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April 14, 2009

Your Albany Top Ten List

By Bennett Liebman

Many entertainment, arts, and sports law practitioners in New York look at Albany as some sort of foreign land. It’s almost like the old Saul Steinberg New Yorker “View of the World” cover. This time, instead of looking west, we look north with entertainment and arts civilization ending at the Bronx –Westchester border. There might be dots in the picture for outposts like Woodstock, Saratoga Springs, or Caramoor, but basically any locale north of New York City would be deemed a cultural wasteland. How can a town with arcane ways and less than 100,000 people determine the entertainment and arts policies governing the nation’s – if not the world’s - entertainment and arts hub? It’s like Sparta exercising artistic dominion over Athens, or if the Philistines had defeated the Israelites.

One of the major legislative issues has already been resolved. That is the sales tax on admissions issue. Governor Paterson in his budget had initially proposed to extend the sales tax to various amusement charges. He anticipated that this action, when fully implemented, would have increased state revenues by $70 million. The budget plan extended the State’s 4% sales tax and any applicable local sales tax to admission charges. Thus, per the State Budget division, there would have been a sales tax imposed “for admission to horse racing tracks, boxing and wrestling events, live dramatic and musical arts performances, circuses, motion picture theaters (whether or not to see a movie), and places where patrons will participate in a sport such as a swimming, bowling, tennis, etc.”

The provision was adamantly opposed by Broadway theaters, ski resorts, and bowling alleys. The New York Times even wrote an editorial against its application to Broadway stating “An entertainment tax should certainly stay in that mix, especially when it comes to thriving businesses like movies, sports events, concerts and dog shows. When it comes to Broadway, only a smaller levy makes sense -- and even that should be short term.” The Governor withdrew this proposal and a host of so-called “nuisance” taxes on March 11 and replaced them in his budget with federal stimulus funds.

Without trying to decipher Albany’s ways, this is an attempt to develop a top ten list of the initiatives in Albany that are likely in 2009 to affect the arts, entertainment, and sports fields. It’s where the netherworld meets the entertainment world.

10. Mixed Martial Arts Legalization – This recession seems to be the most likely time for an attempt to legalize mixed martial arts competition. It may be the fastest growing sport in the nation, and its proponents are likely to claim that he sports’ legalization will have a significant positive economic effect on New York.

9. Video Lottery Terminals at Racetracks – Video lottery terminals are instant lottery tickets that are dispensed in a manner that makes them indistinguishable from slot machines. They are now at all the State’s harness racing tracks. Negotiations with an ostensible winning bidder to bring VLT’s to Aqueduct Racetrack in Queens failed this month. Current state law prevents VLT’s from being used at Belmont Park on the Nassau-Queens border. Will VLT’s be expanded to include Belmont, which could bring in hundreds of millions of dollars to the State? Will the negotiations over Aqueduct be resolved? Will efforts be made to expand the definition of a lottery to include electronic table games and/or traditional slot machines? What composer Frank Loesser in Guys and Dolls might have called the “oldest established permanent floating gambling debate” will certainly continue in Albany.

8. Baseball and Brodsky- Powerful and outspoken Assemblyman Richard Brodsky of Westchester County has been engaged in a running war with New York Yankee president Randy Levine over the financing of Yankee Stadium. Brodsky has challenged the financing as corporate welfare for the richest team in baseball. He has called on the IRS to review the stadium deals of both the Yankees and Mets. The Yankees through Levine have accused Brodsky of political grandstanding. The issue becomes what the end game for each of the participants is and what impact there will be on the sports teams and the taxpayers of New York.

7. Stimulus money – It may not be a legislative issue, but a major issue facing the entertainment industries will be whether they can access federal stimulus moneys. For example, will there be federal stimulus money available to help construct Bruce Ratner’s Atlantic Yards project which is supposed to house the stadium for the relocated New Jersey Nets? Will there be stimulus funds for Broadway theaters or for arts projects?

6. The OTB’s – With the horse racing industry seeming to crater in New York State and in the nation, what will become of the six regional OTB’s in New York State. The commercial racetracks all have video lottery terminals. The New York Racing Association has considerable State support and is on the verge of having VLT’s. But the OTB’s – which are six separate public benefit corporations – have little backup. There is a State task force that is supposed to report on the overall issue, but issues of privatization, consolidation, and shared services have proven difficult in the past to deal with.

5. Ticket Resales – Major issues have sprung up nationwide over the resale practices of companies offering concert tickets. There have been incidents in the United States and Canada where concert ticket go up for sale at Ticketmaster, are quickly sold out, and then reappear at high prices on Tickets.now, a reseller of tickets owned by Ticketmaster. This has become an issue that attorney generals and legislators are likely to review. If there are going to be probes of resalers, it is also likely that these investigations will look at fees and service charges of the ticketing companies. The proposed merger between Ticketmaster and Live Nation is also likely to be subject to legislative criticism.

4. Museum Art Sales – With endowments shrinking due to the massive losses of the stock market, some museums have resorted to selling portions of their collections to pay their operating costs. This is a practice that has been frowned on by much of the museum world, which does not believe that works of art should be used to monetize museum collections.
To accomplish this goal, the omnipresent Assemblyman Brodsky has introduced A. 6959 which would create rules for deaccessioning items in a museum's collection and which would regulate the use of funds received from deaccessioned items. Museums would be required to adopt a binding collection management policy and a mission statement. Items can only be deaccessioned if certain criteria have been met, and “any museum disposing of an item must make a good faith effort to sell or transfer such item to another museum in New York state.” Proceeds derived from the deaccessioning items from a museum’s collection may not be used for normal operating expenses. It remains to be seen if this legislation will be regarded as overly burdensome by much of the museum community and encounter significant resistance.


3. Broadway Generally – With a slew of 13 play closings on Broadway in January and a depressed market in general, the Broadway theaters are looking to Albany for some measure of relief. In the best of all possible worlds, they would like to see some Broadway theater credit much in the same manner as the film production credit. Budgeteers in Albany might tend to view the Broadway stage as a captive industry. Unlike the film industry, it cannot pick up and move to a different state or province. Thus, they may be unlikely to find money for Broadway when Albany is already under fiscal stress. Will there be other measures such as Assemblyman Brodsky’s bill A. 5062 which would authorize the State Power Authority to provide electricity to Broadway and off-Broadway theaters, or will Broadway be fortunate to thank its lucky stars that the sales tax on admissions was not extended to Broadway shows?

2. The Film Credit – In last year’s budget, Governor Paterson and the legislature passed a film production credit which granted film and TV companies get a 30% tax break on production costs for shows shot in New York. This credit has proven so popular that its funds have been depleted, and there may not be enough money in the upcoming budget to continue to supply the credit. Governor Paterson in his budget did not propose to increase funding for the credit. Because of the uncertainty over whether the credit will continue, at least one television show, Fringe, has announced it will leave New York for Vancouver, and others are considering leaving as well. Both the studios and the labor unions have lined up in support of full funding for the credit and making the credit permanent. The AFL- CIO is in support of this tax break stating, "As the legislature debates the 2009 budget, it is imperative to give this program certainty for thousands of workers. ... We are losing jobs right now. Good-paying union jobs with benefits are leaving New York.”

This is a big ticket lobbying number. In 2009, Steiner Studios in Brooklyn reported over $125,000 in lobbying expenses on this issue last year. The Motion Picture Association of America, which was involved in other issues as well, reported over $235,000 in lobbying expenses in New York in 2008. Again, this is an issue where we may see some resolution when the State budget is passed. If the budget does not address this issue, it is likely to be around throughout the session.

1. The Dead Celebrities Bill- This is the issue which flared up at the conclusion of the 2008 legislative session involving the privacy and publicity rights of the estates of deceased celebrities. A huge publicity effort was mounted in Albany last June to obtain legislation similar to California’s Dead Celebrities Bill which was passed in 2007.Much of the lobbying effort was fueled by the estate of Marilyn Monroe. The Monroe estate (Marilyn Monroe LLC) reported $120,000 in lobbying expenses last year to pass this legislation. Numerous other groups were concerned about this issue as well including the Association of the Bar, the Broadcasters Association, the Broadway League, McGraw-Hill, the Motion Picture Association, the Screen Actors Guild, and the Cable TV Association. Another huge fight seems a sure thing in 2009. It is Albany’s answer to the Battle of the Network Stars, and it’s a sure thing that this battle of the dead celebrity stars will be more entertaining than most of the films and television shows that the dead celebrities starred in.

Bennett Liebman is the Executive Director of the Government Law Center of Albany Law School. He also serves on the board of directors of the New York Racing Association.

July 8, 2010

EASL Legislation in Albany

By Bennett Liebman

With the legislature leaving for the time-being this week, here’s where we are the major pieces of EASL legislation:

1. Dead Celebrities Rights Legislation – S. 6790 was not acted on by either house. No companion bill was even introduced in the Assembly

2. Resale of Tickets – S. 8340- A was passed by both houses. Since this legislation was a program bill of Governor Paterson’s, it is virtually certain to be signed by him. The bill permits the resale of tickets (what used to be known as scalping) until May 15, 2011.

3. The film credit legislation, which was part of the overall revenue bill in the Budget ( A. 9710-D, S. 6610-C), passed only the Assembly. The full revenue package is supposed to be the subject of future negotiation between the Governor and the two houses of the legislature. Again, there is no disagreement among any of the participants in the budget negotiations about the size of the film credit, which is supposed to be $420 million per year for the next five years.

January 15, 2012

Official White House Response to SOPA


Combating Online Piracy while Protecting an Open and Innovative Internet

By Victoria Espinel, Aneesh Chopra, and Howard Schmidt

Thanks for taking the time to sign this petition. Both your words and actions illustrate the importance of maintaining an open and democratic Internet.

Right now, Congress is debating a few pieces of legislation concerning the very real issue of online piracy, including the Stop Online Piracy Act (SOPA), the PROTECT IP Act and the Online Protection and Digital ENforcement Act (OPEN). We want to take this opportunity to tell you what the Administration will support--and what we will not support. Any effective legislation should reflect a wide range of stakeholders, including everyone from content creators to the engineers that build and maintain the infrastructure of the Internet.

While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.

Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.

We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.

Let us be clear--online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation's most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders. That is why the Administration calls on all sides to work together to pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined above in this response. We should never let criminals hide behind a hollow embrace of legitimate American values.

This is not just a matter for legislation. We expect and encourage all private parties, including both content creators and Internet platform providers working together, to adopt voluntary measures and best practices to reduce online piracy.

So, rather than just look at how legislation can be stopped, ask yourself: Where do we go from here? Don't limit your opinion to what's the wrong thing to do, ask yourself what's right. Already, many of members of Congress are asking for public input around the issue. We are paying close attention to those opportunities, as well as to public input to the Administration. The organizer of this petition and a random sample of the signers will be invited to a conference call to discuss this issue further with Administration officials and soon after that, we will host an online event to get more input and answer your questions. Details on that will follow in the coming days.

Washington needs to hear your best ideas about how to clamp down on rogue websites and other criminals who make money off the creative efforts of American artists and rights holders. We should all be committed to working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet. Our hope is that you will bring enthusiasm and know-how to this important challenge.

Moving forward, we will continue to work with Congress on a bipartisan basis on legislation that provides new tools needed in the global fight against piracy and counterfeiting, while vigorously defending an open Internet based on the values of free expression, privacy, security and innovation. Again, thank you for taking the time to participate in this important process. We hope you'll continue to be part of it.

Victoria Espinel is Intellectual Property Enforcement Coordinator at Office of Management and Budget

Aneesh Chopra is the U.S. Chief Technology Officer and Assistant to the President and Associate Director for Technology at the Office of Science and Technology Policy

Howard Schmidt is Special Assistant to the President and Cybersecurity Coordinator for National Security Staff

October 17, 2012

Message from the Chair

By Rosemarie Tully

I am pleased to report that two bills that EASL reviewed and helped shape were recently signed into law by the Governor. Below are brief summaries of the two pieces of legislation excerpted from my Remarks in the upcoming EASL Journal.

Arts Consignment Law

On legislative issues, EASL's voice was front and center. Under the leadership of EASL's Immediate Past Chair, Judith Prowda, EASL helped shape an amendment to the Arts and Cultural Affairs Law (NYSCAL) relative to consignments of works of art to art merchants by artists, their heirs and personal representatives (the Arts Consignment Law). The revised statutes, Articles 11 and 12 of the NYSCAL, serve to strengthen pre-existing trust property and trust fund provisions, fortifying the rights of consignors (and their heirs) which rights otherwise may have been lost. This legislation was passed, signed into law by the Governor, and will be effective as of November 7, 2012.

Talent Agency Law

EASL also reviewed and supported amendments to the General Business Law and the Arts and Cultural Affairs Law in relation to theatrical employment agencies (the Talent Agency Law Revisions). Founding Chair Marc Jacobson spearheaded EASL's working group on this issue. Among the changes, the amendments add a definition for "artist," adjust the writing requirement for agency contracts, and deal with agency fees relative to negotiation or renegotiation on original or pre-existing contracts. In sum, the revisions clarify and create consistency in the regulation of theatrical employment agencies. This legislation was passed and signed into law by the Governor on October 3, 2012.

February 1, 2016

Proposed Legislative Language to Amend the Definitions of "Theatrical Employment Agency" Under NYS GBA and NY Arts and Cultural Affairs Law

By Marc Jacobson and Steve Richman

The Entertainment Arts and Sports Law Section (EASL) of the New York State Bar Association (NYSBA) recommended to the Executive Committee of the NYSBA that legislation be introduced and enacted amending the definition of "Theatrical Employment Agency" to specifically exempt attorneys duly licensed and actively practicing in the State of New York from these licensure requirements of the General Business Law and the Arts and Cultural Affairs Law.

On Thursday, January 28, 2016, the Executive Committee unanimously approved the recommendation. Beginning this week, members of the staff of the NYSBA and members of the EASL Executive Committee will work to identify appropriate legislators to introduce the legislation.

This proposed legislation would protect attorneys from additional regulatory requirements as well as potential civil and criminal sanctions in performing legal services for clients who are Artists as defined under the New York General Business Law §171.8-a. Such services may include procuring or attempting to procure employment or engagements for such Artists. The current language of General Business Law §171.8 and Arts and Cultural Affairs Law §37.01.3 exempts personal managers from the license requirement if they only incidentally seek employment for their clients. This proposal would add a similar exemption for licensed attorneys at law.

The legislation would add the following concluding sentence to both General Business Law §171.8 and Arts and Cultural Affairs Law §37.01.3.:

AN ACT to amend the definitions of "Theatrical Employment Agency" under the New York State General Business Law, Article 11, §171.8 and the New York Arts and Cultural Affairs Law, Article 37, §37.01.3, to exempt attorneys duly licensed in the State of New York from the requirement of securing an employment agency license to negotiate or otherwise assist in obtaining employment contracts for Artists.

1. Section 171.8 of the General Business Law is amended by adding the following concluding sentence:
The provisions of this subdivision shall also not apply to persons duly engaged in and admitted to the practice of law in the State of New York, pursuant to the rules of the Court of Appeals of the State of New York and in good standing in accordance with the provisions of the New York State Judiciary Law, §468 and the rules of the Chief Administrator of the Courts.

2. Section 37.01.03 of the Arts and Cultural Affairs Law is amended by adding the following concluding sentence:
The provisions of this subdivision shall also not apply to persons duly engaged in and admitted to the practice of law in the State of New York, pursuant to the rules of the Court of Appeals of the State of New York and in good standing in accordance with the provisions of the New York State Judiciary Law, §468 and the rules of the Chief Administrator of the Courts.

A more detailed memorandum will be prepared and made available when the legislation is introduced.

About Legislation

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