April 5, 2021

Week In Review

By Audrey Glover-Dichter
Edited by Elissa D. Hecker

Below, for your browsing convenience, the categories are divided into: Entertainment, Arts, Sports, Technology/Media, and General News/Coronavirus:


Actors Equity Association COVID Protocols Require All to be COVID Vaccinated

In anticipation to reopening Broadway, Actors Equity posted safety guidelines for employers on collective bargaining agreements.


Theater Think Tank Discusses How to Open Theaters Nationwide

The think tank addresses the need to keep open communication among theatres, health officials, and unions for a cohesive application of policy as theatres open.


Broadway Reopened for 36 minutes!

These short performances were used as at test run on opening Broadway safely.


The premiere of Soul Train on Broadway is Announced

"The arts are essential to our recovery as a community for many reasons - ranging from the positive impact on social cohesion to the economic impact on individuals and related businesses...."


Using Influencers to Influence COVID Vaccinations

Lin-Manuel Miranda, Michelle Obama, and Dr. Fauci, among others are collaborating in a special public service event, Roll Up Your Sleeves, to educate and encourage Americans to get vaccinated against COVID.


Mispronouncing an Asian Actor's Name Leads to the Revocation of the Los Angeles Stage Alliance's Membership to the Theater Companies' Alliance

During an award show, not only was the name mispronounced, but the wrong photo shown as well.


What does Paul Simon have in common with other song writers like Bob Dylan, Stevie Nicks, and Neil Young?

The importance of such sales is having the music available for streaming, since concerts have been canceled due to COVID.


Brands and Hollywood are Collaborating in New Ways Digitally

Brands are creating short film types of advertising posting that are uninterrupted advertisements. Brands are turning to some Hollywood production studios to create such films.



Many Fashion Brands Took a Stand against the Alleged Use of Forced Labor to Produce Cotton in China

Such brands are now facing boycotts in China and brands like H&M and Nike are being targeted on social media and other outlets.


Dubai Holds its Annual Art Fair, Featuring 31 Countries in 50 Galleries

Art Dubai is being held outside because of COVID. It is known as the largest art fair in the Middle East and 2020 was the first time when it was cancelled.


Cairo Held a Parade of Mummies

22 mummies were transferred to the National Museum of Egyptian Civilization. The mummies were transported in order of their reigns and included 18 kings and 4 queens.



SCOTUS To Hear Arguments Addressing the Definition of Student Athletes

The case focuses on compensation of collegiate athletes.


Major League Baseball Will Move the All-Star Game in Response to Georgia's New Voting Law

Not opposing the bill before it passed, Major League Baseball is seeking to make a statement after the fact. Reactions are mixed.


Women's Basketball President Addresses the Differences Between Men's and Women's Tournaments

Mark Emmert claims that women's basketball is treated as second-class.


Nike Wins TRO Against Stan Shoes

According to the complaint filed by Nike, the Satan Shoes are Nike Air Max 97 that have been changed using the satanic theme.


COVID Shrinks Tennis Players' Winnings

Players are adjusting to earning less money since prize money has fallen. This year's grand prize at the Miami Open was $6.7 million, down from $16.7 million in 2019.



Google Wins Long Copyright Legal Battle With Oracle

SCOTUS, in a 6-2 decision, held that Google's use of the code in question was "Fair Use", without deciding copyrightability.

The decision is available here: Google v Oracle.pdf


SCOTUS Unanimously Upholds Federal Communications Commission's Deregulation of Media Ownership

In its decision, the Court relied on the Federal Communications Commission's reasoning based on data collected that such changes will not likely hurt minority ownership.


Facebook wins case at Supreme Court

The Court based its decision about Facebook's predictive dialing technology on a narrow reading of the federal ban on robocalls and robtexts to cell phones.


President Biden proposes to Spend $100 Million Making Fast Internet Access to All Americans

This proposal is part of the infrastructure plan, which aims to provide equal access throughout the country.


Biden Introduced His Plan to Upgrade the Country's Infrastructure

The plan includes Cybersecurity provisions as well; it looks to secure power grids, supply chain venues, and to support research and development for Artificial Intelligence and quantum computing.


The Information Transparency & Personal Data Control Act is the Latest Congressional Attempt at a National Privacy Law

If this legislation passes, the Federal Trade Commission (FTC) would have rule making authority. Most importantly, it may provide a federal framework rather than the conflicting state privacy laws.


The FTC is Set to Increase Enforcement of the Children's Online Privacy Protection Act

The FTC wants to increase enforcement and mandate that parental consent be verifiable.


What Does it Take to Have Standing in a Data Breach?

According to the Eleventh Circuit, accessing credit cards only is not enough. A plaintiff must show how such breach caused harm in order to have standing.


Another Week, Another Breach of Personal Data

More than 500 million Facebook users' information was leaked online, including phone numbers, emails, and other personal data from 106 countries.


Parler's previous CEO, John Matze, Sues Parler and Fox Personality Rebekah Mercer

Matze was let go for his opinions on needing more content filtering. Matze claims to have been cheated out of his 40% stake in the company.


Chinese Government Threatened BBC Journalist

THe journalist and his family left the China for his safety. His reports of China'a alleged abuse of minorities triggered months of targeted abuse.


Maduro's Misinformation About COVID Leads Facebook to Freeze His Page

Maduro's claim that there is a cure made from thyme has no scientific support.


General News

Biden Nominated the First Group of Judicial Nominations

Judge Ketanji Brown Jackson, among this first round of nominations, is also being considered as a potential SCOTUS nomination as well.



Biden's Infrastructure Plan Focuses on Racial Equity

The plan looks to create jobs while rebuilding the infrastructure as well as universal high speed internet.


U.S. Economy Seems to be Recovering

The economy added 916,000 jobs in March, which were more than the expected 675,000 jobs. The numbers show that the economy seems to be rebounding from COVID.


International Criminal Court Sanctions Lifted by U.S.

The Trump administration placed the sanctions that were lifted by the Biden administration.


Biden Reverses Trump Administration's Attack on Reproductive Freedom

In a State Department human rights report, the Biden administration evaluates reproductive rights worldwide.


NCAAP, Along with Other Organizations, Sue Georgia for its Restrictive New Voting Law

The lawsuit claims that Georgia violated the First and Fourteenth Amendments.


Coca-Cola and Delta Air Lines Criticize Georgia

Georgia-based companies are under pressure to speak out against such restrictive laws.


Texas Legislation Proposal to Restrict Voting Criticized by Dell and American Airlines' CEOs

Both companies are based in Texas. The proposed law prohibits mail-in ballots, among other restrictions.


New Jersey Expands Voting Rights

The new law lets residents vote 10 days before election day for general elections, known as early voting. Votes can be cast by mail or in person.


Recreational Marijuana is Legal in New York

Buyers must be at least 21 years old. The law also expunges convictions for marijuana.


Kneeling on George Floyd's Neck While He Was Handcuffed and Lying on His Stomach was "Totally Unnecessary"

The head of the Minneapolis Police Department's homicide division testified as to this on Friday, breaking the "blue wall".


At least 55 of the U.S.'s Largest Companies Did Not Pay Federal Income Tax in 2020

Although companies in this group allegedly reported combined income of $40.5 billion, some have not paid federal taxes in 3 years.


New York City Lost Its Global Warming Case

The City lost its federal appeal case addressing who should pay for the cost of global warming.


Another Attack on the Capitol

An officer was killed and another was seriously injured. The 25 year old was apparently delusional, and suffering from paranoia and suicidal thoughts. The attacker was shot and he died at the hospital.


Trump Organization Duped Supporters into Making Recurring and Automatic Financial Contributions

Such acts caused rent checks to bounce, utilities shut down, etc.


More Bank Records Are Subpoenaed in New York Prosecutors' Investigation of the Trump Organization

This time, prosecutors subpoenaed the private bank records of the CFO of the Trump Organization.


Cargo Ship Is No Longer Blocking the Suez Canal

The initial backlog has been cleared and about 85 ships passed through the Canal on Saturday.



COVID Related Hate Crimes Target Asian-Americans

About 2,800 hate crimes were reported to Stop AAPI Hate, an advocacy group. The FBI has not yet released 2020 numbers.


The Food and Drug Administration Allows Moderna to Increase the Vaccine Doses' Availability

The goal is to vaccinate as many people as quickly as possible.


Please Keep Wearing Masks


Americans Are Traveling Again

Apparently, the increase in travel is attributed to the increase in vaccinations.


15 Million Doses of COVID Vaccine Ruined by Plant Mix-up

Johnson & Johnson was asked by the Biden administration to take over the plant in Baltimore, replacing the previous contractor.


Per the CDC, Fully Vaccinated Travelers No Longer Need to Test and/or Quarantine at Their Destinations


All New York State Prisoners Must Be Vaccinated


March 31, 2021

Second Circuit Reverses Fair Use Decision - Holds Warhol Foundation Infringed Lynn Goldsmith's Photo as a Matter of Law

By Joel L. Hecker

On March 26, 2021, in a much-anticipated decision, the 2nd Circuit reversed the Southern District of New York decision, which found that Andy Warhol's creation of 16 silkscreen prints and pencil illustrations of the musical artist Prince, which was based upon a 1981 photograph created by photographer Lynn Goldsmith, was fair use under the United States Copyright Act. The case is The Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith and Lynn Goldsmith Ltd. (the parties are reversed as Warhol sought a declaratory judgment of non-infringement and Goldsmith counterclaimed for copyright infringement). 2021.03.26 Second Circuit Opinion.pdf

The District Court had found that all 4 of the statutory non-exclusive fair use factors favored Warhol. The 2nd Circuit panel disagreed and concluded that all of the factors actually favored Goldsmith. The 4 factors, set forth in 17 U.S.C. Section 107, are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The principal takeaways from the decision, which are instructive for those who deal with copyright fair use matters, are:

• The panel noted that recent court decisions have placed undue reliance upon the transformative aspect of the first factor, often determining that a transformative use was sufficient for a fair use finding irrespective of the other 3 factors. The panel limited the 2nd Circuit's 2013 Cariou v. Prince decision (714 F. 3d 694) to its facts and went out of its way to write that "our review of the decision below persuades us that some clarification is in order." The Cariou decision has, as the panel noted, "not been immune from criticism." That is an understatement, to say the least, and this reversal in Goldsmith goes a long way to correct what many have perceived to be Cariou's flawed fair use analysis.

• It does not follow that any secondary work that adds a new aesthetic or a new expression to its source material is necessarily transformative. This is particularly instructive as to derivative works, since that category is specifically excluded from the scope of fair use.

• Courts typically consider the purpose of the primary and secondary works in determining if the secondary was transformative. The panel pointed out that the common thread in those cases, "where the secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created," the bare assertion of a "higher or different artistic use " is insufficient to render a work transformative.

On this point the panel held that the secondary work "must, at a bare minimum, comprise something more than the imposition of another artist's style on the primary work such that the secondary work remains both recognizably derived from, and retaining the essential elements of, its source material". That is, the panel found the District Court's conclusion that, "each Prince Series work is immediately recognizable as a Warhol" is irrelevant to the transformative analysis, since that logic "inevitably creates a celebrity-plagiarist privilege."

• The panel unequivocally stated that, as to the fourth factor analysis of effect on the market for the original, that the test is not whether the secondary work would damage the market for the first, but whether it usurps that market by offering a competing substitute. The panel rejected the District Court's rationale that the market for licensing Warhol's works (or by extension any famous artist) is a market for "Warhols" since this would permit this aspect of the fourth factor always to weigh in favor of the alleged infringer when there is an active market for such works. The panel had no problem reversing the District Court on this factor, finding that the markets for licensing Goldsmith's work and the Prince Series overlap in both the existing market, the potential market, and the derivative markets for Goldsmith's photograph. (The case did not involve the sales of the original 16 Warhol works as they were sold or donated to museums prior to the running of the statute of limitations.)

In summary, the panel limited those parts of the Cariou decision that had been subject to extensive criticism, and has clarified to a great extent how the fair use test should be applied. Hopefully, it will provide useful guidance for practitioners in the copyright field.

***DISCLAIMER: Joel L. Hecker was co-counsel for Lynn Goldsmith on the District Court level proceedings, but not on the appeal.

March 29, 2021

Week In Review

By Angela Peco
Edited by Elissa D. Hecker

Below, for your browsing convenience, the categories are divided into: Entertainment, Arts, Sports, Technology/Media, and General News/Coronavirus:


Filmmaker Claims That A&E Networks Suppressed 'Watergate' Series

Writer and director Charles Ferguson is suing A&E Networks, which owns the History Channel. He claims that the network "suppressed the dissemination of his mini-series [on Nixon's presidency] because it was worried about potential backlash to allusions the documentary makes to the Trump White House." The documentary aired on the History Channel over 3 days in November 2020, but it was never again broadcast. Ferguson accuses the network of a "pattern and practice of censorship and suppression of documentary content."



Stage Actors Challenge Union Over Work Rules

Stage actors are challenging their 51,000-member union, Actors' Equity (Equity), for continuing "to move the goal posts of safety protocol, requiring more radical standards" that are keeping actors without work. Equity has barred almost all stage work in the U.S. during the pandemic and issued at times increasingly stricter guidelines as the pandemic continued.


Vaccinations for New York's Theater Workers

Mayor de Blasio announced that New York City would create a vaccination site for theater workers, as well as a mobile vaccination unit for theater workers beyond Broadway. Both measures are meant to help theaters reopen in the fall.


Virus Cases Delay Effort to Bring Indoor Dance Back to New York

A sold-out indoor show at the Park Avenue Armory was postponed after members of the dance company tested positive for the coronavirus.


Non-fungible Tokens: $560,000 for a Picture of a Newspaper Column

Kevin Roose explains how he turned his column into a NFT and put it up for auction. Someone paid $560,000 in cryptocurrency.


H&M Faces Boycott in China Over Its Criticism of China's Treatment of Uyghurs

A growing number of retailers are facing boycotts in China over their "public stances against forced labor in Xinjiang and for halting cotton sourcing from the region." Nike has also joined the boycott of cotton from the region.


Descendant of Prussian/German Dynasty Wants to Recover Artifacts in Family's Possession

The royal treasures were confiscated from his family in eastern Germany after World War II and are held in German museums. Prinz von Preussen has filed injunctions against journalists and historians to block what he says are inaccurate stories about his great-grandfather's role in the rise of the Nazis.


German Theatregoers Asked to Provide Negative Coronavirus Tests

A pilot program in Germany is bringing back live performances that would require audiences to wear masks, social distance, and "present a negative test result from a rapid test taken no longer than 12 hours before curtain." The cost of the test is included in the ticket; the test itself must be administered by health professionals at designated locations.



University of Southern California Agrees to $1.1 Billion Settlement in Gynecologist Abuse Case

University of Southern California (USC) announced 3 sets of settlements for hundreds of alleged victims of Dr. George Tyndall, who is accused of sexually abusing patients. It represents the largest per-victim payout and the largest sexual settlement ever.


National Collegiate Athletics Association Acknowledges $13.5 Million Tournament Budget Gap; Hires Law Firm to Review Inequities

The organization has hired Kaplan Hecker & Fink LLP "to evaluate [its] practices and policies and provide recommendations on steps we can take to get better." The National Collegiate Athletics Association (NCAA) came under scrutiny for the glaring differences between the Division I Men's and Women's basketball tournaments. It also acknowledged that its 2019 spend for the men's tournament was $28 million, versus $14.5 million for the women's.



Referee Banned from Working National Hockey League Games Over Comment on Penalty Call

Referee Tim Peel was caught on a rinkside microphone saying that he had been wanting to call a penalty against the Nashville Predators. The league's statement said that it took action to protect the integrity of the game.


Deshaun Watson's Lawyer Issues Denial of Assault Claims

The quarterback is facing multiple civil suits from 16 women who "accuse him of a pattern of coercive behavior." Watson's lawyer questioned the sexual assault allegations and characterized them "as an attempt to blackmail his client."


John Isner Asks for Clarity from Association of Tennis Professionals After Drop in Prize Money

Tennis Player John Isner, who broke away from the Association of Tennis Professionals (ATP) Player Council last year, has asked the tour to explain its decision-making process after the overall prize pool for the 2021 Miami Open dropped from $16.7 million in 2019 to $6.68 million in 2021.


Athletes Pitch Wall Street's Hot New Toy

The article describes the trend of star athletes getting involved in special purpose acquisition companies (SPACs). SPACs, or blank-cheque companies, are entities set up with the objective of acquiring a firm, and they typically court start-ups for merger deals.


"Cursed" Tokyo Olympics Pressing Ahead Amid Pandemic; Torch Relay Begins

Despite concerns that the Olympics could become a superspreader event, and in the midst of a leadership turnover, the Games' organizers are pushing ahead mainly due to financial considerations, "national pride and political obduracy."



Fans Want Their Money Back as the Olympics Bar Foreign Fans

Ticketholders eager for refunds may run into difficulties because Tokyo organizers have offered no road map for fans to obtain refunds.


Gambling Company Records Profitable Year Amid Pandemic

The pandemic maximized earnings for gambling operators in England, where people turned to gambling sites, sometimes compulsively so.


What a Gambling App Knows About You

The article describes how SkyBet, the most popular gambling app in Britain, collected extensive records about its users, including banking records and mortgage details, locations, and their wagering habits.



Dominion Sues Fox News, Claiming Defamation in Election Coverage

Election technology company Dominion Voting Systems is accusing Fox News of pushing lies that devastated its reputation and business. Dominion has requested a jury trial and seeks at least $1.6 billion in damages. It follows a similar lawsuit by Smartmatic for $2.7 billion.


Lawmakers Grill Tech CEOs on Capitol Riot

The leaders of Facebook, Twitter, and Google participated in a 5-hour hearing before a House committee, where they were questioned over the role of their platforms in sharing misinformation that contributed to the Capitol riot. Lawmakers raised the issue of there being a financial incentive for the companies to keep their users engaged, sometimes by feeding them divisive content. Facebook took the position that responsibility lies with the insurrectionist, while Twitter accepted that the platform played a role, but urged lawmakers to consider "the broader ecosystem."


Unfiltered Streams of Hate on Google Podcasts

Google Podcasts is one of the last remaining platforms "for the deplatformed," after other social networks have taken steps to limit hate speech and misinformation.


A Newsroom with Urgency About Racism at Its Core

Ibram Kendi and Bina Venkataraman plan to start "an online publication that blends reportage, opinion and academic research." The project will be backed by their institutions, Boston University and The Boston Globe, with some of the publications expected to appear in the latter publication. The intent is "to revive the tradition of a generation of media that predates the formal division of news and opinion in 20th-century American journalism" and create a new platform to discuss racism.


India's New Media Rules Could Silence Outlets

Several Indian online news outlets that have mostly operated independently are now threatened by new media laws that can force them to change or take down content if they become subject to complaints. The fear is that outlets will be targeted by online trolls that can mount such campaigns in an effort to silence them.


General News

Supreme Court Wary of Law Letting Union Organizers onto Private Property

At issue is a California regulation that permits "union representatives to meet with farmworkers at the worksites for up to three hours a day for as many as 120 days a year." Some justices were concerned about the implications of a ruling "that the regulation amounted to a government taking of property," as that could endanger other laws authorizing government entry (safety inspections, etc.).



Supreme Court to Decide Whether Men-Only Draft Violates the Constitution

The Supreme Court will decide whether to hear a challenge to one of the last remaining gender-based restrictions in federal law - the obligation to register with the Selective Service System (the agency that maintains a database of who would be eligible to serve if the draft were reinstated) remains limited to men. The petitioners argue that the 1981 case Rostker v Goldberg should be overturned. In that decision, the Supreme Court dismissed a similar challenge, reasoning that discrimination was justified because women could not serve in combat then. That has since changed - since 2016, women can serve in every role in the military.


Supreme Court to Consider Death Sentence in Boston Marathon Bombing Case

The Court will review a federal appeals court decision that overturned the death sentence of Dzhokhar Tsarnaev, convicted of helping carry out the 2013 Boston Marathon bombing. The appellate court took issue with the trial judge not having "questioned jury members closely enough about their exposure to pretrial publicity" and for excluding evidence about his brother and accomplice.


President Biden Seeks New Gun Laws

President Biden called on the Senate to pass an assault weapons ban and close background check loopholes following a string of mass shootings this week. The renewed call for gun safety legislation was met with little bipartisan support in Congress.


Biden's Infrastructure Push Puts Climate Fight at Forefront

The $4 trillion recovery plan will be split between 2 packages, the first of which is an infrastructure bill intended to drive growth in clean energy and fight climate change.



Biden Taps Kamala Harris to Lead Administration's Migrant Response

Harris will "lead the administration's efforts to deter migrants to the southwestern border by working to improve conditions in Central America." Reports suggest that billions of dollars of funding will go into improving local economies and address poverty and corruption in the area.


Justice Department Links Two Far-Right Groups Before Capitol Riot

Prosecutors have made the first link between the Oath Keepers militia and the Proud Boys as they work to prove that the groups were in communication and coordinated some plans for the day of the attack.


Democrats Begin Push for Biggest Expansion of Voting Since 1960s

Democrats are expected to advance a bill that would "mandate automatic voter registration nationwide, expand early and mail-in voting, end gerrymandering and curb the influence of money in politics." Republicans, on the other hand, have introduced over 250 bills in state legislatures that restrict voting.


Georgia Passes Board Curbs on Ballot Access

The law introduces new restrictions, including stricter voter identification requirements, limiting drop boxes, curbing the powers of the secretary of state, restricting who can vote with provisional ballots, and criminalizing offering food or water to voters waiting in line. Runoff elections will also be held 4 weeks after the original vote, as opposed to 9 weeks, which was the old rule.



Top House Aide Confirmed as Biden's No. 2 Budget Official

Shalanda Young was confirmed with bipartisan support as Deputy Director of the Office of Management and Budget.


Manhattan on Track to Have First Black U.S. Attorney

President Biden is expected to name Damian Williams as the next U.S. attorney for the Southern District of New York. Williams is a specialist
in white-collar prosecutions and clerked for Merrick Garland. He would be the first Black prosecutor to lead the office known for handling some of the nation's most high-profile and complex investigations.


New York City Creates Racial Justice Commission to Address Structural Racism

Mayor de Blasio announced the formation of the Racial Justice Commission, tasked with making policy recommendations to dismantle structural racism. The proposed policies could go before voters next year as ballot measures. Past commissions have been successful in altering the City Charter, introducing things like ranked-choice voting, limits on campaign contributions, and term limits for community board members.


Virginia Becomes 23rd State to Abolish the Death Penalty

It is the first Southern state to end capital punishment, with the governor noting the racial disparities in the use of the death penalty in the state (70% of those executed in the 20th century have been Black).


Senate Confirms Boston's Mayor, Martin Walsh, Confirmed as Labor Secretary and Kim Janey Becomes Boston's First Black Mayor

Walsh, a former leader of Boston's building trades council, fills the last of 15 Cabinet posts in Biden's administration. Acting Mayor Janey will hold the position until the November election and has not said if she intends to run for the office. She describes her work in education and other issues as an extension of her parents' contributions to the civil rights movement.



Chicago Suburb Shapes Reparations for Black Residents

Evanston, Illinois officials are considering how to distribute $10 million in reparations to Black residents who suffered housing discrimination. They are among the first communities to commit funds to programs "intended to address historical racism and discrimination" and distribute them by way of housing grants.


Postal Service Plans Price Increase and Service Cuts

The Postal Service's 10-year strategic plan would extend delivery times, raise prices, reduce post office hours and consolidate locations so as "to recoup $169 billion in projected losses over the next decade."


U.S. Joins Multinational Effort to Punish Chinese Officials for Human Rights Violations

The U.S. placed sanctions on Chinese officials, joining allies in punishing Beijing for human rights abuses against the Muslim Uyghur minority.


Coronavirus Update

AstraZeneca Vaccine Passes U.S. Trial, Found to Be 79% Effective


U.S. Officials Question AstraZeneca Vaccine Trial Results


Pfizer and Moderna Begin Vaccine Trials in Young Children


Governor Cuomo's Family Said to Have Received Special Access to Virus Tests

The New York Times is reporting that high-ranking state health officials were deployed to administer COVID tests to members of the Cuomo family in March 2020, when testing was not widely available to the public.


New York Gave Drug Executive Special Access to Virus Tests

The president of pharmaceutical company Regeneron "received special access to coronavirus testing last year as the first wave of the pandemic tore through New York and tests were severely limited." The chair of the judiciary committee of the state assembly said the issue of preferential access would become part of a larger inquiry into Cuomo's actions.


Some Nations Could Wait Years for COVID Shots


March 26, 2021

Theater News for the Week of March 26th

By Bennett Liebman

Coming to Broadway: Vaccinations for New York's Theater Workers, https://www.nytimes.com/2021/03/25/theater/broadway-vaccinations-coronavirus.html

NYC to vaccinate Broadway workers ahead of fall return, https://nypost.com/2021/03/25/nyc-to-vaccinate-broadway-workers-ahead-of-fall-return-de-blasio/

Construction on Capital Repertory Theatre in Albany complete, https://dailygazette.com/2021/03/23/new-site-cost-14-2-million-performances-will-start-eventually/

Goodspeed pushes live indoor shows to September, https://www.courant.com/ctnow/arts-theater/hc-ctnow-goodspeed-postpones-season-further-20210325-zs46b4byyvgg3mr7liay6rrcvm-story.html

Fauci says Broadway reopening this fall still likely, https://broadwaynews.com/2021/03/23/fauci-says-broadway-reopening-this-fall-still-likely/

'Why Are We Stuck?' Stage Actors Challenge Their Union Over Safety, https://www.nytimes.com/2021/03/23/theater/actors-equity-health-safety.html?smtyp=cur&smid=tw-nyttheater

California COVID-19 rules leave theaters unable to plan, https://www.latimes.com/entertainment-arts/story/2021-03-24/covid-california-tier-theater-concerts-outdoors

PPP2, SVOG, OMG: What You Need to Know About Relief for Your Theatre, https://www.americantheatre.org/2021/03/25/ppp2-svog-omg-what-you-need-to-know-about-relief-for-your-theatre/

When Will Theaters See Covid Funds, https://www.washingtonpost.com/entertainment/theater_dance/theaters-covid-relief-fund-delay/2021/03/21/8e66140a-898a-11eb-82bc-e58213caa38e_story.html

Can You Autograph a Playbill Through Your Screen?, https://www.nytimes.com/2021/03/24/theater/broadway-virtual-stage-door.html?smid=tw-nyttheater&smtyp=cur

Vanessa Williams Stars in Black Theater United's 'Stand for Change' Music Video, https://people.com/movies/vanessa-williams-wants-black-theater-uniteds-uplifting-stand-for-change-music-video-to-be-our-legacy/

Huntington set to raise the curtain on its $55 million theater renovation project, https://www.bostonglobe.com/2021/03/25/arts/huntington-set-raise-curtain-its-55-million-theater-renovation-project/

How theater is changing maybe forever, https://dcmetrotheaterarts.com/2021/03/23/a-year-into-covid-how-theater-is-changing-maybe-forever/

NYC Public School Students Get a Taste of Broadway, https://www.broadwayleague.com/press/press-releases/nyc-public-school-students-get-a-taste-of-broadway-through-streaming/

What It Will Take for New York Theater to Come Back, https://ruthiefierberg.medium.com/what-it-will-take-for-new-york-theater-to-come-back-as-the-industry-and-community-it-professes-to-21352184d8e1

Andrew Lloyd Webber Talks Emerald Fennell and Cinderella, https://variety.com/2021/film/columns/andrew-lloyd-webber-emerald-fennell-cinderella-just-for-variety-1234936884/

For a night at the theater, bring a negative coronavirus test, https://www.nytimes.com/2021/03/25/world/for-a-night-at-the-theater-bring-a-negative-coronavirus-test.html

Vaccine passports could speed return to normalcy, https://www.berkshireeagle.com/opinion/editorials/our-opinion-vaccine-passports-could-speed-return-to-normalcy/article_ca98e27a-8c1b-11eb-b498-0f4970e27662.html

Could Covid kill off the interval?, https://www.telegraph.co.uk/theatre/what-to-see/could-covid-kill-off-the-interval/

Shakespeare's Globe to reopen in May staging plays with no intervals, https://www.theguardian.com/stage/2021/mar/24/safety-measure-for-measure-shakespeares-globe-to-reopen-with-covid-protocols?CMP=Share_iOSApp_Other

Detroit's famous Fisher Theatre to be acquired by U.K. company, https://www.freep.com/story/entertainment/arts/2021/03/22/detroits-famous-fisher-theatre-acquired-u-k-company/6956950002/

How We Can Create a New Broadway Out of Its Myopic Past, https://www.theatermania.com/broadway/news/how-we-can-create-a-new-broadway-out-of-its-myopic_92047.html?utm_source=twitter&utm_medium=social&utm_campaign=23mar2021

Sports Law News for the Week of March 26th

By Bennett Liebman

Arkansas to land on California travel ban list, https://www.ebar.com/news/news/303356

Arkansas GOP governor signs 'illegal' anti-transgender bill into law, https://www.rawstory.com/asa-hutchinson/

Lawyers aren't solution to gender equity woes, https://www.usatoday.com/story/sports/college/columnist/dan-wolken/2021/03/25/ncaa-womens-tournament-lawyers-arent-solution-gender-equity-woes/7002705002/

NCAA hires outside law firm to review inequities, https://sports.yahoo.com/ncaa-hires-outside-law-firm-175507622.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAACSKucJq2UjBTKVFGhE9qXtjGz-uPTSnFU_lkXkFTcpemKWxpz6Eyooe6VAKMkmZfG8clgfgQRwBToDSxdW-gv3PxB7GDeBRDS1KuFifp-qSINI9kPrCW3UgjzLTle72ivX50pSDtIy1fJ5guc97dg01YC_E2zfyzdwQ_kwIielL

NCAA must act to prevent anti-trans laws, protect athletes, https://www.indystar.com/story/opinion/2021/03/23/ncaa-anti-trans-laws-lgbtq-rights-athletics-rules-state/4797604001/

The NCAA Plays in a Different Court, Education or Exploitation? Fair or Foul? https://www.law.com/litigationdaily/2021/03/18/education-or-exploitation-fair-or-foul-the-ncaa-plays-in-a-different-court-the-supreme-court/?slreturn=20210226131200

EMU Students Told Sexual Assault Wasn't 'Worth Reporting', https://theslot.jezebel.com/michigan-university-students-claim-their-title-ix-coord-1846556471

Report blasts LSU's handling of sexual misconduct, https://www.theadvocate.com/baton_rouge/news/article_12d2ae2c-8d9d-11eb-b8eb-33f1da250fc9.html

Oregon Could Join Florida In Giving College Athletes NIL Rights, https://abovethelaw.com/2021/03/oregon-could-join-florida-in-giving-college-athletes-nil-rights-plus-an-added-benefit/

College Sports NIL Reform: The 11 States that Still Have Done Nothing, https://www.sportico.com/leagues/college-sports/2021/college-sports-nil-reform-1234625647/

Dan Snyder's Washington Football Team Buyout Is A Great Deal, https://www.forbes.com/sites/mikeozanian/2021/03/25/roger-goodell-behind-dan-snyders--bargain-buy-out-of-washington-football-team/?utm_source=TWITTER&utm_medium=social&utm_content=4659943647&utm_campaign=sprinklrSportsMoneyTwitter&sh=17e6b07863ed

Dan Snyder Buying Out Washington Football Team Minority Owners, https://www.sportico.com/leagues/football/2021/dan-snyder-buys-out-partners-1234625573/

Saliva test for concussions found by University of Birmingham researchers, https://www.washingtonpost.com/sports/2021/03/23/concussion-saliva-test/

Cubs Ticket Lawsuit Foul Ball Arbitration, https://www.sportico.com/law/analysis/2021/cubs-ticket-lawsuit-1234625462/

Barstool Sportsbook Lines Up Two More States For Launch, https://www.legalsportsreport.com/49718/barstool-sportsbook-next-state-launches-2021/

Deshaun Watson lawsuits up to 14, with 24 accusers, https://profootballtalk.nbcsports.com/2021/03/23/deshaun-watson-lawsuits-up-to-14-with-24-accusers/

FIFA Bans Sepp Blatter Again, http://aroundtherings.com/site/A__102929/Title__FIFA-Bans-Sepp-Blatter-Again---Federation-Focus/292/Articles

NFT's Meaning: What is a Non-Fungible Token?, https://www.sportico.com/feature/nft-meaning-non-fungible-token-crypto-1234625399/

College sports cuts fuel lawsuits claiming schools violate Title IX, https://www.washingtonpost.com/sports/2021/03/25/college-sports-cuts-title-ix/

Jackie Joyner-Kersee talks about Title IX impact, https://fox2now.com/sports/jackie-joyner-kersee-talks-about-title-ix-impact-on-womens-sports/

Fox Sports dramatically extends wagering push with NYRA deal, https://www.sportbusiness.com/news/fox-sports-dramatically-extends-wagering-push-with-nyra-deal/

March 22, 2021

Week In Review

By Travis Marmara
Edited by Elissa D. Hecker

Below, for your browsing convenience, the categories are divided into: Entertainment, Arts, Sports, Technology/Media, and General News/Coronavirus:


Pay Discrimination Suit Against Disney Adds Pay Secrecy Claim

In 2019, 2 employees of Disney, LaRonda Rasmussen and Karen Moore, filed a lawsuit against the company alleging gender discrimination and unequal pay against the company. The lawsuit was then expanded to include 8 other women and alleged further that the company engaged in a strict policy of "pay secrecy," wherein women were told by their superiors never to speak about their compensation to other employees and were even reprimanded for doing so. Critics of "pay secrecy" tactics cite their effect on equal pay, as they deprive women of the information needed to make such demands. The National Labor Relations Act of 1935 makes it illegal for employers to retaliate against their workers for discussing wages with colleagues. Further, the state of California added the California Fair Pay Act, enacted in 2015, which further protects the right of employees to openly discuss their own pay.


Live-Event Businesses Will Be Able to Apply for a Relief Grant Program Starting April 8th

According to the Small Business Administration, it will begin to take applications on April 8th from music clubs, theaters, museums, and concert promoters to distribute the $16 billion in federal funds. Businesses will be eligible for up to $10 million in aid, and the process will occur on a rolling basis, with those who have lost at least 90% of their revenue from the pandemic applying first.


Oscar Nominations 2021: "Mank" Leads Nominations and Chloé Zhao Makes History

The Academy nominated 2 women for best director, including Chloé Zhao for her work on "Nomadland" and Emerald Fennell for "Promising Young Woman". Additionally, roughly half of the 20 acting nominations went to People of Color, demonstrating a welcome change for the 9,137 voting members, who are mostly white and male.



Art Market Shrank 22% in Pandemic Year, Study Says

A recent report by Art Basel and UBS Art Market noted that, in 2020, the global sales of art and antiques decreased by 22% in comparison to the prior year. In a shift in marketplace, however, more people moved online and to private transactions at auctions houses, which saw a 36% spike in sales.

In response, more museums are taking advantage of a temporary 2-year easement of an Association of Art Museum Director's policy that previously restricted art institutions in the United States from selling their artwork for maintenance costs associated with operations. Critics argue that the intention of displaying artwork is for public benefit. Others see the move as a necessary step to ensure that these institutions stay in operation.



The Arts Are Coming Back This Summer. Just Step Outside.

As vaccines continue to be distributed and injected around the country, theater companies have begun planning the next steps. While there are still capacity requirements, theater companies have been working with local governments and actor unions to ensure that plays will be performed safely and outdoors. Companies that normally hold shows outdoors are not at a competitive disadvantage, but "indoor work remains a ways off in much of the country, as producers wait not only for herd immunity, but also for signs that arts patrons are ready to return in significant numbers. Broadway, for example, is not expected to resume until autumn."

In France, theaters have also not yet open. However, protesters took to the streets and even forced their way into national playhouses throughout the country demanding that the theaters reopen. Similarly, roughly 2,000 individuals of Actors' Equity signed a petition, seeking to meet with their union officials. Since the beginning of the pandemic, Actors' Equity has restricted its members from participating in any production unless they occur at one of the 22 theaters nationwide that Actors' Equity previously approved. SAG-AFTRA members, however, face no such regulations.




France to Return Klimt Painting to Rightful Heirs After Nazi-Era Sale

The Musée d'Orsay in France will be returning famed Gustav Klimt piece, "Rosebushes Under the Trees", to the family of Nora Stiasny, a Jewish woman who sold the painting under duress to a Nazi sympathizer and later died during the Holocaust. The painting is legally considered France's "inalienable property" and an act of Parliament is required (and expected to pass) to return the painting to the Stiasny family.


Berlin Theater Back in Crisis After Director Quits

Influential German newspaper Die Tageszeitung recently published a report detailing sexual harassment claims made by 10 women against Klaus Dörr, the director of the Volksbühne theater in Berlin. The report stated that "Dörr had stared inappropriately at women who worked at the theater, made sexist comments and sent inappropriate text messages." Dörr has since resigned from his post and apologized for his inappropriate actions.



NCAA Quietly Eases a Virus Safety Rule for Tournament

In preparation for the men's and women's basketball tournaments, which will be held this month in Indianapolis and San Antonio, respectively, the NCAA rewrote provisions in its coronavirus safety protocols to require negative results on virus tests for players and staff to be separated by at least 12 hours. This marks a distinct change from the original guidelines, which called for teams to "remain in quarantine until two consecutive tests on separate days are confirmed negative, at which time team practice may begin."


College Athletes Seek to Use March Stage to Pressure NCAA

Using the large platform that basketball athletes have during the March Madness tournament, 12 players from 15 schools have gone to Twitter to advocate for addressing the NCAA's control over their marketing opportunities as athletes, using the #NotNCAAProperty hashtag. Players have also requested to meet with current NCAA president, Mark Emmert, to implement new rules that would situate athletes on similar ground as non-athletes with respect to promotion opportunities, including allowances on the ability to make money through social media and advertising coaching lessons.

The NCAA tournament has also shed light on the difference in resources provided to male and female athletes participating in the basketball competitions in Indianapolis and San Antonio. For example, to test for coronavirus, male athletes are administered PCR testing, which is considered the most accurate form of testing, while female counterparts receive rapid antigen tests, which yield quicker, but less accurate results, and are far cheaper. Images online also surfaced displaying the differences in training facilities, where male players were afforded a well-stocked complex and female athletes received one rack of hand weights. The NCAA has since apologized and vowed to remedy the vast discrepancies.



Black National Football League Players Want New Advocate in Concussion Settlement

Retired National Football League (NFL) players Kevin Henry and Najeh Davenport filed dementia-related claims as part of a settlement with the NFL over concussions. In providing payment, the NFL and representatives for the players agreed that neuropsychologists would use a race-norming test developed by Dr. Robert Heaton as a guideline to determine whether a player could be diagnosed with dementia and thus receive a payout. The former players argued in a recent lawsuit, however, that using the Heaton test to determine claims inherently discriminates against former black athletes, as the test uses 2 separate scoring curves, depending on race.


Professional Teams Sue Insurance Companies over Pandemic Losses

The Philadelphia Eagles of the NFL and the Los Angeles Lakers of the National Basketball Association filed respective complaints against their insurance providers, seeking payouts from the insurance companies as a result of a disruption of business stemming from the coronavirus pandemic.



NFL Finalizes New 11-Year Media Rights Deal, Amazon Gets Exclusive Thursday Night Rights

The NFL has reached a television rights deal with existing partners ViacomCBS, Fox, Comcast, and Amazon to broadcast football games. The 11-year agreement totals over $100 billion dollars and will run through the year 2033. Amazon will pay $1 billion per year for the exclusive rights to broadcast the Thursday Night Football game. ViacomCBS, Fox, and Comcast will all pay over $2 billion per year, while Disney, which owns ESPN and ABC, will be paying the most, around $2.7 billion, for an expanded array of games.


Deshaun Watson Accused of Sexual Assault in Civil Suits

Seven women have filed civil lawsuits against Deshaun Watson, quarterback of the Houston Texans NFL franchise. All the incidents show a pattern of behavior and stem from encounters with Watson, where he allegedly used force to try and initiate sexual acts, exposed himself, and threatened to ruin the reputation of one of the women. Watson responded by saying that he '"never treated any woman with anything other than the utmost respect" and that he looked forward to clearing his name.



Tokyo Olympic Ceremonies Chief Resigns Over Female Comedian Insult

A local Japanese magazine, Shukan Bunshun, reported that creative director for the upcoming Tokyo Olympics ceremonies, Hiroshi Sasaki, remarked that Naomi Wantanabe, a popular plus-size entertainer, should appear at the opening ceremony as an "Olympig" and suggested that she should wear pig ears. Sasaki has since stepped down and apologized for his remarks.


Spectators From Overseas Are Barred From Tokyo Olympics

The Olympic Games in Tokyo were originally scheduled to be held in the summer of 2020. Due to the pandemic, the games were moved to the summer of 2021. Citing health concerns, Seiko Hashimoto, President of the Tokyo committee, announced that spectators from overseas will be prohibited from attending the event. The decision was made jointly with the International Olympic Committee, the International Paralympic Committee, and the national and local governments in Japan.


Inter Milan, a Storied Italian Soccer Club, Is Threatened by Shifting Prospects in China

Between 2015 and 2017, Chinese business and wealthy investors have poured in over $1.8 billion, acquiring equity stakes in over a dozen European soccer teams. Due to shifting political winds and the financial effects of Coronavirus in China, however, many Chinese companies have become strapped for cash and are at risk of losing the clubs. Suning, an electronics retailer in China, paid $306 million in 2016 for a majority stake in Inter Milan. Currently, however, many players have agreed to defer payment or have not been paid at all, due to the financial situation of Suning.



Epoch Media Casts Wider Net to Spread Its Message Online

In the wake of the Capitol riot on January 6th, large media/tech companies, such as Facebook, Twitter, and YouTube, removed thousands of accounts to limit the spread of misinformation. Since then, many right-wing readers have moved to smaller, fringe websites. Up to 13 of these smaller sites have connections to the Epoch Media Group, a news organization that has become "a top purveyor of conspiracy theories and political misinformation," rivaling Breitbart News and the Daily Caller.


Twitter Hacker Pleads Guilty in Florida Court

Graham Ivan Clark, the juvenile who last year hacked Twitter accounts of Elon Musk, Jeff Bezos, and former President Barack Obama, wherein he solicited Bitcoin and tweeted fraudulent messages from these accounts, has agreed to serve 3 years in juvenile prison. He also agreed not to use computers without permission or supervision from law enforcement.


Teen Vogue Editor Resigns After Fury Over Racist Tweets

Alexi McCammond, a prominent young journalist of Axios, who covered the Biden campaign and was named an emerging journalist of the year by the National Association of Black Journalists, was selected to become the new Editor-in-Chief of Teen Vogue, a title held by only 2 black women before her. Tweets from a decade ago and internal pressure from workers at Teen Vogue subsequently forced McCammond and the magazine to part ways. In the 2011 tweets, McCammond made comments on "the appearance of Asian features, derogatory stereotypes about Asians and slurs for gay people." McCammond apologized for the tweets and deleted them in 2019. Images of the tweets, however, resurfaced after it was announced she would be leading the journalistic efforts at the magazine, leading to renewed backlash.


For Political Cartoonists, the Irony Was That Facebook Didn't Recognize Irony

In recent years, and in response to critique, Facebook has been more active in policing certain kinds of speech on its platforms, including political speech, posts advocating violence, and posts by the fringe of society. Yet the company's artificial intelligence has had difficulty distinguishing the nuances of language, including the detection of sarcasm and irony. The result is that in trying to police its site, it has removed pages and posts that do not contravene its own policies or any laws.


Facebook Agrees to Pay for Murdoch's Australia News Content

After Google agreed last month to a global agreement with News Corp to pay for its content in Australia, Facebook has also agreed to pay the news publisher, after the country temporarily blocked news links inside Australia due to pending legislation that requires the tech giants to pay publishers for their content. The agreement strikes a markedly different tone from last month, when the company argued that it was not a news source, but rather a platform where users shared the news, amongst other interests.


Tabloid Hired Gun Tells of Shady Hunt for Meghan Markle Scoops

In 2016, The Sun, a popular British tabloid, hired private investigator Daniel Portley-Hanks to dig up dirt on Prince Harry. Portley-Hanks ultimately logged in to TLOxp, "a service with a vast database of restricted information about individuals and businesses, and pulled up a trove of details -- home addresses, cellphone numbers, Social Security numbers" and found information relating to Meghan Markle, who Prince Harry was suspected to be dating at the time. Portley-Hanks sold the information to The Sun for $2,055, leading to a swath of tabloids involving the couple, including Prince Harry's apparent desperation to meet Markle, a fallout between Markle and her father, and unflattering and racist portrayals of Markle. U.S. privacy statutes prohibit people from passing these reports to news organizations. American news organizations, however, can use TLOxp for basic research, but only has access to a limited set of data.


China Punishes Microsoft's LinkedIn Over Lax Censorship

LinkedIn has been the only U.S.-based social network to operate in China, long known for its censorship of the internet. In part, LinkedIn has been able to operate in China because it censors the posts of millions of its Chinese users. The operation of LinkedIn in China has created a fascinating case study and pathway for other U.S social media companies to operate in the country. However, China's internet regulator rebuked LinkedIn executives this month for failing to control political content. As a punishment, "officials are requiring LinkedIn to perform a self-evaluation and offer a report to the Cyberspace Administration of China, the country's internet regulator."


General News

Biden Administration Faces Legal Fight Over State Aid Restrictions on Tax Cuts

A provision in the recently passed $1.9 trillion economic relief legislation provides that local governments cannot use aid money to cut taxes. In response, the state of Ohio has sued to block the provision, arguing that such provision is a violation of state sovereignty and would infringe on the ability for states to determine policy. Ohio is expected to receive $5.5 billion in federal relief funds, which may now be delayed due to the pending lawsuit.

In addition, also tucked into the legislation are "tens of millions of dollars for organizations dedicated to curtailing domestic abuse, which skyrocketed during the pandemic, as well as vouchers for people fleeing violence at home, to help them find safe shelter and rebuild their lives."



Treasury Ramps Up Racial Equity Review as It Deploys Relief Funds

Subsequent to President Biden's Executive Order calling for federal departments to seek racial equity, the Treasury Department is proceeding to undergo a formal racial equity review of the department and its initiatives. The effort will be led by incoming Deputy Treasury Secretary Adewale Adeyemo, and coincides with the Treasury Department's goal of ensuring that financial assistance resulting from the stimulus bill will be distributed fairly across different races.


Deb Haaland Becomes First Native American Cabinet Secretary

Deb Haaland made history this week after the Senate confirmed her nomination to lead the Interior Department, marking the first time that a
Native American has been confirmed to lead a cabinet agency. The department oversees, amongst other things, "about 500 million acres of public land, federal waters off the United States coastline, . . . and the protection of thousands of endangered species," and covers nearly 1.9 million Native Americans.


Senate Approves Burns to Lead CIA

This week, the Senate confirmed the appointment of William J. Burns, a career diplomat, to lead the CIA. Burns, who was confirmed by unanimous consent, was a former ambassador in Russia and Jordan and was a senior State Department official. He also has close ties to President Biden. For example, "during the Obama administration, Mr. Burns was instrumental in beginning the secret diplomatic talks that eventually led to the negotiations over the Iran nuclear deal."


Russian Interference in 2020 Included Influencing Trump Associates, Report Says

According to a declassified intelligence report, Russia sought to influence individuals close to former President Trump with the intent of spreading an election fraud narrative and discrediting Joe Biden. The report invalidates efforts by the Trump administration and his allies to "sow doubts about the intelligence agency's assessments that Russia not only wanted to sow chaos in the United States but also favored his re-election."


Police Shrugged Off the Proud Boys, Until They Attacked the Capitol

While the insurrection visualized a stark contrast in ideologies across the United States, the existence of far-right groups is no surprise. This article details the knowledge that local and federal law enforcement agencies had on groups like the Proud Boys. Ultimately, "the group's propensity for violence and extremism was no secret. But the F.B.I. and other agencies had often seen the Proud Boys as they chose to portray themselves . . . : as mere street brawlers who lacked the organization or ambition of typical bureau targets like neo-Nazis, international terrorists and Mexican drug cartels."

In fact, in the days leading up to the insurrection, nearly 60 Proud Boys members joined a cryptic channel called "Boots on the Ground" to communicate. On the night before the riot, the leader of the Proud Boys also detailed specific instructions to his members on the platform: "Be decentralized. Use good judgment. Avoid the police." Then, in a nod to the group's hard-drinking habits, he said: "Don't get drunk until off the street."



In City After City, Police Mishandled Black Lives Matter Protests

In the wake of protests across the United States following the killing of George Floyd, third-party investigators, watchdog groups, and consultants assessed the response by police departments in 9 cities, issuing their findings in separate reports. More often than not, the reports claim that "officers behaved aggressively, wearing riot gear and spraying tear gas or '"less-lethal"' projectiles in indiscriminate ways, appearing to target peaceful demonstrators and displaying little effort to de-escalate tensions. In places like Indianapolis and Philadelphia, reviewers found, the actions of the officers seemed to make things worse."


On Mexico's Border With U.S., Desperation as Migrant Traffic Piles Up

During the Biden administration, the United States is struggling to manage the influx of unaccompanied minor children who are crossing the border, subsequently captured, and held in detention facilities. In response, President Biden has directed the Federal Emergency Management Agency to assist in managing the facilities. President Biden has also asked counterparts in Mexico to assist with the increase in border crossings. Thus far, "Mexico's response has mostly been to ramp up raids of smuggling rings and to begin sending migrants -- most of them from Central America -- back home."


The Roadblocks to Equal Rights for Women, a Century Later

In recent years, the states of Nevada, Illinois, and Virginia ratified the Equal Rights Act, marking the constitutionally required 38 states needed to amend the Constitution. On Wednesday, the House of Representatives passed a bill along party lines that removes a deadline for ratification that expired in the 1980s. The bill reopens negotiations to amend the Constitution to incorporate the provisions of the Equal Rights Act, mainly to ensure equal protection under the law, regardless of sex. Passage in the Senate faces an uphill battle, with only a handful of Republican supporting the amendment. Ironically, the United States, a beacon of democracy, remains one of the few countries in the world not to provide explicit guarantees of gender equality.


Purdue Pharma Offers Plan to End Sackler Control and Mounting Lawsuits

Purdue Pharma recently submitted its restructuring plan, which requires members of the billionaire Sackler family to be removed from controlling positions within the company. The plan also creates a new company in which revenue generated will be geared toward remediating the addiction epidemic associated with the former company's most popular drug: Oxycontin. The plan, if approved by creditors, will pool payments of the $4.275 billion settlement to pay individual plaintiffs, hospitals, insurers, and state and local governments. A noteworthy absence from the proposal is the ability to pursue civil action against the Sacklers individually.


Catholic Order Pledges $100 Million to Atone for Slave Labor and Sales

The Jesuit conference of priests has vowed to raise $100 million in an effort to benefit the descendants of slaves held by Jesuits. For more than a century, Jesuits relied on slave labor to "help finance the construction and the day-to-day operations of churches and schools, including the nation's first Catholic institution of higher learning, the college now known as Georgetown University." Nearly half of the annual budget will be provided as grants to related organizations dedicated to reconciliation initiatives. About a quarter of the budget will provide educational support through financial aid, and the remaining portion will be earmarked for pressing needs of descendants who are old or infirm.


Judges Juggle Over 2,700 Cases Each as Families Wait for Day in Court

The U.S. District Court in New Jersey is facing an extreme backlog of cases. Recent figures state that 46,609 cases are still awaiting action and the situation has only been amplified by the coronavirus outbreak. Additionally, due to 6 vacancies on the 17-person bench that have been left open for years, each working judge handles a workload over 3 times the national average. Ultimately, for many who are seeking justice, the impasse has led to calls for action.


Suspect in Atlanta Spa Attacks Is Charged With 8 Counts of Murder

Over the past couple of months, there have been a string of racially-motivated attacks against Asian Americans. In a most recent and deadly example of this trend, 21-year-old Robert Aaron Long, opened fire on 3 different spa parlors in Atlanta, Georgia, killing 8 people in total, and 6 women of Asian descent. Long told police that the attacks were motivated by a '"sexual addition"' and "saw the spas as an outlet for something '"that he shouldn't be doing."' Long has been charged with 8 counts of murder in connection with the slayings. Many Asian-American women, however, have noted that racism and sexism have always gone hand-in-hand, and that racism often comes in the form of unwanted sexual pursuits and harassment. For those in the Asian-American community, the way this topic has been discussed is symbolic of the common misunderstandings others have regarding racism, hate, and prejudice. The ability to organize attacks have only become easier with the advent of certain technologies, such as Telegram and 4chan, which have perpetuated Asian stereotypes and called for retaliation and violence against Asian Americans for their perceived role in the Coronavirus pandemic.




Cuomo Faces New Claims of Sexual Harassment From Current Aide

A current aide in Governor Andrew Cuomo's office, Alyssa McGrath, joined the growing number of women who have detailed disturbing interactions with the governor, describing that the Governor would "ogle her body, remark on her looks, and make suggestive comments to her and another executive aide." McGrath's allegations are noteworthy in that she represents the first current aide in Cuomo's office to speak publicly about Cuomo's alleged behavior. Her account, however, "echoes other stories that have emerged in recent weeks about a demeaning office culture, particularly for young women who worked closely with the governor."


'She Wants Well-Qualified People': 88 Landlords Accused of Housing Bias

A recent lawsuit filed by watchdog group Housing Rights Initiative alleges that nearly 90 brokerage firms and landlords in New York City have discriminated against those using Section 8 housing vouchers toward rental units in buildings. New York City receives the largest share in the country of the $22 billion annual federal budget allocated to the Section 8 program, which provides that "recipients typically pay 30 percent of their monthly income toward rent, with the voucher covering the balance of the rent and utilities."


Trawling for Fish May Unleash as Much Carbon as Air Travel, Study Says

The journal Nature recently found that the act of trawling, which involves fishing vessels dragging a net across the ocean floor to catch different sea-dwelling animals for food consumption, releases as much carbon dioxide into the ocean as air travel. Trawling also has the effect of releasing carbon stored at the sea floor, which undisturbed, could remain there for thousands of years. Researchers say that the exposure of carbon will lead to "more acidified water, threatening marine life, and [will] reduce the oceans' capacity to absorb atmospheric carbon dioxide."


Russia Erupts in Fury Over Biden's Calling Putin a Killer

In a recent television interview, President Biden cautioned of a possible '"irreversible deterioration of relations'" between the United States and Russia. In the same interview, when asked whether he believed Vladimir Putin was a killer, President Biden responded: '"Mmm hmm, I do."' In response, Putin cited a Russian schoolyard rhyme: "'When we characterize other people, or even when we characterize other states, other people, it is always as though we are looking in the mirror."'



White House to Spend Billions to Increase Virus Testing and Ease Reopening

The Biden administration announced it would be investing $10 billion to scale out increased coronavirus screening of students and teachers with the goal of returning to full in-person learning by the end of the year. Accordingly, "the Centers for Disease Control and Prevention will distribute the money to states in early April and will spend an additional $2.25 billion to expand testing in underserved communities beyond the schools."

In connection with reopening schools, the Centers for Disease Control and Prevention also authored guidance that students can be spaced 3 feet apart instead of 6 feet, so long as all are wearing masks. The new guidance allows many school districts, which were using 6 feet distance as direction for reopening schools, to allow more in-person teaching.



U.S. Rushes to Expand Covid Vaccine Eligibility in a 'Race Against Time'

As cases, deaths, and hospitalizations have all fallen sharply from January peaks, infection rates have stubbornly stayed the same, hovering around 55,000 new cases a day nationwide. In response, "officials in at least 20 states have committed in recent days to opening coronavirus vaccine appointments to all adults in March or April," which coincides with President Biden's plan to allow all Americans to sign up to receive the vaccine by May 1st.

Such a push to expand shot distribution still faces resistance by Republican Senators, 25% of whom have not received a vaccine, despite being available to them since December 2020. Senators, like Rand Paul of Kentucky, have openly refused the vaccine, saying he got it "naturally." Others, like Senator Ron Johnson, cite their contraction of Coronavirus as the "best immunity possible" to the disease (which is scientifically false).



In Russia, a Virus Lockdown Targets the Opposition

In what many are seeing as a façade for punishing opponents of the Kremlin, a Russian court has sentenced 10 opposition politicians and dissidents to house arrest for violating coronavirus safety rules related to organized rallies. Lawyers for the dissidents argue that the court and authorities are twisting the rules to punish their clients for political purposes.


Trust in AstraZeneca Vaccine Is Shaken in Europe

In Europe, many countries have suspended the administration of Covid-19 vaccines manufactured by AstraZeneca. Concerns around the vaccine are based on news of a few recipients who have developed blood clots or abnormal bleeding. However, "researchers and drug regulators say they have seen no evidence of an increase in such complications or a connection to the inoculation." In fact, the pharmaceutical manufacturer said that an analysis of "more than 17 million people who had received its vaccine found that they were actually less likely than the general population to develop dangerous clots."



U.S. Copyright Office Simplifies Copyright Registration for Certain Recording Artists

Establishes Group Registration for Works on an Album of Music - the "GRAM" rule

By Marc Jacobson

Under a new rule, the U.S. Copyright Office will allow an applicant to register between 2 and 20 musical works or sound recordings, found in an album, with one application. To do so, all of the works must be created by the same author or have at least one common author, and the claimant for each work is the same.

If the application is for sound recordings, the applicant may also simultaneously register "literary, pictorial and graphic works" - or liner notes, album art, and posters.

An "album" is considered a single physical or digital "unit of distribution" as well as the associated literary, pictorial, and graphic works. The album must have a title, and each work must also have a title.

Generally, all of the works under the application must be first published on the same album, and the date and nation of publication must be specified in the application, and the nation of publication must be the same for each work. If a particular work was released as a single earlier, the date of first publication is listed separately in the application; in other words, if 12 recordings are on the album, and one was released as a single before the others, then the date of publication for the single is different from the remaining 11, and that is shown in the application with 2 dates.

If the claim is for sound recordings, published first in the U.S., 2 phonorecords of the best edition and 2 copies of associated literary, pictorial or graphic works must also be included. Different rules apply to publication that occurred outside the U.S. Digital deposits are accepted under certain circumstances.

The effect of this rule change will be to simplify the registration process for recording artists who release works in album or EP form. In addition, it reduces the cost of filing from one application for each recording, to one application fee for all the recordings. That fee is now $65 per application.

It is unclear what effect registering under the GRAM rule will have on the recovery of statutory damages or for willful infringement. There is case law that supports a separate award of damages for each successful application. Combining many works under one registration may affect the ability to recover damages.

The rule goes into effect this Friday, March 26, 2021. The final rule may be found here: http://bit.ly/FinalGRAMrule

The Copyright Office is holding an online seminar to discuss these rule changes at noon EST on Wednesday, March 31, 2021. Click here to register for the free seminar, to be held on zoom. http://bit.ly/GRAMseminar

March 19, 2021

Sports Law News for Week of March 19th

By Bennett Liebman

World Athletics President claims days of power-gathering governance are over, https://www.insidethegames.biz/articles/1105579/coe-aiu-ioc-sports-governance-shifts

Florida moving to ban female transgender athletes from girl's sports team, https://www.al.com/news/2021/03/florida-moving-to-ban-female-transgender-athletes-from-girls-sports-teams.html

March Madness Gamblers Expected To Break $8.5 Billion, https://www.forbes.com/sites/willyakowicz/2021/03/17/march-madness-gamblers-expected-to-break-85-billion-record-thanks-to-mobile-sports-betting-draftkings-westgate/?utm_source=TWITTER&utm_medium=social&utm_content=4605778760&utm_campaign=sprinklrSportsMoneyTwitter&sh=16a4a21d776d

Behind The Scenes At The NCAA Tournament, https://www.forbes.com/sites/justinbirnbaum/2021/03/18/sportsmoney-playbook-behind-the-scenes-at-the-ncaa-tournament/?utm_source=TWITTER&utm_medium=social&utm_content=4605725183&utm_campaign=sprinklrSportsMoneyTwitter&sh=5d74dece6cbe

LeBron James's Bid To Become Part Owner Of The Red Sox, https://www.forbes.com/sites/justinbirnbaum/2021/03/17/the-numbers-behind-lebron-jamess-bid-to-become-part-owner-of-the-red-sox/?sh=2e851c678d3e&utm_medium=social&utm_source=ForbesMainTwitter&utm_campaign=socialflowForbesMainTwitter

The real March Madness, https://www.nj.com/rutgers/2021/03/the-real-march-madness-not-paying-players-in-billion-dollar-industry-politi.html

Greg McDermott's 'plantation' remarks showed truth of NCAA sports, https://www.washingtonpost.com/sports/2021/03/11/greg-mcdermott-plantation-ncaa-basketball/

$110 Billion New NFL Rights Deals, https://www.forbes.com/sites/prishe/2021/03/18/110-billion-new-nfl-rights-deal-embodies-more-digital-more-flex-and-more-interactivity/?sh=28f680fd4163

Michael Bolsinger's suit vs. Astros in cheating scandal dismissed, https://theathletic.com/2458278/2021/03/17/ex-blue-jays-pitcher-michael-bolsingers-suit-vs-astros-in-cheating-scandal-dismissed/?source=emp_shared_article

Can't sue Astros in California? On to Texas, https://www.latimes.com/sports/dodgers/story/2021-03-17/mike-bolsinger-astros-dodgers-lawsuit-cheating

Houston Texans star QB Deshaun Watson accused by masseuse of exposing himself, https://abc13.com/deshaun-watson-tony-buzbee-texans-quarterback-lawsuit-houston/10425299/

FA apologies to abuse survivors, https://www.insidethegames.biz/articles/1105591/football-association-abuse-report

9th Circuit Decision in Kennedy v. Bremerton - Coach Praying on Football Field, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf

Will March Madness Be NCAA's Last Dance, https://www.forbes.com/sites/marcedelman/2021/03/17/will-march-madness-2021-be-shamateurisms-last-dance/?sh=70a7e7d3368a

College Basketball #NotNCAAProperty NCAA, Congress and Supreme Court, https://www.sportico.com/law/analysis/2021/college-basketball-notncaaproperty-1234625130/

The NCAA's Billion-Dollar Enterprise Hinges Solely on March Madness, https://www.sportico.com/leagues/college-sports/2021/march-madness-daily-the-ncaas-billion-dollar-empire-is-built-on-basketball-1234625021/

Revenue Sharing Could Force Major College Budget Shifts, https://www.yahoo.com/lifestyle/athlete-revenue-sharing-could-force-095542474.html

College Athlete Pay Debate Hits Supreme Court, https://time.com/5947071/march-madness-college-athlete-pay/

March Madness Wagers Grow Beyond Brackets, https://www.sportico.com/business/sports-betting/2021/march-madness-wagers-brackets-legal-sports-betting-spreads-1234625036/

Statement from Indiana University on Buyout of Baseball Coach, https://iuhoosiers.com/news/2021/3/15/mens-basketball-statement-from-indiana-university-vice-president-and-director-of-intercollegiate-athletics-scott-dolson.aspx

Pa. woman created 'deepfake' videos to force rivals off daughter's cheerleading squad, https://www.pennlive.com/news/2021/03/pa-woman-created-deepfake-videos-to-force-rivals-off-daughters-cheerleading-squad-police.html

Suit Aims to Halt Horseracing Integrity and Safety Act, https://www.bloodhorse.com/horse-racing/articles/246665/suit-aims-to-halt-horseracing-integrity-and-safety-act

Harness racing driver challenges Tasmanian industry fine for not carrying a whip, https://www.abc.net.au/news/2021-03-16/harness-racing-driver-trainer-fined-for-refusing-to-carry-whip/13251834

Transgender Women in Sports, https://www.runnersworld.com/news/a35852603/transgender-women-in-sports/

Theater News for the Week of March 19th

By Bennett Liebman

Theater Actors Step Up Push for Union to Allow Them to Work, https://www.nytimes.com/2021/03/19/theater/actors-equity-frustration-petition.html

Tourists Trickle Back to New York City, https://www.wsj.com/articles/tourists-trickle-back-to-new-york-city-11616100873

Royal George Theatre must empty, https://www.chicagotribune.com/entertainment/theater/chris-jones/ct-ent-royal-george-closing-chicago-20210319-7vdvx4rxq5esbencd2cpr4ccny-story.html

How NY PopsUp Aims to Get the Performing Arts Industry Back to Work, https://variety.com/2021/legit/news/ny-popsup-cuomo-ayodele-casel-1234933795/

Shakespeare in the Park to return, https://broadwaynews.com/2021/03/16/shakespeare-in-the-park-to-return-this-summer/

The Arts Are Coming Back This Summer, https://www.nytimes.com/2021/03/16/theater/summer-outdoor-performances.html?smid=tw-nyttheater&smtyp=cur

New York Raises the Curtain for Live Events, https://www.wsj.com/articles/new-york-raises-the-curtain-for-live-events-11615982401

Frustration Growing Among Actor's Equity Members, https://www.onstageblog.com/editorials/2021/3/18/frustration-growing-among-actors-equity-members-over-unions-covid-19-plan-or-lack-thereof

The Open Culture Program Faces Criticism From Actors' Equity, Thhttps://www.backstage.com/magazine/article/nyc-open-culture-program-actors-equity-72869/

Roundabout launches Refocus Project, https://broadwaynews.com/2021/03/17/roundabout-launches-refocus-project-to-diversify-theater-canon/

'It has been a sort of nightmare, https://www.theguardian.com/stage/2021/mar/14/how-has-global-theatre-fared-during-pandemic-schaubuhne-internationaal-amsterdam-public-theater-new-york-odeon-paris-helsingborg

Michael Ball '100% backs' vaccine passport, https://www.itv.com/news/london/2021-03-18/michael-ball-100-backs-vaccine-passports-to-bring-audiences-back-to-the-west-end

Berlin Volksbühne theatre director resigns, https://www.theguardian.com/world/2021/mar/16/berlin-volksbuhne-theatre-director-resigns-over-harassment-claims

Save Our Stages gains additional funding, https://broadwaynews.com/2021/03/16/save-our-stages-gains-additional-funding-ahead-of/

Fighting Viral Hate With a Hashtag, https://www.americantheatre.org/2020/03/26/fighting-viral-hate-with-a-hashtag/

Where the Year Went, https://www.americantheatre.org/2021/03/11/where-the-year-went-a-look-back-and-forward/

Here are all the precautions one S.F. theater, https://datebook.sfchronicle.com/theater/here-are-all-the-precautions-one-s-f-theater-took-to-film-onstage-during-covid?fbclid=IwAR1UletNu9KHiQiyUjcB8M4gMCHTQ98Kw7o7zTjXZHdBfWZdOuCmUE3aOzg

U.K. Theaters Mark One Year of Shutdown, https://variety.com/2021/legit/global/west-end-theater-pandemic-one-year-anniversary-1234931476/

When stages are dark, theatre lives on in your memories, https://www.theguardian.com/stage/2021/mar/15/theatre-magic-memory

Deadline 'Company' During The Covid Shutdown, https://www.yahoo.com/entertainment/broadway-company-during-covid-shutdown-011722059.html

First Indoor Show in Loop?, https://www.chicagotribune.com/entertainment/theater/chris-jones/ct-prem-ent-teatro-zinzanni-reopens-chicago-20210316-oe3ctrtrivgybjnjbxzgefy67q-story.html

The Rise of Audio Theater During the Coronavirus Pandemic, https://www.backstage.com/magazine/article/how-audio-plays-have-changed-the-face-of-pandemic-theater-72871/

Sonia Friedman unveils season of West End plays, https://www.theguardian.com/stage/2021/mar/12/sonia-friedman-west-end-gemma-arterton-emma-corrin?CMP=twt_a-culture_b-gdnculture

Texas Performing Arts, https://spectrumlocalnews.com/tx/san-antonio/coronavirus/2021/03/17/1-year-later--covid-19-has-decimated-the-performing-arts-in-texas-

A Year Without Broadway: Laura Benanti And Christopher Jackson, https://www.youtube.com/watch?v=6tinOrb8x40

March 18, 2021

I Am Once Again Asking For Your Support: The Rise Of Another Bernie Meme And Its Seat In Copyright Law

By Emily Marczak
Christine-Marie Lauture, Esq. supervised the writing of this blog

The United States presidential inauguration of 2021 was a momentous occasion that marked the transition of power from Donald Trump to Joe Biden. However, the main event was overshadowed by another political figure who was sitting cross-legged on a metal chair, wearing handmade brown knit mittens and captured the current zeitgeist by wearing a blue surgical mask. It was none other than Bernie Sanders who captured the attention of the younger public and overnight, became a viral meme sensation. Thousands of edits involving Bernie spawned all over the internet, from Bernie sitting on the moon, to Bernie sitting next to Forrest Gump on a bench, to Bernie sitting on the Iron Throne from Game of Thrones, Bernie appeared everywhere. The photographer who captured the image was Brendan Smialowski. In response to the boom that his photo caused, Smialowski stated, "I don't think anybody is crazy about their work turning into a meme, but it's nice to see people being creative with something." (https://www.cnbc.com/2021/01/23/bernie-sanders-inauguration-meme-heres-the-story-behind-the-photo.html) Social media platforms have made it easy for memes to be shared and for more creative edits to be cultivated. However, for photographers such as Smialowski and others who have had their images turned into memes, is there legal recourse if they choose to pursue?


Memes originated in 1976 when zoologist Richard Dawkins came up with the term in his book The Selfish Gene. He originally defined memes as having the ability to carry information, be replicable, be transmitted from one person to another, and be constantly evolving by mutation. (https://www.britannica.com/topic/meme)

Today memes are defined as an "image, video, piece of text, etc., that is typically humorous in nature, that is copied and spread rapidly by internet users, often with slight variations."(https://www.lexico.com/en/definition/meme) Memes are a popular form of communication, as they can be used for a variety of intentions, including social commentary, comedy, and commercial usage. (For social commentary see the recent Gamestop memes or for general memes expressing thoughts about daily life, see the "This is Fine" meme.) For example, there is a Facebook group focused on memes and specifically catered to law students. The memes that are shared on this page allow students to commiserate with each other over the law school experience. (https://www.facebook.com/groups/lsm4et14s/)

Traditionally, memes take an image or video stills and reimagines the original work in a way that would not be easily anticipated. They take the image out of its original context by either adding captions or editing it in a particular way. While there are non-visual memes, the visual memes are the types that are central to this blog analysis. There are few legal precedents on which to rely to help determine when memes infringe on copyrights. (See https://qrius.com/sorry-thats-my-meme/; Stacey M. Lantagne, Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication, 52 U Rich L Rev 387, 394 [2018])


Copyright issues are triggered by the existence of memes for a few reasons. First, visual memes often involve copyrighted works such as photographs and video stills. Second, as internet memes become viral, new variations of the meme are created and this may arguably infringe on the author's ability to create derivative works.

Copyright is a form of protection given to authors of "original works of authorship that are fixed in a tangible form of expression." (https://www.copyright.gov/circs/circ01.pdf) An original work of authorship is a work that is independently created by a human author and possesses at least some minimal degree of creativity. (Id.) A work is "fixed" when it is captured in a sufficiently permanent medium so that the work can be perceived, reproduced, or communicated for more than a short period of time. (Id.)

Copyright grants authors an economic incentive to create more works. (https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1704&context=faculty_scholarship) Memes are unique in how they demonstrate the weakness of the justifications for copyright. Memes typically do not impair an author's earning potential or ability to produce additional works. A creator of a meme is not typically expecting to be paid for creating one. As for the aforementioned author's rights in a derivative work, memes are an outlier as well, as they are created and may be known only due to their popularity -- they are not reliant on the popularity of the source material. Therefore, meme creators have different incentives for creating memes than authors who create derivative works, and their interests typically do not overlap. As a result, memes are likely to be considered as transformative (see below discussion).

Fair Use

Copyright allows for several defenses to infringement,including the Fair Use doctrine. Section 107 of the Copyright Act provides four factors that the court balances in evaluating this defense in a copyright infringement case. The factors include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use is upon the potential market for or value of the copyrighted work.

When considering the totality of the factors, although always determined on a case-by-case basis, memes are commonly believed to be protected as fair use. (See, e.g., Anupam Chander & Madhavi Sunder, Dancing on the Grave of Copyright?, Duke L & Tech Rev, August 2019, at 143, 154; Ronak Patel, First World Problems: A Fair Use Analysis of Internet Memes, 20 UCLA Ent. L. Rev. 235, 256 (2013); Stacey M. Lantagne, Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication, 52 U Rich L Rev 387, 394 [2018]; https://www.publicknowledge.org/blog/copyright-for-meme-makers/) While memes can involve commercial use and typically incorporate a substantial portion of the original work, memes also typically undergo a significant level of transformation and often tend to improve the market for the original work. (See, e.g., Lee J. Matalon, Modern Problems Require Modern Solutions: Internet Memes and Copyright, 98 Tex L Rev 405, 427 [2019]; Anupam Chander & Madhavi Sunder, Dancing on the Grave of Copyright?, Duke L & Tech Rev, August 2019, at 143, 154; Lea Silverman, Don't Sue Meme, It's A Parody, BC Intell Prop & Tech F, February 7 2020, at 1, 5-6.) (See the discussion over the Downfall parody, which is further discussed later in this article: Aaron Schwabach, Reclaiming Copyright from the Outside in: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody, 8 Buff Intell Prop LJ 1, 16 [2012] ("It is unlikely to cannibalize sales and rentals of the original; if anything, it may augment them by bringing attention to a movie many non-Germans might otherwise have overlooked...").

First Factor: Purpose and Character of the Use, Including Commercial Nature or Nonprofit Education Purposes

One of the glaring problems that first arises with this factor is the "commercial nature" aspect. Memes are a form of communication, and with the rapid sharing over on the internet, there is an issue of commercial vs. non-commercial speech. If a meme is categorized as commercial speech, then there are two consequences. First, when a meme is classified as "commercial", then the Fair Use doctrine may be eliminated as a defense due to the first factor of Fair Use, "...whether the use is of a commercial nature." (See Elizabeth Rocha, Y U No Let Me Share Memes?! - How Meme Culture Needs A Definitive Test for Noncommercial Speech, 28 DePaul J Art, Tech & Intell Prop L 37, 41-42 [2017]; Extent of Doctrine of "Fair Use" under federal Copyright Act A.L.R.3d 139 (Originally published in 1969) Second, when a business shares or otherwise uses a meme that is deemed commercial in nature, they the business may be found liable for infringement, even if the intention was for a non-commercial purpose.

While courts have initially found that non-profit educational purposes were the only uses permitted under the first prong of Fair Use, the Supreme Court in later cases determined otherwise due to the limit that would be imposed on commercial speech. (See 44 Liquormart, Inc. v. Rhode Island 517 U.S. 484, 501 (1996)) The formative case, Campbell v. Acuff-Rose Music Inc., stated that commercial use is not a dispositive factor in determining fair use, but should only be a consideration under the first factor. (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994)) Another important point in Campbell was the discussion of the transformative nature of a work. The Court stated that transformative works "lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright." The Court in that case found that the transformative nature of a work was the most important consideration in finding a Fair Use defense. While not all memes may be considered transformative, arguably the Bernie meme has reached this level of transformation, as there are many iterations of the meme.

Second Factor: The Nature of the Copyrighted Work

In the second factor of a fair use defense, courts tend to favor factual works over highly creative ones. The nature of the copyrighted work in memes is typically fictitious rather than factual. In Harper & Row, Publishers, Inc. v. Nation Enterprises, the court stated that the law typically acknowledges a "greater need to disseminate factual works rather than fiction or fantasy. (Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 563 (1985)) Typically this factor will be less important in a fair use analysis when it comes to memes, especially when the memes are intended as parodies -- as the Bernie meme would likely be considered -- because parodies invariably copy publicly known expressive works. (See https://qrius.com/sorry-thats-my-meme/; Stacey M. Lantagne, Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication, 52 U Rich L Rev 387, 394 [2018]; https://www.copyright.gov/circs/circ01.pdf)

Third Factor: The amount and substantiality of the portion used in relation to the copyrighted work as a whole

The third factor would likely be against the sharer of the meme as memes are typically shared without any additional changes. However, with the Bernie meme, there have been many variations that have made it maintain its popularity. (https://www.nytimes.com/2021/01/21/us/politics/bernie-sanders-meme.html) Depending on the meme being addressed in the suit, this factor would really need to be addressed on a case-by-case basis. (Stacey M. Lantagne, Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication, 52 U Rich L Rev 387, 413 [2018]) Of course, when there is only a minimal portion of the original content used -- also known as a de minimis use -- courts may excuse the copying under fair use. (Caroline Hewitt Fischer, It's De Minimis, but Wait! It's Also Fair Use: Faulkner v. Sony Pictures and Why Courts Should Focus on Developing the De Minimis Doctrine to Streamline Copyright Infringement Analysis, 16 Tul J Tech & Intell Prop 301, 304 [2013] (De minimis can also be relevant to the third factor of the fair use affirmative defense, which considers "the amount and substantiality of the portion used [in the infringing work] in relation to the copyrighted work as a whole."))

Fourth Factor: Market Effect

The fourth factor is generally less important once a work is determined to be transformative. The Second Circuit mentioned in Bill Graham Archives v. Dorling Kindersley Ltd. that when a use is transformative from their original purpose, then a copyright holder cannot prevent others from entering fair use markets merely "by developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work.' (Bill Graham Archives v Dorling Kindersley Ltd., 448 F3d 605, 615 [2d Cir 2006]) However, not all memes may be considered transformative.

Typically, a meme that is just shared on the internet will not have a negative market effect on the copyright holder. In fact, some memes may help a work gain more exposure to the public, which will have a positive effect on the copyright holder. (See the discussion over the Downfall parody, which is further discussed later in this article: Aaron Schwabach, Reclaiming Copyright from the Outside in: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody, 8 Buff Intell Prop LJ 1, 16 [2012] ("It is unlikely to cannibalize sales and rentals of the original; if anything, it may augment them by bringing attention to a movie many non-Germans might otherwise have overlooked..."))

However, if there is a criticism within the meme then some courts may find this factor in favor of the copyright holder. The copyright holder would then need to show that its market/brand was harmed.

Overall, whether a meme will be found to be excused by fair use, would need to be determined on a case-by-case basis. As for the Bernie meme, courts would likely find for fair use, given the transformative nature of the work - but this is not definitive. There are other arguments to consider.

Implicit Licensing

Alternatively, there may be a claim that the sharing of memes is implicitly licensed. If the copyright holder licenses the work to an individual, then there is no copyright infringement as long as the licensee complies with the license terms. (https://theweek.com/articles/860630/have-brands-killed-meme-culture (See Patel's argument)) Social media users typically don't seek legal permission when sharing an image or a phrase because the permission is implied through the way the work is created and disseminated. (Id.) When it comes to meme sharing on social media, an argument could be made that there is an implied license in every meme. (Id.) As mentioned in the introduction, social media is used for the purpose of sharing things with others, and the aim is usually for things to subsequently be reshared. When it comes to a non-commercial use, an implied license could exist to use the memes in the creation of other memes.

Satire and Parody

Some memes may gain protection against copyright infringement claims through their parodic nature. However, not all memes are parodies. This emphasis is important because only parodies can use fair use as a defense whereas satire is less likely to be afforded protection. (Eric D. Gorman, Who Gets the Last Laugh? Satire, Doctrine of Fair Use, and Copywrong Infringement, 29 Temp J Sci Tech & Envtl L 205, 215-16 [2010]) A parody is a comedic commentary about a work, which requires an imitation of a work. (Annemarie Bridy, Sheep in Goats' Clothing: Satire and Fair Use After Campbell v. Acuff-Rose Music, Inc., 51 J Copyright Soc'y USA 257, 257-58 [2004]) Satire uses a creative work in order to make a comment, but the commentary and criticism is about the world, instead of the specific creative work itself. (Id.) Satire, unlike a parody, does not need the copyrighted work in order to make a criticism, and that is why satire falls out of the scope of the fair use defense. (Id.)

When it comes to the first prong in the fair use examination, the parody must be sufficiently transformative. The most notable case is Leibovitz v. Paramount Pictures Corp., where the court found that the advertisement was a fair use of the original work because of its parodic nature. (Leibovitz v Paramount Pictures Corp., 137 F3d 109 [2d Cir 1998]) The original work was shot for a magazine and it featured a nude photo of then-pregnant Demi Moore. (Id.) The Nielsen ad was an advertisement for a movie, and it featured the body of a pregnant woman, except that it was edited with the head of Leslie Nielsen, a man, smirking - instead of the serious expression of Demi Moore. Id. The Nielsen ad was a parody because it set out to mock the original Moore photo and it relied on a contrast to the Moore photo in order to obtain the intended comedic effect. (Id. at 14)

There have been several memes created that were intended as parodies. One of the most notable parodic memes involved the movie "Downfall", which is a film detailing the final years of Hitler's reign in Germany. (Aaron Schwabach, Reclaiming Copyright from the Outside in: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody, 8 Buff Intell Prop LJ 1 [2012]) Parodies spawned from a particular scene in this movie in which Hitler is given bad news by an officer concerning the German defenses, leading to Hitler going on an angry rant. (https://knowyourmeme.com/memes/hitlers-downfall-parodies) Users took this clip from a film whose source material is grim and tragic and churned out parody after parody. (Id.) As the film is in German, users were able to add their own captions that allowed Hitler to rant on topics ranging from a late pizza delivery to the creation of the iPad. (Id.) The videos had started to disappear because Constantin Films, which owned the rights to "Downfall", used YouTube's content ID system to find and file a copyright claim with YouTube for every video that used any part of "Downfall". However, the channel that hosts the video may rebut this copyright claim and there are no legal consequences for either party pursuant to the Digital Millennium Copyright Act. (Aaron Schwabach, Reclaiming Copyright from the Outside in: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody, 8 Buff Intell Prop LJ 1 [2012]) Users responded by creating more Hitler rant parodies in which he ranted about his inability to make more Hitler rant parodies. (Id.) One of the points that Constantin Films brought up was that the creators of the parodies could potentially get revenue from advertising placed on the videos, which would turn the parody into a commercial use. (https://www.smh.com.au/technology/downfall-of-hitlers-youtube-parody-20100421-stw2.html) Constantin Films never went to court over these memes.

This particular instance also demonstrates the difficulty copyright owners face with enforcement. This parodic meme was so successful that it spawned parodies in other countries. (https://knowyourmeme.com/memes/hitlers-downfall-parodies) The issue is that copyright law is national in scope, and every country has its own respective copyright laws. (https://www.copyright.gov/circs/circ01.pdf) If an individual acquires a copyright registration in the U.S., it does not mean that there is automatic protection in every other country, which can make it difficult for copyright owners to fully get eradicate memes. (Id.)

As for the Bernie meme, it could qualify as a fair use through parody, due to the intention of the meme editors to make comedic commentary through blending Bernie's still image within various locations, artwork, and stills of movies. The editors' intentions are not for the purpose of criticism, so it would likely fall under the category of a parody and not satire.

Right of Publicity

Additionally, the right of publicity should be considered when thinking of memes. The right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or any other recognizable aspects of one's persona. (Eric E. Johnson, Disentangling the Right of Publicity, 111 Nw UL Rev 891, 893 [2017]) It gives an individual the exclusive right to license the use of that identity for commercial promotion. (Id.) While there is no federal right of publicity law, 24 states have some form of a right of publicity statute. (https://rightofpublicity.com/statutes#:~:text=Currently%2C%2024%20states%20have%20some,of%20the%20Marilyn%20Monroe%20cases) An important aspect of right of publicity is that it concerns a commercial use. (Eric E. Johnson, Disentangling the Right of Publicity, 111 Nw UL Rev 891 [2017]) Memes can typically be easily distinguished into commercial and non-commercial memes.

Recently, in 2019, Fiji Water was sued for posting a meme that featured a "Fiji Water Girl". (https://www.bbc.com/news/world-us-canada-47182951) The woman in the meme was seen in various photos of red-carpet events, holding a tray of Fiji water. (Id.) These photos went viral, as memes of her holding her tray of Fiji water started appearing all over social media. Id. In the complaint filed by the woman, Kelly Steinbach, she stated that Fiji Water tried to capitalize on her popularity through creating a worldwide cardboard cutout marketing campaign. (Id.) Life-size cutouts of Steinbach and her water appeared in various stores. (Id.) Fiji Water had initially put up some memes on its social media account relating to Steinbach but later took them down. (https://www.thefashionlaw.com/the-fiji-water-girl-is-suing-the-company-for-using-her-likeness-without-her-consent-and-without-paying-her/#:~:text=Kelleth%20Cuthbert%2C%20a%20model%2Dturned,advertising%20campaign%20without%20her%20authorization) The complaint included a claim of a violation of Steinbach's right of publicity under California's Civil Code. (Id.) Ultimately this matter settled, so no precedent was established.

Another meme that has been circling the internet for quite some time is the "Crying Michael Jordan" meme. (https://www.npr.org/sections/thetwo-way/2016/03/31/472330783/the-evolution-of-the-michael-jordan-crying-face-meme) Jordan has mentioned that he has no issue with the meme as long as no individual is using it to promote commercial interests. (https://www.npr.org/sections/thetwo-way/2016/03/31/472330783/the-evolution-of-the-michael-jordan-crying-face-meme) In 2015, Jordan was awarded $8.9 million in damages in his case against a grocery store that had used his image once in an advertisement promoting a coupon for steak. (https://www.snopes.com/fact-check/michael-jordan-sue-grocery-store-10-million/) This example demonstrates as a cautionary tale when it comes to commercial uses and publicity rights.

Politicians and celebrities are typically treated differently when it comes to right of publicity suits, despite both of them falling under the umbrella of a "public figure". (https://www.motherjones.com/politics/2017/02/trump-name-publicity-rights/);
(https://www.law.cornell.edu/wex/public_figure) Celebrities are given more leeway when it comes to protecting their personal brands, whereas Americans "tend to treat politicians' images as public property." (Id.) Politicians rarely claim the right of publicity, mostly because of the negative connotation or chilling effect it would bring. (https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1723&context=hastings_comm_ent_law_journal) It would "make it look like they're trying to capitalize on their office." (https://www.motherjones.com/politics/2017/02/trump-name-publicity-rights/) The First Amendment tends to protect most unapproved portrayals of politicians, especially when they involve opinion, parody, commentary, and other forms of speech. Id. However commercial uses of politicians' names and likenesses are not protected. (Id.) As the Bernie meme would likely fall under a non-commercial use for the editors on the internet, it would be safe under a right of publicity (along with the trend of politicians typically not invoking this right). However, what if companies were to use it?

Today's Usage

Recently, Ikea used the Bernie meme in an advertisement to sell a chair with the simple caption "Get the look." (https://www.thedrum.com/news/2021/01/25/ikea-muscles-the-bernie-sanders-meme-with-get-the-look-ad) Ikea would have a more difficult time claiming fair use, as its use is for a commercial purpose. Additionally, this commercial purpose would leave Ikea more vulnerable to a claim of a violation of right of publicity from Bernie himself. (https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1723&context=hastings_comm_ent_law_journal) Alternatively, the brand can try to say that its ad was in jest (or rather, a parody) and that it was trying to keep up with the times, as this is not its first attempt of referencing U.S. politicians in its ads. In 2019, when Barack Obama traveled to Singapore for a live discussion, the SGD$345 (Singaporean Dollars) tickets to attend the event sold out quickly. As a response to those who were unlucky in getting tickets, Ikea created a post on Facebook with a picture of an armchair that costed SGD$299 and the caption read: "Even if you can't make it to see the Obamas, you can still chill out for under SGD$345." (https://www.marketing-interactive.com/ikea-offers-an-alternative-for-those-who-missed-out-on-the-obamas)

In other similar cases, memes have been used in marketing campaigns for companies. Virgin Media used a meme known as "Success Kid" in its billboard advertisement. (http://viralmedia.pbworks.com/w/page/50219891/Success%20Kid) However, it purchased the rights to use the original photo. Success Kid's parents license the image to advertisers and actively enforce against those who attempt to advertise without a proper permission and licensing in place. In another case, Warner Bros. was found to have infringed copyrighted works when it used 2 memes (the "Nyan cat meme" and the Keyboard Cat video) in one of its games without permission. (https://nymag.com/intelligencer/2013/09/keyboard-cat-nyan-cat-win-warner-bros-lawsuit.html)


Both meme creators and companies who use memes in their advertisements have to remain cautious, as the legal landscape for memes is still somewhat ambiguous. Fair use may be a potential defense for copyright infringement that involves the creation of memes, but it is not a default protective measure, as memes would have to undergo a complete fair use analysis including passing the transformative use test within the analysis prongs. Instead, the best practices when it comes to considering creating a meme from a viral photo is to license the photo from the owner if possible. Although Smialowski allowed the Internet to unleash its creativity and spread the Bernie meme across social media platforms, future meme creators may not be as fortunate when copying from a copyright owner who may not be as generous.