The Entertainment, Arts and Sports Law Blog

By Martha Nimmer

When Wresting is Real

Wrestling is often dismissed by critics as "staged" or "faked," but what happens when it's not? For Andrew Green, wrestling became all too real, he claims, when wrestler Big Show (also known as Paul D. Wight, Jr.) exited the stage after a defeat and attacked Green while he was trying to interview the man. According to the complaint against World Wrestling Entertainment, Inc. (WWE), Green, a former employee of WWE, suffered severe "physical and mental injuries" when Big Show "grabbed Green by the collar and throat, striking Green in the face and backing him up against a trunk while declaring, 'You son of a bitch... Are you having fun right now ... Don't ever come up to me again. I don't give a sh-- who you are.'"

Green is suing Big Show for negligence, assault, battery and infliction of emotional distress. The plaintiff is also suing the WWE for negligence, invasion of privacy, infliction of emotional distress, commercial appropriation of his likeness, unjust enrichment, as well as negligent hiring and retention and supervision. WWE successfully removed the lawsuit last week to a federal court in Arizona. Once the question of venue is decided, onlookers can likely look forward to a look into the ring.

http://www.hollywoodreporter.com/thr-esq/wwe-defends-lawsuit-video-producer-521659

A World of "Hurt"

The Hurt Locker, the 2010 Academy Award winner for Best Picture, finds itself at the center of a lawsuit in California over misappropriation of likeness claims. The screenplay for the film, which tells the story of a bomb disposal unit operating in Iraq, was written by journalist Mark Boal following his time embedded with the Army's explosive ordinance unit in Iraq. The plaintiff in the suit, Sgt. Jeffrey Sarver, claims that the movie is based on his life and drawn from interviews that he gave to Boal while he was in Iraq and later when Sarver returned to the U.S. Sgt. Sarver claims that he never consented to the use of his name or life experiences in either the article written by Boal for Playboy or for the film. The plaintiff, who is supposedly a "dead ringer" for the film's antihero, Jeremy Renner, also claims that the wide acclaim received by the film endangered him during military operations. Disagreeing with Sarver's arguments, U.S. District Judge Jacqueline Nguyen ruled in October 2011 that The Hurt Locker's creators enjoyed a First Amendment right to free expression, adding that "even assuming that plaintiff and Will James share similar physical characteristics and idiosyncrasies, a significant amount of original expressive content was inserted in the work through the writing of the screenplay, and the production and direction of the movie." Sgt. Sarver appealed after Judge Nguyen granted the filmmakers' motion to strike under California's Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.

Last week, Sarver's attorney argued before a three-judge panel of the Ninth Circuit that Judge Nguyen should not have struck an appropriation of likeness claim from the suit. Counsel also averred that the case should not have been transferred from New Jersey to California, arguing that the defendants had delayed for over a year before filing an anti-SLAPP motion in California. Attorneys for the filmmakers, in turn, stressed the historical significance of the story and the creators' rights under the First Amendment. The defendants' counsel added that even if the film had, in fact, "portrayed Sgt. Sarver identically," it would have made no difference under the transformative-use analysis of the film.

Journalist Mark Boal won an Academy Award in 2010 for best original screenplay for the film. The movie's director, Kathryn Bigelow, took home the Oscar for Best Director.

http://www.entlawdigest.com/2013/05/10/2376.htm

The Art of Money Laundering

The art business is getting pretty shady these days. Just ask Edemar Cid Ferreira, a disgraced former Brazilian banker who converted some of his ill-gotten gains into a 12,000 piece art collection. Ferreira was sentenced in "December 2006 by the 6th Federal Criminal Court Specialized in Crimes Against the National Financial System and Money Laundering of Sao Paulo/SP to 21 years' imprisonment for crimes against the national financial system and money laundering." Hoping to avoid complete forfeiture of his wealth, Ferreira used some of his fortune to purchase an $8 million painting by American artist Jean-Michael Basquiat. The painting--"Hannibal"--was mailed from London to JFK Airport in 2007 and, according to The New York Times, was stamped with an air bill that listed the painting as worth $100. The work of art was eventually seized by federal officials from a Manhattan warehouse, and is being prepared for return to Brazil.

Law enforcement officials around the world say that buying priceless works of art as a way to launder or conceal money is a growing trend among the world's criminals. In the past, money was laundered by buying expensive apartments or combining profits earned from a legitimate business. Now, as those methods have come under closer scrutiny around the world, criminals have turned to the "famously opaque art market" as a way to launder cash. It is surprising, actually, that this method of laundering did not take off sooner: with art, the purchase and sale are conducted in private, with no oversight. According to Sharon Cohen Levin, chief of the asset forfeiture unit of the U.S. Attorney's office in Manhattan, "you can have a transaction where the seller is listed as 'private collection' and the buyer is listed as 'private collection. In any other business, no one would be able to get away with this." Real estate titles and deeds, for example, require a name. "Mortgage brokers, stockbrokers, casinos, banks and Western Union must report suspicious financial activity to the federal Financial Crimes Enforcement network," writes The New York Times. Banks must report all transactions of $10,000 or more. The art market, however, lacks these safeguards and reporting mechanism. Fearing a rise in money laundering schemes involving art, the European Commission passed rules requiring galleries to report anyone who pays for a work with more than 7,500 euros in cash (about $9,825), and to file "suspicious transaction" reports with the authorities. Similarly, the United States requires that all cash transactions worth $10,000 or more be reported. Laundering involving art, however, still "tends to be handled case by case" by federal officials.

Secrecy, according to many art dealers, is vital to the art market's continued "mystique." The Art Dealers Association of America even went so far as to say that the sale of art to launder money was not a problem. In response, law enforcement officials say that dealers try to downplay the role of art in money laundering, instead of confronting the problem head-on. This problem, whether art dealers choose to admit it, is real. In Newark, federal prosecutors recently went public with news that the U.S. had seized close to $16 million in fine art photography as part of a fraud and money laundering scheme allegedly put in the works by Texas businessman Philip Rivkin. The 2,200 photographs by artists Alfred Stieglitz, Edward Weston, Edward Steichen and others were allegedly purchased with part of the $78 million that Rivkin allegedly obtained from defrauding oil companies, including Shell, Exxon and Mobil. Meanwhile, "Hannibal" and dozens of pieces of art purchased by disbarred attorney Marc Dreier sit in storage, awaiting their fate.

http://www.nytimes.com/2013/05/13/arts/design/art-proves-attractive-refuge-for-money-launderers.html?_r=0&adxnnl=1&pagewanted=2&adxnnlx=1368741452-Fi26KO5WSJsW2TqXMcqOjA

It Don't Mean a Thing If It Ain't Got That--Royalty Payment?

An appeals court has ruled that EMI Music should be allowed to pay itself for the foreign exploitation of Duke Ellington music. This is bad news for the jazz great's grandson, Paul Ellington, who claimed that EMI violated a 1961 songwriter royalty agreement with Ellington when it "deduct[ed] fees for foreign affiliates before accounting to Ellington's 50% share of net revenue. Paul Ellington sued EMI for "hundreds of thousands of dollars," but it seems as if he will not be collecting that money any time soon.

Duke Ellington is famous for composing dozens of famous tunes, such as "It Don't Mean a Thing (If It Ain't Got That Swing)" and "Mood Indigo."

http://www.hollywoodreporter.com/thr-esq/emi-wins-dispute-duke-ellington-491321

Read the decision here: http://www.scribd.com/doc/139799485/Ellington

In the Arena reflects the issues facing the sports lawyer today. Whether the reader is a novice to the sports industry or a seasoned veteran, he or she will find this book to be a valuable resource.

http://www.nysba.org/AM/Template.cfm?Section=Shop&template=/Ecommerce/ProductDisplay.cfm&ProductID=5694

For a list of contributors and Table of Contents, visit http://www.nysba.org/AM/Template.cfm?Section=Shop&ContentID=235488&Template=/CM/ContentDisplay.cfm

Last night the Board of Trustees of Brooklyn Law School (BLS) approved an accelerated 2-year J.D. program beginning in summer 2014. With the creation of the program, BLS will be able to offer a range of flexible 2-, 2.5-, 3-, 3.5- or 4-year options--called "Brooklyn 2-3-4"--to adapt to prospective students' needs. Brooklyn Law School is the first in the New York metropolitan area to enable students to earn a J.D. in 2 years.

The new 2-year offering is designed for select students seeking a rigorous legal education in an abbreviated timeframe. Candidates interested in this type of program might be, for example: 1) mid-life or mid-career professionals, including CPAs, MBA graduates, or those from academia desiring legal credentials and a new start; 2) foreign-trained lawyers with strong English-language proficiency; 3) individuals with established career plans following law school; or, 4) adults who seek to reenter the workforce. Highly qualified students with a demonstrated ability to handle a challenging work load will also be encouraged to apply for this opportunity. The accelerated J.D. involves the same amount of work as the current part-time or full-time program, but in 24 months.

"We have listened to and carefully considered the concerns about the legal education system," said Dean Nick Allard, who assumed leadership at Brooklyn Law School this past July. "The Brooklyn 2-3-4 program is one of several sound and deliberate new measures underway at BLS to make certain that law school education is meaningful and serves our students well. We worked hard to ensure that the 2-year program is fully compliant with the American Bar Association rules and other applicable requirements. I am grateful for the willingness and enthusiasm of our faculty to find a bold alternative that opens new doors for students who might otherwise not consider law school."

"Our institution has always been an agent of change," said Stuart Subotnick, Chair of the Brooklyn Law School Board of Trustees. "We were among the first in the nation to welcome women and minorities, our clinical education program began long before other law schools saw the value in experiential learning, and our Edward V. Sparer Public Interest Law Fellowship Program initiated public interest opportunities more than 25 years ago, before it was fashionable to do so. Innovation is in our law school's lifeblood and the DNA of Brooklyn's exciting, rising community. Brooklyn 2-3-4 is the 21st century academic extension of this pioneering tradition. We have always created genuine advancements, not educational fads. The accelerated J.D. will give ambitious, talented, and hardworking students an edge in entering the marketplace sooner."

The decision follows a careful, year-long planning and review process about how best to address the changing legal education landscape. In Dean Allard's first meeting with the BLS Board, he was charged with finding ways to provide a first-rate education that better met the needs of students, including determining whether a 2-year alternative was feasible, desirable, and advisable.

A task force of faculty and deans was immediately established, including Dean of Admissions & Financial Aid Henry W. Haverstick III, a leader at BLS for 40 years. Following the plan's consideration and approval by the Faculty Curriculum Committee, the full faculty voted unanimously in April to approve an accelerated J.D. program. The Board's subsequent and unanimous approval allows the 2-year program to begin in summer 2014, and students who enroll in the existing full-time or part-time programs in the fall of 2013 will be able to take advantage of the Law School's flexible options after completing their first year.

"Creating and designing our new accelerated program was not an easy process," said Dean Allard, whose career in private practice and government spanned 30 years. "It has benefited every step of the way by the input of faculty and other constituencies. The accelerated J.D. follows many recent innovations at BLS: our Washington, D.C. semester immersion program, Business Boot Camp over intersession break, and the upcoming 2-year fellowship in practice program for third-year students. Because the accelerated J.D. is among the first of its kind and the very first in New York, we expect to draw a new cross-section of students that complements the traditional demographics of our full- and part-time student body." Dean Allard noted that the program will be extremely demanding and not for every student, but for certain applicants, it presents an extraordinary new option.

For more information about the program, visit https://www.brooklaw.edu/newsandevents/news/2013/~/media/41D2208C5ED941009C3DBC16BFC5C946.ashx

By Marie-Andree Weiss

A British soccer player playing for the French Olympique de Marseille team, Joey Barton, was suspended last week over tweets directed at Thiago Silva, a Brazilian player from rival team Paris Saint Germain. The sentence was handed down by the National Ethics Committee of the French Soccer League which found, rather surprisingly, that calling a player an "overweight ladyboy" and asking whether he was "Pre-Op or Post-Op" were inappropriate but not homophobic. Barton also called Thiago Silva a "pussy" and a "FatBoy". Inappropriate indeed, and completely devoid of any sportsmanship.

Joey Barton has often voiced negative comments about fellow players on Twitter, using the micro-blogging site as a platform to broadcast his opinions to his two-million plus followers, making him one of the most successful athletes on social media.

Many Athletes Have Twitter Accounts

It is now common for athletes to have a Twitter account, but not all of them are as prolific as Barton, nor, fortunately, as rude. In the U.S., many NFL, MLB, and NBA athletes have Twitter accounts, and social media use is even encouraged by their professional associations. Several baseball teams are organizing social media nights, inviting fans to live tweet from the stadium and showcasing their tweets on big screens. Following the Twitter account of a favorite player allows fans to gain some understanding of his or her personality or to learn more about his or her involvement in charities, which in turn, benefit the overall public image of the team.

However, Twitter is not a placid media, and firing a 140-character message while angry is easy.

Fast Pitched Tweets

The Cy Young winner and star pitcher of the Tampa Bay Rays, David Price, two of his teammates, and one MLB empire were all fined $1,000 after an incident that happened on April 28th during a game against the Chicago White Sox. According to David Price, MLB umpire Tom Hallion told him, after calling one of his pitches a ball, "Throw the ball over the [expletive] plate." The Rays dugout reacted to whatever was said and Rays pitcher Jeremy Hellickson was ejected from the bench by Hallion.

Tom Hallion reacted after the game, telling the press that David Price was a liar, and that he had only told him to throw the ball. David Price reacted to that statement on Twitter, tweeting: "Think our entire dugout would ERUPT cause an ump told me to throw the ball over the plate? No, I'm sorry that wouldn't happen #accountability."
David Price is an enthusiastic Twitter user and he regularly posts from his @DAVIDprice14 account to his over 155,000 followers. He also posted on April 28th: "Someone give me the definition of a coward please" and "1. I am not a liar 2. I would not make that stuff up 3. My own dad doesn't speak to me that way 4. Again I am not a liar #accountability" and tweeted that teammate Jeremy Hellickson was ejected because he "[h]ad my back after what everyone in dugout heard what the ump said."

Jeremy Hellickson tweeted the same day from his Twitter account: "There's only one person lying about all this and his name starts with a T and rhymes with pom." Pitcher Matt Moore also tweeted on April 28th his opinion about what happened: "Lies! lies i tell you! RT @TBTimes_Rays: Umpire Hallion said to Price: "I said, "Just throw the ball." That's all I said to him'" and "Unbelievable someone would mis remember so quickly. Stay in your lane. Nobody cares what you have to say. #tom."

Why were the Rays players fined?

Social Media Policies of Sports Organizations

It was because their tweets had breached the MLB social media policy, first published in March 2012. The policy prohibits players from "[d]isplaying or transmitting [c]ontent that questions the impartiality of or otherwise denigrates a Major League umpire." The social media policy is enforced, and a player violating it may be disciplined by his Club or the Commissioner in accordance with Article XII of the Basic Agreement, which recognizes that a player may be subjected to disciplinary action for just cause.

The NFL and the NHL both have social media policies which prohibit players from tweeting during a game. The social media NFL ban starts 90 minutes before a game, and ends once the media interviews are over. The NHL Social Media Policy for League and Club Personnel, first issued in 2011, bans social media posts two hours before the start of a game until the end of all post-game media obligations. Players are advised to exercise good judgments before posting.

Social Media is Just Another Media

Lack of sportsmanship is not illegal, but defamation and invasion of privacy are. In that regard, social media is just another media. This was acknowledged by the International Olympic Committee Social Media, Blogging and Internet Guidelines for participants and other accredited persons at the London 2012 Olympic Games. It stated that social media posts "should at all times conform to the Olympic spirit and fundamental principles of Olympism as contained in the Olympic Charter, be dignified and in good taste, and not contain vulgar or obscene words or images," and noted that social media users can also be personally liable for any defamatory, obscene, or proprietary commentary, or commentary intruding upon the privacy of another. (http://www.olympic.org/Documents/Games_London_2012/IOC_Social_Media_Blogging_and_Internet_Guidelines-London.pdf )

Indeed, posting on Twitter that somebody is a liar or implying that somebody else is a transvestite may have legal consequences, regardless of whether one's employer has a social media policy. In the Joey Barton case, Thiago Silva and his Club had stated that they reserved their right to take legal action. Being called a 'liar' on social media is a cause of action for defamation in the U.S.

If anything, social media policies may play an educational role for all players, but especially for younger ones who may not have the resource of family guidance as they suddenly become famous. Watching their older colleagues be fined or benched over tweets may be the learning experience needed for the next generation (a/k/a next season) of athletes to demure their tweets.

By Martha Nimmer

Not So Special

In this case, not being special is actually a good thing. Spaniards can breath a sigh of relief: their country has managed to escape the U.S. Trade Representative's "Special 301" report, released in April. The list highlights which nations have troubling intellectual property practices, from lax enforcement to non-existent IP rights. Spain, along with Bulgaria, is no longer on the "Watch List." Additionally, our neighbor to the north, Canada, has moved from the "Priority Watch List" to the less severe "Watch List." This change, the report explains, is due to Canada's recent passage of the Copyright Modernization Act, which is "designed to implement Canada's obligations under the WIPO Internet Treaties and to address the challenges of copyright piracy in the digital age." Additionally, Canada also introduced legislation in March 2013 aimed at stemming the flow of counterfeit products into the country. This Act would allow Canadian customs officials to seize pirated and counterfeit goods at the borders.

The news was not so positive for Ukraine, however: the nation now finds itself designated a "Priority Foreign Country" (again, not a good thing) in lights of its "severe deterioration of enforcement" in pirated software and online piracy. The U.S. Trade Representative also pointed out the "nontransparent administration of royalty collecting societies" in the troubled Eastern European nation. Other countries on the "Priority Watch List" are Algeria, Argentina, Chile, China (no surprises there), India, Indonesia, Pakistan, Russian, Thailand and Venezuela.

http://www.hollywoodreporter.com/thr-esq/spain-escapes-us-trade-reps-450185

Read the report here: http://www.ustr.gov/webfm_send/2841

To Kill a Copyright Assignment

Famed literary work To Kill a Mockingbird is at the center of a real-life court room drama. Author Harper Lee, who published the classic novel in 1960, filed suit last week in New York federal court against her literary agent, Samuel Pinkus. The suit seeks an unspecified amount of damages.

Lee accuses her agent of improperly collecting royalties from her book since 2007. According to the complaint, Pinkus "'engaged in a scheme to dupe Harper Lee, then 80 years old with declining hearing and eyesight,' into assigning the book's copyright to his company." Lee, who is now 87 years old and suffered a stroke in June 2007, does not recall signing the document or discussing it with her agent, according to the complaint.

To Kill a Mockingbird, Lee's only published book, received the Pulitzer Prize for fiction and is widely read in schools across the nation. The film version of the book, starring Gregory Peck, won three Academy Awards.

http://www.nytimes.com/2013/05/07/business/media/harper-lee-sues-agent-over-copyright-on-mockingbird.html?src=recg&_r=0

http://www.huffingtonpost.com/2013/05/05/harper-lee-lawsuit-famous_n_3218771.html?ir=Books

Return to Cambodia

Citing concerns over the origins of two ancient Khmer statues, the Metropolitan Museum of Art announced last week that the it planned to return two life-size sandstone pieces to the Cambodian government. The works, known as the Kneeling Attendants, have stood at the doorway of the Met's Southeast Asian galleries since 1994. The "Attendants" date from the 10th-century and were donated to the Met in four pieces between 1987 and 1992. Now, Met officials say that the statues were, in fact, smuggled out of a "remote jungle area" during the 1970s, when Cambodia found itself embroiled in a violent civil war.

The decision to return the Kneeling Attendants to Cambodia came after two top executives from the Met traveled to Cambodia in March to investigate the origins of the pieces. Cambodian officials provided evidence that the statues had been stolen from the Hoh Ker temple complex outside the Cambodian capital Phnom Penh. Included in this evidence were photos of the statues' rough, broken-off bases that were left at the site. According to The New York Times, witnesses stated that the pieces were intact as recently as 1970. Cambodian officials also visited the Met in March to document other Khmer items in the museum's collection. Following the visit, a "government official said that Cambodia would like the museum to review the provenance of another two dozen objects."

This decision to return the statues is part of the growing trend of American museums to investigate and respond to the claims of other countries that pieces in American museums may not belong here. Many works of art that have become fixtures in museums lack detailed paperwork that show exactly how the pieces left their home countries. "In recent years," writes The New York Times, "at the urging of the Association of Art Museum Directors and scholars, many museums have applied more rigorous standards to their acquisitions." This awareness has turned out well for the Met: the museum "has developed a collaborative relationship with [Cambodia] and is now exhibiting 10 sculptural works" by a contemporary Cambodian artist.

http://www.nytimes.com/2013/05/04/arts/design/the-met-to-return-statues-to-cambodia.html?adxnnl=1&ref=arts&adxnnlx=1368209929-zUmBuls33xc/LU2Efy8Wmw

Michael Jackson Wrongful Death Trial Begins

Last week, opening statements in the Michael Jackson wrongful death trial began in Los Angeles. During the trial, which "promises dramatic revelations and legal fireworks," jurors will consider whether entertainment company AEG Live should pay Jackson's mother and three children billions of dollars for the company's alleged liability in the star's death. Jurors will hear weeks of testimony from the pop star's family, as well as expert testimony from medical and financial professional regarding Jackson's health, addiction history and career. Given the celebrity of Jackson and his family, media outlets petitioned the presiding judge Yvette Palazuelos to permit them to televise the trial. Judge Palazuelos, likely fearing a media circus, denied the request.

The central issue in the wrongful death action is this: did AEG Live, which promoted Jackson's comeback concerts in 2009, hire or supervise Dr. Conrad Murray, the physician convicted of involuntary manslaughter in Michael Jackson's death? Jackson died on June 25, 2009, two weeks before his "This Is It" tour was scheduled to debut in London. The medical examiner ruled that the singer died from a "fatal combination of sedatives and propofol, a surgical anesthetic that Murray told investigators he used to put Jackson to sleep almost every night in the month before his death." Attorneys for the Jackson family will argue that AEG and its executive knew, or should have known, about Jackson's fragile health and his previous use of drugs, but nonetheless, pressured Jackson and his doctor to fulfill a rigorous schedule in preparation for the London concerts. AEG, in turn, will argue that the pop star bears ultimately responsible for his death, that he "doctor-shopped" for prescriptions, and that Jackson chose Dr. Murray to serve as his personal physician.

The Jackson family seeks damages from AEG Live equal to the amount of money that Jackson would have earned over the course of his remaining lifetime if he had not passed away in 2009. Given the popularity of the singer and the estimates of his income potential, that judgment could amount to several billion dollars. One of the Jackson experts stated that the singer could have earned $1.4 billion by taking his comeback concert series "This Is It" on a world tour. AEG's attorneys have called that amount "very speculative," however, in light of Jackson's failing health.

http://www.cnn.com/2013/04/28/showbiz/jackson-death-trial-opens/?hpt=hp_t3

Tackling the Copyright Act

Can one copyright a football play? Video game company Electronic Arts (EA) certainly hopes not, but that decision will be left to the jury in a case that is likely to produce significant repercussions across the copyright law and video game industries. The lawsuit that poses this question comes from Robin Antonick, who developed a prototype for a football game on the Apple II operating system and was later hired by EA in 1984 to write the source code for a video game simply titled "Football." A year later, famed football coach and broadcast announcer John Madden contracted with EA to permit the company to use his name in their football video. Antonick alleges that he worked on this video game in exchange for a cut of the royalties, but was eventually shut out of the franchise. To date, the franchise had sold over 100 million copies and earned over $4 billion.

Unhappy that he has been cut out of a billion dollar-business, Antonick filed suit in federal court in California, alleging that the games produced today use elements that he created, and that he deserves to share in the profits. At first blush, this case would appear to be a simple foray into the world of copyright infringement and the "substantial similarity" analysis. Not so fast. Video games, as The Hollywood Reporter points out, present a "unique challenge." When examining the substantial similarity of expression used in a work, should one look at the source code that is used to create a video game, or should a judge (or jury, in this case) focus on what that code "expresses," i.e. what shows up on the television screen when you play the videogame? EA believes that the judge should focus on the code, adding that the more recent Madden video games were independently created by a game developer who never saw, let alone used, Antonick's source code. Antonick, however, argues that the trier of fact should look at what the code expresses, for instance, the size of the football field and the appearance of the stadium and the football plays.

In response to Antonick's theory that one could copyright a football play, EA has raised two arguments. Football plays, according to EA, are not subject to copyright protection because they do not fall under any of the eight subject matter categories laid out in the Copyright Act. Only one of those categories--specifically, pantomimes and choreographic works" could even remotely encompass football plays and formations, says EA. "[T]he Copyright Office has clarified that 'a selection, coordination, or arrangement of functional physical movements such as sports movements, exercises, and other ordinary motor activities alone do not represent the type of authorship intended to be protected under the copyright law as a choreographic work." In other words, football plays cannot be choreographed because they are not like dance moves or dance routines. Sorry, NFL players. The second argument raised by EA is that Antonick's creations were not original, but rather, based on the Oakland Raiders' playbook provided to EA by John Madden. In other words, Antonick did not create the plays for which he seeks payment; he merely translated the Raiders' playbook into source code.

Last week, U.S. District Judge Charles Breyer narrowed the scope of Antonick's claims, limiting Antonick's contract claim for unpaid royalties to derivative works. The court, however, did permit "field width" and "plays and formations" substantial similarity claims to go forward, meaning that a jury may, in fact, be asked whether one can copyright football plays.

http://www.hollywoodreporter.com/thr-esq/electronic-arts-faces-jury-trial-447243

By Martha Nimmer

Prince Prevails

In what is being called a decision that could influence the future of art and "the nature of art," artist Richard Prince has prevailed against photographer Patrick Cariou. Two years ago, Prince was found by a federal court to have violated U.S. copyright law when he used Cariou's photographs of Rastafarians in Jamaica to create a series of collages and paintings. These photos appeared in Cariou's book, Yes Rasta, which featured a series of portraits from Cariou's travels in Jamaica. The book was published in 2000. Prince admitted using the photos, incorporating them into a series of works called Canal Zone, which he exhibited in 2007 and 2008. The works have generated over $10 million in sales.

Surprisingly, when questioned during depositions, Prince did not rely on the fair use exception to the Copyright Act, an argument that "probably could have defended his appropriation better. . . ." Instead, Prince merely said that his art "doesn't really have a message." This somewhat nonchalant approach to copyright law and fair use likely led the lower court to rule against Prince in 2011. Last week, however, the Second Circuit found that 25 of Prince's 30 works actually did qualify as protected fair use because "they "have a different character" from Mr. Cariou's work, give it a "new expression" and employ "new aesthetics with creative and communicative results distinct" from the work that Mr. Prince utilized. In that regard, Judge Barrington Parker, Jr. wrote, "[w]hat is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince's work could be transformative even without commenting on Cariou's work or on culture, and even without Prince's stated intention to do so."

http://www.nytimes.com/2013/04/26/arts/design/appeals-court-ruling-favors-richard-prince-in-copyright-case.html?ref=arts

http://www.hollywoodreporter.com/thr-esq/appropriation-artist-richard-prince-prevails-446479

Read the decision here: http://www.ca2.uscourts.gov/decisions/isysquery/5da8dc66-179e-4dc0-94cc-09e213bfffe3/1/doc/11-1197_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5da8dc66-179e-4dc0-94cc-09e213bfffe3/1/hilite/

#TalesfromTwitter

Devin Ebanks is better known for being a forward on the Los Angeles Lakers, but found himself at the center of a rape investigation in September 2011. Three months later, Ebanks was cleared of the charges. As to be expected, TMZ published a story on the matter, including "some crazy details" about the alleged incident. That, however, is not where the story ends. After learning that he was cleared of the charges, Ebanks went straight to the World Wide Web and "took some delight" in the TMZ story on Twitter. Later, a Twitter followed named Junior, who, according to The Hollywood Reporter, introduced Ebanks to his female accuser, tweeted at Ebanks, "glad you got cleared...." To this, Ebanks responded, "thanks bro next time u wanna hook me up, dnt lol."

Ebanks' accuser later anonymously sued Ebanks for sexual assault. What set this case apart from other actions involving sports starts, however, is that the plaintiff "included a claim for defamation for what was said by [Ebanks] on Twitter." The Laker responded with an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion to strike the defamation claim, stating that Ebanks' tweet was protected free speech. That argument opened the door to a strange and unexpected argument by the plaintiff's attorneys:

"When Defendant responded to the Twitter message, 'I'm glad you got cleared on that incident,' Defendant Ebanks adopted the false statements included in the TMZ article, thus defaming Plaintiff Jane Doe. While the issue of rape and violence against women are very well issues of public interest, the TMZ article was nothing more than a salacious article to spread gossip and intrigue. More to the point, the Twitter messages [were] not about rape, or even about a Laker member being cleared, but about Defendant Ebanks' personal, private desire not to be 'hooked up' with women who would actually dare to report a rape to law enforcement. His hook-ups and personal, private preferences serve no issue of public interest. His comments served only to 'gather ammunition' for his private and self-serving interests."

Essentially, what the plaintiff's attorneys claimed was that a Twitter user who refers, even indirectly, to a possibly untrue news account "attaches" himself to the "inaccuracies inherent." As The Hollywood Reporter further stated, "because the tweet happened on the same day as the TMZ article, the woman's lawyers say that he [Ebanks] 'adopted' the inaccuracies" -- and that readers "reasonably interpreted the Twitter messages as referring to the TMZ article."

Last week, Los Angeles Superior Court judge Samantha Jessner moved to strike the defamation claim. Applying the two-prong analysis under which a special motion to strike is considered, Judge Jessner ruled that the first prong weighed in the defendant's favor. The first prong requires the defendant to show that the "act or acts of which the plaintiff complains were taken 'in furtherance of the defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue.'" Referring to that burden, Judge Jessner wrote that a public issue existed here because of the defendant's celebrity and the "gravity of the rape charge." Additionally, Ebanks' actions on Twitter were in furtherance of his right to free speech. Weighing the second prong--the likelihood of the plaintiff's prevailing on the claim--Judge Jessner wrote "[t]he use of the words 'clear' or 'cleared' by Junior does not amount to an adoption of the content of the TMZ article, as plaintiff argues, because these words are quite common when speaking of the dropping of criminal charges. It is reasonable to infer that Junior saw the TMZ article, but it is not reasonable to then conclude that defendant adopted the contents..." As it was not reasonable to conclude that Ebanks adopted the contents of the article, the plaintiff could not demonstrate a likely possibility of prevailing on her claim.

http://www.hollywoodreporter.com/thr-esq/la-lakers-player-beats-strange-445785

Read the ruling here: http://www.scribd.com/doc/137766448/EBANKS-Jane-Doe-Ruling

Suing Hungary

A minor victory for the heirs of a deceased Hungarian art collector: the nation of Hungary is amenable to a lawsuit brought by the heirs of a deceased art collector for Hungary's alleged collaboration with Nazi Germany for the plunder of Baron Mor Lipot Herzog's art collection. Baron Herzog was a Budapest banker and a passionate art collector who collected over 2,000 paintings, sculptures and other works of art. Some of the pieces in the collection included works by El Greco, Velazquez, Renoir and Monet. Herzog passed away in 1934, shortly before Nazi Germany and the Hungarian government began stealing Jewish-owned property and assets. Fearing the confiscation of their father's priceless art collection, the Herzog children tried to hide the pieces in one of the family's factories. Eventually, however, the artworks were discovered and taken to Adolf Eichmann's headquarters in Budapest. Eichmann picked out many of the pieces for display near Gestapo headquarters. The works that were not chosen became part of the Hungarian National Gallery and the Budapest Museum of Fine Arts.

According to the heirs' complaint, the Herzog descendants tried on numerous occasions to secure the return of the pieces, stating that the family had agreed to let the government of Hungary display the art after the war, while still retaining the right to demand their return. An appellate court in Hungary dismissed the family's claim in 2008, citing the Peace Treaty between Hungary and the Allied Powers and a later agreement between the U.S, and Hungary concerning the settlement of war-related claims. The Herzog descendants then sought relief from the American courts.

Last week, a three-judge panel of the D.C. Circuit Court affirmed a 2011 ruling of a U.S. District Court Judge, and revived claims that she had previously dismissed. According to the D.C. Circuit, "Hungary's argument falters for the simple reason that the Herzog family's claims fall outside the treaty's scope," Judge David Tatel wrote. "Article 27 concerns property discriminatorily expropriated during World War II. As we have explained, however, the family's claims rest not on war-time expropriation, but rather, on breaches of bailment agreements formed and repudiated after the war's end. Accordingly, the Peace Treaty presents no conflict with Hungary's amenability to suit under the FSIA [Foreign Sovereign Immunities Act]."

So, at least for now, it appears that the Herzog family will get their day in court.

http://www.entlawdigest.com/2013/04/23/2325.htm

Read the decision here: http://www.courthousenews.com/2013/04/23/herzog.pdf

Read the FSIA here: http://uscode.house.gov/download/pls/28C97.txt

By Barry Werbin

Attached is a copy of the First Department's unanimous reversal of Justice Kapnick's prior decision in UMG Recordings, Inc. v. Escape Media Group, Inc., which held that pre-1972 sound recordings were covered by the DMCA despite such works not being covered by the Copyright Act. UMG Recordings Inc v Escape Media Group Inc.pdf The First Department noted that Justice Kapnick's decision had relied "heavily on Capitol Records, Inc. v MP3tunes, LLC (821 F Supp 2d 627 [SD NY 2011]), in which the United States district court tackled precisely the same issue and found that the DMCA embraced sound recordings fixed before February 15, 1972."

The Court held that to adopt defendant's view "would directly violate section 301(c) of the Copyright Act." Instead, it adopted UMG's view that "Section 301(c) forbids the Act from 'annull[ing]' or 'limit[ing]' the common-law rights and remedies of owners of such works, and the DMCA, if it were to bar infringement actions against Internet companies that otherwise comply with the DMCA, would do just that." The Court observed that in the absence of the DMCA, "there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark [defendant's Internet music streaming service]." Thus, any "material limitation" on a copyright owner's New York common law rights, "especially the elimination of the right to assert a common-law infringement claim, is violative of section 301(c) of the Copyright Act."

Further, in reading the Act as a whole, the Court emphasized that the DMCA's textual references to "copyright" or "copyright infringers" pertains "only to those works covered by the DMCA. The DMCA expressly identifies the rights conferred by the Copyright Act in stating who a 'copyright infringer' is for purposes of the DMCA. Had Congress intended to extend the DMCA's reach to holders of common-law rights it would have not have provided so narrow a definition."

Lastly, the Court reconciled two underling policies: "The statutory language at issue involves two equally clear and compelling Congressional priorities: to promote the existence of intellectual property on the Internet, and to insulate pre-1972 sound recordings from federal regulation. As stated above, it is not unreasonable, based on the statutory language and the context in which the DMCA was enacted, to reconcile the two by concluding that Congress intended for the DMCA only to apply to post-1972 works."

In conclusion, the Court suggested that "it would be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this Court to do so by fiat."

By Martha Nimmer

"Spider Man: Turn Off the [Lawsuits]"

The Broadway production of "Spider-man Turn Off the Dark" ("Spider-man") has been plagued by problems, whether they be legal or safety related. Last week, however, the show received some welcomed good news: after more than a year of legal brinksmanship, former "Spider-man" director Julie Taymor announced a settlement among the feuding parties. The agreement will avoid a messy and high-profile trial that was set to commence on May 28th in a federal courtroom in Manhattan. The settlement terms were not made public, but likely concerned everything from copyright claims to artistic credit to profit sharing.

Taymor originally filed suit back in 2011 after being terminated by the show's producers. Sources close to Taymor say that she will receive a hefty financial settlement if the show receives wide acclaim. In return, the show's producers will no longer need to obtain the former director's approval for future tour dates or changes to the show's staging or script, which Taymor helped create. The effect of this "artistic divorce" is to allow the producers to "have a free hand to transform 'Spiderman' from its current form--a traditionally structured Broadway musical--into an arena-style special-effects extravaganza . . . ." that could be performed in Las Vegas or other, larger venues abroad.

Another notable aspect of the settlement, according to The New York Times, involves the "unusually high weekly operating expenses of the current New York production, running at the Foxwoods Theater." The Times writes that the show currently costs between $1.1 million and $1.2 million a week, the highest on Broadway. This hefty price tag can be attributed to the show's many aerial stunts and technical complexity. The problem with those expenses is that ticket sales as of late are only reaching between $1 million and $1.5 million during most weeks. With those expenses and box-office grosses, the musical is struggling to recover its $75 million capitalization. No longer needing Taymor's approval to alter the show script or staging can allow the producers to cut down on some of the revenue draining aerial stunts, while making it easier for the show to turn a profit. In essence, "the settlement basically removes a number of impediments toward having a long and commercially healthy run on Broadway and having future productions of the show around the world that will benefit everyone involved," according to an individual close to the show's producers.

http://artsbeat.blogs.nytimes.com/2013/04/10/taymor-producers-reach-settlement-in-spider-man-legal-battle/?ref=julietaymor

Raging Retailers

Bad news for retail giant Macy's: the judge presiding over the company's lawsuit against Martha Stewart and J.C. Penney ruled last week to permit the sale of Martha Stewart merchandise in J.C. Penney stores, despite objections by Macy's that it has the exclusive right to sell Martha Stewart sheets, towels and cookware. According to ABC News, "the items covered by [last week's] ruling do not carry Stewart's name, but were designed for J.C. Penney by her company." Macy's had hoped that the judge would prevent retail rival J.C. Penney from selling anything connected to Martha Stewart. Last week's ruling, writes ABC, will "free[] up about $100 million worth of merchandise J.C. Penney had sitting in storage." Macy's is filing an appeal.

Readers will recall that Macy's sued Martha Stewart Living earlier this year for breach of contract, stating that "an agreement to sell products at J.C. Penney in 2011 ran counter to Stewart's deal with Macy's in 2006." Macy's later sued J.C. Penney, arguing that the latter had interfered with the former's Martha Stewart contract. The retailers were ordered by presiding Judge Jeffrey Oing to enter mediation, but failed to reach an out of court agreement by an April 8th deadline.

A spokesman for J.C. Penney stated that the company was "pleased with the court's ruling to allow the sale of 'JCP everyday merchandise' in our stores."

http://abcnews.go.com/Business/partial-ruling-favors-jc-penney-macys-suit-martha/story?id=18942572#.UXBguRyDBQN

Hopi Artifacts Controversy

Despite protests and public outcry, a sale of Hopi Indian artifacts went forward last week at a Paris auction house. The auction of these items brought in an estimated $1 million in sales, despite the presence of protesters who urged auction patrons not to bid on the sacred pieces. One of the items at auction was an 1880s headdress called "Crow Mother." According to The New York Times, bidding on this piece "soared" from the estimated $80,000 value to over $200,000. When the piece was eventually sold, a woman in the sales room shouted "Don't purchase that. It is a sacred being."

The auction of the Hopi artifacts was at the center of international scrutiny and diplomatic talks between the United States and French officials last week. A few hours before the auction, a municipal court judge in Paris ruled that the sale could go forward, finding that the objects, "despite their divine status among the Hopis, could not be likened to dead or alive beings." An attorney for the Hopis had argued that the tribe believes that the works embody living spirits, making it "immoral" to sell them under French law. According to the Hopi tribe lodge, the artifacts, known as Katsinam, or "friends," were stolen from tribal lands in Arizona. The auction house responded to these allegations by stating that the pieces were legally obtained from a French collector decades ago.

Five of the 70 Hopi artifacts did not sell, with many pieces selling below the low estimate. On a brighter note, a foundation that purchased one of the pieces plans to return it to the Hopi tribe.

http://artsbeat.blogs.nytimes.com/2013/04/12/french-judge-rules-that-auction-of-hopi-masks-can-proceed/

Their Day in Court

Last week, lawyers for the National Football League (NFL) appeared before U.S. District Court Judge Anita B. Brody to argue that a lawsuit for fraud and negligence, brought against them by over 4,000 former NFL players, should be dismissed. The NFL's lawyers argued that the case "should be dismissed because the players had agreed to a collective bargaining agreement and therefore an arbitrator, not a judge, should hear their cases." On the other side, lawyers for the retired players and their families stated that their clients' cases should be heard in court because of the fraud accusation, adding that "fraud would supersede any labor agreement." Judge Brody may either dismiss the entire lawsuit, or permit parts of the case to proceed. This decision, coupled with appeals and lengthy discovery, could take years.

Following the hearing, spokespersons for both sides made statements about the events that day. Lawyers for the NFL repeated that any injuries to former players were governed by a collective bargaining agreement and hence, could not form the basis of a lawsuit against the NFL. Attorneys for the players and their families again accused the NFL of negligence and indifference to players' injuries, some of them life-threatening and even life-ending. "What they were doing there when they brought us so much pleasure, they were also suffering insidious injuries," said one of the lawyers. He also accused the NFL of willful blindness towards signs that players had sustained serious injury that risked causing long-term, irreversible damage: "the league knew or should have known that these repeated blows to the head caused significant neurological injury."

It is unclear when the judge will rule.

http://www.nytimes.com/2013/04/10/sports/football/judge-hears-nfl-arguments-to-dismiss-head-trauma-cases.html?_r=2&

"Operation BearLove Good, Cancer Bad": Tales from the Internet

The Internet, and much of the litigation that surrounds it, are gifts that keep on giving. Since we could all do with some comedy, get comfortable as I tell you the tale of "Operation BearLove Good, Cancer Bad."

Like many online controversies, "Operation BearLove Good, Cancer Bad" began with some alleged copyright infringement, with a side of hurt feelings and sarcasm. After Matthew Inman, creator of popular comic website The Oatmeal, complained online in 2010 that content aggregator website FunnyJunk.com was using some of his work without his permission, Charles Carreon, an attorney for Funny Junk, sent Inman a demand letter, seeking $20,000 in damages. The letter also demanded that Inman remove all references on his blog and website to Funny Junk and the alleged misuse of his works. Laughing off the demands, Inman launched a fundraiser called "Operation BearLove Good, Cancer Bad," which sought to raise $20,000, with the proceeds donated to charity instead of to FunnyJunk.com. The fundraising campaign featured a cartoon, drawn by Inman, of an obese woman in her underwear, trying to seduce a bear.

Operation BearLove ultimately raised $200,000, which Inman gave to the National Wildlife Federation and the American Cancer Society. Charles Carreon, however, was not too pleased, eventually filing a defamation lawsuit over the cartoon and the statements made by Inman in his fundraising campaign. Carreon also claimed that Inman did not actually intend to raise money for charities, but sought to "revile Inman's legal adversaries," and to "initiate a campaign of trolling and cyber vandalism against them . . . ." Carreon kept going, adding the American Cancer Society and the National Wildlife Federation to his suit, stating that neither charity had "disavowed their association with the Bear Love campaign, thus lending their tacit approval to the use of their names to the Bear Love campaign." (Yes, an attorney actually wrote that and filed it in court.) Carreon later dropped his suit against Inman, the online fundraising platform Indiegogo, and the two charities. This, however, is not where our story ends.

While Carreon was crusading against an Internet comic, other Internet bloggers took notice. One of these people was blogger Christopher Recouvreur. Recognizing comedic gold, Recouvreur set up a website, charles-carreon.com, where he used "exaggerated language to parody the tone of Carreon's demand letters and other communications." After coming across this website, Carreon threatened Recouvreur with legal action. In response, Recouvreur filed an anonymous declaratory judgment complaint wherein he alleged that Carreon had "threatened to sue him for trademark infringement." Additionally, Recouvreur argued that he should be permitted to use the charles-carreon.com domain name for his satirical website, adding "the website was designed to make clear that it was a parody, with the phrase "censorious douchebag" appearing in the title tag on each page of the site."

After several unsuccessful attempts to serve Carreon with the suit, service of which Carreon refused to waive, Recouvreur's attorney was finally able to serve Carreon in person, outside a courtroom. Later, Recouvreur moved for expenses and attorneys' fees, leading Carreon to offer a judgment of $725 pursuant to Rule 68 of the Federal Rules of Civil Procedure. The offer stated that Carreon would "deem Recouvreur's use of the domain name and current use of the website as not violating his rights and as protected under the First Amendment. It specified that $725 would cover the filing fee and service costs." Recouvreur accepted this offer, but filed a second motion for $77,765.25 in fees pertaining to the work that his attorney, Paul Levy, prepared on the two motions.

Hopefully putting this weird tale from the Internet to rest, U.S. District Judge Richard Seeborg ruled last Friday that these attorney's fees are available to Recouvreur under the Lanham Act, finding that Recouvreur's "acceptance of the $725 judgment offer did not moot the fees request since that judgment 'specifically referred to the 'filing fee' and 'costs of service.'" Judge Seeborg calculated the fee award to be $37,650.25. He also cast aside Carreon's claims that his litigation threats are protected by the litigation privilege of California's Anti-SLAPP (Strategic Lawsuit Against Public Participation) law.

Thus, dear readers, it appears that the tale of Operation BearLove Good, Cancer Bad has come to a close.

http://www.entlawdigest.com/2013/04/17/2312.htm

Read the decision here: http://www.courthousenews.com/2013/04/16/carreonruling.pdf

REGISTER NOW http://www.nysba.org/AM/Template.cfm?Section=Events1&ContentID=165605&Template=/CM/ContentDisplay.cfm

Celebrate EASL's 25th Anniversary by joining us for day filled with education, an evening of entertainment and time to catch up with section members. Our 25th Anniversary Celebration will include an evening of lively entertainment at the newly renovated 54 Below, Broadway's Night Club, featuring the fabulously funny Jackie Hoffman following a continuing legal education program on hot topics and a luncheon with keynote speaker, Jeff Gewirtz of the Brooklyn Nets and Barclays Center.

10:15 - 10:50a.m. Registration

10:50 - 11:00a.m. Welcoming Remarks

11:00am -12:00p.m. What is Art Law? An Hour-Long Teaser

This hour-long program in 3 segments presents a buffet of issues addressing the law and business of visual art. The first segment presents an interactive scenario -- with audience participation -- ranging over a variety of legal disciplines dealt with by the art law practitioner including tort law, tax law, auction law, and the like. The second segment addresses some of the legal challenges involved in representing the visual artist, including issues of copyright and moral rights. The third segment focuses on representing the collector -- and the business of buying and selling art, through private treaty and at auction.

Panelists:
Judith A. Bresler, Esq., Withers Bergman LLP, New York City
Carol J. Steinberg, Esq., Law Office of Carol Steinberg

12:00 - 2:00p.m. The Story Behind the Nets and the Barclays Center: One-on-One with Jeff Gewirtz

Jeff Gewirtz, Executive Vice President of Business Affairs and Chief Legal Officer for the Brooklyn Nets and Barclays Center, will be engaged by Jessica Thaler, Solo Practitioner and Co-Chair of Membership for EASL, through a series of questions and answers focused on legal and business issues relating to the development, financing, operating, programming and marketing of Barclays Center, as well as issues relating to the relocation of the Brooklyn Nets from New Jersey to Barclays Center.

Lunch Speaker:
Jeffrey B. Gewirtz, Esq., Executive Vice President of Business Affairs & Chief Legal Officer, Brooklyn Nets and Barclays Center
Moderator:
Jessica Thaler, Esq., The Law Offices of Jessica Thaler

2:00 - 3:15p.m. Ethical Issues Implicated By Social Networking, Cloud Computing & Other New Technologies

As the legal profession becomes more digitally-driven, lawyers are facing challenging questions concerning when, where and how the "practice" and the "business" of law are interconnected. Some of these more novel questions will need to be considered within the context of the ever-blurring lines that result from lawyers assuming an online presence. Using real world examples and interactive hypotheticals, this program will explore practical issues relating to and including:

How competence and diligence have been redefined in the digital age;
Avoiding computer malpractice and inadvertent disclosure;
Spoliation of digital evidence and the ramifications of leaving a digital paper trail.

Moderator:
Pery Krinsky, Esq., Krinsky, PLLC, Chair, EASL Ethics Committee

Panelists:
Douglas Wood, Esq., Reed Smith LLP
Michael Graif, Esq., Curtis Mallet-prevost Colt & Mosle LLP

3:15 - 3:25p.m. Break

3:25 - 4:15p.m. Social Media and Advertising:What Every Lawyer Should Know When Counseling Clients

Legal issues and best practices for brands using popular social media platforms e.g. Facebook, Twitter, Pinterest, etc.

Presenter:
Kathryn Farrara, Esq., Unilever and New York Law School's Institute for Information Law & Policy.

4:15p.m. - 4:45p.m Social Media 2013: What is "Trending" Key challenges for lawyers and marketers in the year ahead

Presenter:
Jason W. Gordon, Esq., Winston & Strawn LLP

5:30p.m. An Evening of Entertainment at 54 Below
Performance by Broadway Great and Comedian Jackie Hoffman

54 Below offers an only-in-New York nightlife experience featuring Broadway's best entertainers, with cocktails and classic American cuisine in the ambience of a 1920s supper club. Newsday calls it "a hip hangout for Broadway babies and the fans who love them, with food that is sophisticated and understated." Located in the heart of the theatre district, 54 Below is Broadway's Nightclub (254 W. 54th Street).

EASL Section Member CLE Registration: $150.00
NYSBA Member (non-EASL) CLE Registration: $200.00
Non-NYSBA Member CLE Registration: $225.00
54 Below Show with Jackie Hoffman: $25.00 (plus a $25.00 food/drink minimum*)

*As an added member benefit, EASL Section Members and their guests will be given a voucher to cover the food/drink minimum

To register for the MCLE meetings and social events, download meeting registration form and return to Beth Gould with your payment. http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/CM/ContentDisplay.cfm&ContentID=165605

For More Information: Beth Gould bgould@nysba.org or 518-487-5674

This Program has been approved for 4.0 MCLE Credit Hours (1.5 in Ethics and 2.5 in Professional Practice) This program has been approved for Newly Admitted Attorneys

Sponsorship Opportunities Available: Click Here for more information
Or contact Beth Gould: bgould@nysba.org

For more information, contact: bgould@nysba.org

Accommodations for Persons with Disabilities:
NYSBA welcomes participation by individuals with disabilities. NYSBA is committed to complying with all applicable laws that prohibit discrimination against individuals on the basis of disability in the full and equal enjoyment of its goods, services, programs, activities, facilities, privileges, advantages, or accommodations. To request auxiliary aids or services or if you have any questions regarding accessibility, please contact Kathy Heider at 800-582-2452 or kheider@nysba.org.

By Martha Nimmer

First Sale Fallacy

Last week, a federal judge in New York ruled that the first sale doctrine does not apply to digital music. On Monday, U.S. District Judge Richard Sullivan held "the first-sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce." This comes as bad news for ReDigi, a company started in October 2011 that sought to apply the first sale doctrine to the resale of "used" digital music purchased from iTunes. According to The Hollywood Reporter, ReDigi's system permitted "song files to be stored in a cloud. The company assured that it had technical measures in place to delete those files from a user's hard drive after the files were resold." Google, a supporter of this novel approach to selling digital music, tried to file an amicus brief in support of ReDigi. Judge Sullivan, however, declined to rule in the defense's favor.

In holding that the first sale doctrine does not permit the re-sale of used digital music, Judge Sulllivan first addressed a copyright owner's reproduction rights; these, the judge wrote, are "the exclusive right to embody, and to prevent others from embodying, the copyrighted work (or sound recording) in a new material object (or phonorecord)." The judge also pointed to previous P2P infringement cases that distinguished between the copyrighted work and the material--digital--object: "when a user downloads a digital music file or 'digital sequence' to his 'hard disk,' the file is 'reproduce[d]' on a new phonorecord within the meaning of the Copyright Act." Judge Sullivan did not stop with the Copyright Act, however, turning later to the "law of physics": "[t]his understanding is, of course, confirmed by the laws of physics," the judge said. "It is simply impossible that the same 'material object' can be transferred over the Internet. ... Because the reproduction right is necessarily implicated when a copyrighted work is embodied in a new material object, and because digital music files must be embodied in a new material object following their transfer over the Internet, the Court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act."

So, at least for now, it seems unlikely that used digital music "stores" will be popping up across the Internet.

http://www.hollywoodreporter.com/thr-esq/judge-hands-defeat-business-selling-432110

Read the decision here: http://www.scribd.com/doc/133478866/redigi

Mendelssohn Heirs Seek Return of Picasso

Descendants of the Mendelssohn family--the same family that produced famed Romantic composer Felix Mendelssohn--have sued the Bavarian government, seeking return of the famed 1903 Picasso work "Madame Soler." The plaintiffs claim that their ancestor, Berlin banker and art collector Paul von Mendelssohn-Bartholdy, was forced to sell the painting in question in 1934 to Berlin art dealer Justin K. Thannhauser, following threats and pressure from the Nazis.

These "paradigmatic forced transfers" of art and other valuable goods arose as a result of "Nazi policies to eradicate Jewish-owned banks and bankers." Mendelssohn-Bartholdy, facing "escalating Nazi predation directed at his real estate property - and with no reasonable expectation of receiving any sustainable future income" from his other corporate holdings, began "liquidating his art collection to protect his residual estate from Nazi seizure and to offset his precipitate deficit," the complaint states. The government in Bavaria eventually acquired the painting from Justine Thannhauser in 1964, ignoring the "conspicuous possibility that Nazi policies had deprived Mendelssohn-Bartholdy" of the work of art, and the fact that the initiator of the purchase for Bavaria, Halldor Soehner, was himself an ex-Nazi. Furthermore, the complaint avers, at the time of the Madame Soler acquisition, the Bavarian government was planning a secret sale of some 113 paintings that former Nazi officials had acquired prior to and during the Second World War. The complaint continues: with the help of ex-Nazi Halldor Soehner, Bavaria successfully auctioned 106 of these works in 1966-67 by concealing the provenance of these paintings, leaving prospective buyers unaware that notorious Nazi leaders once owned these priceless pieces of art that likely were acquired from persecuted Jewish families.

Hoping to recover the Picasso work, Mendelssohn-Bartholdy submitted a claim to recover the piece, "which included an 86-page memorandum and scores of exhibits proving that Nazi duress had compelled Mendelssohn-Bartholdy to relinquish the painting." The Bavarian government declined to return Madame Soler, stating "there is no connection between the sale of the artwork and the persecution of Paul von Mendelssohn-Bartholdy by the National Socialist regime." According to the complaint, Bavaria later refused to submit the claim to a special commission in Germany, charged with resolving Holocaust-era art recovery claims.

At its peak, the "Mendelssohn-Bartholdy's private art collection comprised approximately 60 master works by luminaries such as Picasso, van Gogh, Braque, Monet, Renoir and others. When he died of a heart attack at age 59 in 1935, Mendelssohn-Bartholdy had sold or consigned some 16 of these artworks in a period of less than 1.5 years of Nazi rule (September 1933 through February 1935) - having never sold a single major work in the more than 25 years that he had collected art before the Nazis took power in 1933." The heirs demand return of the painting or $100 million. They claim that by withholding the Picasso, "Bavaria in effect has ratified the wrongdoing of the Nazi government that purposefully compelled Mendelssohn-Bartholdy to forfeit the painting."

http://www.entlawdigest.com/2013/03/29/2267.htm

Fox Sports Sued for Race Discrimination

Last week, a former executive at Fox Sports sued Fox Cable Network Services, alleging he was denied a promotion and eventually fired because of his race. The suit, filed last Friday in Los Angeles Superior Court by Jerry Davis, states that he worked at Fox for over fifteen years as a director in the music department. Davis, who is African American, says that when the job above his became available on four different occasions, he was passed over "because, as a black man, he did not fit neatly in the company's corporate culture." Davis states that during his fifteen years at Fox, he did not receive a single promotion. According to the complaint, the defendant eventually "eliminated [Davis'] position when he was on disability leave 'without providing any interactive process or attempts at accommodation.'"

A lack of diversity plagues broadcast programming at Fox, at least according to Davis. "In the division that runs broadcast / 'over the air' sports programming for Fox, there are currently approximately 34 individuals employed at or above the vice president level. None are [sic] black," the lawsuit states. The complaint goes on to state that, "to the best of Mr. Davis' knowledge, no black person has ever held any position at or above vice president in that division's 19 year existence."

The suit alleges causes of action for unlawful discrimination based on race and disability, as well as retaliation and a failure to accommodate disability, wrongful termination and intentional infliction of emotional distress.

http://www.hollywoodreporter.com/thr-esq/fox-sports-sued-race-discrimination-434018

Read the complaint here: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/bc504990.pdf

Close Call for Netflix

Netflix CEO Reed Hastings can breathe a sigh of relief: the U.S. Securities and Exchange Commission (SEC) has declined to bring regulatory sanctions against Hastings for announcing monthly viewing results on his Facebook page. In July of last year, Hastings made the mistake of posting on his Facebook page that viewing on Netflix's service had "exceeded 1 billon hours for the first time."

Under SEC Regulations, publicly-held companies are obligated to report findings and other information in a public filing before releasing the information via other media. The SEC's decision not to sanction Hastings arises, in part, from uncertainty surrounding whether SEC disclosure requirements apply to social media, such as Facebook. Following Hastings' announcement, onlookers called for the SEC to allow social media platforms to be used to communicate with investors. Last week, the SEC responded with an investigation that states that companies may utilize social media to announce key information, provided that investors have been told where this information can be found online.

Don't forget to "Like" Reed Hastings on Facebook...

http://www.bloomberg.com/news/2013-04-02/netflix-ceo-won-t-face-sec-claims-over-disclosures-on-facebook.html

Read the SEC investigation here: http://www.sec.gov/litigation/investreport/34-69279.pdf