few more questions at the manager, but he bolted. I don't know if he was telling the truth about the seat being sold twice -- the view from my new seat was so bad, I couldn't see my old seat or half of the flying stunts.
But apparently D116, my original seat, was the only "dangerous" one since nobody else in the aisle was given the heave-ho.
I have yet to get to the bottom of this mystery. The press agent for "Spider-Man" says the producers weren't aware of it, though when they heard about it, they laughed.
I couldn't find the house manager after the show. And I'm still waiting for my promised refund. (Michael Riedel, "'Spidey' Stole My Seat!" New York Post, December 29, 2010. See http://www.nypost.com/p/entertainment/theater/spidey_stole_my_seat_Qm9hCJM2Hqh4I8Mr6ojsHP).

The short question is can they do that? Can Mr. Riedel be excluded from Spider-man?

The short answer is that if Mr. Riedel has a ticket, they can't exclude him due to a state statute passed in 1941. That statute basically reversed - for the Broadway stage - a longstanding precedent established by the New York State Court of Appeals. In that 1916 decision, dealing with a fact pattern similar to that of the Riedel case, the Court of Appeals upheld the right of a theater owner to exclude a newspaper critic from its theater. ( Woollcott v. Shubert, 217 N.Y. 212 (1916).). Michael Riedel can probably thank the Shubert Brothers for their persistence in trying to block criticism of their shows. They largely made this an issue that warranted legislative attention.

Alexander Woollcott and the Shuberts

In the 1916 case, the theater owners were the Shubert Brothers, and the critic was Alexander Woollcott, at the time the theater critic for The New York Times. (Woollcott eventually became a famous media personality, and his personality was parodied in the play "The Man Who Came to Dinner" written by George S. Kaufman and Moss Hart in 1939.). On March 17, 1915, the Shuberts opened the show, "Taking Chances." Woollcott's review, which did not have a byline, appeared on March 18. He found that the play was "not vastly amusing." ("Lou-Tellegen in a German Farce," New York Times, March 18, 1915.). He added, "Not much energy and ingenuity was left for the reconstruction of a good play. It must be said that the resulting product is quite absurd and little more than that." (Id.). Based on this review, the Shuberts determined to ban Woollcott from attendance at Shubert theaters.

Woollcott's review was hardly the only negative review of "Taking Chances." The play drew six mixed reviews and eight pans. Its only positive review was from the Shubert controlled New York Review. (Foster Hirsch, The Boys from Syracuse, First Cooper Square Press (1998 ) Pg. 107. See also "Reviewing a Play Under Injunction," New York Times, April 4, 1915.).

On April 1, 1915, Woollcott presented orchestra tickets to see a Shubert play but was denied admission. Woollcott and the Times sued under the State's Civil Right Act and soon received an injunction enabling Mr. Woollcott to admission at the Shubert theaters. (Id., "Reviewing a Play Under Injunction."). The exclusion of Woollcott soon became a major national issue, with much of the press lined up against the Shuberts. (The Boys from Syracuse, supra note 7 at Pg. 108.).

The focus of the litigation was New York State's Civil Right Act. (Civil Rights Law § 40.). This law had been passed in 1895 and was one of a number of state laws that had been passed in reaction to the Supreme Court decision in the Civil Rights Cases. (109 US 3 (1883).). The Supreme Court had restricted the federal Civil Rights Act of 1875 from applying to private actors. The New York law - then popularly known as the Malby Law after its sponsor Assemblyman and Former Assembly Speaker George Malby of St Lawrence County - had been largely designed to provide civil rights to blacks. (Ch. 1042, L. 1895.). It provided for civil recoveries in the event that to "all citizens of every race, creed or color" (Id. §2.) who were not provided full and equal accommodations at certain establishments including inns, restaurants, hotels, music halls and theaters. (Id. §1.). The legislation had been decried by The New York Times as a bill that "should have been entitled 'an act to enable negroes to blackmail the keepers of restaurants and hotels.'" (Editorial, New York Times, June 19, 1895. For another New York Times article in opposition to the Malby Law see "Equality By Legislation, New York Times, June 30, 1895.).

In 1913, the Civil Rights Law was expanded to include hotels "for the accommodation of those seeking health education or rest." (Ch. 285, L. 1913.). Additionally, the law prevented places of public accommodation from publishing or printing advertisements or communications that they intended to discriminate in violation of the Civil Rights Law. This law - the Levy-Wagner Law - was largely designed to prevent discrimination against Jews at resort hotels. (See Jeffrey Gurock, "The 1913 New York State Civil Rights Act, "1 Association for Jewish Studies Review, 93 (1976).).

In amending the Civil Rights Act of 1895, the 1913 legislation changed the beginning lines of the statute to read, "All persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages and privileges of any place of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any such place, shall directly or indirectly refuse, withhold from or deny to any person any of the accommodations, advantages or privileges thereof..."

That overall language change was the basis of the Times/Woollcott argument that the public enjoyed an overall right to enter places of public accommodations specified in the Civil Rights Law. (The Court of Appeals had ruled in Grannan v. Westchester Racing Association, 153 N. Y. 449 (1897) after the initial passage of the Malby Law that there was no general right of individuals to enter a place of public accommodation. The plaintiffs needed to find that the statute had been amended so that Grannan would no longer apply.).

At the trial level, the judge ruled for Woollcott and the Times. The judge found that New York Civil Rights act provided the plaintiff with a broad right of general access to the places, such as theaters that were specifically enumerated in the statute. (Woolcott [sic]v. Shubert, 90 Misc. 474 (Sup. Ct., N.Y. County 1915).).

On appeal, however, the courts ruled for the Shuberts. The appellate division (Woollcott v. Shubert, 171 A.D. 901, (1st Dep't 1915).), followed by the unanimous Court of Appeals ( See note 3 supra. Voting for the Shuberts in the case was Judge Cardozo, who had previously served as an attorney for the Shuberts. Andrew L. Kaufman, Cardozo, Harvard University Press, 1998, Pg. 101.), found that the Civil Rights Law did not provide for general public access to places of public accommodation. Instead, it only banned discrimination "expressly qualified by the subsequent words 'on account of race, creed or color.'" (Id. at 220.). Thus, only if Woollcott had been denied admission based on his race, creed, or color would the Civil Rights Law apply.

The plaintiffs further argued that the legislative debates involving the 1913 law established the intent to abrogate the common law. The Court of Appeals, however, found, "It is established law, however, that the statements and opinions of legislators uttered in the debates are not competent aids to the court in ascertaining the meaning of statutes." (Id. at 221.). Since Woollcott had not been discriminated against based on his race, creed, or color, the theater owner retained its common law right to exclude him at will.

The 1941 Statute

The Woollcott decision remained in place until 1941when the legislature enacted a new addition to the Civil Rights Law. (Ch. 893, L. 1941.) That bill added a new section to the Civil Rights Law (Civil Rights Law §40-b.) which was designed to repeal the Woollcott decision. The provision, which has remained unchanged since its enactment reads:

"No person, agency, bureau, corporation or association, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public entertainment and amusement as hereinafter defined shall refuse to admit to any public performance held at such place any person over the age of twenty-one years who presents a ticket of admission to the performance a reasonable time before the commencement thereof, or shall eject or demand the departure of any such person from such place during the course of the performance, whether or not accompanied by an offer to refund the purchase price or value of the ticket of admission presented by such person; but nothing in this section contained shall be construed to prevent the refusal of admission to or the ejection of any person whose conduct or speech thereat or therein is abusive or offensive or of any person engaged in any activity which may tend to a breach of the peace.

The places of public entertainment and amusement within the meaning of this section shall be legitimate theatres, burlesque theatres, music halls, opera houses, concert halls and circuses." [Emphasis added].

Thus, if a critic, or any other person, holds a ticket to a show, he or she cannot be ejected or excluded from the performance. That holds true even if the potential attendee receives a refund of the purchase price of the ticket. Only if the attendee is abusive, offensive or engaged in any activity which may breach the peace can the attendee be excluded or ejected.

The law does not apply to all conceivable places of public entertainment. Movie theaters are not covered. (Impastato v. Hellman Enters., 147 A.D.2d 788, 790 (3d Dep't 1989).). Sporting events are not covered, (Mandel v. Brooklyn Nat'l League Baseball Club, 179 Misc. 27 (Sup. Ct., Bronx Co., 1942).), but it certainly applies to Broadway theaters, and to Spider-man.

The constitutionality of the law was quickly tested after its enactment in 1941, and again it involved the Shuberts. The Shuberts in Manhattan denied admission to a patron named Robert Christie from Schenectady County who held a ticket for the Broadway show "Panama Hattie." Christie sued the Shuberts for $500 under the amendment to civil rights law. (Associated Press, "Laws Protecting Critics of Plays Argued in Court, "New York Times, September 21, 1941.). Longtime Shubert lawyer William Klein, as part of this test case, argued that it was important for theater owners to be able to exclude critics because "95 percent of readers of critical reviews are influenced by criticisms." (Id., Klein's long-time association with the Shuberts is highlighted in The Boys from Syracuse, supra note 7 at Pg. 125.). The Shuberts argued that the classification of the law, by excluding motion picture theaters, was a violation of the Equal Protection Clause.

The trial court disagreed with the Shuberts. It found that the statute was a valid exercise of the police power and that it was not possible to find that the exclusion of the motion picture theaters made the statute "arbitrary, capricious, or unreasonable." (Associated Press, "Rules for Theatre 'Safe for Critics,'" New York Times, December 13, 1941.).

On appeal, the Appellate Division affirmed the trial court's decision. It stated, "The New York statute is constitutional and sustains plaintiff's right to recover unless the exclusion of motion picture theatres makes it discriminatory." (Christie v. 46th St. Theatre Corp., 265 A.D. 255, 258 (3rd Dept., 1942); "Law Compelling Theatres to Admit Any One With Ticket Upheld by Court," New York Times, December 30, 1942.). It too was unable to find an equal protection violation because classifications are legislative matters. The fact that there are thousands of movie theaters while less than 50 Broadway theaters provided a reasonable justification for the enactment. (Id.)

The Court of Appeals affirmed the decision without an opinion (Christie v. 46th St. Theatre Corp., 292 N.Y. 520 (1944).), and the Supreme Court did not grant certiorari. (323 U.S. 210 (1944). See also "Theatre Ticket Law Is Up to High Court with New York Seeking Its Affirmation," New York Times, October 9, 1944.).

Accordingly, New York has a statute which "codifies the right of reasonable access for only the small group of patrons who attend places of 'public entertainment and amusement.'" (Steven Sutherland, "Patron's Right of Access to Premises Generally Open to the Public," 1983 U. Ill. L. Rev. 533, 544 (1983).). In response to the Shuberts' desire over the years to exclude critics, the New York State legislature has had in place, for nearly 70 years, a law that would protect Michael Riedel from being ejected from Spider-man. The producers of the show cannot reject Mr. Riedel's ticket or turn off Mr. Riedel's light.

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.

November 7, 2011

IF YOU SUE ME, YOU'RE OUT OF YOUR MIND - COPYRIGHT AND MORAL RIGHTS ISSUES SURROUNDING BEYONCÉ'S "COUNTDOWN" VIDEO

By Merlyne Jean-Louis

On October 6, 2011, the video for "Countdown," an upbeat single from the fourth studio album of Beyoncé Knowles (known mononymously as Beyoncé), premiered on MTV. The scenes in the video contained several pop culture references, including Funny Face and West Side Story, and displayed Beyoncé pregnant with her first child (See http://www.youtube.com/watch?v=2XY3AvVgDns). The video immediately sparked controversy because it featured several dance sequences that strikingly resembled choreography from "Rosas danst Santas" and "Achterland," two choreographic works of Belgian contemporary choreographer Anna Teresa De Keersmaeker. (See http://www.youtube.com/watch?v=3HaWxhbhH4c) (video comparing the dance sequences).) Beyoncé stated that she was inspired by the works and thus they were "used to bring the feel and look of ['Countdown'] to life." However, De Keersmaeker commented although she was neither angered nor honored by Beyoncé and her team's appropriation, De Keersmaeker felt they should have been aware of the "protocols and consequences to such actions." (See http://pitchfork.com/news/44269-Beyoncé-accused-of-ripping-off-belgian-choreographer-for-countdown-video/.) To which protocols and consequences did De Keersmaeker refer?

Protection of Moral Rights

If De Keersmaeker desired to simply be asked permission for use of her pieces, then she was probably concerned about her moral rights. Article 6bis of the Berne Convention, a long standing international treaty governing copyright to which the United States is party, provides that any author of a work possesses two moral rights: the right of attribution ("the right to claim authorship of the work") and the right of integrity ("the right . . . to object to any distortion, mutilation, or other modification of [the] work that would harm the author's honor or reputation.") (Berne Convention for the Protection of Literary and Artistic Works, Art. 6bis, Sept. 9, 1886, as revised at Paris, July 24, 1971.) These rights mirror the customary practices of the dance world, where parties ask permission to use the work of a choreographer, who in turn often demands formal artistic credit and the right to have a final say on the presentation of the work. Since the movement in the "Countdown" video could arguably be a distortion of De Keersmaeker's work, De Keersmaeker probably has a valid moral rights claim. However, treaties are non self executing in the United States, which means that the treaty provisions require the implementation of legislation to be valid. The only American federal act promulgated pursuant to Article 6bis is the Visual Artists Rights Act (VARA), which only protects the moral rights of creators of visual art works. (See 17 U.S.C. § 106A.) However, because of supplemental jurisdiction, if De Keersmaeker brought another type of federal claim in a federal court located in a state that had statutes that granted standing to foreigners to enforce their moral rights, then De Keersmaeker could possibly sue under state law for moral right protection. (See 28 U.S.C. 1367.) Thus, if interested, De Keersmaeker may be able to successfully bring a federal moral rights claim against Beyoncé or her team under American law.

Infringement of Copyright

If De Keersmaeker was concerned about the economic value of her works, then she was probably concerned about copyright protection. As her home country of Belgium is a party to several copyright treaties to which the United States is also a party, her work could theoretically be protected in the United States. (See Points of Attachment, International Copyright and Law and Practice, Paul E. Geller and Melville B. Nimmer, 2011, Matthew Bender & Company, Section 6[1][a]; 17 U.S.C. §104 (discussing copyright protection of works of authors of national origin).) Since De Keersmaeker is a foreigner and the alleged infringers would presumably be American, if she claimed a relief of at least $75,000 in damages, a federal court would have subject matter jurisdiction to hear her case if she initiated a copyright infringement action. (See 28 U.S.C. §1332(a)(2) (granting federal jurisdiction over cases between a U.S. citizen and a non-U.S. citizen).)

De Keersmaeker could set forth several claims of infringement of the copyright of her works. The first claim would be based on the holding in Horgan v. Macmillan, Inc., and would be related to De Keersmaeker's exclusive reproduction rights. In this case, the Second Circuit left open the possibility for a book containing still photographs of the production of legendary choreographer George Balanchine's Nutcracker Ballet to be an infringing "copy of Balanchine's copyrighted work because it portray[ed] the essence of the Balanchine Nutcracker." (Horgan v. Macmillan, Inc., 789 F.2d 157, 161 (2d Cir. 1986).) (See also 17 U.S.C. § 106 (1) ("[T]he owner of copyright . . . has the exclusive right[] . . . to reproduce the copyrighted work in copies.").) The court held that the lower court, in determining whether the right to reproduce has been infringed, had to determine whether the alleged infringing photos were substantially similar to the original choreography (not whether the original choreography could be recreated from the allegedly infringing copy, as the lower court had done before the appeal). (See Horgan, 789 F.2d at 162.) Since the parties settled however, the lower court never applied this test. Nonetheless, Horgan's odd holding (which, to the chagrin of the dance world, inferred that something besides actual movement could theoretically infringe the copyright of a choreographic work) is still law. Thus, if the actual physical film of "Countdown" was considered to embody the copy of De Keersmaeker's works, De Keersmaeker could argue that the creation of the film infringed upon her right to reproduce her works.

De Keersmaeker's second claim could set forth two arguments relating to her exclusive right of public performance. (See 17 U.S.C. §101 (defining "to perform...a work 'publicly'" as "to perform. . . at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family. . ."); §106(4) (enumerating exclusive public performance rights related to choreographic works).) The first argument is that the dancers (including Beyoncé) in the video infringed De Keersmaeker's right to publicly perform her works. For example, in one approximate 20 second sequence, Beyoncé and other background dancers perform the exact movement from a portion of "Rosas danst Santas." In another sequence, Beyoncé and the dancers perform only one movement (the shaking of hips and legs) from "Achterland." Thus, the main question that should be asked is how many dance moves or how much dance movement must be performed to constitute infringement of the right to publicly perform a work.

The second argument related to public performance is that broadcasters of the "Countdown" video, including MTV and Google (owner of YouTube), transmitted a public performance of De Keersmaeker's works. (See 17 U.S.C. §101 (defining "to perform . . . a work 'publicly'" as "to transmit . . . a performance . . . to the public, by means of any device or process . . .").) This argument could also simultaneously be set forth as a separate third claim of infringement of De Keersmaeker's exclusive right to display her works. (See 17 U.S.C. § 101 (defining "to display a work 'publicly' as "to display [work] at a place open to the public" or "to transmit . . . a . . . display of [a] work . . . to the public . . ."); §106(5) (enumerating exclusive display rights related to choreographic works).)

As portions of De Keersmaeker's works were performed in the video, De Keersmaeker's could set forth a further claim of infringement based on her right to create derivative works. (See 17 U.S.C §101 (defining "derivative work" as "a work based upon one or more preexisting works . . ."); 17 U.S.C. 106(2) (enumerating the derivative works right for all authors).)

Potential Defenses

There are several defenses to De Keersmaeker's claims. First, the alleged infringer (whether it be Beyoncé, a dancer, or a broadcaster) could argue that De Keersmaeker's works do not meet the United States originality requirement. (See 17 U.S.C. 102 ("Copyright protection subsists . . . in original works of authorship . . . ); Feist Publ'n v. Rural Tel. Servs., 499 U.S. 340, 345 (stating that "original" in the Copyright Act means "that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.").) The sitting court may strike down this defense because De Keersmaeker's works clearly possessed "a modicum of creativity." (Feist, 499 U.S. at 346.) However, choreographers must use dancers to create their works. Does that satisfy the "independent creation" portion of the Feist test? Second, the alleged infringers could attack each of the De Keersmaeker's claims of infringement by stating that the defendants did not engage in the activity for which they are accused. For example, with regards to the public performance claim against Google, Google could argue that it did not display or transmit the works because on the Internet, the only place to see YouTube videos, a viewer would have to take proactive steps to download and view the "Countdown" video. Thus, the viewer would actually be considered to be the infringer. In any event, the DMCA would likely preclude Google's liability, as it is an Internet Service Provider with a Registered Agent, and therefore qualifies for the Safe Harbor provisions. However, MTV would not be able to make this argument if it transmitted the "Countdown" video via television, because videos are transmitted without the requirement of viewers' involvement. Third, the infringers could argue that De Keersmaeker does not have standing to bring the case because the works are not registered under the Copyright Act. (See 17 U.S.C. §411 ("[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim . . .") (emphasis added).) However, as emphasized in the previous citation, this requirement only applies to works of American authors. Furthermore, presuming that De Keersmaeker is the legal owner of the copyright of her works under American law, she has the right to commence an action of her exclusive rights. (See 17 U.S.C. §501(b).)

"If You Sue Me...You're Out of Your Mind"

While the pulse of the dance world is the dancer, the heartbeat that sustains its life is the choreographer. Although there is current explicit copyright protection of choreographic works in America, it is believed that most choreographers do not utilize it. However, it should be noted that the Beyonce's song "Countdown" contains a sample of a countdown from the song "Uhhh Huh" by 90's boy group Boyz-2-Men. (http://www.youtube.com/watch?v=ci8hWx4CR-k). This approximate 10 second sample was sufficient to give the original members of the group songwriting credit, and thus, copyright protection. As a former semi-professional dancer and diehard Beyoncé fan, I find it disappointing that Beyoncé and her team did not follow dance cultural norms and simply ask De Keersmaeker for permission to use her works. However, if credit and recognition is all that De Keersmaeker sought, the use of her works in "Countdown" ironically brought her exactly that - everyone will now know De Keersmaeker's works because the internationally-recognized Beyoncé exposed them to the entire world. If that is the case, it would not make sense for De Keersmaeker to initiate any infringement claim, although the same cannot be said for a moral rights action.


Note: De Keersmaeker could possibly set forth her claims under Belgian law. "If you sue me...you're out of your mind" is a reference to the lyrics of "Countdown."

Merlyne Jean-Louis is a third-year law student at Duke University School of Law. Merlyne trained briefly in ballet, contemporary, and tap dance and specializes in hip-hop and and African dance. If you have any questions or thoughts, please e-mail Merlyne at mjeanlouis32@gmail.com.

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:

http://www.nycourts.gov/ctapps/arguments/2012/Sep12/Transcripts/090512-157.pdf

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

http://www.nycourts.gov/ctapps/Decisions/2012/Oct12/157mem12.pdf

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
activity);

• 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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September 16, 2013

Are Strip Club Entertainers Employees?

By Kim Swidler

Last week the news was filled with eye catching headlines declaring that "New York strippers now have labor rights".

The articles concerned a Southern District decision on cross-motions for summary judgment regarding a class action that had been commenced by several exotic dancers, also known as entertainers, who had performed at Rick's Cabaret International Inc. (Rick's), a strip club located in Manhattan (Matter of Sabrina Hart et al v. Rick's Cabaret International Inc., No. 09cv3043, U.S. District Court for the Southern District of New York 2013).

The dancers asserted that they were employees of Rick's, and alleged violations of the Fair Labor Standards Act (FLSA) as well as the New York Labor Law (NYLL) and regulations promulgated thereunder by the New York State Department of Labor. The requested damages included minimum wage payments.

Rick's countered, in part, that the plaintiffs had at all times worked as independent contractors and, therefore, fell outside the coverage of FLSA and NYLL. However, based upon the evidence presented, Judge Paul A. Engelmayer disagreed and found that the dancers had, in fact, been employees of that entity.

As in other New York labor related matters, a major factor in making this determination concerning the issue of employer-employee relationship was the degree of direction and control that Rick's exercised over the plaintiffs.
As an example, in those controversies where there is a request for worker's compensation benefits, the court has held that the relevant factors in finding an employer-employee relationship include the right to control the work, set the schedule, the method of payment, the furnishing of equipment, the right to discharge and the relative nature of the work (Matter of Bugaj v Great Am. Transp. Inc., 20 AD3d 612 [ 2005]). No single factor is deemed dispositive, and the decision may be based on any one or a combination of the relevant factors (Matter of Gregg v Randazzo, 216 AD2d 747 [1995]).

In this case, Judge Engelmayer found that Rick's club-imposed written guidelines carried numerous restrictions that helped demonstrate that an employer-employee relationship had existed. The entertainers were forbidden to chew gum, have a bad attitude, use cell phones while on the [dance floor] or use public restrooms. The Judge also noted that the guidelines addressed the hours at which dancers could be scheduled to work, restrictions concerning tattoos, procedures for checking in and checking out, the range of fees that dancers were required to pay, appearance and dress, and the method and manner in which dancers could dance.

A spokesperson for Rick's has stated that it will appeal this finding and that the subject guidelines are no longer in effect.

The court's decision may also create other consequences for the owners of establishments such as Rick's. The workers' compensation laws require employers to obtain proper workers' compensation coverage for those who are designated as their employees. Failure to do so might result in various negative ramifications, including a fine of $2,000 for every 10 days of noncompliance. The business may also be shut down pursuant to a Stop Work Order until proof of proper coverage has been obtained. Furthermore, an injured employee might expose the uninsured entity to liability for medical and compensation awards.

So should all exotic dancers now be considered employees within the definition of the NYLL? That decision will still be made on a case by case basis. The burden of proof is on the claimant to prove an employer-employee relationship, and not all exotic dancers have been as successful. In Matter of Gallagher's 2000, 2013 NY Wrk 0511882, the claimant, also an exotic dancer, sustained an injury when she was kicked in the face by another dancer during a performance. Using the above noted factors, the New York State Workers' Compensation Board (the Board) held that the dancer was not an employee and disallowed the claim. The Board considered, among other factors, the fact the claimant received no remuneration and that she retained the discretion to decide which days she would work.

The opinion, views, and statements set forth in this post do not represent the views of the NYS Workers' Compensation Board.

October 30, 2013

Dramatic License With "A Time to Kill"

By Lisa Fantino

Dramatic license doesn't paint with a broader brush than when it comes to Broadway, literally. Rupert Holmes' dramatic retake of John Grisham's first legal thriller, "A Time to Kill," hits the Great White Way for the fall season and is a well-staged production in the vein of "Twelve Angry Men".

I attended the show as a reviewer, but it also happens that I am a litigator, which made for very interesting observations. While the production is fantastic for many reasons (you can read my review at http://ladylitigator.wordpress.com/2013/10/31/a-time-to-kill-on-broadway/), what I think most attorneys will find noticeable is no less than six ethics violations in just the first act.

The nutshell version, for those who didn't read Grisham's classic or see the 1996 film with Matthew McConaughey and Sandra Bullock, revolves around a fictional account of a young black girl who is hung and raped by two drugged out white men in racially torn Mississippi. The girl's distraught father shoots the men at the courthouse following their arraignment, and is then tried for capital murder. He chooses a local lawyer to represent him rather than the politically charged NAACP, and so the trial proceeds. Toss in the assistance of a drunken disbarred attorney and a politically ambitious prosecutor, and the predominantly white jury finds the father not guilty by reason of insanity.

Act One is so full of ethics issues that I found myself scribbling in the dark theater, starting with the father, Carl Lee Hailey, plotting to murder the suspects and outlining his plan to his attorney, Jake Brigance. Any 1L student knows that the attorney-client privilege protects communication, except that "a lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime (see Rule 1.6(b)) Clearly, after hearing Carl Lee's detailed plot, even to the extent of selecting a jury and trial strategy, Brigance had an obligation to reveal such intent to the authorities. Yet, Brigance, who often takes the moral highground throughout the play, never once reflects on the fact that he could have prevented this had he revealed Carl Lee's intent. In passing, when the sheriff questions Brigance about his knowledge, he indicates that had such assertions been made, that Carl Lee was not acting in his right mind due to his emotional upheaval.

Disciplinary Rule 4-101.C(3) permits an attorney to reveal client confidences and such intent to commit a crime in order to prevent the crime itself. Yet the language is open to interpretation and the attorney's reasonable judgment as to whether or not to reveal such confidences. In "A Time to Kill" perhaps Brigance did not struggle with the dilemma because he believed Carl Lee to truly be distraught and speaking only in hypotheticals with no reasonable expectation to commit murder. Maybe Brigance was able to sleep at night, before the KKK burned his house to the ground, because he strongly suggested to Carl Lee NOT to even consider killing these men.

Holmes takes dramatic license in many other areas, most notably having the young, sexually harassed D-A intern then jumping ship to assist Brigance when her internship was over. She leaks everything from jury lists to strategy for the prosecution. Ahh, the stuff of fiction. Not to mention that a disbarred, drunken, down-on-his luck mentor to Brigance offers to buy him a hung jury. For the average theater-goer, "A Time to Kill" is an enjoyable night out. For an attorney, it's probably one of the few staged dramas to get us thinking.


Lisa Fantino is an award-winning journalist and solo practitioner who has just released her first book, "Amalfi Blue, lost & found in the south of Italy." She has a general practice firm in Mamaroneck, New York, where she focuses on entertainment as well as general transactional and litigation matters. She can be found at http://www.LisaFantino.com or blogging as http://ladylitigator.wordpress.com.

March 2, 2015

Getting Gambling Wrong: Broadway's Golden Age Lyricists Roll Snake Eyes

By Bennett Liebman
Government Lawyer in Residence, Albany Law School

In the pantheon of Broadway lyricists, names don't come higher than Steven Sondheim and the team of Betty Comden and Adolph Green. Yet when it came to describing the world of gambling in their shows in the 1950's, these writers threw snake eyes.

Sondheim was the lyricist for the iconic musical "Gypsy", which had its premiere in 1959. "Gypsy" retells the story of the famed burlesque performer Gypsy Rose Lee. The focus of the story is on Gypsy's mother Rose - played initially by Ethel Merman. Mama Rose, simply put, is a monstrosity of a stage mother.

In her first number, Rose's personality is revealed through the song, "Some People." The song starts off with Rose's assertion that: "Anyone that stays home is dead." Roses goes on to add, "Some people can be content playing bingo and paying rent..."
Yet playing bingo was not a possibility for anyone at the time. Based on Lee's life, the time of the song would likely have occurred before 1920, before Gypsy Rose Lee's ninth birthday. Even if you can place the song in the early 1920's (The Internet Broadway Database suggests that Gypsy starts in the 1920's. See http://ibdb.com/production.php?id=2743), this cannot make the bingo lyric work.

While it may seem that bingo has been around forever, its commercial start in the United States has an actual time and date. Toy salesman Edmund Lowe in December of 1929 visited a carnival in Georgia, where he saw patrons getting excited over a game called "beano." People played a lottery-style game where they covered a card with beans. Lowe talked to the person who ran the game and took it back to New York to share with his friends. (See generally Robert Daley, "Bingo Binge Is Big Business," New York Times, December 8, 1957 and Art Harris, "The Bingo Baron," Washington Post, February 26, 1986) He instructed people with the winning card to shout out, "Beano!" Allegedly, the name of the game came about when a friend of Lowe's with a winning hand got so excited, that he or she yelled out "Bingo" instead of "Beano." (Richard C. Firstman, "Original Bingo Promoter Dead at 75," Newsday, February 25, 1986. See also "The Biography of Bingo," New York Herald Tribune, March 16, 1962)

Lowe developed additional cards and "hired a Columbia University, math professor, named Carl Leffler, to help him increase the amount of number combinations in Bingo cards. By 1930, Leffler had invented 6,000 different bingo cards." (Jan Evans, "A Brief History of Indian Gaming," Oklahoma Indian Times, February 29, 2000) Lowe soon began marketing the game, and after he began licensing the game to churches in the early 1930's, the game took off in popularity. Therefore, bingo is a game which popularity dates to 1930.

Nobody in 1920 could have been content playing bingo, because there simply was no such game known as bingo in 1920. While given her threatening personality, many people might have been reluctant to call her on it, Mama Rose got bingo wrong.

"Bells Are Ringing"

"Bells Are Ringing" was another popular Golden Age musical from 1956. The lyrics and the book were again written by Comden and Green. Julie Styne, who also wrote the music for "Gypsy", wrote the songs. In the show, Ella Peterson is an extremely well -meaning, pleasant, but also meddlesome, employee of a phone answering service who gets involved with helping to better the lives of the service's clients.

One of the clients of the answering service is Sandor, who is, "in fact, a bookmaker... he is able to do this by the ingenious means of providing his clients with musical codes - for example, Beethoven is the pseudonym for Belmont Park Race Course, Puccini is the code for Pimlico Race Course, Tchaikovsky means Churchill Downs, etc. Therefore, when the message is received, 'Order 500, 6th Symphony, Beethoven, Opus 3,' it actually means ' Bet 500 dollars, sixth horse, Belmont, 3rd Race.'"

To explain how the bookmaking service works, Sandor sings the number, "It's a Simple Little System," to his employees. He lists the composers and tells his employees the names of the tracks they stand for. Thus, "Berlioz is Bainbridge, Hindemith is Hawthorne, Offenbach is Omaha." (As the song goes: "The composers' names, we list them with the racetracks of the land." The design of the scheme is accomplished by: "We will take those record orders in a very cultured tone. While we're really booking horses over at Susanswerphone." See http://lyricsplayground.com/alpha/songs/i/itsasimplelittlesystem.shtml).

Business for poor Hector Berlioz had to be extremely slow. Bainbridge Park was once a thoroughbred racetrack in northeastern Ohio in Geauga County southeast of Cleveland. The track got its start on July 8, 1928 and ran for a grand total of eight seasons, closing in 1935. By that year, Bainbridge Park had only 15 days of racing distributing purses of $3,113 per race day.(American Racing Manual, 1936) Even for a racetrack in the Depression, this was an incredibly low amount of money. It could hardly be surprising that the track would not be in operation after 1935.

Nobody was betting on Bainbridge in 1956. They weren't even betting on Bainbridge by 1936.

Offenbach probably wasn't getting much play either at the answering service. The racetrack in Omaha was traditionally (See generally http://www.ak-sar-ben.com/), and certainly by 1956 (American Racing Manual, 1957), known universally as Ak-Sar-Ben, which is Nebraska spelled backwards. In its earlier days, the track was occasionally known by a few as Omaha, but even then most everybody called in Ak-Sar-Ben. At the time that "Bells Are Ringing" purports to take place, in 1956, almost nobody would have called it Omaha.

The naming of the tracks is extremely puzzling in "Bells Are Ringing". By all accounts, Julie Styne was a race track regular. Styne, unlike Sandor, actually knew the all the racetracks of the land (albeit it's difficult to believe that most anyone remembered Bainbridge). Why not call Berlioz, Bowie, a track in Maryland that was certainly popular in 1956? Similarly, why couldn't Offenbach be Oaklawn Park in Arkansas?

Spoiler alert. Given the fact that Sandor was arranging for people to wager on defunct racetracks, it should not be a surprise that he eventually gets busted by the police.

It may be hard to dislike Golden Age musical comedy, but couldn't someone have sprung for a gambling dramaturge?

March 10, 2015

EASL Section's 4th Annual Legal Aspects of Producing: An Inside Approach to Navigating the Theatrical World

Get an Inside Approach to Navigating the Theatrical World

Wednesday, March 25, 2015 - Thursday, March 26, 2015
5:30PM - 9:15PM (each night)

Snapple Theatre | 210 West 50th Street | New York, NY 10019

This program qualifies for up to 6.0 MCLE Credits in professional practice

Pricing:
NYSBA and CTI Members: $285.00 for Both Days | $165.00 for One Day
Non-Members: $375.00 for Both Days | $225.00 for One Day
Students: $185.00 for Both days | $95.00 for One Day
http://www.nysba.org/EASLLegalAspects15/

For the fourth year, EASL, in collaboration with The Commercial Theater Institute (CTI), the industry's leading training program, will host an intensive CLE seminar focusing on the roles that theatrical lawyers have in guiding both new and seasoned industry professionals through all of the stages and legal aspects of producing.

Led by the top entertainment lawyers in the business, the first day will cover all of the basics, including: acquiring underlying rights, engaging the dramatists and preparing co-producer and offering documents. The second day will focus on developmental productions, including enhancement agreements between commercial producers and not-for-profit theaters, as well as international licensing and subsidiary rights. Then veterans in the field will discuss emerging trends and issues, provide case studies and help producers and entertainment counsel navigate through some of the most common (and some esoteric) pitfalls of the theater business.

Wednesday, March 25th

Negotiating Rights and Production Contracts

Speakers: Jason P. Baruch, Esq., Sendroff and Baruch, LLP and Presenter: Susan Mindell, Esq., Levine, Plotkin & Menin, LLP

Jason and Susan will discuss the various sources of underlying rights (including films, music catalogs and life rights) and engage in mock negotiations of an underlying rights agreement and production contracts with authors.
Investor Fundamentals

Speaker: Matthew Lefferts, Esq., Franklin Weinrib Rudell & Vassallo PC

Matt will walk the group through Front Money Agreements, Joint Venture Agreements among producers, Co-Producer and Associate Producer Agreements between lead producers and major financiers and Offering Documents (i.e., the operating agreement or limited partnership agreement, and related subscription documents) between producers and investors. Matt will touch upon recent changes in the regulations allowing for crowd-funding and general solicitations.

Thursday, March 26th

Not for Profit Enhancement Agreements
Speaker: Carol Kaplan of Loeb & Loeb LLP

Carol will discuss the relationship among authors, not-for-profit theaters and commercial producers and the agreements governing the relationships among them.

International Licensing & Transfers of Stage Properties; Subsidiary Rights
Speaker: Marsha Brooks, Esq., Brooks & Distler

Marsha will discuss the life of stage properties after Broadway, including subsidiary rights and international licensing.
Emerging Trends in Theater Law

Speakers: Seth Gelblum, Esq., Loeb & Loeb LLP, Scott Lazarus, Esq., Lazarus & Harris LLP and Loren Plotkin Esq., Levine Plotkin & Menin, LLP

Seth, Scott and Loren will discuss emerging trends and hot topics in the theater such as director entitlements to author income, general solicitations and crowd funding of productions, increasing demands of underlying rights holders such as film companies, changing requirements of not-for-profit theaters mounting developmental productions, amortization and the role of the Dramatists Guild.

For more information, contact Beth Gould at bgould@nysba.org | CTI Members Looking to Register Please contact Beth Gould at 518-487-5674

August 20, 2015

New York City Limits Credit History Use Beginning September 3rd

By Kristine Sova
www.sovalaw.com

Beginning September 3, 2015, it will be illegal for covered employers in New York City to request or use an employee's or applicant's consumer credit history to make employment decisions.

The Stop Credit Discrimination in Employment Act amends the New York City Human Rights Law, which applies to employers with four or more employees, and prohibits covered employers from requesting or using the consumer credit history of an applicant or employee for employment purposes. The law also prohibits covered employers from discriminating against applicants and employees with regard to hiring, compensation or other terms, conditions or privileges of employment based on the applicant's or employee's consumer credit history.

The new law defines "consumer credit history" as including:

-consumer credit reports (which includes any communication from a credit reporting agency that bears on a consumer's creditworthiness, credit standing, credit capacity or credit history);
credit scores; or
-other information an employer directly obtains from an applicant or employee about credit accounts, including:
*details about credit accounts, including the individual's number of credit accounts, late or missed payments, charged-off
debts, items in collections, credit limit and prior credit report inquiries; or
*bankruptcies, judgments or liens.

The new law allows employers to request consumer credit information from applicants and employee in limited circumstances, including when hiring for:

Positions where an employer is required by state or federal law or regulations or by a self-regulatory organization to use an individual's consumer credit history for employment purposes;
-Police officer or peace officer positions;
-Positions in which employees are required to be bonded under federal, state or city law;
-Positions in which employees are required to possess security clearance under federal or state law;
-Non-clerical positions having regular access to trade secrets, intelligence information or national security information;
-Positions having signatory authority over third party funds or assets valued at $10,000 or more;
-Positions that involve a fiduciary responsibility to the employer with the authority to enter into financial agreements valued at -$10,000 or more on behalf of the employer; and
-Positions with regular duties that allow the employee to modify digital security systems established to prevent the unauthorized use of the employer's or client's network or databases.

Nothing in the new law prohibits employers from requesting or receiving consumer credit history information pursuant to lawful subpoenas, court orders or law enforcement investigations.

December 21, 2015

Who's On First? - Fair Use Decision in "Hand to God" Infringement Suit

By Barry Werbin

This case involves the hit off-Broadway show "Hand to God" (with a run time of one hour and 55 minutes), which incorporated a little over a minute of Abbott & Costello's famous Who's on First comedic routine as part of a sketch featuring the lead character in the show and his hand puppet. The same scene had also been incorporated into a promotional video to commercially promote the show and sell tickets.

The original routine had been performed by the comedic duo in different lengths in two Abbott & Costello films, One Night and The Naughty Nineties, for three minutes and almost nine minutes, respectively. After a long assessment of the plaintiffs' standing to sue and ownership of the copyrights in Who's on First, Judge Daniels upheld the show producer's fair use defense.

The court found that the first Section 107 factor, the nature of the copyrighted work, favored the plaintiffs because the original routine was a creative work, although the court viewed this factor as having less importance in light of the other factors.

The discussion about quantitative and qualitative proportionality under the third Section 107 factor is interesting, because the court found that while the minute plus segment used in the show was not insignificant, such use only "slightly" tipped the fair use scale in favor of the plaintiffs in light of the "highly transformative nature of the new use [that] ultimately outweighs this comparatively less important factor."

On the effect of the use on the potential market (4th factor), although the plaintiffs argued that they lost licensing and royalty revenues, the court found this only relevant to the market for the original work. Here, the court found it "unlikely that a reasonable observer of the new work would find that [this] reenactment of the Routine could usurp the market for the original Abbott and Costello performance of the Routine," also noting that the transformative use of the routine could arguably "broaden the market for the original work" by exposing it to an entirely new generation.

Finally, as for the second statutory factor assessing the purpose and character of the use, the court found this to be a transformative use, consistent with Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), cert. denied, 134 S. Ct. 618 (2013). The court emphasized that the Second Circuit had done away with any requirement that a use had to "comment" on an original work to warrant fair use protection. Despite the overt commercial use of the routine in the promotional video for the show, the court found this did not undermine the fair use defense because the Supreme Court had made it clear in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), that commercial use did not preclude a Section 107 defense, and that here "the for-profit secondary use [in the promo video] is not determinative...."

Applying the Second Circuit's transformative use test and assessing whether the show's use of the routine "merely 'supersede[s] the objects' of the original ... or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message," the court found that "the tone of the new performance is markedly different" than the original routine. In particular, while the original Abbot & Costello work was a two-man vaudeville comedy sketch, the use of the work in "Hand to God" "has only one actor performing the Routine in order to illustrate a larger point. The contrast between [the lead character's] seemingly soft-spoken personality and the actual outrageousness of his inner nature, which he expresses through the sock puppet, is, among other things, a darkly comedic critique of the social norms governing a small own in the Bible Belt."

Despite the routine's performance in the show nevertheless getting audience laughs, the court did not find that this defeated the transformative use argument. According to the court, the humor evoked from use of the skit in the show does not derive from Who's on First itself being funny, but for different reasons based upon an inside joke in the show's own dialogue involving the exposure of a lie by the main character. The court thus found that this statutory factor "weighs strongly in favor of Defendants."

This is one case where you'd probably need to see the show itself to make an informed assessment. Use of the skit in a commercial promotional video to promote sales, however, does raise some fair use eyebrows, as the selection of that specific content out of nearly two hours of total show content was likely done specifically because of the fame associated with the Who's on First skit itself.

Post Cariou, we likely will be seeing more district court decisions applying an even broader scope of transformative use, as this is the path now clearly defined in the Second Circuit.

The decision is available here:Whos on First decision.pdf

December 27, 2015

Congress Gave Certain Entertainment Industry Investors A Christmas Present for 2015 and 2016! Section 181 is Back for Film & TV Projects and Now Theatrical Projects, Too

By Marc Jacobson

Now, certain investors in film and theatrical projects that begin production in 2015 or 2016 may deduct their investments in the year in which the entity that receives the money actually spends the money. While tax on the profits will always have to be paid and the tax benefit of the deduction, once recouped, also creates taxable income, certain investors will get a current deduction, which is always welcome, because it reduces the investor's current tax liability.

Not every investor is eligible for the benefit of this deduction. Some prominent bloggers gloss over this requirement. (See, "The Producers Perspective," By Ken Davenport, http://bit.ly/KD181blog) Only investors who (a) have qualifying passive income, generally from real estate rents and income are eligible for this benefit, and then only up to the amount of their passive incomes in that year, or (b) are producers who pursue producing as an active trade or business, can reap this benefit. A doctor or dentist, successful stockbroker, and the like, who does not have passive rental income and who may be the traditional source of film, TV and theater investment, is not able reap the benefit of this deduction.

Revised §181 of the Internal Revenue Code (the Code) provides that investors in Film and TV Productions, and now, thankfully, Theatrical Productions, may deduct their investments in the year incurred, provided that certain steps are taken and rules are followed. When we read the Consolidated Appropriations Act of 2016 and the Protecting Americans from Tax Hikes Act of 2015 (http://bit.ly/Sec169HR2029) that President Obama signed into law on December 18, 2015, we don't see any mention of the passive activity rules. We also don't see it in the text of the old or new §181 of the Code, but we do see it in the accompanying regulations. (http://bit.ly/IRSregsForSec181)

However, any tax preparer worth his or her salt will tell you that while §181 is clear on its face and makes no mention of the passive activity rules, the taxpayer and his or her preparer must consider the entire Code when preparing a tax return. That includes things like the Alternative Minimum Tax, (http://bit.ly/AltMinTax) as well as §469 of the Code, (http://bit.ly/Sec469PassiveActivityLimited) entitled "Passive Activity Losses and Credits Limited" and its accompanying regulations.

The Code limits the benefit of deductions for Passive Activity. (Id.) Most investors in Film, TV and Theatrical Productions invest their money, watch carefully what happens with the "show," then sit back and wait for a return of capital and hopefully a profit, paid out ideally over the life of copyright. That is passive activity, completely legitimate and welcomed by the producers of and the investors in the show. Yet the Code says that if an investor does that, and does it in Film, TV and now, thankfully, Theatrical Productions, the investor can only deduct that investment against passive income received that year from real estate investments, and only up to the amount of that real estate passive income.

Therefore, if the investor had passive rental income of $50,000, but invested $75,000 in the qualifying Film, TV or Theatrical Production, only $50,000 would be deductible. If the investment were $35,000, then the full amount of the investment would be deductible, because the passive income exceeded that amount. All of this, of course, assumes that the entity that receives the investment owns the property, spends the money, makes the proper election in a timely fashion, and otherwise complies with the law. (This blog is only to alert people to the overall limitations on the benefit of the investment, and not to discuss all the steps necessary to qualify for the deduction.)

The only other method by which the investment can be deducted is if a person who is already active in the trade or business of the production makes the investment. The Tax Court in Storey v. Commissioner (http://bit.ly/Storey-v-Commissioner) outlined how a documentary filmmaker was found to be a producer and thus eligible to reap the benefit of the Code §181. It is instructive for the rest of us about what constitutes being active in a trade or business sufficient to qualify as a producer eligible for the current deduction.

The following assumptions show how this works on a film production with a cost of $2 million, received and spent entirely in one calendar year, where the traditional model applies where the investors recoup their money in full, first, before any "profit participation" is distributed to talent or other contributors to a film:

• The production follows the steps necessary to qualify under §181 when filing its tax return for the year in question.

• The investors all have passive rental income in excess of their individual investments.

• All of the investors are in a tax bracket of 50%

• The production then receives license income of $1.5 million, significantly less than the cost of production.

In this example, the investors in the aggregate had a net after-tax risk of $1 million, since the deduction "saves" them 50% of the actual cost of the investment. When the production receives $1.5 million as license income, the investors will receive cash of $1.5 million, an amount in excess of their tax-advantaged investments, thus creating taxable income. Although the production's license income is less than the cost of production, the investors are "in profit" before the picture itself reaps a cash on cash profit. This surely will continue to be an incentive for such investors to invest again with that producer, and with other producers as well.

The reinstatement of §181 for 2015 and 2016 is a welcome incentive for producers and will likely help create more films, TV shows, and live theatrical events. It is only for a certain few, however. Further, its effect is to only accelerate the deductibility of the investment, which is only meaningful for as long as the show does not return the investment or a profit. Tax will always need to be paid on income in excess of the tax-advantaged investment. It is important to consult with a tax advisor for more information.

December 19, 2016

He Wanted to Be a Producer

By, Bennett Liebman
Government Lawyer in Residence, Albany Law School

President-elect Donald Trump on November 19th tweeted a series of complaints about how the cast of the hit musical "Hamilton" had treated Vice President-elect Mike Pence. This was hardly the President-elect's first foray onto the Great White Way. In fact, he has been involved with Broadway for over 45 years, including a brief but unsuccessful stint as an investor and associate producer in 1970.

Soon after graduating from college, the 23-year-old Trump invested in the Broadway show "Paris is Out", which opened on Broadway in the winter of 1970. "Paris Is Out" was a comedy about an elderly Jewish couple who was planning a long-anticipated trip to Europe, while simultaneously dealing with problems about their children. It starred the venerable actors Molly Picon and Sam Levene. Trump, with a $70,000 investment, financed half the production cost. The Playbill program for the show lists David Black as the producer "in association with Donald J. Trump." Trump's bio in Playbill read, "Donald J. Trump who joins Mr. Black in this production as Associate Producer is making his theatrical debut. He is in the investment and real estate business, and will be associated with Mr. Black in his new musical, W.C." ("W.C." was never made.)

While Trump allegedly was not involved in the day-to-day production of the show, the production team was extraordinarily enterprising in its approach to the show. "Paris Is Out" was not a good show. It was unlikely to be a critical success. It was likely, however, given its stars and subject matter, to appeal to a distinct crowd of Jewish senior citizens who frequented the theater. The first innovation of the production team was to reduce the role of the critics by not officially opening the show. The show went into previews on January 19, 1970, and there was not to be any opening night. Instead, the critics were invited to attend the show several weeks after it started. At that point, critics would be welcome, and tickets would be made available to them. Management would not be soliciting any reviews. The producers ran ads from alleged theatergoers, and even from critic Rex Reed, in support of their non-opening night policy.

The policy was modified after critics threatened to review the play after its first preview. The critics were urged to come to the show but only after the show had been frozen. After the Associated Press and the Newark News had reviewed the play during its first week in previews, the policy was further changed to invite the critics to attend the show from January 28th to January 31st, with reviews embargoed for publication until February 3rd. Even then, the Daily News refused to review the show.

Not unexpectedly, the reviews were dismal. George Oppenheimer in Newsday found it "embarrassingly bad" and suggested that "Paris Is Out" "is the sort of play whose situations and dialogue you whistle as you enter the theater." Clive Barnes in the New York Times found the show "pitiable" with the writing "deplorable." Walter Kerr for the New York Times added, "I simply sat there and looked at it." He found the production "professional while the play is not."

Martin Gottfried for Women's Wear Daily was probably the most venomous. He wrote, "Frankly, it is terrible - gross, thick-witted, senseless, humorless, narrow-minded, hypocritical, boring, archaic, exclusively commercial, embarrassing, short-sighted, long-winded, uneducated, uninformed, uninteresting and unsuited for anyone un-Jewish and under age 50."

In fairness, most every reviewer mentioned that the audience seemed to love the show. There were also a minimal number of critics that liked it. The Wall Street Journal found it "warmly entertaining." Undoubtedly the most favorable review appeared in the horse racing daily, The Morning Telegraph. Its reviewer Leo Mishkin found the play to be "rich and delicious and as filling as a large helping of apple strudel." A play was surely in trouble when this was its main booster.

Faced with these harsh reviews, but with a receptive audience, the production team remained steadfastly creative. In an era when almost all shows held only two matiness (Wednesday and Saturday), "Paris Is Out" became the first show to move to four matiness. It had afternoon performances on Wednesday, Thursday, Saturday and Sunday. Business appeared to pick up for a time, but sank in April of 1970. The final performance of the show was April 19, 1970. Variety claimed that it ran 96 performances with 16 previews.

The show had a brief afterlife when the actor Pat O'Brien and his wife Eloise converted the show from a Jewish family comedy into an Irish family. They toured with the show across the country on the straw hat circuit and dinner theater circuits for half a decade. However, the play has hardly been seen in the past 35 years.

November 20, 2017

Conducting Salary Discussions in New York City after November 1, 2017

By Marc Jacobson, Esq.

Don't ask for an applicant's salary history, whether for you or your client, when interviewing that applicant for employment in New York City.


You were asked to represent a film production to take place in NYC. As part of that engagement, you were asked to negotiate agreements for the director, cast members, and for the department heads, including makeup, sound, transportation, costumes, and others.

Calls start coming in and you're ready to get to work. An actor's agent confirms that her client wants to play the female lead. In turn, you say the role requires eight consecutive weeks of shooting preceded by one week of rehearsal. You want to minimize costs for the production, and ask: "What's her quote?", meaning, what was her fee per week on her last film?

Or, you're working on any other NYC production--a TV show, play, or music video-- and you need to negotiate the agreement for the Costume or Set Designer. You ask each agent for a quote.

Under a new law, now in effect in NYC, each such question can subject the production to a fine of $125,000.

Section 8-107 of the NYC Administrative Code was recently amended to add a new subdivision 25. That subdivision prohibits employers from inquiring about or relying on a prospective employee's salary history prior to setting a new salary. When enacting the law, the council said: "When employers rely on salary histories to determine compensation, they perpetuate the gender wage gap. Adopting measures like this bill can reduce the likelihood that women will be prejudiced by prior salary levels and help break the cycle of gender pay inequity."

It is now unlawful for an "employer, employment agency, or employee or agent thereof:
1. To inquire about the salary history of an applicant for employment; or
2. To rely on the salary history of an applicant in determining the salary, benefits or other compensation for such applicant during the hiring process, including the negotiation of a contract."

There is a definition of "inquire" in the code as well:
" 'to inquire' means to communicate any question or statement to an applicant, an applicant's current or prior employer, or a current or former employee or agent of the applicant's current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant's salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant's salary history, but does not include informing the applicant in writing or otherwise about the position's proposed or anticipated salary or salary range."

The term "salary history" is also defined: "For purposes of this subdivision, 'salary history' includes the applicant's current or prior wage, benefits or other compensation. 'Salary history' does not include any objective measure of the applicant's productivity such as revenue, sales, or other production reports."

The employer, or its representatives, "may, without inquiring about salary history, engage in discussion with the applicant about their expectations with respect to salary benefits and other compensation..."

Going further, and making these interviews/negotiations even more awkward, "where an applicant voluntarily and without prompting discloses salary history to the [employer or its representatives] the employer [or its representatives] may consider salary history in determining salary benefits and other compensation for such applicant, and may verify such applicant's salary history."

If you're in the midst of such a discussion, you cannot "prompt" the applicant to tell you his or her salary history. Further, if you learn it from another source, you also cannot "rely" on it in determining the salary of the applicant.

However, if the applicant voluntarily reveals that information to you without prompting, you can rely on the information, and make whatever decision you want.

Without a tape recording of every conversation between the employer or the employer's representatives, and the applicant or the applicant's representatives, it seems like whatever happens in these calls will be difficult to prove.

Under §8-126 of the NYC Administrative Code, if the Human Rights Commission, which has the authority to enforce the new subdivision, finds that a person "has engaged in an unlawful discriminatory practice, it may, to vindicate the public interest, impose a civil penalty" of not more than $125,000. This penalty is in addition to the complainant's right to bring a private action under the code. Criminal misdemeanor penalties are available for "any person who shall willfully resist, prevent, impede or interfere with the commission or any of its members or representatives in the performance of any duty" under the code.

Whether acting for yourself or your clients, it is now a violation of the NYC Administrative Code to inquire about salary history, or to rely on salary history, to determine the salary of any employee.

Link to the NYC Charter: https://www1.nyc.gov/site/cchr/law/chapter-1.page#8-107.1

The code, as enacted, with summary of the law: http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2813507&GUID=938399E5-6608-42F5-9C83-9D2665D9496F

Marc Jacobson, Esq. is the Founding Chairman of the NYS Bar Association Section on Entertainment Arts & Sports Law. He speaks regularly at bar association and other events about issues related to his practice. He is licensed to practice law in New York, California, and Florida. He can be reached at marc@marcjacobson.com or +1-212-245-8955. www.marcjacobson.com

About Theater and Performing Arts

This page contains an archive of all entries posted to The Entertainment, Arts and Sports Law Blog in the Theater and Performing Arts category. They are listed from oldest to newest.

Publicity is the previous category.

TV and Radio is the next category.

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