December 14, 2017

Federal Courts Not Empowered to Cancel Copyright Registrations

By Barry Werbin

A new December 5, 2017, Southern District of New York (SDNY) decision by Judge Oetken holds that federal courts are not empowered by the Copyright Act or any other federal statute to cancel or nullify a copyright registration issued by the Copyright Office. The court held that: "Nothing in the Copyright Act, nor any other federal statute, grants federal courts the power to cancel or nullify a copyright registration." A copy of the decision is available here: Pastime decision.pdf. Pastime LLC v. Schreiber (S.D.N.Y. 12/5/17).

The case arose out of a copyright authorship/ownership dispute over a play entitled "Once Upon a Pastime." A registration was owned by defendant Schreiber listing him as "sole author," but Pastime argued that an employment agreement with Schreiber deemed the book to be a work made for hire for Pastime. Pastime filed a declaratory judgment action, alleging that "Schreiber intentionally falsified the writing and ownership information in his copyright registration application." Schreiber moved to dismiss the complaint for failure to state a claim under FRCP 12(b)(6) and for lack of subject matter jurisdiction.

The court adopted the reasoning of the Third Circuit:

As the Third Circuit explained in Brownstein v. Lindsay, "there is evidence that the statute does not give courts any such authority" because "[s]ection 701, which describes the functions of the Copyright Office, explicitly states that '[a]ll administrative functions and duties under this title, except as otherwise specified, are the responsibility of the Register of Copyrights.'" 742 F.3d 55, 75 (3d Cir. 2014) (alterations in original) (quoting 17 U.S.C. § 701(a)). Furthermore, it is significant that a separate section of the Copyright Act does grant federal courts the authority to cancel registrations for "original designs." See id. at 76; 17 U.S.C. § 1324. This Court joins the Brownstein court's conclusion that "§ 1324 would be superfluous if Congress intended for courts to already have the general authority to cancel copyright registrations," and that "[i]n carving out a specific power of cancellation, this provision only further suggests that courts have no general authority to cancel copyright registrations." Brownstein, 742 F.3d at 76.

Although Schreiber also argued that a "fraud on the Copyright Office" claim was alleged for which "there is no affirmative private right of action," Judge Oetken rejected that interpretation of the complaint because Pastime itself had waived it by characterizing its complaint as one "for a declaration of the parties' respective ownership rights in [the musical], and for cancellation of [Schreiber's] copyright registration." Judge Oetken observed: "As a result, the Court finds it unnecessary to opine at length on the existence of a cause of action that Pastime has explicitly waived. The Court notes, however, that the absence of a cause of action for fraud on the Copyright Office comports with the absence of a cause of action for cancellation of a copyright registration."

The complaint was dismissed as to the registration cancellation claim. The court emphasized, however, that courts have authority to invalidate underlying copyrights, including a "determination of ownership which does not disturb the registration of a copyright."

The other work for hire claim survived, as there was an actual controversy and such determination invoked the "interpretation and application of the Copyright Act's 'works made for hire' provision" to support subject matter jurisdiction.

More Mega Media Merger

By Barry Skidelsky

Disney has announced that it will buy Fox for 52.4 Billion Dollars. Here is a link to the BBC's initial report of this huge proposed deal:

December 10, 2017

Week in Review

By Michael Smith

Below, for your browsing convenience, the categories are divided into Entertainment, Art, Sports, and Media. First, of general interest:

U.S. Supreme Court Stays Deferred Action for Childhood Arrivals Disclosure

On Friday, the U.S. Supreme Court granted the Trump administration's application for a stay of the Northern District of California's order that the administration turn over internal documents concerning its reasons for canceling the Deferred Action for Childhood Arrivals (DACA) program, which protected young undocumented immigrants from deportation. The Court set an expedited briefing schedule for disposition of the government's petition for mandamus or certiorari.

U.S. Supreme Court Hears Argument in Gay Wedding Cake Case

On Tuesday, the U.S. Supreme Court heard almost 90 minutes of argument in the dispute between David Mullins and Charlie Craig, on the one hand, and Jack Phillips, the baker who refused to make their wedding cake, on the other. Mullins and Craig contend that Phillips's refusal violates Colorado's anti-discrimination law, whereas Phillips argues his decision to turn them away is protected by the First Amendment, as his cake decorations are his art.

New York Supreme Court Considers Jurisdiction Over Trump (Sexual Misconduct)

Lawyers for Donald Trump and Summer Zervos, who is suing Trump for defamation, argued before Justice Jennifer Schecter over whether the New York State Supreme Court has jurisdiction over a sitting president. Zervos's lawyers rely primarily on the U.S. Supreme Court ruling that allowed Paula Jones to sue President Bill Clinton in federal court. Trump's lawyer, Marc Kasowitz, relies on the supremacy clause.

Polish Parliament Approves Drastic Changes to Judiciary

On Friday, the Polish Parliament passed two bills that will drastically change the composition of the judiciary. One, which lowers the retirement age for the Supreme Court from 70 to 65, will result in the removal of 40% of the over 80 justices. The other increases the vote needed to approve judges from a simple majority to 60%.

Chocolate Makers Reach Détente (Chocolate)

After several months of legal sparring with Mondelez International, the owner of chocolatier Toblerone, British discount chain Poundland is releasing its "Twin Peaks" chocolate bar. Toblerone kept Poundland's bar, which contains two "peaks" between each "valley", off the shelves until Poundland agreed to change the color of its wrapper (originally red over gold, like Toblerone's). Poundland also intends to modify the shape of its "peaks".


Seventh Circuit Upholds Dassey Conviction (Murder)

Brendan Dassey, the subject of Netflix's documentary series "Making a Murderer," suffered a major setback in his effort to overturn his 2007 conviction for murder. Dassey confessed to helping his uncle kill a 25-year-old photographer, but later recanted his confession. The Eastern District of Wisconsin overturned the conviction, finding that Dassey's confession was coerced. A three-judge panel of the Seventh Circuit upheld the decision, but on Friday, in a 4-3 decision, that court, sitting en banc, ruled that the confession was voluntary. Dassey's lawyers say they will seek review by the U.S. Supreme Court.

Bryan Singer Sued (Sexual Assault)

Cesar Sanchez-Guzman filed a lawsuit against director Bryan Singer in Washington state court, alleging that Singer sexually assaulted him on a yacht in 2003, when Sanchez-Guzman was 17 years old. Singer denies the allegations.

Netflix Fires Danny Masterson (Rape)

Netflix fired actor Danny Masterson from its series "The Ranch." Masterson has been accused of rape by several women.

The Girls Author Counters Plagiarism Allegations (Domestic Violence)

Emma Cline, author of the best-selling novel The Girls, is involved in two litigations over her ex-boyfriend's accusations that Cline plagiarized and spied on him. Chaz Reetz-Laiolo sued Cline in the Northern District of California, and Cline fired back with her own lawsuit, which includes allegations of domestic violence, tortious interference, and conversion (of Cline's personal journal and other files).

Illinois Will Not Charge Metropolitan Opera Conductor (Sexual Abuse)

Illinois law enforcement officials announced on Friday they would not charge Metropolitan Opera conductor James Levine in connection with his alleged sexual abuse of Ashok Pai, because Pai was 16 years old when the alleged sexual contact began. Sixteen was the age of consent in Illinois at the time. Four men, including Pai, have accused Levine of sexually abusing them. Levine denies the accusations.

Head of New York City Ballet Takes Leave of Absence (Sexual Harassment)

Peter Martins, head of the New York City Ballet, took a leave of absence after being anonymously accused of sexual harassment. The Ballet has retained Kelley Drye partner Barbara Hoey to investigate the allegations.

Horovitz Plays Canceled (Sexual Misconduct)

Two plays by Israel Horovitz have been canceled since Horovitz was accused of sexual misconduct by nine women. Horovitz has apologized, but says he has "a different memory of some of these events."

Casting Director Fired (Sexual Misconduct)

Casting agency Telsey + Company fired casting director Justin Huff after receiving reports of sexual misconduct toward actors.


Dusseldorf Cancels Max Stern Exhibition

The mayor of Düsseldorf canceled an exhibition about Jewish art dealer Max Stern, citing ongoing investigations into pieces currently held by German museums, which Stern's estate claims were looted by Nazis. Jewish groups and German government officials are among those vociferously criticizing the decision, especially in light of the Gurlitt exhibit.

Saudis Say Prince did not buy da Vinci Painting

Speculation surrounding the identity of the buyer of "Salvator Mundi"--a painting by Leonardo da Vinci, which sold for $450.3 million at a Christie's auction last month--seemed to have been quelled by the New York Times' report that Saudi prince Bader bin Abdullah bin Mohammed bin Farhan al-Saud bought the piece. However, on Friday, the Saudi Embassy issued a statement that the ministry of culture of Abu Dhabi bought the painting, which will be hung in the Abu Dhabi branch of the Louvre. The statement is disputed by American officials and Arabs familiar with the details of the sale.


International Olympic Committee Bans Russia from Winter Olympics

The International Olympic Committee (IOC) banned Russia from the 2018 Winter Games in Pyeongchang, South Korea, as a penalty for Russia's systematic state-sponsored doping program. President Putin said that Russia will not stop individual athletes from competing in the Olympics under a neutral flag, as permitted by the IOC. Olympics officials indicated they might permit Russia's flag during the closing ceremonies.

District Judge Voids National Football League Concussion Loans

Judge Anita Brody voided $1 billion in loans made to former professional football players with cognitive impairment who expect to receive payments pursuant to a settlement with the National Football League (NFL). Some of the loans have interest rates of up to 50%.

Former Gymnastics Doctor Sentenced to 60 Years (Sexual Abuse)

Lawrence G. Nassar, former team doctor for U.S.A. Gymnastics was sentenced to 60 years in prison on child pornography charges. Nassar previously pleaded guilty to sexually abusing gymnasts.

FIFA Chief Ethics Investigator Hid Relationship with Bedoya

María Claudia Rojas, chief ethics investigator for FIFA, failed to disclose her friendship with Luis Bedoya, former president of Columbia's soccer federation, who pleaded guilty to fraud charges.

Russian Whistleblower Apologizes for Indirectly Implicating Official

On the basis of an internal memo written by Grigory Rodchenkov suggesting that Swiss chemist Martial Saugy would be helpful in covering up the Russian national lab's systematic doping scheme, many sports officials and investigators believed Saugy was involved in the cover-up. Rodchenkov, who famously blew the whistle on Russia's scheme, publicly stated Saugy was not involved, and apologized for indirectly implicating him.

Christie All-In on Sports Betting

Lame duck New Jersey governor Chris Christie has been playing up his role in a case now before the Supreme Court, which will decide whether New Jersey can decriminalize sports betting or whether, as the professional sports leagues suing the state contend, doing so violates the federal Professional and Amateur Sports Protection Act.

Austria Investigating Allegations of Sexual Assault in Skiing

Several Austrian ski athletes have reported being sexually assaulted by coaches, supervisors, and teammates. The Austrian province of Tyrol announced that an independent commission will investigate the allegations.

Jerry Sandusky's Son Sentenced for Child Sex Crimes

Jeffrey Sandusky, son of former Penn State University assistant football coach Jerry Sandusky, has been sentenced to from three-and-a-half to seven years in prison for soliciting two teenage sisters for sex. His father, convicted of sexually abusing young boys, is serving a
30- to 60-year prison sentence.


WNYC Puts Hosts on Leave

New York Public Radio's WNYC placed hosts Leonard Lopate and Jonathan Schwartz on leave while it investigates allegations of "inappropriate conduct."

Alphabet Adding Humans to YouTube Review

As part of its response to advertisers' concerns about the videos with which they are being associated, YouTube will increase the number of humans who, along with automated software, work to identify hate speech, extremism, and other content deemed inappropriate. Content creators have complained the software is inaccurate and has flagged (and demonetized) videos without objectionable content.

Russia Designates Additional Outlets "Foreign Agents"

On Tuesday, the Russian government declared Voice of America and Radio Free Europe/Radio Liberty "foreign agents", in retaliation for the U.S.
government's designation of Kremlin-financed television station RT America as a "foreign agent." The two outlets must now label all information they broadcast as the product of a "foreign agent" and submit extensive financial reports to the government. They can also be suspended at any time.

December 6, 2017

New York State Attorney General Slams FCC Regarding Net Neutrality Investigation

By Barry Skidelsky

The Office of the New York State Attorney General (NYS AG) is investigating whether any public comments filed at the FCC regarding net neutrality rules wrongfully used New Yorkers' identities without their consent.

As Tech Crunch put it: "If the FCC's refusal to acknowledge the vast public outcry against its plan to gut net neutrality isn't enough of an outrage, its total disinterest in investigating how that same comment system may have been gamed by fake users posing as real Americans adds a bit more insult to injury."

Reportedly, the NYS AG asked the FCC to cooperate with its investigation, but the federal agency has been uncooperative. Thus, the NYS AG not only released an open letter to FCC Chairman Pai, but also set up a dedicated web-page soliciting help from the general public.

You can read more about this recent development at, and you can access the NYS AG's dedicated web-page at

December 4, 2017

Week in Review

By Tiombe Tallie Carter, Esq.

U.S. Supreme Court Allows Trump Administration's Third Travel Ban Attempt to Proceed

The Supreme Court allowed the third iteration of the Travel Ban to continue, pending resolution of the issues that challengers raised in circuit courts. The Justices encouraged the appellate courts to quickly determine if it is lawful.®ion=top-news&WT.nav=top-news

GOP Scrambles to Push Tax Bill Through Senate

The Senate passed the most sweeping tax bill overhaul in recent history. With a vote of 51-49, Republicans approved the bill early Saturday morning. Last month, the House of Representatives passed its own tax bill. The 500-page House bill was quickly passed, with little reflection by lawmakers and included many handwritten revisions in the margins. Pitched as a middle-class tax cut, the new bill overlooks the many reports that reveal how the new plan will cause even greater federal debt. It is expected that President Trump will sign the bill as early as next week.

Flynn Pleads Guilty; Will Aid Inquiry

Michael Flynn, long-time friend and advisor to President Trump who was once a top contender to be vice president and eventually became national security advisor, pleaded guilty to lying to the FBI about conversations with a Russian ambassador. Flynn, who resigned several months ago amid the Russian scandal, made a deal with Robert S. Mueller III, special counsel to the Russian investigation. There is growing speculation as to how much President Trump was aware of Flynn's action, and if the president's son-in-law, Jared Kushner, was involved.

Delayed DACA Requests Grow to More Than 900

Over 900 applications from immigrants seeking to renew work permits under Deferred Actions for Children Arrivals, or DACA, have been rejected by the U.S. Citizenship and Immigration Services due to mail problems. Those with work permits expiring before March 2018 had until October 5th of this year to renew for a two-year extension. The 900 applicants whose paperwork was received by the post office by the deadline but not by the agency will receive rejection letters with instructions to resubmit within 33 days.

Comedian Is Subpoenaed in Inquiry on Russia Meddling

Randy Credico, a comedian who has run for public office, has been subpoenaed to appear before the House Intelligence Committee to testify regarding Russian meddling in the 2016 presidential elections. Credico, who hosts a radio show and performs street theater (once appearing at a New York State Senate meeting dressed as the Greek philosopher Diogenes the Cynic), is seen as an intermediary between Roger J. Stone Jr., an advisor to Donald J. Trump "who appears to have had advance knowledge about hacked emails related to Hillary Clinton's presidential campaign," and Julian Assange, the founder of WikiLeaks, who Credico once interviewed.

Calls and Insults Pour In Over Net Neutrality Plan

Ajit Pai, chair of the Federal Communications Commission (FCC), released his plan to strip away existing rules of net neutrality and to allow "telecom companies to charge websites to deliver their data at higher speeds." Under the current Obama era rules, telecoms prohibit such charges. Many argue--including big web companies, consumers, lawmakers, startups, public interest groups, and celebrities--that the proposed plan not only hurts innovation and the economy but also creates a negative impact on the distribution of information based on wealth. In addition to the protests of the conservative plan, it has been discovered that over 400,000 public comments on the FCC website originated from St. Petersburg, Russia.

Two Acting Directors and One Skeptical Judge

The Consumer Financial Protection Bureau has two acting directors, Leandra English and Mick Mulvaney. English was appointed by then-director Richard Cordray (an Obama appointee) on November 24th, before his departure. In apparent retaliation, the Trump administration announced Mulvaney, who is currently the director of the White House Office of Budget and Management, as acting director until President Trump decided on a permanent appointment. English filed for an emergency restraining order to block Mulvaney's appointment late Sunday evening. English and Mulvaney both showed up to work on Monday, with Mulvaney instructing the bureau's employees to disregard any communications from English and to report them to the White House general counsel. The matter was heard by Judge Timothy J. Kelly of the Federal District Court in Washington, DC, who ruled that President Trump's appointment was valid. English is challenging that decision. In the meantime, Mulvaney said that he would like for English to serve as the Deputy Director.

Justices Take Up Digital Privacy in Case with Roots in a Robbery

The United States Supreme Court heard Carpenter v. United States, No. 16-402, a privacy law case involving a Radio Shack robbery. Considered to be a seminal case in the application of the Fourth Amendment on digital privacy, lawyers, policymakers, and watch dog groups are weighing in on the issues before the Court.

The Supreme Court argument in the Carpenter case was lively and lengthy, lasting 20 minutes longer than allotted. The attorney for Timothy Ivory Carpenter, Nathan Freed Wessler, argued that prosecutors violated the Fourth Amendment by failing to get a warrant for the records from his cellular carrier. The Justices are wrestling with whether the problem is that "the level of detail in Mr. Carpenter's phone records violated his reasonable expectation of privacy" or whether it was that "the records were his property and should not have been disclosed without his consent or a warrant." The Stored Communications Act requires prosecutors to go to the court to obtain tracking data. Under that federal law, they must only demonstrate that there were "specific and articulable facts showing that there are reasonable grounds to believe" that the records sought are relevant and material to an ongoing criminal investigation, which does not meet the probable cause standard needed for a warrant. It appears that five Justices are leaning to limit the government's power to obtain the records. A decision detailing its rationale for that decision is expected next June.

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


Peter Martins, head of New York City Ballet, Under Investigation For Sexual Harrassment

Peter Martins, long-time head of City Ballet, has been removed from his teaching duties at the School of American Ballet pending investigation of sexual harassment. Martins had a reputation of sleeping with ballet dancers.

DMX Pleads Guilty to Fraud, Dodging $1.7 Million in Taxes

Earl Simmons, the rapper and actor DMX, pleaded guilty for tax evasion. At the Manhattan federal court, he pleaded to avoiding the payment of $1.7 million in taxes from 2002 to 2005, when his albumns topped the charts. DMX faces up to five years in prison and will be sentenced in March 2018 after completing his drug rehabilitation.

A Bitter Plagiarism Case with Sex, Lies, and Spyware

The 2016 best seller The Girls has been the center of a legal dispute that includes copyright infringement, physical and emotional abuse, digital spying, and invasion of privacy. Chaz Reetz-Laiolo, once the boyfriend of the best-selling author Emma Cline, claims that Ms. Cline used spyware to plagiarize phrases and scene structures from his emails and other personal documents. Ms. Cline has countersued alleging that Mr. Reetz-Laiolo's claims are "ludicrous," as the phrases called into question include "heavy rear and "Doomsville." She used spyware because she suspected him of infidelity and that he physically abused her. Both parties are represented by high-powered attorneys. The legal team most recently known for representing Harvey Weinstein, Boies Schiller Flexner, is representing Mr. Reetz-Laiolo and for Ms. Cline, attorney Carrie Goldberg, who "specializes in representing women who have been victims of harassment and revenge porn." We can expect many plot twists in this legal drama.

After Accusations, A Founder of Def Jam Will Resign

Russell Simmons, founder of Def Jam Records, a yoga lifestyle brand, and owner of multiple media properties, has resigned from his companies following accusations of sexual assault. Screenwriter Jenny Lumet of The Mummy and model Keri Claussen Khalighi have accused Mr. Simmons of forcing them to have sexual relations on separate occasions in the early 1990s. Mr. Simmons has denied the allegations but stepped down from leadership of his empire.

"Nightmarish Mentor": Nine Women Accuse Playwright of Assault

Award-winning playwright Israel Horovitz was accused of sexual assault spanning decades by more than nine women, some of whom were in their teens. Horovitz, considered the most produced American playwright in French history, wrote over 70 plays and is the founding artistic director of Gloucester Stage, a respected regional theater. Many of the women worked for Horovitz at the Gloucester Stage, where his mentoring program allegedly included kissing, fondling, and intercourse, along with fostering theatrical careers. Thought by some as merely "too touchy," early claims in 1992 and 1993 were casually dismissed. Bolstered by the Weinstein revelations, the women are now coming forward.


The Arts and Opioids

The Sackler family, who has a long history of supporting arts and cultural institutions, have been linked to the opioid epidemic. Recent reports uncovered that several family members derived portions of their fortune from Purdue Pharma, the company that produces OxyContin, the powerful narcotic painkiller attributed to the growing number of overdose deaths in the nation. This new revelation has raised the question as to whether cultural institutions should be required to return the millions of dollars in donations from the Sackler family. To date, there are no Congressional requirements that donations from Purdue Pharma, which was indicted on federal fraud charges, be returned, so it would be a hard press for arts institutions to require more than for what the law calls.

Macron Pledges Return of African Artifacts

President Emmanuel Macron of France, while on a three-day trip to Burkina Faso, Ghana, and the Ivory Coast, vowed to return African artifacts to them. He pledged that in the next five years the "temporary or permanent restitution of African heritage to Africa" will be a top priority. Without going into much detail as to whether the restitution will include a plan for storage and curation in African cultural institutions, President Macron did announce his commitment to improving relations between France and African nations.

$6 Million Effort Seeks Diverse Arts Leaders

In response to several studies reporting that American cultural institutions fail to reflect the demographics of the country, the Ford Foundation and the Walton Family Foundation are providing $6 million to diversify leadership at art museums. Twenty museums were selected from an application pool of 83 to receive funds to develop "innovative strategies to hire and advance the careers of underrepresented minorities." The Los Angeles County Museum of Art, the Andy Warhol Museum in Pittsburgh, and the Art Institute of Chicago are some of the few institutions chosen.

Who Owns Guantanamo Art? Not Prisoners, the U.S. Says

Guantanamo Bay, the Cuban detention center for prisoners with terrorist ties, has an art program. Until recently, for nearly a decade, detainees received art classes and often were allowed to give their creations to their lawyers as a "thank you or for safekeeping...with restrictions on what content went public." The ability to transfer art from the prison is now suspended and under review by the Defense Department in light of a recent exhibition held by the John Jay College of Criminal Justice that featured 36 paintings, drawings, and sculptures by former and current detainees. According to the Pentagon, anything produced by detainees remains the property of the United States government. It is unclear what the government will do with the art. The exhibition will be on display through January 26, 2018.


U.S. Bobsled Hopeful Ryan Bailey Sees Olympic Dreams End after Court Reinstates Doping Ban

Ryan Bailey, a United States Olympics athlete, will be barred from competing for two years, according to the Court of Arbitration for Sport. Bailey was a member of the U.S. track and field team that won a silver medal at the 2012 London Games. He recently switched to bobsledding. Bailey used a supplement in January that included a banned stimulant. His explanation that the stimulant was not on the label was of little consolation, as another banned ingredient was listed and he still used the supplement. He served a 6-month suspension that the U.S. Anti-Doping Agency appealed as too lenient. The Court of Arbitration agreed.

Blue Jays Analyst Gregg Zaun Fired for Inappropriate Behavior to Female Co-Workers

Former catcher of the Toronto Blue Jays, Gregg Zaun, has been accused by female employees for inappropriate behavior and comments. Specific details have not been provided, but it is reported that his behavior does not include sexual or physical assault. Zaun was a catcher for 16 Major League seasons, including earning a World Series ring in 1997, when he played for the Florida Marlins.

Pitino Sues for $38.7 Million over Firing

Rick Pitino, former coach of the University of Louisville basketball team, filed a federal lawsuit in Louisville. Due to accusations that Pitino is the anonymous "Coach-2" in United States v. Gatto, the university placed Pitino on administrative leave for his alleged involvement in the corruption and bribery scheme with Adidas. Pitino was subsequently terminated by the university. He is suing the school for firing him without notice, proper process, or cause, as it had not conducted its own investigation. Pitino claims that he is entitled to $4.3 million per year through 2026 in liquidated damages.

An Iranian Wrestler Throws His Match to Avoid an Israeli

Alireza Karimi-Machiani, 23, of Iran, threw his wrestling match at the U23 World Senior Wrestling Championship held in Poland. Karimi-Machiani was wrestling Russian wrestler Alikhan Zhabrailov and was poised for an easy victory until the Iranian wrestler apparently stopped fighting suddenly after a shout from his coach. Video of the match indicates his coach shouted: "Alireza, lose." And after a momentary defiance, he complied with his coach's direction and purposely lost. He revealed in a news interview after the match that his coach was informed that an Israeli wrestler had won a recent match that would have positioned him against Karimi-Machiani in his next match. Under Iranian law, athletes are forbidden to compete with Israelis, even if it means forfeiting a match.

Doping Diaries: Chemist's Notes Strengthen Case Against Russia

The diaries of Russian chemist Grigory Rodchenkov substantiate the involvement of Russia in the massive use of banned substances during the last Winter Games. The International Olympic Committee is taking the diaries, in conjunction with Dr. Rodchenkov's sworn statements implicating the then Russia sports minister, deputy sports minister, and the deputy director of the center of sports preparation, in the cheating scheme to determine the penalties it will issue against the country next week. Those penalties could include "barring Russia completely from the coming Winter Olympics in South Korea, keeping all Russian emblems out of the Games and Russian athletes would compete in neutral uniforms." Russian officials have threatened to boycott the 2018 Olympics.

FIFA Cannot Fill Sponsor Slots for World Cup

The FIFA brand, tarnished with organizational-wide corruption scandals and its New York trial, is losing its popularity among corporate sponsors. Soccer still remains widely popular among its fans. However, the 2018 FIFA tournament is undersubscribed for sponsors. A top-tier sponsorship slot costs $150 million, with all slots unfilled both at this and the second-tier level. Only one slot is confirmed at the third-tier level. In 2015, key FIFA officials were arrested on corruption charges. The trial is underway in New York. Sanctions against prominent Russian business people and companies further complicate the 2018 World Cup to be held in Russia. Some experts suggest FIFA consider changing its name altogether as the "brand's association with corruption runs so deep."


Lauer Offers an Apology, and a Little Bit of a Denial

As heads continue to roll in the aftermath of sexual harassment and assault allegations throughout the media, entertainment, and political arenas, Matt Lauer offers an apology of sorts. Lauer, an NBC host of "Today", is a household name. The network has received at least three separate complaints, including one for sexual assault. Lauer's statement was read on "Today": "Some of what is being said about me is untrue or mischaracterized, but there is enough truth in these stories to make me feel embarrassed and ashamed....To the people I have hurt, I am truly sorry."

NBC Leaders on the Defensive in Handling of Lauer

Andrew Lack and Noah Oppenheim, chairman of NBC News and president of the News division, respectively, are being asked questions about when they became aware of the Matt Lauer allegations. Rival news outlets report that Lauer's antics were widely known. Lack issued a statement that NBCUniversal's top legal and human resources team will be conducting a thorough investigation.

For Trump and Russia, A Common Foe: U.S. News Media

The Justice Department recently registered RT, the state-run Russian news group formerly known as Russia Today, as a foreign agent. This United States designation is usually assigned to identify foreign lobbying groups. RT has been accused of serving as a propaganda outlet during the 2016 presidential campaign. In retaliation, Russia signed a law last week, requiring "certain American media outlets working in Russia to register with the government as foreign agents." However, under Russian law, foreign agents are essentially hostile entities, thereby "evoking Soviet counterintelligence efforts." Meanwhile, if not seemingly in concert, President Trump took to Twitter to share his opinion against CNN as a major source of "fake" news. His tweets continue to raise concern among champions of the free press.

Three Vice Media Employees Fired After Complaints

Vice Media, the free-spirited media conglomerate based in Brooklyn, NY, recently installed a chief human resources officer to address corporate culture and employment policies. Susan Tohyama's first order of business was to announce the company's zero-tolerance policy toward inappropriate behavior, which includes "verbal and sexual harassment to other behavior that is inconsistent with Vice's policies, values and the way in which they believe colleagues should work together." Reportedly, there have been three firings from this policy: the head of its documentary division, a producer, and an editor. The company has also instituted an A-list advisory board, including Gloria Steinem, to review its corporate policies.

The Washington Post Says It Spurned Offer of False Story about Moore

The Washington Post accused Project Veritas, a "conservative group that films undercover videos," of conspiring to dupe it into publishing false claims about Roy S. Moore, the Republican Senate candidate facing sexual harassment allegations, to discredit the newspaper. In a December 27th article, The Washington Post said that a woman named Jaime T. Phillips contacted the newspaper with a story claiming that in 1992 she became pregnant with Moore's child, but terminated the pregnancy. With its own investigation, the newspaper discovered the woman had ties with Project Veritas. When questioned about why she had contacted the paper and inconsistencies in her statements, she stated that she no longer wanted to participate in the story.

Glittering Past, Edgy Present, Uneasy Future

After years of uncertainty over its fate, employees of publishing giant Times Inc. continue to experience unease after the announcement of its purchase by the Meredith Corporation. The $2.8 million deal includes an infusion of cash from the Koch brothers, who are known for using their wealth to promulgate their conservatism. The Meredith Corporation, based in Des Moines, has a publishing portfolio that includes lifestyle magazines such as Family Circle and Better Homes and Gardens. Time Inc., once considered the arbiter of American culture with titles such as Time, Fortune, Sports Illustrated, and Money, make Meredith "an unlikely caretaker." Speculation exists that several titles under the Time Inc. moniker will be sold off, possibly to Koch Industries. Spokespersons for Meredith and Koch state that Koch will have no influence over the magazines.

December 2, 2017

Center for Art Law Case Law Updates

The following case selection first appeared in this week's Center for Art Law newsletter:

Chowaika & Co. Fine Arts Ltd., Case No. 17-13228 (MKV) [Carpenter Fine Violins and Collectibles, LLC v. Ezra Chowaiki and David E.R. Danger, 65929/2017 (Sup. Ct. NY Cnty. Nov. 15, 2017), RH9 Group, LLC et al v. Chowaiki, 656930/2017, Sup. Ct. NY Cnty. Nov. 15, 2017, Leser v. Chowaiki & Co. Fine Art Ltd. et al, 656870/2017 (Sup. Ct. NY Cnty Nov. 12, 2017)]

Three lawsuits filed against Chowaiki & Co. Fine Art corporation precipitated the filing for bankruptcy by the private gallery and art advisory service that was founded in 2004 by Ezra Chowaiki, who is now accused of defrauding clients. The cases are stayed pending the U.S. Bankruptcy Court for SDNY.

Joshua Liner Gallery v. Kagan, 656849/2017 (Sup. Ct. NY Cnty. Nov. 9, 2017) -- The plaintiff, a New York gallery, alleges fraudulent concealment of sales of paintings directly through the defendant's studio in violation of the artist-gallery agreement, as well as a failure to create and deliver a painting to the Gallery in consideration of certain sale goals, and other grievances. The complaint reveals that the Gallery was acting as Kagan's exclusive agent for the sale of artworks produced since 2014, and was entitled to a commission of 50% on any artwork Kagan sold. Kagan's art is slated for exhibit at the Virginia Museum of Contemporary Art in 2019.

Berkshire Museum Lawsuits: Two groups of plaintiffs -- members and heirs of Norman Rockwell -- filed two lawsuits in an attempt to enjoin the deaccessioning of 50 artworks in a November 13th Sotheby's auction. The heirs of Norman Rockwell filed a complaint, arguing that the deaccession "violates the museum's establishing statute, promises made to donors and the fiduciary obligations of its trustees." The Massachusetts Attorney General, Maura Healey, supported the Rockwell plaintiffs in a filing. The second complaint, brought by members of the Museum, argues that the museum has reneged on its obligations to its supporters by putting the works up for auction. The theory is that because, under Massachusetts law, members of a nonprofit are treated like shareholders in a corporation, the relationship between the corporation and its governing charters and bylaws must be treated like a contract. A hearing was held on November 1, 2017, and the papers ('%20Emergency%20Mtn%20for%20Ex%20Parte%20Temp%20Rest%20Order%20%20%20Prelim%20Injunction%20After%20Notice%20Agst%20BM'sSale%20of%20Art(B2211764).pdf?t=1510241925709&mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8) in support can be ( here ( The Court denied the request for an injunction, allowing the planned November 13th sale to proceed (

Schmitt v. Artforum International Magazine Inc. et al, 159464-2017 (Sup. Ct. NY Cnty. Oct. 25, 2017) -- Curator and Art Fair Director Amanda Schmitt, along with eight other women, sued Artforum and Knight Landesman over his alleged sexual harassment ( The complaint accuses the publication of allowing Landesman's sexually abusive behavior toward multiple women to occur without consequence. It also claims that the defendant slandered Schmitt and threatened retaliation against current and former employees who might speak about the harassment to the authorities or the press. The plaintiff seeks compensatory damages of $500,000 plus attorneys' fees and punitive damages.

Mugrabi v. Mana Contemporary, 159407/2017 (Sup. Ct. NY Cnty. Oct 23, 2017) The Mugrabi family sued Mana Contemporary, which stores works for the dealer family, for preventing the removal of art works from its facility due to unpaid fees ( Since the filing of the complaint, the court ordered Mana to release some of the works in exchange for a $1 million payment by the Mugrabis (

Bauer v. Toll, TGI Paris, 7 nov. 2017, n° 17/58735 - The High Court in Paris ruled to restitute a Pissarro painting, "Picking Peas", to the heirs of a Jewish art collector whose art was looted by the French Vichy government. According to the holding, an American couple, Bruce and Robbi Toll, who lent "Picking Peas" to an exhibition in France at the Musée Marmottan Monet in Paris, did not act in bad faith when they bought the painting from Christie's auction house. In addition, the court did not award the Tolls any compensation for their loss. The painting will continue to be held in escrow in the D'Orsay, pending appeal. Insurance values the painting at over $1 million dollars. (

The Center for Art Law strives to create a coherent community for all those interested in law and the arts. Positioned as a centralized resource for art and cultural heritage law, it serves as a portal to connect artists and students, academics and legal practitioners, collectors and dealers, government officials and others in the field. In addition to the weekly newsletter (, the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog ( calendar of events ( The Center for Art Law welcomes inquiries and announcements from firms, universities and student organizations about recent publications, pending cases, upcoming events, current research and job and externship opportunities. To contact the Center for Art Law, visit our website at: or write to

November 29, 2017

Sixth Circuit Creates 'Presumption' of Unmasking Copyright Infringers

In what it called an "issue of first impression," the Sixth Circuit yesterday, by a 2-1 vote, created a "presumption in favor of unmasking" adjudicated copyright infringers -- and other "anonymous defendants".

From the majority opinion:

In this issue of first impression, we hold that like the general presumption of open judicial records, there is also a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff. When deciding whether to unmask an anonymous defendant, courts must consider both the public interest in open records and the plaintiff's need to learn the anonymous defendant's identity in order to enforce its remedy. The greater a plaintiff's or the public's interest in unmasking a losing Doe defendant's identity, the more difficult it will be for the Doe defendant to overcome the presumption and remain anonymous. Further, where a Doe defendant's speech is found to be beyond the protection of the First Amendment, countering the presumption will require a showing that the Doe defendant participates in a significant amount of other, non-infringing anonymous speech that would be chilled if his identity were revealed.

The dissenting judge rejected the majority's "balancing test" and would have gone further:

Doe's identity was entitled to limited protection at the discovery stage because, at that point, it was not clear whether he had committed any wrong, and disclosure of his identity would cause irreparable harm in the event it was determined that he was innocent of copyright infringement and properly engaging in protected anonymous speech. For this reason, the Art of Living balancing test was properly applied during the discovery phase. But it is a temporal and temporary measure, created to facilitate discovery and to protect innocent defendants. It should not be extended to shield an adjudicated copyright infringer from the ramifications of the judgment against him. Having rejected Doe's fair use and copyright misuse defenses, having determined that Doe was liable for copyright infringement, and having ordered injunctive relief, there was no legal basis for entering a judgment that did not identify Doe. Thus, the district court erred in reapplying the Art of Living test after it had determined that Doe (by his own admission) was liable for copyright infringement and placing the burden on Team to establish why unmasking Doe's identity was necessary.
* * * * *
The majority's concern here is like that of an overprotective parent. Doe should not be shielded from the consequences of his own actions, since he could have preserved his right to speak freely and anonymously by simply refraining from copyright infringement

The opinion is available here:signature.pdf

November 27, 2017

Week in Review

By Eric Lanter

Australian Furor Over Chinese Influence Follows Book's Delay

Clive Hamilton is the Australian author of a book detailing how China's growing influence in Australia has a tremendous impact on Australians, and his book experienced delays in its release because of Chinese influence. The publisher, Allen & Unwin, one of the country's largest publishers, delayed publishing the book for fear that it may anger China's Communist Party and harm relations between the two countries, particularly through China bringing lawsuits in relation to the book. When the author reported the reason behind the delay, he set off an uproar in the country and a realization that Australia has become closer to China, as China's power and influence has grown in recent decades.

Italy Fears Outsiders Will Meddle in Election

The news that Russia had interfered with the U.S.'s 2016 election, Britain's vote to exit from the European Union, and the latest Catalan effort to secede from Spain and form its own state, Italians are in fear that Russia will be involved in its national election. The governing Democratic Party, led by former Prime Minister Matteo Renzi, is fearful that Russia will intervene to bring down one of the last remaining center-left political parties in Western Europe. Facebook indicated that it will have Italian fact-checkers in the country as the elections loom to prevent "fake news" from being spread on social media, and analysts expect any "fake news" to be part of an effort of promoting the right-wing Five Star political party, which has increased its power in recent months and may be poised to do well in the national election.

India's Gay Rights Activists Seize Momentum After Landmark Court Ruling

In August, India's Supreme Court ruled that there is a fundamental right of privacy that extends to citizens of India, and the Court noted that sexual orientation falls within the umbrella of privacy. This has inspired Indian lawyers and members of the LGBTQ community in India, as they still contend with an 1861 law that prohibits homosexual acts. The Supreme Court of India estimated that approximately 200 people have been prosecuted under the law, but it has been part of a wider culture of homophobia that Britain's colonization of India brought in a marked change to India's culture, which openly embraced gender fluidity and homosexuality. One Indian lawyer, who has been working for years to overturn the antiquated law, sees the Indian Supreme Court's ruling as a nail in the coffin for the law, and expects challenges to the law to ultimately sink it.

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


Charlie Rose Made Crude Sexual Advances, Prompting His Firing

After eight women came forward accusing television host Charlie Rose of sexual misconduct, CBS fired him and PBS canceled distribution of his self-titled nightly interview program. Bloomberg TV, which also carried "Charlie Rose" and rebroadcast the program from PBS, announced it, too, was terminating its agreement. Rose released a statement acknowledging that he "behaved insensitively at times," but that he "always felt that I was pursuing shared feelings, even though I now realize I was mistaken."

Jeffrey Tambor Leaves 'Transparent' After Sexual Misconduct Allegations

The star of the Amazon series "Transparent," Jeffrey Tambor, announced that he will not return for the show's fifth season after two women came forward with allegations of sexual misconduct. He denied the allegations, which came from a co-star and a former assistant. His co-star announced that he made sexual advances and comments, and then sexually assaulted her between takes of filming. His former assistant wrote on Facebook that he sexually harassed her and then groped her. He released a statement, part of which stated: "Given the politicized atmosphere that seems to have afflicted our set, I don't see how I can return to 'Transparent.'" Amazon has not commented on his departure.

Who We Don't Talk About When We Talk About Harvey Weinstein

Annabella Sciorra, an actress since the 1980s, told journalist Ronan Farrow that she was a victim of Harvey Weinstein's scheme of sexual assault. She detailed his raping her and terrorizing her career later. She joined a group of women, like Gwyneth Paltrow and Ashley Judd, who made casting decisions solely on the basis of rumors and dealing with Weinstein. While many ask questions about how Weinstein's work has been interpreted, the columnist asks readers to ask a different question: How does what has been done to these actresses bear out in art they never were able to make? The columnist speculates that Sciorra's talent and skill was likely to place her at the top of the profession, but her falling into Weinstein's predatory exploits and viciousness prevented her from achieving her full potential.

U.S. Charges Iranian Hacker After HBO Hack

In the Southern District of New York, charges were unsealed against Behzad Mesri. It is alleged that Mesri hacked into HBO's computer systems and stole over 1.5 terabytes of data, which included unreleased episodes and scripts for the HBO hit "Game of Thrones." The charges include fraud, extortion, and identity theft, but when Mesri will be charged is unknown, as he remains in Iran. He sought $6 million in Bitcoin payments from HBO after stealing HBO's material, and prosecutors question whether he is working on behalf of the Iranian government, given his previous connection with it. One expert in the field guessed that this hacking is just one example of a broader pattern of Iranian hacking, and he expects that additional hackers could be caught and charged with crimes.


Creator of Brazil's Outdoor Museum Inhotim Sentenced to Prison

In Brazil, the Inhotim Institute is an outdoor contemporary art museum. Its founder, Bernardo Paz, was sentenced to nine years in prison after being convicted of using money raised for the institution for expenses related to a conglomerate of mining and steel companies that he also operated. In 2007 and 2008, he received over $98 million in donations for the art museum, part of which he siphoned to his other companies. Paz has consistently denied the allegations, and his family says that an appeal is likely.

Donald Fagen Sues Walter Becker's Estate for Control of Steely Dan

The only remaining member of the band Steely Dan, Donald Fagen, sued the estate of Walter Becker, his longtime bandmate who died in September 2017, for ownership of the band's name and damages over $1 million. At the heart of the dispute is an agreement that the band members signed before their debut album in 1972. The agreement stipulated that whenever a member died or left the group, that member's shares would be sold back to the remaining members. The Becker estate sent a letter to Fagen four days after Becker's death, claiming the agreement was null and that Becker's window, Delia, should be appointed as director or officer of the band. Fagen also sued Steely Dan's accounting and business management firm, accusing it of accounting errors, "secretive behaviors and/or withholding information."

Trying to Save a 1950s Mural of 1800s Chelsea From Demolition

Sitting in a bank in the Chelsea neighborhood of Manhattan is a mural on canvas depicting the intersection of 14th Street and 6th Avenue in the late 19th Century. The property developer, Gemini Rosemont, acquired the property and is planning to convert the building into condominiums and retail space, but it does not know yet what it will do with the mural. The City Council Member for the area, Corey Johnson, teamed up with Save Chelsea, a preservationist group, to save the mural. The developer announced that it contacted several galleries to determine the value of the mural and to see whether there was any interest in the work, but the developer claims that it did not receive any positive responses.

Town Hall Meeting Held on Sexual Harassment

The Public Theater is holding a Town Hall for all to attend in light of the recent revelations of sexual harassment throughout the entertainment industry. Stephanie Ybarra, the director of special artistic projects at the Public Theater, announced that the event is being held, as the institution is not only an artistic venue but a civic one, and a place where people should gather to freely talk about their stories and to suggest ways to prevent and report sexual harassment. The event, which is open for anyone in the theater industry, is scheduled for December 2, 2017 at 2 PM and is free.


Debate at FIFA Trial: Witness Tampering or Itchy Skin?

The first week of a federal trial regarding FIFA's bribes, corruption, and vote-buying schemes ended in a debate about one of the defendant's skin condition. Defendant Manuel Burga, who was a Peruvian soccer official now facing a racketeering conspiracy charge, appeared to make throat-slitting gestures toward the first witness testifying in the case. His attorney attributed the gestures to a skin condition that made his neck itch, and because the gestures were captured on camera, it is expected that the prosecution will introduce the video as evidence as the trial progresses. In the meantime, Judge Pamela Chen, overseeing the case, indicated that if the gestures were an attempt to tamper with the witness, she will imprison Burga, who has been free on bail.

Nasser Al-Khelaifi Discussed Buying Company Linked to Bribes

A Qatari businessman, Nasser al-Khelaifi, was president of Paris St.-Germain, one of France's top soccer clubs, and linked to a corruption inquiry regarding payment of millions of dollars in bribes for rights to coveted television contracts. He had planned to acquire a 51% stake in an Argentine company, Full Play Group, the founders of which have been charged in a United States Department of Justice soccer corruption investigation. Al-Khelaifi denied the accusations and met with authorities. Whether he will be charged is not yet known.

A Star on Washington's Ice With a No. 1 Fan at the Kremlin

Alexander Ovechkin, a Russian national, is one of the most accomplished hockey players, and plays for the Washington Capitals. He recently appeared in an Instagram post alongside Russian President Vladimir Putin, in what appeared to be an endorsement of the Russian president in the lead-up to his re-election (which is virtually guaranteed). A major Russian public relations company, which devised the term "Putin Team," denies that it was involved in getting Ovechkin to pose for the picture. Analysts suspect that the post is aimed at securing more support for Putin.

Major League Baseball Bars Former Braves Executive in Signings Scandal

Major League Baseball (MLB) barred John Coppolella, who was previously the Braves's general manager, for violating MLB's rules regarding how players were acquired. The rules allow teams a "specified bonus pool to spend on international amateurs," and if it exceeds that amount by more than 5%, it may not sign any additional players for over $300,000 for the following two years. MLB found that the Braves, while Coppolella was at the helm, did not report the full extent of its signings: it inflated the bonuses of lesser prospects not covered by the aforementioned rule while funneling the money to better prospects who had signed within the rule. Coppolella resigned his position last month amidst the the investigation, and MLB Commissioner Rob Manfred said that he is confident the Braves will put procedures in place to prevent similar conduct in the future.

Jerry Jones Calls Off Threat to Sue National Football League Over Goodell Contract

The owner of the Dallas Cowboys, Jerry Jones, announced that he will not pursue suing the National Football League (NFL) and the six owners of its compensation committee who are in the middle of negotiating a contract extension for Roger Goodell, the commissioner. Jones reinforced his reputation for acting independently, but he joins the likes of former owner of Oakland Raiders Al Davis, who regularly attacked the NFL main office. Jones' objections to Goodell were said to be centered on declining television ratings and the players' protests during the national anthem before games, but others think that the objections came down to Goodell's decision to suspend the Cowboys' star running back, Ezekiel Elliott.

Olympic Champion Gabby Douglas Says Team Doctor Abused Her, as Doctor Pleads Guilty to Charges

Lawrence Nassar, the doctor who worked with the United States gymnastics team and Michigan State University's gymnastics team, pleaded guilty to seven counts of sexual assault on Wednesday and is facing a minimum of 25 years in prison. He is also accused of sexually assaulting at least 130 other women and girls, including Olympic gold medalists Aly Raisman, McKayla Maroney, and Gabby Douglas. Raisman came to the media in recent weeks with the revelation that she was assaulted, and while Douglas initially attacked Raisman, she too admitted that Nassar had assaulted her while she was on the United States gymnastics team. Judge Rosemarie Aquilina told Nassar in court: "You used your position of trust in the most vile way: to abuse children. I agree that now is a time of healing, but it may take them a lifetime of healing while you spend your life behind bars thinking of what you did by taking away their childhood."

Striker Sentenced in Absentia

Brazilian soccer star Robinho, who played for his country and for AC Milan (and now plays in Brazil for the club Atletico Mineiro), was sentenced in absentia to nine years in prison for his taking part in a gang rape of an Albanian woman at a club in 2013. He has two appeals as of right, and Italy will not seek extradition until the legal process is exhausted, but Brazil does not allow the extradition of its own citizens.

More Russian Doping Means Upgrading of Medals

Four more Russians were disqualified from the Sochi Olympics for doping. This development has put more pressure on the International Olympic Committee (IOC) to decide whether Russia can be permitted to compete in the Pyeongchang Games in South Korea. In total, 14 Russians have been disqualified during this month alone, relinquishing nine medals. There is an IOC meeting scheduled for December 5, 2017, where it is expected that a decision will be made as to whether Russia's team will be permitted to compete, given the state-sponsored doping that has occurred. This decision is similar to the one made just prior to the Rio de Janeiro Olympics in 2016, when it was well-known that at least some Russian athletes had been flagged and disqualified for doping.

Murder Sentence Increased for Oscar Pistorius

On Friday, South Africa's Supreme Court of Appeal reviewed the lower court's sentencing of former Olympic sprinter Oscar Pistorius and found that the sentence should be doubled from six to 15 years. Given his time served, he faces an additional 13 years and five months in prison for the killing of his girlfriend, Reeva Steenkamp, in their home in February 2013. South African law requires a minimum sentence of 15 years for murder, but permits a more lenient sentence "if there are mitigating circumstances." In Pistorius's case, the court noted that he "displays a lack of remorse and does not appreciate the gravity of his actions." It is not yet known whether his lawyers will appeal to the Constitutional Court, South Africa's highest court.

Canadian Football Has Taken Steps to Lessen Hits, Unlike NFL

The Canadian Football League has faced pressure and lawsuits to protect its players against concussions and the disease CTE, which is widely presumed to result from repeated concussions or hits to the head. The pressure and lawsuits led the commissioner to institute reforms such as three bye weeks during the course of the 18-week season and, more controversially, a prohibition of direct contact between players at practices during the season. While the NFL in 2011 reduced the number of practices where full contact is permitted to 14 per season, it has not further reduced them since then, despite the fact that research has grown about CTE and its correlation with the sport. While Canadian players have anecdotally reported feeling more rested and fresher during their games, it will be some time before the full effects of hit-less practices and more bye weeks are known.


Federal Communications Commission Plans Net Neutrality Repeal in Victory for Telecoms

The Federal Communications Commission (FCC) released a plan to eliminate regulations that ensure equal access to the internet, which would allow internet service providers to charge users to use certain contact. Ajit Pai, the chairman of the FCC, made the announcement, which appears to be part of his broader effort to reverse the Obama administration's policy of net neutrality. The change in policy pits titans of the industries against each other: AT&T and Verizon against Google and Amazon, as companies like Google and Amazon see the rollback of rules empowering telecom companies to prevent access to certain information and entertainment. The telecom companies view the rollback as allowing them to offer customers a wider selection of services at various price points. Pai's announcement does not come as a surprise, given his agenda of deregulation, but so far he has received 20 million public comments regarding his agenda.

Justice Department Sues to Block AT&T and Time Warner Merger

AT&T made an $85.4 billion bid to acquire Time Warner, and the United States Department of Justice filed suit to stop the acquisition. This action, under President Trump, represents a shift from President Obama's administration, which permitted Comcast's acquisition of NBCUniversal after imposing conditions on the acquisition. Already, AT&T is one of the largest internet and telephone providers, and it acquired DirecTV in 2015, at that time the largest satellite company. Time Warner owns a number of companies that would add to AT&T's empire: HBO, Warner Bros., and Turner Broadcasting, which owns the television networks CNN and TNT. The chief executive of AT&T, Randall Stephenson, said in a news conference about the Justice Department's filing of an action: "It defies logic, and it's unprecedented."

Glenn Thrush, The New York Times Reporter, Accused of Sexual Misconduct

One of The New York Times's (the Times) most prominent reporters, Glenn Thrush, was accused of inappropriate sexual behavior, and the Times suspended him in light of these allegations. Female journalists reported to the website Vox that Thrush had acted inappropriately toward them, such as unwanted kissing and touching. The Times released a statement condemning his behavior as "very concerning and not in keeping with the standards and values of The New York Times."

21st Century Fox Establishes Workplace Culture Panel

21st Century Fox (Fox) announced that it is establishing an oversight panel called the Fox News Workplace Professionalism and Inclusion Council, which will report to the company's directors and the company's website instances of sexual harassment. This is part of an agreement struck between the company and a shareholder that is intending to overhaul the workplace culture at the network: the City of Monroe Employees' Retirement System in Michigan. The shareholder had filed an action in Delaware, and the creation of the panel is only one term of the settlement of the action. Fox is also due to pay the shareholder $90 million from third-party insurers, minus the cost of attorneys' fees and costs. These changes come after the company has paid out around $50 million in costs to deal with settling sexual harassment and discrimination allegations.

John Lasseter, Pixar Co-Founder, Takes Leave After 'Missteps'

A co-founder of Pixar, John Lasseter, announced that he will take a "six-month sabbatical" after "missteps" that made his staffers feel "disrespected or uncomfortable." He apologized in an email to employees for hugs that may have been unwanted or gestures that "they felt crossed the line in any way, shape or form." An article in the Hollywood Reporter identified Rashida Jones, the actress and writer, as one who was a victim of Lasseter's "unwanted advance," causing her to leave a Pixar assignment earlier than expected. Pixar previously came under fire for not being supportive of minorities and women, with one piece of evidence being that of its 19 feature films, only one has a female director (who Lasseter fired midway through production).

Chicago Journalists Faces Showdown Over Sources

Jamie Kalven, a journalist in Chicago, uncovered dashcam video of a police officer shooting a 14-year-old boy carrying a folding knife. The police officer, Jason Van Dyke, was charged with first-degree murder, and his trial is approaching. Kalven is scheduled to appear in December at a pretrial hearing and face questions related to how he uncovered the existence of the dashcam video. Kalven, however, has no plans on answering those questions, as he views the First Amendment as protecting the anonymity of his sources for the story. The case surrounding the shooting has been prominent in Chicago newspaper headlines since its occurrence in 2014, but Kalven's testifying in the case is the latest controversy as he is prepared for a long, drawn-out fight regarding his right to preserve the anonymity of his sources.

November 20, 2017

Conducting Salary Discussions in New York City after November 1, 2017

By Marc Jacobson, Esq.

Don't ask for an applicant's salary history, whether for you or your client, when interviewing that applicant for employment in New York City.

You were asked to represent a film production to take place in NYC. As part of that engagement, you were asked to negotiate agreements for the director, cast members, and for the department heads, including makeup, sound, transportation, costumes, and others.

Calls start coming in and you're ready to get to work. An actor's agent confirms that her client wants to play the female lead. In turn, you say the role requires eight consecutive weeks of shooting preceded by one week of rehearsal. You want to minimize costs for the production, and ask: "What's her quote?", meaning, what was her fee per week on her last film?

Or, you're working on any other NYC production--a TV show, play, or music video-- and you need to negotiate the agreement for the Costume or Set Designer. You ask each agent for a quote.

Under a new law, now in effect in NYC, each such question can subject the production to a fine of $125,000.

Section 8-107 of the NYC Administrative Code was recently amended to add a new subdivision 25. That subdivision prohibits employers from inquiring about or relying on a prospective employee's salary history prior to setting a new salary. When enacting the law, the council said: "When employers rely on salary histories to determine compensation, they perpetuate the gender wage gap. Adopting measures like this bill can reduce the likelihood that women will be prejudiced by prior salary levels and help break the cycle of gender pay inequity."

It is now unlawful for an "employer, employment agency, or employee or agent thereof:
1. To inquire about the salary history of an applicant for employment; or
2. To rely on the salary history of an applicant in determining the salary, benefits or other compensation for such applicant during the hiring process, including the negotiation of a contract."

There is a definition of "inquire" in the code as well:
" 'to inquire' means to communicate any question or statement to an applicant, an applicant's current or prior employer, or a current or former employee or agent of the applicant's current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant's salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant's salary history, but does not include informing the applicant in writing or otherwise about the position's proposed or anticipated salary or salary range."

The term "salary history" is also defined: "For purposes of this subdivision, 'salary history' includes the applicant's current or prior wage, benefits or other compensation. 'Salary history' does not include any objective measure of the applicant's productivity such as revenue, sales, or other production reports."

The employer, or its representatives, "may, without inquiring about salary history, engage in discussion with the applicant about their expectations with respect to salary benefits and other compensation..."

Going further, and making these interviews/negotiations even more awkward, "where an applicant voluntarily and without prompting discloses salary history to the [employer or its representatives] the employer [or its representatives] may consider salary history in determining salary benefits and other compensation for such applicant, and may verify such applicant's salary history."

If you're in the midst of such a discussion, you cannot "prompt" the applicant to tell you his or her salary history. Further, if you learn it from another source, you also cannot "rely" on it in determining the salary of the applicant.

However, if the applicant voluntarily reveals that information to you without prompting, you can rely on the information, and make whatever decision you want.

Without a tape recording of every conversation between the employer or the employer's representatives, and the applicant or the applicant's representatives, it seems like whatever happens in these calls will be difficult to prove.

Under §8-126 of the NYC Administrative Code, if the Human Rights Commission, which has the authority to enforce the new subdivision, finds that a person "has engaged in an unlawful discriminatory practice, it may, to vindicate the public interest, impose a civil penalty" of not more than $125,000. This penalty is in addition to the complainant's right to bring a private action under the code. Criminal misdemeanor penalties are available for "any person who shall willfully resist, prevent, impede or interfere with the commission or any of its members or representatives in the performance of any duty" under the code.

Whether acting for yourself or your clients, it is now a violation of the NYC Administrative Code to inquire about salary history, or to rely on salary history, to determine the salary of any employee.

Link to the NYC Charter:

The code, as enacted, with summary of the law:

Marc Jacobson, Esq. is the Founding Chairman of the NYS Bar Association Section on Entertainment Arts & Sports Law. He speaks regularly at bar association and other events about issues related to his practice. He is licensed to practice law in New York, California, and Florida. He can be reached at or +1-212-245-8955.

November 19, 2017

Week in Review

By Michael Smith

Below, for your browsing convenience, the categories are divided into Entertainment, Art, Sports, and Media. First, of general interest:

Ninth Circuit Partially Reinstates Trump Travel Ban

The Ninth Circuit Court ruled that the Trump administration's travel policy blocking entry to travelers from Chad, Iran, Libya, Somalia, Syria, and Yemen can be implemented, except as to people who have a "bona fide relationship" with close family or an organization in the United States.

Australians Vote to Legalize Same-Sex Marriage

61.6% of Australians responding to a government survey voted in favor of legalizing same-sex marriage. The votes were non-binding, but sent a message to legislators regarding public support for legalization.

Signs of Russian Interference in Brexit, British Infrastructure

Researchers have identified more than 150,000 Russian Twitter accounts that tweeted messages meant to inflame xenophobia and otherwise encourage Brits to vote for Brexit. On Tuesday, Britain's National Cyber Security Centre accused Russian hackers of attacking the British energy grid and telecommunications and media industries.

Foreign Intelligence Surveillance Court Upholds Standing to Challenge Secrecy of Its Opinions

In a first of its kind and closely decided en banc decision, the United States Foreign Intelligence Surveillance Court vacated its initial decision that the ACLU and Yale Law School's Media Freedom and Information Access Clinic suffered no injury-in-fact and thus lacked standing to bring First Amendment claims seeking access to redacted portions of the court's opinions. The six-judge majority concluded the initial opinion had improperly considered the merits of the claim, which were not relevant to the standing inquiry. The dissent argued that the First Amendment right of public access does not apply to judicial proceedings that have never been public.


Old Vic Reports 20 Accusations of Spacey

London's Old Vic theater released the reports of an investigation into Kevin Spacey's tenure as the theater's artistic director, revealing that 20 people have alleged that Spacey engaged in inappropriate behavior. The theater was not able to independently verify the allegations, but apologized for "not creating an environment or culture where people felt able to speak freely."

Fox's "Empire" Doesn't Infringe On Record Label's Trademark

The Ninth Circuit Court affirmed the Central District's ruling that Fox Television's use of "Empire," the name of its hit music-industry drama is protected by the First Amendment and does not infringe upon the rights of real-life music company Empire Distribution, Inc.


Alec Baldwin Settles with Art Dealer

Actor Alec Baldwin settled his dispute with art dealer Mary Boone over a painting that Baldwin purchased in 2010. Baldwin claims that the painting Boone delivered was not the one for which he paid $190,00. Reportedly, Boone will pay Baldwin a seven-figure sum and two paintings.


FIFA Trial Moves Forward

On Monday, the trial of three former presidents of the soccer associations of Peru, Paraguay, and Brazil opened in the Eastern District of New York. The men are charged with soliciting and accepting bribes in exchange for television and marketing contracts. They are three of dozens of defendants, many of whom have plead guilty or avoided extradition to the United States.

Accusations of Misconduct in FIFA Trial

Prosecutors asked Judge Pamela Chen to revoke bail for defendant Mauel Burga, former president of the Peruvian soccer federation, for intimidating witness Alejandro Burzaco. Prosecutors say that Burga made throat-cutting gestures during Burzaco's testimony. Burzaco's lawyer, Bruce Udolf, says Burzaco is a "serial liar," and Burga was simply scratching a rash on his neck. Judge Chen will hold a hearing next week on the allegations of witness tampering, and said Burga should be examined by a dermatologist.

Apparent Suicide Linked to FIFA Trial

On Tuesday, Jorge Delhon, an attorney who worked for Argentina's government-run soccer television program "Futbol Para Todos," was hit by a train and killed. His death came hours after a witness in the FIFA trial testified that Delhon had received bribes.

Marketing Executive Says That Fox Sports Paid Bribes

On Tuesday, a former executive of sports marketing company Torneos y Competencias testified in the FIFA trial that media companies, including Fox sports, paid bribes to obtain television rights for soccer matches.

Paraguayan Judge Authorizes Extradition of Former Soccer Official

On Thursday, a Paraguayan judge authorized the extradition to the United States of Nicolas Leoz, the 89-year-old former head of the South American Football confederation. Leoz is accused of bribery.

Jones v. Goodell Continues

Jerry Jones, owner of the Dallas Cowboys, has been vocal in his opposition to the extension of Commissioner Roger Goodell's contract, which is being negotiated by the National Football League's (NFL's) compensation committee. Jones hired David Boies and threatened to sue the league and its owners, and other owners believe that his actions are motivated by resentment over Goodell's decision to suspend Cowboys running back Ezekiel Elliott. Jones says he is trying to make the contract talks more transparent, and is pushing to have all team owners vote on the contract extension. In a letter sent to Boies last week, the members of the committee accused Jones of "conduct detrimental to the league's best interests"--language evocative of the basis for sanctions (including possible suspension) against a team owner.

Elliott Drops Suspension Appeal

Dallas Cowboys running back Ezekiel Elliott will not continue to pursue an appeal of his six-game suspension. Elliott was suspended after an NFL investigation concluded he had engaged in acts of domestic violence. Elliott denies the allegations and says his decision is not an admission of wrongdoing.

Players Say NFL is Standing in the Way of Settlement Payments

Retired players and their families are accusing the NFL of delaying or obstructing payments due to them pursuant to a 2015 settlement of a lawsuit over the NFL's dealing with head trauma. Of 1,400 claims filed so far, only 140 have been approved, and only about half of the approved settlements have been paid out. Players say the hoops they have to jump through to get paid are unreasonable, and that the NFL is unreasonably denying claims and intentionally moving slowly.

WADA Committee Recommends Russia Not be Re-Certified

The World Anti-Doping Agency's (WADA's) compliance review committee recommended that Russia not be deemed compliant with anti-doping regulations. If WADA adopts the recommendation, Russia will remain banned from major sports events, such as the New York City Marathon and the Paralympics.

Trump Intervenes on Behalf of UCLA Basketball Players

When President Trump learned that three UCLA students visiting China as part of a sponsored sports program had been arrested for shoplifting, he raised it during his meeting with China's president, Xi Jinping. Soon thereafter, charges were reduced and the players were released to their hotel.

Virginia Marathoners Disqualified for Russian Connections

The winner of the men's division of the Richmond, VA marathon and the first- and third-place finishers in the women's half marathon, were all disqualified because they share an agent: Larisa Mikhaylova, a Russian who has been accused of providing runners with performance-enhancing drugs. Mikhaylova registered the athletes using an alias.


Federal Communications Commission to Loosen Media Ownership Regulations

Federal Communications Commission (FCC) chairman Ajit Pai said on Wednesday that the FCC intends to roll back regulations that ban cross-ownership of a newspaper and broadcast TV station in the same market. Pai said the decades-old rules, which were instituted prior to the ascendancy of cable news and the Internet, no longer make sense.

Missouri Investigating Google Business Practices

Missouri's attorney general disclosed that his office subpoenaed Google for information concerning the company's collection and use of private information, the use of other content providers' information on its sites, and possible bias in search engine results.

YouTube Purges Awlaki Videos

After years of criticism and pressure, YouTube has taken much more aggressive steps to eliminate videos of Anwar al-Awlaki, a jihadist known as the "Osama bin Laden of the Internet". Awlaki was killed six years ago by a U.S. drone strike, but until recently YouTube hosted tens of thousands of videos of Awlaki's recordings. Using a combination of video fingerprinting technology and human review, YouTube has drastically reduced the number of videos of Awlaki available on the site, and those that remain tend to be reportage or commentary.

Journalist Charged in Inauguration Protests Goes to Trial

Alexei Wood, one of two reporters set to stand trial for his involvement in Inauguration Day protests in front of the Capitol, appeared in the Superior Court of the District of Columbia on Wednesday. Nine journalists were charged, but charges against seven were dropped. Wood and the other remaining journalist, Aaron Cantú, are charged with rioting and destruction of property.

Advertisers Send Mixed Messages on Hannity

After Sean Hannity made comments on his television show calling one of Roy Moore's alleged encounters "consensual," many called on advertisers to pull their ads from his show. Some advertisers, including Keurig, Reddi Whip,, Nature's Bounty, and Volvo tweeted messages indicating that they had pulled their ads. However, earlier this week many of those advertisers were clarifying or deleting those tweets.

Russia May Require Foreign Media to Register

On Wednesday, Russia's Parliament approved legislation that could require foreign media organizations operating in Russia to identify themselves as "foreign agents". President Putin, who must sign the legislation into law, expressed concerns the rule may go too far. The move is seen as a response to the United States Justice Department's decision to require Russian state-run TV to identify itself as a "foreign agent" under the Foreign Agents Registration Act of 1938, which was intended to combat Nazi propaganda.