Posts Tagged ‘Burlesque’

Burlesque Law News, Part III: The “Dramatic Arts” Tax Exception & Pole Dancing

April was the biggest month so far for 95years.    We’ve also had two articles on Burlesque on the front page for the entire month.  Using superior law school LSAT logic, I can deduce that sex sells around these parts.  Therefore, I present you with the third article in our continuing coverage of burlesque law. I’m also going to attempt to make tax law interesting, so please bear with me.

In New York, the Tax Law §1105(f)(1) includes a sales tax exception for admission fees paid to venues holding dramatic or musical arts performances.  Tax Law §1101(d)(5) further clarifies the definition of such a venue as “a theatre, opera house, concert hall or other hall or place of assembly for a live dramatic, choreographic or musical performance.”   Without going off on a tangent about the legal history of exotic dancing, it is generally accepted that burlesque falls under the purview of a Dramatic and Musical Art performance.  However, a crucial distinction must be made between a theater and a cabaret.  A cabaret is taxable under Tax Law § 1105(f)(3) and is defined in § 1101(d)(12) as a place “which furnishes a public performance for profit, but not including a place where merely live dramatic or musical arts performances are offered in conjunction with the serving or selling of food, refreshment or merchandise, so long as such serving or selling of food, refreshment or merchandise is merely incidental to such performances.”  Therefore, if a burlesque show just happens to be occurring at a venue where concessions drive the profit model (i.e. most nightclubs), they’re still on the hook for taxes.

These two sections of the tax code have come under scrutiny in a recent NY Tax Appeals Tribunal Case.  An Albany-Area strip club called Nite Moves, owing $129,000 in back taxes, attempted to argue that pole dancing, like burlesque, was a dramatic art entitled to the tax exception Further, the club argued that their venue was not a cabaret where drink sales were merely incidental to said dramatic art.  The appeals court overturned a prior Administrative Law Judge’s ruling that pole dancing is art and thus entitled to the exception.  Citing that while pole dancing moves are, as the ALJ Catherine Bennet said, “no small feat,” that does not make them art.  The tribunal further explained that their ruling was based largely on the fact that the dance moves were basically copied from youtube instructional videos on pole dancing and didn’t necessarily rise to the overbroad definition of choreography relied on by Bennett.  Further, the sales of juice (fully nude strip clubs are not allowed to sell alcohol in NY) were second only to revenues from pole and lap dances, and could not be described as incidental to the performances.  The NY Law Journal further breaks down the case. One interesting tidbit is that the club’s attorney is a Mormon running on the Libertarian ticket for Governor of Utah.  Hopefully the fact that the article mentions him as a patron of the club won’t work against him in the gubernatorial race in such a wildly conservative state.

 

Burlesque Law News, Part II: Are Strippers Employees or Independent Contractors?

Our Burlesque Law News Series continues today with a story in the Daily Caller by a pseudonymous Massachusetts ecdysiast who does a great job of livening up Massachusetts employment law by explaining how a recent court decision is shaking up the state’s strip club industry.

In Part I of “Stripped by Massachusetts,” the author discusses how a wage and hour class action suit in Massachusetts, alleging that some strip clubs in the state improperly classified strippers as independent contractors rather than employees, will likely lead other clubs to force strippers to become employees in order to minimize damages from any future lawsuits. She also quite capably explains the legal standard in Massachusetts for determining whether one is an employee or an independent contractor.

In Part II of “Stripped by Massachusetts,” the author expresses her chagrin with what she sees as the likely outcome of the suit, stating, “[m]y independence has been sacrificed for a $2.63 per hour wage, some workman’s comp and Social Security that I likely will never see.” She also sends out a proxy to gauge other strippers’ reactions. According to her admittedly unscientific poll, “16 of 22 dancers hate the new system,” because it leads to lower overall profit, greater oversight by club owners, and fewer tax deductions.

Read Part I of our Burlesque Law News series here.

Photo from “Wheels of Burlesque” by http://www.flickr.com/photos/eschipul/ / CC BY-SA 2.0

 

Burlesque Law News, Part I: Pussycat Dolls Tribute Acts Take Copyright and Trademark Dispute to Court

In burlesque-law news, a Seattle woman, Kristen Colliander, has sued her former employer, Goldberg Entertainment Inc., for whom she claims she created and developed “The Angels: A Pussycat Dolls Tribute.” (For those of you unfamiliar with mid-2000s pop-dance music, the Pussycat Dolls, per Wikipedia, are “an American pop girl group and dance ensemble founded by choreographer Robin Antin in 1995 as a burlesque troupe.”)

Colliander and Goldberg parted ways and are now competitors. Goldberg has continued to use the name “The Angels” for its PCD tribute act. Colliander, nonplussed, alleges that she holds a common-law trademark in the word “Angels” for the show, and that Goldberg is infringing not only upon that trademark, but upon her copyright in various promotional materials and on the “unique pseudonyms, images and likeness [sic]” allegedly created by Colliander for “The Angels.” She also alleges Lanham Act violations and violation of Washington’s right of publicity statute. We’ve made Colliander’s complaint available here. (Read more about the case at Seattle Trademark Lawyer and at Property, intangible.)

I’ve never looked into legal issues surrounding tribute acts, but asserting one’s intellectual property rights in material created in the process of performing another group’s songs while dressed up like that group is courageous, to say the least. However, there are indeed some distinct similarities in the two groups’ promotional material that might support Colliander’s allegations.

Colliander’s current PCD tribute group, the “Pussycat Angels,” is featured here on the website of Titan Entertainment. Goldberg Entertainment’s website advertises the Colliander-less “Angels” here.

A glance at both pages (see above) reveals that the “Pussycat Angels” and “Angels” logos are basically identical. The complaint alleges only common-law copyright infringement in what it describes as “Plaintiff’s ‘Angels’ common-law trademark” (see Complaint, p. 7.). However, the complaint doesn’t distinguish between a mark in the common word “Angels” and the more distinctive “Angels” logo used by both acts. Assuming Colliander created the “Angels” logo, a comparison of the logos at the very least suggests something is awry. (Additional trademark or unfair competition analysis would require information not provided in the complaint, such as whether Colliander has any evidence supporting a finding of a likelihood of confusion, or actual confusion, between the two groups due to the similarity of the marks.)

Additionally, Goldberg’s “Angels” are advertised as “[o]ne part dance. One part vocal chops. Mix well with personality plus, sexy costumes, and a band that rocks the house.” Colliander’s “Pussycat Angels” are advertised as, you guessed it, “[o]ne part dance. One part vocal chops. Mix well with personality plus, sexy costumes, and a band that rocks the house.”

If Colliander wrote the advertising copy, her copyright infringement claims might well survive a motion to dismiss. I would expect Goldberg Entertainment’s defense to focus on the extent to which there is evidence that, because Colliander was a Goldberg employee, her efforts were work for hire and therefore the property of Goldberg, not Colliander.

We’ll be bringing you more burlesque law news shortly. No, I am not kidding.