When time came to pick a location for the Entertainment and Sports Law Society's annual symposium, Jason Sosnovsky, the group's president, had a novel idea. Instead of holding the event on campus, as in years past, ESLS would host it in a new, much higher-profile location: the Miami Marlins' new home, Marlins Park.
"I put together a 20-page proposal about ESLS, the symposium, and the mutual benefits of having the symposium at Marlins Park," said Sosnovsky, who is in his final year at Miami Law. Sosnovsky then sent the proposal to Marlins' Vice President and General Counsel Derek Jackson. He was receptive, but scheduling the event would depend on factors largely out of his control — completion of the stadium and the Marlins' 2012 schedule, which officials at Major League Baseball had yet to release.
"If the Marlins were at home, Mr. Jackson preferred not to have the symposium, so we had to wait for MLB to release the schedule," Sosnovsky said. "Ultimately, however, the Marlins and Mr. Jackson were very accommodating, allowing us to move the symposium to April 14, even though the team had a game that evening."
Securing Marlins Park for the ESLS symposium was a victory for both ESLS and Miami Law. "The E-board really raised the bar this year, putting together an impressive event at such a great venue," said Marissa Eliades, 3L, the outgoing Vice President of Entertainment for ESLS.
After months of planning, and with Marlins Park as a breathtaking backdrop, ESLS and the Marlins co-hosted 31 panelists and more than 130 students and professionals last Saturday at the 15th Annual Entertainment and Sports Law Society Symposium. The panelists spoke on a host of matters in the field of sports and entertainment law, including protecting a client's image, leveraging social media, and the changing landscape of copyright law.
In addition to the panel discussions, symposium attendees were given a tour of the park's impressive new facilities, with some attendees sticking around to catch the Marlins playing against the Houston Astros. (The Astros won, 5-4, although the same score went in the Marlins' favor the following day.)
Saturday's symposium began with Sosnovsky introducing the ESLS executive board and welcoming the crowd in one of the Marlins' press conference rooms. After breakfast, Sosnovsky directed the attendees to the first panel discussion in an adjacent conference room, one with all the bells and whistles one might expect in a new ballpark, including a series of high-definition flat-panel displays showing off the Marlins' vibrant new logo and colors.
Those unfamiliar with the sports and entertainment law practice might assume that an attorney's daily routine mimics that of mercurial talent agent Ari Gold, Jeremy Piven's character on the HBO series Entourage. While many of the panelists do engage in high-level contract negotiations for entertainers and athletes, the sports and entertainment law practice involves matters far beyond what is portrayed on the tube.
As illustrated by the attorneys on the first panel — which focused on protecting the client's image — a sports and entertainment law attorney's practice will focus on a variety of matters. "You really need to master a bunch of areas of practice," advised Steve Olenick, a transactional business attorney who represents numerous professional athletes and sports agents.
Part and parcel of protecting a client's image is the need to ensure that third parties refrain from producing and marketing content that seeks to capitalize on the fame and success of your client, explained Brad D. Rose, a partner at Pryor Cashman LLP and head of the firm's IP department.
Throughout his career, Rose has worked for clients across the entertainment industry. "I've represented media companies, recording artists, actors and athletes, fashion designers, and trademark licensors and licensees," he said. In a recent case, Rose was part of a legal team for recording artist Lady Gaga that sought to stop an online gaming company, Mind Candy, from marketing and selling the music of an animated character, Lady Goo Goo, who had first appeared on the children's social network Moshi Monsters and later on YouTube. Mind Candy — Moshi Monsters' parent company — decided it would attempt to profit on the Lady Goo Goo image by selling her performances on iTunes, Rose said.
"It became clear that the character was not a fair use," he explained, arguing that Lady Goo Goo was an unmistakable infringement on Gaga's name and likeness. Ultimately, Rose's legal team was able to secure an injunction against Mind Candy, prohibiting the company from marketing and profiting on the Lady Goo Goo character.
In the same vein, attorney Darren Heitner is familiar with what it takes to protect a client's image and likeness. Heitner, an associate at Wolfe Law Miami P.A., focuses on sports and entertainment law and intellectual property litigation. As a part of his practice, Heitner represents Mike "The Situation" Sorentino, of the MTV reality show Jersey Shore, who recently brought an action for false advertising and trademark infringement against the retailer Abercrombie & Fitch.
The suit arose from a press release that the retailer issued last year, in which it claimed to have offered Sorentino "a substantial payment" to cease wearing its branded clothing on the Jersey Shore. "No such offer was ever made," explained Heitner. Instead, according to Heitner, the retailer issued the press release as a publicity stunt to promote a new line of Abercrombie t-shirts, which infringed on Sorentino's "The Situation" trademark.
"In its defense, Abercrombie & Fitch claimed that [Sorentino] is news worthy," explained Heitner, drawing laughter from the crowd. Accordingly, the company argued that its line of "The Fitchuation" t-shirts fall under the fair use exception of the Lanham Act (the "Trademark Act").
Sorentino's lawsuit remains pending.
Trademark applications for catchphrases such as Sorentino's have been increasing in number, according to Jaime Vining, a partner at Friedland Vining PA and adjunct professor of trademark law at the University of Miami School of Law. Vining said that this is especially true of catchphrases that become overnight Internet sensations, such as Charlie Sheen's "Duh, winning!"
"People are really trying to capitalize on the instant fame," said Vining, who counsels clients on the acquisition of new trademarks. Vining pointed to the widespread popularity of "Tebowing," a gesture popularized by the former Denver Broncos quarterback Tim Tebow, in which he bends down on one knee and bows his head, ostensibly in prayer.
"The number of trademark applications for 'Tebowing' has gone through the roof, as people are trying to capitalize on Tebow mania," Vining said. Unfortunately for those applying for the "Tebowing" trademark, the term "likely falls under section 2(c) to the Trademark Act," Vining said, referring to a law that prohibits registration of trademarks that identify particular living individuals without their written consent.
For Rob Rosner, who graduated from Miami Law in December 2011, it was the third ESLS symposium that he has attended in as many years. "Each year has been very rewarding," said Rosner, who is pursuing a career in collegiate athletics administration. "One of the many reasons I chose UM for law school was the fact that an organization like ESLS exists."
The real draw of the symposium — apart from the stadium itself — was the high-level talent invited to speak, Rosner said. "Each year," he went on, "the Executive Board for ESLS has managed to bring in a diverse group of talented and powerful people in the industries of sports, music and entertainment."
To Sosnovsky, there is no reason for next year's symposium to be any less impressive. "I think that ESLS is in great hands moving forward," Sosnovsky said, mentioning Shelby Nathans, the group's incoming President, and the rest of the Executive Board, which he said is primed "to continue our great programming and work throughout the entertainment and sports industries."