March 22, 2017

Supreme Court 6-2 Decision in Star Athletica, LLC v. Varsity Brands, Inc.

By Olena Ripnick-O'Farrell

This morning, the Supreme Court decided Star Athletica v. Varsity Brands, Inc., holding that that decorative elements of a cheerleading uniform could be protected by copyright law.

In a decision written by Justice Thomas, the Court ruled that such expression could be protected only if it "can be perceived as a two- or three-dimensional work of art separate from the useful article" and that it would qualify as protectable expression "if it were imagined separately from the useful article into which it is incorporated."

The ruling is limited, in that Varsity can sue to stop reproduction "only of the surface designs on a uniform or in any other medium of expression." Justice Thomas wrote that "[r]espondents have no right to prevent anyone from manufacturing a cheerleading uniform that is identical in shape, cut, or dimensions to the uniforms at issue here.""

March 20, 2017

Week in Review

By Tiombe Tallie Carter

Trump Proposes Eliminating the Arts and Humanities Endowments

National Endowment for the Humanities (NEH), National Endowment for the Arts (NEA), and the Corporation for Public Broadcasting -- which includes PBS, National Public Radio, and the Woodrow Wilson International Center for Scholars -- would all be scrapped if President Trump's federal budget is adopted as proposed. This nationwide elimination of arts, humanities, and culture is a complete abandonment of the ideals of an advanced civilization as declared by President Lyndon B. Johnson, when he created the national endowments in 1965. Although the endowment budget is a tiny fraction of total discretionary spending, $300 million of the $1.1 trillion, Conservatives have been trying to dismantle the endowments for years. With Republicans controlling Congress and the White House, it will take a different type of battle to preserve the endowments without the Democratic majority shield used in the past. Ironically, Ivanka Trump supports the arts, as well as Vice President Pence's wife, Karen, the latter of whom is a visual artist who also supports art therapy. It will be interesting to see if Republican arts supporters will cross their own party's president. William D. Adams, chair of the NEH, noted major contributions that the endowment has made to the humanities, including theater work by veterans of the Iraq and Afghanistan wars. Chair of the NEA, Jane Chu, called her staff together to brief them on the proposed budget so that they would not be surprised. It has been reported that Mary Anne Carter, a Trump administration's arts endowment liaison, would not have taken the position if she had known that the endowment would be eliminated. According to Teresa Eyring, executive director of Theater Communications Group, arts groups and supporters have begun a nationwide lobbying campaign to "communicate with their legislators and really try to make clear the value of this relatively modest but very important investment in our country through the arts."

EASL is included in this effort, as mentioned in this recent blog post:®ion=Header&action=click&contentCollection=Arts&pgtype=article

Below, for your browsing convenience, the categories are divided into Entertainment, Arts, Sports, and Media:


Members of the Italian Band Soviet Soviet Are Deported

Soviet Soviet, a three-member postpunk band, was deported before getting to perform in the United States. The trio was scheduled to play at South by Southwest (SXSW), as well as in Seattle and Southern California, via travel authorizations through the Department of Homeland Security's Visa Waiver Program (also known as ESTA). According to its Facebook statement, it was the band's understanding that because it was performing for free, the performances were promotional, and the ESTAs were sufficient for short-term travel within the U.S. Although equipped with the ESTAs, an invitation from SXSW, and a letter from their U.S. label, Felte Records, the band members were individually interrogated for 4 hours, handcuffed, and taken to jail without a chance to make any phone calls. According to a Department of Homeland Security statement to the Seattle radio station where Soviet Soviet was to perform, "it was standard procedure."

Disney Says That It Will Not Edit Beauty and the Beast for Malaysian Censors

Disney's $300 million live-action remake of its 1991 animated classic, Beauty and the Beast, has a three-second scene where two male characters dance in a ballroom. These three seconds caused the Malaysian Film Censorship Board to deem it promotes homosexuality and calls for its elimination from the film. Notwithstanding the director's admission that the scene is an "exclusively gay moment," Disney has refused to make the edits. Unlike Russia who will allow the film to be shown with the restriction that youth under the age of 16 must be accompanied by someone over 16, Malaysia will not allow the film to be shown without the edit. Disney may appeal to the Malaysian Film Appeal Committee, but to date no application has been submitted. Malaysia, with a population of 30 million, represents less than 1% of Disney's overall audience. Last year, Malaysia brought in $5.7 million of the $967 million global ticket sales for The Jungle Book.


Stolen Etruscan Vessel to Be Returned to Italy

A vase dating back to 470 B.C. and valued at $250,000 was spotted in a Midtown Manhattan gallery. The Etruscan vessel titled "Attic Red-Figure Nolan Amphora" is a "dual-handled vessel featuring a nude satyr and draped youth from the Royal-Athena Galleries." It was discovered by Christos Tsirogiannis, a researcher with the Scottish Center for Crime and Justice Research Center in Glasgow. The vase was looted and then trafficked by Gianfranco Becchina, an Italian antiques dealer who was convicted in 2011. The Manhattan District Attorney's office seized the vessel when Mr. Tsirogiannis informed it of the vase's location. The vase was returned to the Italian consul general in New York, where it will be on display before being sent to the Polo Museale del Lazio in Italy.

A New York Philharmonic Coup: Deborah Borda Is Named the New Leader

Debora Borda is the next president and CEO of the New York Philharmonic. Borda, who ran the orchestra in the 1990s, has been poached from the Los Angeles Philharmonic, where she was at the helm for the last 17 years and made significant achievements during her tenure there. She has moved the orchestra into the Walt Disney Concert Hall, which was designed by Frank Gehry, and signed Gustavo Dudamel as its music director. She also quadrupled its endowment, a skill she will need to immediately put to use in New York, since the New York Philharmonic has substantial financial challenges. When Borda ran the orchestra in the 1990s, its endowment was valued at $210 million. It decreased to $183 million during its 2015-16 season. Ms. Borda may have her work cut out for her, but the sentiment is that she's up for the challenge.


U.S. Women's Hockey Team Plans to Boycott World Championship Over Pay Dispute

The International Ice Hockey Federation World Championship to be held this month may be boycotted by members of the U.S. women's national team, due to stalled compensation negotiations. The players are seeking living wages and full support of the women's program. Law firm Ballard Spahr has taken the case pro bono. Although participation in the sport has grown considerably, with more than 75,000 athletes (compared to 23,000 in 1998), women players often have to work two or more extra jobs to make ends meet. According to a statement from U.S. Hockey executive director, David Ogrean, each player would receive $85,000 annually. However, according to Jocelyn Lamoureux-Davidson, a national team veteran, $37,500 is earned only if the team wins an Olympic gold medal, with $24,000 of that amount paid by the Olympic Committee. The women players' attorney stated that during the six-month Olympic period, the players received $1,000 per month and "virtually nothing" afterwards between Olympics. In addition to living wages, the women players are seeking support comparable to what the men's team receives: a training facility, development programs for teen girls, and international competitions between Olympics. The U.S. Hockey Federation threatened to use other players at the World Championship, should the team boycott. According to attorney John Langal of Ballard Spahr, the meeting with the federation has not "advanced the ball."

According to Meghan Duggan, the U.S. women's hockey team captain, the team decided to boycott the upcoming World Championship "because we feel like we've been ignored and this shows how serious we are about this issue." This women's hockey team fight is not dissimilar to the U.S. women's soccer fight of 20 years ago. Then, the women's soccer team boycotted a scheduled tournament game in response to a denial from the U.S. Soccer Federation for pay equality, more marketing of the sports, and financing to develop younger players. That boycott was the pivotal moment in the women's soccer team's journey for equitable treatment. The women's hockey team is represented by the same attorney, Langel, who represented the women's soccer team. He sees similarities in each federation's position: "Like U.S. Soccer back in 1998, U.S.A. Hockey is saying, 'We are not going to support the women more than we have in the past, in any significant way.'" Attorney Jeffrey L. Kessler of Winston & Strawn, experienced in professional sports leagues and who represented the U.S. women's soccer team, warned that "strikes and boycotts might not be for everyone."

The team was given a 5:00 on Thursday ultimatum by the hockey federation. The team held its ground, leaving the federation with few options. It could try to field a new team with younger, less experienced players, host the World Championship without a U.S. team, or come back to the table and work with the current team. Not long after its self-imposed deadline, the federation stated that its objective was to "continue to work toward ensuring the players that have been selected for the team are those that represent the United States in the world championship."®ion=Marginalia&pgtype=article

South Carolina Ends One Controversy and Exploits Its Neighbor's

Oh, how times have changed, or have they? The NCAA has not held a basketball championship tournament in states displaying the Confederate flag since 2002. This year, Greenville, South Carolina is hosting the NCAA's men's basketball tournament, because its state legislature ended the tradition of displaying the Confederate flag on statehouse grounds in 2015. Furthermore, now that the NCAA imposed its ban on states with anti-gay restrictions, Greenville will get to host another tournament, due to Greensboro, North Carolina's HB1 law, which "curbs anti-discriminatory protections for lesbian, gay, bisexual and transgender people" and was found discriminatory by the NCAA. This is a declaration sure to have serious effects on Greensboro, who has held so many back-to-back men's and women's tournaments that, according to Kim Strable, president of the Greensboro Sports Commission, its logo is "Tournament Town." The NCAA ban will affect Greensboro, Raleigh, and Charlotte, which submitted bids for the 2019-2022 cycle of tournaments. The ban is not limited to North Carolina, but to any state with discriminatory practices. Earlier this month, Texas tentatively approved Senate Bill 6, also known as the "Bathroom Bill," which will require transgender people to use bathrooms based on their biological sex rather than their gender identities. States with discriminatory practices will be ineligible to hold NCAA tournaments while the NCAA sticks to its mandate. "The NCAA remains committed to maintaining a college sports experience that is inclusive and fair for all individuals, regardless of sexual orientation or gender identity," according to a written statement from Mark Emmert, NCAA president.

July Sentencing Set in Cuban Smuggling Case

Bartolo Hernandez, a sports agent, and Julio Estrada, a trainer, were convicted with conspiracy and alien smuggling. A federal jury decided the two men managed an operation to get players from Cuba into the United States to be signed by Major League Baseball teams. Chicago White Sox player Jose Abreu and Seattle Mariner Leonys Martin both testified. The evidence detailed how Hernandez and Estrada used a network of "boat captains, handlers, document forgers, and phony paperwork to obtain player[s'] residenc[ies] in Mexico and Haiti before coming to the U.S.". Agent Hernandez and trainer Estrada face prison sentences of 15 years and five to 35 years, respectively. Sentencing is set for July 11th.

Penn State Ex-Officials Plead Guilty in Sandusky Case

The Sandusky scandal continues to reverberate. Ex-athletic director Tim Curley and former university vice president Gary Schultz pleaded guilty to misdemeanor child endangerment. Their original indictment in their roles in the Sandusky child molestation were with felonies punishable by over 15 years in prison. This week's plea deal reduced the charges down to five years in prison. The Sandusky case stems from a 2001 complaint of Sandusky sexually assaulting a boy in the Penn State team shower. Curley, Schultz, and ex-president Graham Spanier handled the complaint by telling ex-coach Sandusky that he could no longer bring kids on campus. This was 10 years before Sandusky was arrested. He is now serving a 30 to 60 year prison sentence for 45 counts of sexual abuse of 10 boys. In the aftermath, coach Joe Paterno was fired. He died shortly thereafter and was never charged with a crime. The costs due to the scandal are mounting: $93 million paid to 33 people who made sexual abuse allegations, $48 million in NCAA penalties, plus a $12 million verdict in favor of former assistant coach Mike McQueary's (the ex-graduate assistant who saw the team shower incident) whistle-blower and defamation case. Graham Spanier's prosecution is moving forward to trial.

Leader of U.S. Governing Body Resigns as Scandal Spreads

Steve Penny, president of USA Gymnastics, resigned on Thursday. He was CEO of the national governing body of gymnastics, reporting more than 174,000 members. Penny's departure comes in response to calls for his resignation due to accusations of negligence pertaining to the indictment of Dr. Larry Nassar. Nassar was the national team doctor from 1996-2015, who is currently in prison facing several state child sexual abuse charges and federal child pornography charges. Although Penny has received support from several prominent executives and athletes, including Olympic gymnast Mary Lou Retton, other prominent athletes, such as Olympian Dominique Moceanu, have called for his resignation.

After 29 Years, Kingpin of African Soccer Is Abruptly Shown the Door

Issa Hayatou, 70, president of the Confederation of African Football (CAF) for the last 29 years, lost his presidency to Ahmad Ahmad of Madagascar. Hayatou, the son of a sultan in northern Cameroon and the brother to a former prime minister, became president of CAF in 1988. His presidency is complex as much as it is lengthy. He changed rules that allowed him to run for eight terms and made sure to limit the pool of presidential candidates. He decided where the Cup of Nations tournament would be held and executed large sponsorship deals in dictatorial fashion. Although his presidency was mired in controversy, no one disputes his impact on the sport; at least 10 teams will qualify for the world cup, FIFA was held in Africa for the first time, the Cup of Nations has grown from eight sides to 16, and the African Champions League has increased its value tremendously. Hayatou's dethronement by Ahmad is the result of a changing mood calling for more transparency and reformation.

With Phil Mickelson on Witness List, Gambler's Insider Trading Trial Begins

Phil Mickelson, pro golfer, was named on the witness list of the William T. Walters insider trading trial in the Federal District Court in Manhattan. The case involves Walters, a high stakes sports gambler, and Thomas C. Davis, chairman of Dean Foods. Walters is accused of profiting from insider information from Davis between 2008 and 2014 to the tune of $40 million. Federal authorities allege that "Lefty" Mickelson also profited from receiving stock tips. He agreed to pay $1 million in profits; however, he has not been charged. It is not yet confirmed whether he will actually testify.

Affidavit Cites a Jayhawk's Threat

Douglas County District Court officials released an affidavit stating that Josh Jackson, a freshman star of top seeded Kansas, threatened to beat McKenzie Calvert, a female basketball player. The affidavit, sent to the Lawrence Journal-World, includes statements from Kansas basketball players, Ms. Calvert, and two witnesses of the alleged December 9, 2016 incident outside a Lawrence venue called the Yacht Club. According to the sworn statement, Jackson followed Calvert to her car, "yelling for her to get out of the car and that he would beat her." Jackson is due to respond to the allegation in court on April 12th.

Charges Against Darrelle Revis Are Dismissed

All charges against Darrelle Revis, 31, an National Football League (NFL) cornerback, were dismissed by a municipal court judge. Revis was charged with two counts of aggravated assault, one count of robbery, one count of conspiracy, and one misdemeanor count of making terroristic threats. These charges stemmed from a February 12, 2017 fight on Pittsburgh's South Side. According to testimony from Revis' childhood friend, Rashawn Bolton, Revis was not the one to knock out two men, it was Bolton who landed the punches. Bolton stated that two men (ages 21 and 22) attempted to jump Revis when he stepped in to help and subsequently knocked out each of them. Bolton was not charged with any crime. Revis, who was recently released from the Jets, is now a free agent interested in joining the Pittsburgh Steelers. However, the criminal charges could affect his standing in light of the NFL's personal conduct policy.


Us Weekly Is Sold to National Enquirer Publisher

American Media Inc expands its celebrity gossip holdings by adding Us Weekly to its stable, which includes The National Enquirer, Radar Online, Star, and OK! Wenner Media, publisher of Rolling Stone, Men's Journal, and Glixel, a website devoted to games, agreed to sell Us Weekly for $100 million. Us Magazine became Us Weekly when purchased by Wenner Media. The weekly was saddled with debt since Wenner bought back its 50% stake from The Walt Disney Company at a cost of $300 million. It originally sold the 50% stake for $40 million. The Us Weekly sale will help to pay down Wenner's debt.

Donald Trump Condemns Snoop Dogg on Twitter for Satirical Video

What do you get when you put a clown and a rapper in a video? When it occurs in a tweet of umbrage from President Trump. Snoop Dogg, a renowned rapper, was featured in a music video of hip hop jam band's BadBadNotGood's song "Lavender." In the clip, Snoop Dogg pulls the trigger of a toy gun, pointing at a clown named Ronald Klump. After a sign reading "bang" drops from the barrel, clown Klump later appears in handcuffs. The video drew the ire of President Trump whose tweet suggested that a similar video pointing at President Obama would result in "jail time."

Ferguson Documentary Disputed as New Footage Is Released

The documentary "Stranger Fruit", by Jason Pollock about the 2014 shooting of Michael Brown, an unarmed Black man, by police officer Darren Wilson in Ferguson, Missouri, was released at SXSW. The film shows additional unreported footage of Michael Brown at the Ferguson Market & Liquor store minutes before he was fatally shot. A grand jury of nine white jurists and three black jurists brought no criminal charges against officer Wilson. The interpretation of the included surveillance video is controversial. Mr. Pollock claims that Michael Brown was trading marijuana for cigarillos and returned to the store to pick up his merchandise. This claim is disputed by Jay Kanzler, attorney for the store and its employees, who says that no trade was made by his clients. The additional footage supports the community's protest of a police cover-up. The store's attorney said that the documentary had "reopened old wounds," while the documentarian has called for a new criminal investigation of officer Wilson.

Twitter Accounts Hacked With Pro-Erdogan Messages

On Wednesday, several Twitter accounts were hacked, affecting prominent politicians, large brands, and the BBC. Several of the exposed posts showed support of Turkish president Recep Tayyip Erdogan, notable of late for his dispute with the Netherlands and Germany. He accused the two countries of Nazi practices because Turkish politicians were prevented from entering those countries. It was not confirmed who committed the attacks; however, a third party application called Twitter Counter was indicated. Twitter stated that it isolated the hacking. Separate attacks also occurred on Tuesday, when a distributed denial of services, or DDoS, was sent to two websites established to help Dutch voters. The websites were overwhelmed with messages until their servers shut down. Anita de Jong of ProDemos, an organization that runs one of the Dutch voter-aid sites, stated, "We don't know where it is coming from, but it is an organized attack coming from abroad." However, she could not confirm the geographical origin.

British Regulators to Investigate 21st Century Fox's Deal for Sky

Karen Bradley--Britain's minister of culture, media, and sport--has asked regulators to investigate 21st Century Fox's acquisition of Sky, the British satellite television company and 24-hour news channel. Bradley, concerned over the level of influence the $14.3 billion deal will give Rupert Murdoch over British media, requested its broadcast and communications regulator, Ofcom, and the Competition and Markets Authority to investigate. 21st Century Fox opposed Bradley's position. Sky has almost 22 million customers in Austria, Britain, Germany, Ireland, and Italy. Murdoch is the executive chairman of both 21st Century Fox and News Corp, which also owns three dailies: The Sun, The Times of London, and the Wall Street Journal. The deal will additionally face antitrust review by European Union regulators. The British regulators' determination is due in May. 21st Century Fox expects to close the deal by the end of the year.

March 18, 2017

Flo & Eddie, Inc. v. Pandora Media, Inc.,

On March 15th, the Ninth Circuit issued an order certifying the pre 1972 sound recording public performance right question to the California Supreme Court in Flo & Eddie, Inc. v. Pandora Media, Inc. (9th Cir. No. 15-55287)

The Certification Order: Flo & Eddie Certification Order.pdf

March 16, 2017

President's Proposed Budget Eliminating National Endowments for the Arts and Humanities and the Corporation for Public Broadcasting

By Marc Jacobson and Steven H. Richman

At the January meeting of the Executive Committee of the NYSBA Section on Entertainment Arts & Sports Law (EASL), there was a discussion regarding reports that federal funding for the National Endowment for the Arts, the National Endowment for the Humanities, and the Corporation for Public Broadcasting would be cut or eliminated. In response, the Executive Committee unanimously adopted a resolution opposing the elimination of that funding.

Now that the President has submitted his budget for the upcoming fiscal year, NYSBA procedures allow the EASL Section to draft correspondence reflecting the January resolution, which will be reviewed by the State Bar, and then sent to the New York State Congressional Delegation, the Senate and House Leadership and the White House.

Those who wish to participate in this effort should contact Marc Jacobson (, Steve Richman ( or Diane Krausz (

Here is a link to the New York Times article dated March 16, 2017, describing the article.

New York Art Scene Anxiously Waits for Decision on N.E.A.'s Fate:

March 15, 2017

Executive Order Suspended

By Michael Cataliotti

Well, it looks like the new Executive Order was just suspended nationwide.

SXSW Band Members Detained and Denied Entry to the U.S. - The Importance of Good Legal Advice

By Michael Cataliotti

On March 8th, members of a band that sought entry to the U.S. to perform at the South-by-Southwest (SXSW) Festival were stopped, removed for secondary examination, and ultimately detained in a detention center (akin to a jail), before being denied entry to the U.S. and sent back to Italy on the next available flight. The band was Soviet Soviet, an "Italian postpunk trio", and it posted a lengthy statement on its Facebook page regarding the band members' ordeals. The circumstances of their detention and denial of access to communicate are not uncommon, and have been the normal course of business at the border, no matter how much we dislike it. However, the biggest issue is regarding the statement that the band members were advised and directed that entry into the U.S. under the visa waiver program (sought by applying through ESTA) would be perfectly acceptable and was lawful. It was not.

The band's statement reads, in part: "We left Italy headed towards the US with all necessary documents, passports and various declarations in which we clearly explained the purpose of our tour, confirming it is was strictly promotional and that we were in no way going to earn money from it or receive any form of payment. We knew that if we were to receive any compensation we would have had to apply for work visas. This was not the case and the people we spoke to for information told us we would be fine. We had not agreed on any payment whatsoever and the scheduled showcase performance at KEXP was most certainly not a paid performance." (emphasis added)

The band was simply the victim of bad advice, and though it is worth noting that bad advice or misleading information abounds these days from all corners of the Internet, a very simple review of the authorized activities is able to be viewed as follows: (1) first, run a quick search for, "b1b2 visa what can I do" in Google and click the first link that appears; and (5) second, scroll down on the U.S. Department of State's website regarding the B-1/B-2 visa and click on "Travel Purposes Not Permitted On Visitor Visas:" to reveal the following:

These are some examples of activities that require different categories of visas and cannot be done while on a visitor visa:

 study

 employment

 paid performances, or any professional performance before a paying audience[...]. (emphasis added)

The issue here is whether or not the band would be deemed professional. If it was designated as an amateur group, then under the B-2 component of the B-1/B-2 visa, Soviet Soviet would have been perfectly fine engaging in SXSW: One such example of "activities permitted with a visitor visa" includes "participation by amateurs in musical, sports, or similar events or contests, if not being paid for participating". (emphasis added)

There are many who seem conflicted by these points, both practitioners and others, but both the U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) have been consistent regarding this interpretation, even if CBP officers were not dogmatic about enforcing this aspect of immigration law. However, they are now.

As those CBP officers are now being dogmatic in their enforcement of these provisions of immigration law, we need to be extra vigilant in providing advice to our clients, executives, artists, entertainers, athletes, and the like.

The March 6th Executive Order Regarding Immigration

By Michael Cataliotti

On January 27th, one week after assuming the presidency, Donald Trump signed his Executive Order that instantly stopped immigration from seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen), and left many questions unanswered about how to interpret and apply the provisions contained therein. I wrote about that executive order and its related litigation in the Spring issue of the EASL Journal.

On March 6th, Donald Trump signed a new Executive Order, this time taking into account the opinion of the Ninth Circuit and making some noticeable revisions to his prior order. Some of the notable provisions of this new executive order include: (1) a list of six countries, rather than the seven - Iraq has been noticeably omitted, because it has made enhancements in its immigration system and government operations; (2) lawful permanent residents (green-card holders) and those who have valid visas from those six countries shall not be automatically denied entry to the U.S.; (3) there are nine situations in which waivers may be available for nationals of those six countries to enter the U.S.; (4) "Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility"; (5) suspended for 120 days a U.S. refugee resettlement program; and (6) the Executive Order shall become effective as of 12:01 am (EDT) on March 16, 2017.

Since signing the Executive Order on March 6th, (i) the state of Hawaii filed suit to stop its enactment, arguing that it will harm Muslims in the state, and has had a "'chilling effect' on travel revenues", and (ii) Washington state filed an amended complaint seeking to further enjoin the order. Joined by five other states (New York, Massachusetts, Maryland, California, and Oregon), Washington argues that the prior injunction should be applied to the new Executive Order, which "will cause severe and immediate harms to the States". Of course, considering that the Executive Order has not yet gone into effect, there are also questions of ripeness and standing.

In both matters, hearings are scheduled for March 15, 2017, so hold onto your hats!

March 13, 2017

Docudramas, Created Without Permission of the Subjects, May Face New Challenges in New York

By Marc Jacobson

An appellate court in New York held recently that a plaintiff, representing himself, who asserts that the defendant knowingly produced a materially and substantially fictitious biography about the plaintiff, without the plaintiff's consent, states a claim for violation of New York's right of privacy statute, and that the defendant must answer the complaint. This case, on its face, may suggest a reversal of trends in the entertainment industry, which of late has permitted docudramas to proceed without the subject's consent.

From his prison cell in Dannemora, plaintiff Christopher Porco first successfully obtained an injunction against Lifetime TV Networks' planned broadcast of a motion picture based upon Porco's conviction for murder of his father and attempted murder of his mother. That injunction was later reversed as a prior restraint -- a violation of the First Amendment -- and the case was remanded to the trial court. On remand, Porco's complaint was dismissed. This decision arises from Mr. Porco's appeal of that dismissal for failure to state a cause of action.

New York's Civil Rights Law §50 states that when a firm or corporation "uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such a person" the entity commits a misdemeanor. Section 51 creates a private right of action for such violation, but under relevant case law, the statute does not apply to "newsworthy events or matters of public interest." Does the film about Porco's life story fit a newsworthy event or matter of public interest?

The court noted, however, that in Porco's case, the limitations on the statute's applicability must be viewed in accordance with binding precedent. Where, as in this case, the program is a "substantially fictitious biography", the newsworthy exception will not help the production company or distribution company. Quoting from Messenger v Gruner + Jahr Print. & Publ., 94 NY2d at 446, the court said that the work "may be so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception."

In support of his position, Porco submitted a letter sent to him by the producer, who noted that she was involved in the production of a documentary intended to accompany the film that the producer "hope[d] . . . [would] provide the platform for [the mother's] family to state their position in a non-fictional program after the [film] airs." Relying on the existence of that letter (which is apparently not part of the complaint) and construing the complaint most favorably to the plaintiff, the appellate court found that Porco stated a cause of action, and the defendant must file an answer.

In my opinion, the court bent over backwards to provide recourse to a plaintiff representing himself and allowed this claim to proceed, at this preliminary stage. When all is said and done, there remains the possibility that the defendants will not be found to have violated Porco's rights. At this juncture, the court merely held that the defendants must answer the complaint, and that as required, it construed the complaint in the light most favorable to plaintiff, and in so doing found that a cause of action was stated.

Porco v Lifetime Entertainment Servs., LLC 2017 NY Slip Op 01421 Decided on February 23, 2017 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. The opinion is uncorrected and subject to revision before publication in the Official Reports.

Week in Review

By Eric Lanter

In China, Trump Wins a Trove of New Trademarks

President Donald Trump won preliminary approval to register 38 trademarks in China, raising additional concerns about potential conflicts of interest. The trademarks were approved for "use in golf clubs, insurance services, child-care centers and nursing homes, among other categories." Senator Dianne Feinstein of California, among other members of Congress, argued that the awarding of the trademarks may be a breach of the Constitution. It is unclear whether the trademarks would be a profit to the Trump Organization.

Below, for your browsing convenience, the categories are divided into Entertainment, Arts, Sports, and Media:


A Robbery Based on a Movie? Yes, the Jury Can See Clips

In a federal trial for a $200,000 robbery, a judge approved the prosecutors showing short clips of the 2010 movie "The Town," which was allegedly an inspiration for the robbers. The three men were convicted. On appeal, Judge Debra Ann Livingston of the Second Circuit affirmed the district court's allowance of showing the clips, holding that the short clips did not unfairly prejudice the jury and were relevant to the robbery.

Russian Official Seeks to Ban "Beauty and the Beast" Over Gay Character

Russian lawmaker Vitaly Milonov is seeking to ban the new Disney version of "Beauty and the Beast" on the basis that it is "homosexual propaganda" as a result of a scene involving a gay character in the film. Director Bill Condon noted the presence of the gay character, LeFou, as a point of pride for the film, as it is the first Disney movie to contain a gay character. Controversy is not limited to Russia, however. A drive-in theater in rural Alabama refused to screen the movie, citing similar concerns about the movie.

After an Online Uproar, South by Southwest Festival Promises to Amend Contracts

The South by Southwest Festival (SXSW) in Austin, Texas responded to criticism to its contracts. Bands that perform there publicized a "deportation clause" in the performance contracts, which suggest that the contracts are designed to encourage the deportation of foreign artists visiting the United States to perform at SXSW. The festival organizers announced that they will amend the contracts starting in 2018 to exclude the deportation clauses.


Heirs Sue for Return of a Kandinsky, Saying It Was Looted by Nazis

A Jewish family filed a federal lawsuit seeking repossession of a Wassily Kandinsky painting, "Colorful Life", that is hanging in a Munich museum. According to the family's lawsuit, it owned the painting prior to the Nazi invasion of the Netherlands in 1940. The current owners of the painting sent a request to the family to take part in a binding review by the Limbach Commission, which helps to return Nazi-looted art to rightful owners. The family did not respond to the letter and instead filed the federal lawsuit in New York.

A Year After Raids, Asia Week New York Returns to the Spotlight

After a series of seizures of antiquities last year, sales of Asian artwork dropped from $360 million the year before to $130 million last year. However, Asia Week New York has kicked off, which is a 10-day festival where Asian art is on display and for sale throughout the city. Museums and special events host showcases and vendors at the Metropolitan Museum of Art, the Korean Cultural Center, the Asia Society Museum, as well as other locations.

New York Art Scene Anxiously Waits for Decision on National Endowment for the Arts Fate

Amidst reports that President Donald Trump is considering eliminating funding for the National Endowment for the Arts, which provides millions of dollars to arts groups throughout New York City, the art scene is tense. Last year, the Endowment gave $14.5 million to 419 organizations throughout the city. Supporters of the Endowment argue that the total annual budget of $148 million is a small fraction of the annual federal budget of approximately $4 trillion, however, the Endowment as well as the Corporation for Public Broadcasting and AmeriCorps have been targets for trimming spending by conservatives in Congress.

Louvre Attendants Strike After Vermeer Bottleneck

Dozens of attendants at the Louvre in Paris went on strike to protest the museum's handling of a temporary exhibition dedicated to the Dutch painter Vermeer. The ticketing system, in combination with the surge in popularity in the exhibition, have created bottlenecking and crowding around the space, frustrating the attendants. However, the employees on strike comprise just 2% of the Louvre's employees, and the museum's operations have not been affected, as it is using temporary workers for the duration of the strike.


Jeanie Buss, Fearing Brothers' Takeover of Los Angeles Lakers, Briefly Takes to Court

A week after Jeanie Buss, one of the owners and president of the Los Angeles Lakers, removed her brother as executive vice president of basketball operations and replaced him with Magic Johnson, she went to court to stop what she has argued is her brothers Jim and Johnny's attempt to oust her as owner and president. After their father died in 2013, Jeanie Buss became the controlling owner, and the brothers each have ownership stakes in the team. The complaint comes after the brothers requested that a board meeting be held with four proposed directors to be elected. The brothers' lawyer stated that the brothers have no interest in "wresting control from their sister."

Soccer Players Go on Strike in Argentina

The Argentina Footballers Union announced that the country's soccer season will not start until the clubs pay millions of dollars owed to the players. Thus far, two first-division games have been postponed and weekend matches may be postponed as well.

U.S. Soccer Will Require National Team Players to Stand for Anthems

The U.S. Soccer Federation adopted a bylaw that requires players to "stand respectfully" during the national anthems leading up to kickoffs. The penalties for failing to follow the bylaw were not immediately clear. The board of directors adopted it after Megan Rapinoe, a member of the national team, knelt during the national anthem on at least two occasions last year.

French Are Investigating Possible Bribes for Rio Olympics

The French newspaper Le Monde reported that French investigators suspect that bribes were paid for Rio de Janeiro to be awarded the 2016 Olympic Games, prompting attention from the International Olympic Committee. The Games were awarded in 2009, three days after transfers of $1.5 million and $500,000 were made to the son of Lamine Diack, the former head of the International Association of Athletics Federations. French prosecutors have expanded their investigation to the 2020 Tokyo Games as well.

Allowing Substitutes After Head Injuries in Cricket Meets Resistance

The death of a batsman from Australia's professional cricket team prompted a wave of reform in the sport, including the wearing of helmets to prevent head injuries. It has even prompted rule changes, like substitutions for players who have been suspected of having concussions. So far, only Australia and New Zealand implemented such rules changes, and despite their lobbying to the international cricket body, no changes are being adopted elsewhere thus far.

The Rise, Then Shame, of Baylor Nation

In a matter of a few years, Baylor University experienced a rise and fall in its reputation; first characterized through athletic success, then sullied by revelations of a widespread toxic culture where football players had freedom to act without consequences. This is best exemplified through Jasmin Hernandez's experience five years ago. Tevin Elliott, then a football player at Baylor, raped her during a party. When Hernandez sought to have Baylor investigate, the university, with Kenneth Starr leading it and Art Briles as the football coach, favored its athletes over allegations like Hernandez's, even encouraging an environment where football recruits would be given alcohol, drugs, and introductions to female students upon their visits to campus. While Elliott was convicted of sexually assaulting several other women and many in the Baylor hierarchy submitted resignations, the university's reputation has suffered.

United States Olympic Committee Delivers Recommendations to USA Gymnastics

The United States Olympic Committee (USOC) announced that it reached a consensus for recommendations to USA Gymnastics in light of revelations that Larry Nassar was allegedly in possession of child pornography and committed sexual abuse on potentially 50 children. While USOC cannot remove USA Gymnastics president Steve Penny, it can force USA Gymnastics to take action itself by cutting funding or decertifying the federation.

International Olympic Committee May Suspend Defiant Kenya

The International Olympic Committee (IOC) cut funding to Kenya after the country's executives defied the IOC's orders to make changes to its constitution to prevent wrongdoing. Kenya's track federation and Olympic committee have been plagued by charges of theft and mismanagement since the 2012 Olympics.


Selfie with Merkel by Refugee Became a Legal Cases, but Facebook Won

A German state court announced its ruling in a case involving a Syrian refugee seeking to require Facebook to prevent users from reposting a selfie that he took with Chancellor Angela Merkel. The image has been doctored for fake news reports linking the refugee to terrorism.

Judge Volkmar Seipel ruled that there were no grounds for an injunction, as Facebook did not manipulate the content, and could not be held legally responsible for its distribution. Facebook had argued that it was not possible to search all content on its site, in congruence with the European Union's laws, which only hold a company responsible for eliminating content from its site when technically possible.

Facebook Reports BBC to Police Over Investigation Into Child Sex Images

When a journalist at the BBC reported to Facebook that pedophiles had private pages where they were sharing child pornography, Facebook reported him and the BBC to police. Facebook, as well as other social media companies like Twitter and Google, are grappling with finding the level of oversight necessary to ensure that the platform's content is appropriate. Facebook has argued that it reported the matter directly to the Child Exploitation and Online Protection Center, and police have not confirmed or denied whether an investigation has begun.

Fox Said to Settle With Former Contributor Over Sexual Assault Claims

Last summer, when Fox's chief Roger Ailes had a scandal explode over allegations of sexual harassment, Fox ordered an internal investigation as to similar allegations. Fox is continuing to deal with the allegations, as in recent weeks it settled a case for $2.5 million brought by contributor Tamara Holder. She alleged that an executive at the company sexually assaulted her two years ago.

March 4, 2017

Week in Review

By Michael Smith

Below, for your browsing convenience, posts are divided into the following categories: Entertainment, Arts, Sports, and Media


Cosby's Jury Will Come from Another County

Earlier this week, the judge presiding over the sexual assault case against Bill Cosby ruled that jurors would be brought in from another county. Cosby's lawyers had made an application to have the trial moved because of intense press coverage of the case.

Nintendo Goes After Real-Life Mario Kart Company

Japanese company MariCar rents go-karts made up to look like the vehicles in Nintendo's popular "Mario Kart" franchise, along with costumes that customers can wear to look like the video game characters. On Friday, Nintendo filed a lawsuit in Tokyo, alleging that MariCar was using Nintendo's intellectual property without permission.


Fearing Cuts, Arts Groups Lobby Congresspersons

Members of the Trump Administration, along with some Republicans in Congress, are sending strong signals that indicate funding cuts to or elimination of the National Endowments for the Arts and the Humanities. Other Republicans, however, are ready to defend the endowments. The ultimate decision may rest in the hands of a few Republican members of the House Appropriations Committee.

New Nazi Art Law Opens Latest Chapter in Fight over Schiele Drawings

Fritz Grunbaum's art collection has been the subject of much debate and litigation. Grunbaum's heirs assert that the collection (including two drawings by Egon Schiele) was seized by the Nazis and should be returned to the family. Several courts have rejected those claims, but the heirs contend that none of those rulings were on the merits, and therefore they should not be barred from pursuing their claim to the two Schiele drawings under the new Holocaust Expropriated Art Recovery Act, which was meant to prevent claims to Nazi-confiscated art from being barred by nonmerits defenses.

Penguin Random House to Publish Obama Memoirs

Former President and First Lady Barack and Michelle Obama have signed a deal granting Penguin Random House worldwide publication rights for their respective autobiographies. Penguin Random House reportedly paid over $60 million for those rights.

San Fransisco Symphony Holds LGBT Fundraiser for North Carolina Concerts

In protest over North Carolina's law limiting the rights of lesbian, gay, bisexual and transgender people, the San Francisco Symphony canceled two concerts it had scheduled in that state. Instead, the symphony is holding a gala concert called "Symphony Pride," which will highlight works by lesbian and gay composers. The proceeds will go to nonprofit organizations that serve the LGBT community.

New York Artists Save Nina Simone's North Carolina Home

When the childhood home of legendary singer and activist Nina Simone went on sale late last year, four New York artists concerned that the historical building would be destroyed, pooled their money to buy the house for $95,000. The group described the rescue as a political act taken, in part, in response to the increasing racial tensions in the United States.

For Thomas Campbell, MOMA no More

Thomas P. Campbell, former director and chief executive of the Metropolitan Museum of Art, resigned Tuesday amid concerns about his ability to manage the museum, which faces significant financial challenge

Melee in Minneapolis Museum

A kerfuffle broke out in the Minneapolis Institute of Art, after a group of protesters followed members of an alt-right group inside. The hubbub apparently began outside the museum, where the Industrial Workers of the World were holding a rally. Not surprisingly, the two groups have differing accounts of the ruckus. One man was hit during the donnybrook before a security guard ended the rumpus, but declined to press charges.


U.S. Congress Chews Out Olympic Officials

On Tuesday, the House Subcommittee on Oversight and Investigations heard testimony from the International Olympic Committee (IOC), the World Anti-Doping Agency (WADA), and two American Olympians (Michael Phelps and Adam Nelson). However, most of the hearing consisted of Representatives from both sides of the aisle taking shots at the officials for the latters' mishandling of the Russian doping scandal and doping in general.

U.S. Sports Executives Biting the Hand that Could Feed Them

Even as the United States Olympic Committee lobbies for the 2024 Games to be held in Los Angeles, the United States Anti-Doping Agency is criticizing the way the Olympics has handled recent doping scandals.

Putin Challenges Doping Evidence

Referring to the investigation by the World Anti-Doping Agency into the Russian state-sponsored doping operation said to have involved more than 1,000 Russian athletes, Russian President Vladimir Putin called into question the chain of custody for urine test sample vials that WADA says show evidence of tampering. Putin said the vials were fine when they were handed over to Olympic officials and may have gotten scratched while in storage.

UEFA President Says That Immigration Policy Could Hurt U.S. Chances of Hosting World Cup

Aleksander Ceferin, president of UEFA (Europe's governing body for "soccer") and a vice president of FIFA (the world governing body and organizer of the World Cup) said that President Trump's immigration policy would be taken into account in considering the United States' bid to host the 2026 World Cup. "If players cannot come...then the World Cup cannot be played there." Ceferin also noted that Brexit could impact Britain's chances of hosting finals.

Baylor Ex-Coach Denies Cover-Up

A day after Texas opened a criminal investigation into Baylor University's handling of assault reports, former football coach Art Briles released a statement saying he had not covered for his players or tried to obstruct any investigations. Baylor fired Briles in May 2016 after an investigation by Pepper Hamilton found that at least 19 football players had been accused of sexual assault. In recent months, evidence has surfaced that suggest Briles may have tried to shield players from accusations.

British Cycling Admits Failures, Promises "Better Behavior"

Representatives of British Cycling have apologized for failures in the face of accusations of bullying and sexism, and say they will change their approach.

Women Athletes Probably Better Prepared for Post-Pro Life

The New York Times reports that WNBA players are, on average, better at preparing for the transition between sports and whatever comes next. Among the factors that may account for this include: WNBA players make less (sometimes far, far less) than 14% of their male counterparts' salaries. The WNBA is smaller, so there are fewer opportunities within the world of professional basketball, and WNBA players typically have had more life experience before they start playing pro ball. Some research suggests that women in general are less likely to take risks and more likely to stick to a plan, while men tend to be overly confident.


Federal Communications Commission Blocks Data Security Regulations

On Wednesday, the Federal Communications Commission (FCC) blocked the implementation of regulations that would have subjected broadband Internet providers to stricter scrutiny of their efforts to protect customers' personal data. The FCC said that it and the Federal Trade Commission needed more time to come up with "a comprehensive and consistent framework."

...From My Cold, Dead Thumbs

The United States Supreme Court heard argument on Monday about whether or not North Carolina can bar registered sex offenders from accessing social media. Its decision in the case (Packingham v. North Carolina) could have far-reaching effects to the extent that it finds that unrestricted access to social media sites like Facebook and Twitter is protected by the First Amendment.

Parties Compete in Bid for Time

Time Inc. has requested formal bids from potential acquirers, who may include Meredith Corporation and a group led by Edgar Bronfman Jr. The company's board says that it has not yet decided whether to sell the company.

Turkish Tycoon Told to Testify

Aydin Dogan, whose corporate empire owns several Turkish newspapers, was ordered to appear in court on Wednesday in connection with accusations that he ran a fuel-smuggling ring. Mr. Dogan, whose newspapers historically have taken editorial positions critical of president Recep Erdogan's government, has long been at odds with Erdogan, and some believe the government has taken steps against Mr. Dogan and his newspapers as retribution for those positions.

Security Firm Finds Vulnerabilities in Future Robot Overlords

IOActive, a Seattle computer security consulting firm, announced on Wednesday that it had found significant security flaws in six different home and industrial robots. The firm warned that these vulnerabilities were found as part of a high-level sweep, not an extensive security audit. It expressed concerns that robot manufacturers were rushing their products to market without adequate security, but failed to consider that the flaws were placed there intentionally, as a safety mechanism for when SkyNet becomes self-aware.

Snap Shares Up After IPO

The price of Snap Inc. shares skyrocketed after Snap's IPO on Thursday, giving the business a paper value of over $30 billion. Snap is operating at a substantial deficit, but its 20-something founders say they will spend the next five years trying to explain why their company has value.

Tech Companies Join Amicus Brief in Transgender Rights Case

53 companies, including Amazon, Apple, eBay, Intel, Twitter, and Microsoft, signed the amicus brief filed by the Human Rights Campaign in support of Gavin Grimm, a transgender student who sued a Virginia county school board over his right to use the school bathroom. The Supreme Court will decide whether Title IX's protections against discrimination on the basis of sex extend to gender identity.

French Presidential Candidate Loses Immunity for Graphic Tweets

Marine Le Pen, a deputy in the European Parliament and candidate for president of France, has been charged with the crime of "dissemination of violent images" for a series of tweets she made in December 2015. Those tweets included graphic images of violence perpetrated by the Islamic State. On Thursday, the European Parliament voted to lift the parliamentary immunity that would have protected Le Pen from prosecution. Le Pen is the leader of France's far-right National Front, and an outspoken critic of the European Parliament. Le Pen also is being investigated for allegedly misusing funds provided by the European Union.