May 3, 2016

Cert. Granted in STAR ATHLETICA, L.L.C. V. VARSITY BRANDS, INC., ET AL.

By Barry Werbin

The Supreme Court just accepted certiorary in the cheerleader uniform case, STAR ATHLETICA, L.L.C. V. VARSITY BRANDS, INC., ET AL. The question addresses the appropriate test to use to determine whether features of a useful article are protected. This is surprising, but very significant for the entire apparel industry.

http://www.scotusblog.com/case-files/petitions-were-watching/

This is the special question the Court accepted (from the petition):

QUESTIONS PRESENTED

1. Under the Copyright Act, a "useful article" such as a chair, a dress, or a uniform cannot be copyrighted. 17 U.S.C. § 101. The article's component features or elements cannot be copyrighted either, unless capable of being "identified separately from, and . . . existing independently of, the utilitarian aspects of the article." Id. Circuit courts, the Copyright Office, and academics have proposed at least nine different tests to analyze this separability. The Sixth Circuit rejected them all and created a tenth. The first question is:

What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?

April 29, 2016

Week in Review

By Ben Natter

Tom Brady's Suspension Reinstated

The Second Circuit Court of Appeals ruled that National Football League Commissioner Roger Goodell properly exercised his power when imposing a four game suspension upon Tom Brady for his actions surrounding "Deflategate". This decision overturned a prior decision that had previously nullified the suspension and questioned Goodell's actions.

http://www.nytimes.com/2016/04/26/sports/tom-brady-deflategate-new-england-patriots-suspension-reinstated.html?_r=0

Gary Burton Cancels Mississippi Show in Response To Discriminatory Law

Gary Burton, a multiple-Grammy-winning jazz vibraphonist, is the latest artist to cancel a performance in Mississippi in response to legislation that allows those with religious objections to deny service to gay couples. Mr. Burton's cancellation is notable, as he is an openly gay artist.

Tracy Morgan and Bryan Adams also called off shows in response to the law.

http://www.nytimes.com/2016/04/23/arts/music/gary-burton-cancel-mississippi-gay-discrimination.html

Egyptian Police Official Files Complaint Against Reuters

A criminal complaint was filed in Egypt by an Egyptian police official against the Reuters news agency in connection with a January 25th article about the death of an Italian student, Giulio Regeni.

Mr. Regeni disappeared during a time when Cairo was blanketed with police to prevent protests. His body was discovered outside of Cairo with signs of torture. The Reuters story alleged the Mr. Regeni was held in police custody and then transferred to Egyptian homeland security before he was murdered. The story also cited unnamed Egyptian intelligence sources. The article was consistent with other accounts of the incident previously reported on by other news outlets.

http://www.reuters.com/article/us-egypt-regeni-exclusive-idUSKCN0XI1YU

http://www.nytimes.com/2016/04/24/world/egyptian-police-official-files-complaint-against-reuters.html

Copyright Case Over Grey Market Textbooks Returns to Supreme Court for Legal Fees

Supap Kirtsaeng, the Thai student who three years ago won a Supreme Court victory against John Wiley & Sons in connection with the First Sale Doctrine, and whether or not it was lawful for Mr. Kirtsaeng to resell grey market textbooks, returned to the Supreme Court in search of attorney's fees in connection with the case after a federal court refused to award any. Case law with respect to copyright damages varies, and the federal appeals judge applied the "objectively reasonable" standard to the losing party's case.

http://www.nytimes.com/2016/04/26/business/copyright-case-victor-returns-to-supreme-court-for-legal-fees.html

Los Angeles Art Dealer Is Arrested on Embezzlement Charges

Perry Rubenstein, a Los Angeles art dealer, was arrested last week for his behavior in connection with the sale of three artworks. Portions of the proceeds from the sales were supposed to be turned over to his clients, who included Michael Ovitz; however the Los Angeles District Attorney alleges that Mr. Rubenstein kept the funds for himself.

Two civil lawsuits were settled in connection with Mr. Rubenstein's actions. Mr. Rubenstein's attorney seemed puzzled that the District Attorney would pursue a criminal charge at this point, as the civil cases had been resolved.

http://www.nytimes.com/2016/04/23/arts/design/los-angeles-art-dealer-is-arrested-on-embezzlement-charges.html?_r=0

Tennis's Integrity Unit Says Flagged Matches Rise

The Tennis Integrity Unit, the anti-corruption body for the sport, published a report last week that showed that it had received notices from various betting companies concerning 48 matches and suspicious gambling activity. In the past, the burden of proof to discipline players involved in suspicious matches was rarely met. The report included summaries on three previously announced cases against players. However, it was met with skepticism. The Tennis Integrity Unit received much criticism for its lack of effectiveness, and an independent panel was recently created to review the program.

http://www.nytimes.com/2016/04/23/sports/tennis/integrity-unit-says-flagged-matches-rise.html

Blue Jays' Chris Colabello Suspended for 80 Games for Positive PED Test

Blue Jays first baseman/outfielder Chris Colabello was suspended for 80 games for a positive drug test. Colabello had a breakout season last year, and a long and trying road to the Major League. Colabello denies taking performance enhancing drugs.

http://www.cbc.ca/sports/baseball/mlb/john-gibbons-blue-jays-colabello-dominguez-1.3554360

Criminal Case Against Bill Cosby Is Allowed to Proceed

A Pennsylvania appellate court on Monday blocked Bill Cosby's effort to have criminal sexual assault charges against him thrown out. Mr. Cosby's attorneys lost the appeal of a decision that a verbal promise by a previous Pennsylvania prosecutor not to pursue criminal charges against Cosby was not binding. The appellate court felt that Mr. Cosby did not have a right to appeal the decision at this stage.

http://www.nytimes.com/2016/04/26/us/criminal-case-against-bill-cosby-is-allowed-to-proceed.html

Newtown Conspiracy Theorist Sues University That Fired Him

James Tracy filed a lawsuit against Florida Atlantic University and United Faculty of Florida, the latter being the union that had previously represented him. Mr. Tracy accuses the University of violating his right to free speech and retaliating against him for exercising that right. He also alleges that the union worked with the university to deny him due process.

Mr. Tracy was dismissed from his tenured position for failure to submit required forms detailing work done outside of his job as a professor.

Mr. Tracy gained notoriety for questioning government involvement and the facts of several recent tragedies, including the Sandy Hook shooting. His writings were featured on his own blog and on an "alternative news" publication.

Blog: https://memoryholeblog.com/2012/12/24/the-sandy-hook-massacre-unanswered-questions-and-missing-information/

http://www.nytimes.com/2016/04/27/us/sandy-hook-newtown-conspiracy-theorist-sues-university.html?_r=0

Use of Motor Results in Suspension and Fine for a Belgian Cyclist

Femke Van den Driessche became the first cyclist to be punished for use of a hidden motor earlier this week. The International Cycling Union fined Van den Driessche $20,500, ordered her to pay its legal costs, and to return prize money going back to October. Van den Driessche was also stripped of her title as the under-23 European champion and Belgian national champion, and suspended for six years.

There have been rumors regarding hidden motors in bicycles for years and, in January, officials using a magnetic resonance scanner found an electric motor controlled by a Bluetooth switch hidden under the handlebar of a spare bike for Ms. Van den Driessche at the World Cyclocross Championships in Belgium. Van den Driessche offered no defense and quit the sport.

http://www.nytimes.com/2016/04/27/sports/cycling/use-of-motor-results-in-ban-and-fine-for-a-belgian-cyclist.html

Cyclocross: https://en.wikipedia.org/wiki/Cyclo-cross

Deadspin on hidden motors: http://fittish.deadspin.com/secret-thermal-camera-footage-allegedly-shows-seven-pro-1771492666

NCAA Amends Complaint Against the University of North Carolina

The removal of a sentence in an amended complaint against the University of North Carolina hints that the men's basketball and football teams could receive comparatively lenient sentencing for partaking in a scandal where students were advised to take non-existent classes to maintain NCAA eligibility. The complaint was amended to acknowledge that the classes were available to all students.

A university-commissioned investigation in 2014 found that more than 3,000 undergraduates took more than 100 fraudulent classes in the African and Afro-American Studies Department. Almost a quarter of the students were football or basketball players.

http://www.nytimes.com/2016/04/27/sports/ncaabasketball/north-carolina-ncaa-academic-scandal.html

Prince had no Will, According to Sister

Tyka Nelson, Prince's sister, filed court documents to begin the probate process for Prince's will in Minnesota. In the filing, she stated: "I do not know of the existence of a Will and have no reason to believe that the Decedent executed testamentary documents in any form."

The petition also listed five half-siblings as heirs, and asked the court to appoint a special administrator. Minnesota law treats surviving half-siblings the same as full siblings. The estate is estimated as being worth over $300 million, as Prince had recently taken over control of his catalog. Since his passing, Prince has sold 650,000 albums and 2.8 million tracks.

http://www.nytimes.com/2016/04/27/arts/music/prince-died-without-a-will-according-to-court-documents.html?mtrref=www.google.com&gwh=2909D247635A67005D4A8B258888392A&gwt=pay&_r=0

April 23, 2016

Week in Review

By Michael B. Smith

Formerly, the Artist Known as Prince

On Thursday, April 21, 2016, Prince Rogers Nelson, a/k/a Prince, a/k/a Jamie Starr, a/k/a Christopher Tracy, a/k/a Alexander Nevermind, a/k/a The Purple One, a/k/a Joey Coco, a/k/a "the Love Symbol", a/k/a The Artist Formerly Known as Prince, was found dead in Paisley Park, his home in Minnesota. Prince, unquestionably one of the most talented and influential musicians of his time, was no stranger to the world of law. In the early 1990s, while Prince was embroiled in a legal battle with his label, Warner Brothers, he appeared in public with the word "slave" written on his face and announced that he had changed his name to an unpronounceable symbol as the "first step toward the ultimate goal of emancipation from the chains that bind me to Warner Bros." He also was an ardent defender of his copyrights. The DMCA takedown notice of a home video in which Prince's song "Let's Go Crazy" played in the background led to the Ninth Circuit's 2015 decision in Lenz v. Universal Music Corp, which held that copyright holders must consider fair use before issuing a DMCA takedown notice. Prince was 57 years old when he died.

http://www.nytimes.com/2016/04/22/arts/music/prince-dead.html

Library of Congress Nominee Gets Confirmation Hearing

On Wednesday, the Senate Committee on Rules & Administration held confirmation hearings on President Obama's nomination of Carla Hayden, director of Baltimore's public library system, to head up the Library of Congress. Hayden told the Committee that she would expand access to the library, including increased accommodations for the blind and disabled; put documents online; and take Library of Congress exhibits "on the road." Hayden, whose father was a recording artist, said she would work hard to protect copyrights (the Copyright Office is overseen by the Library of Congress).

http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-carla-hayden-librarian-of-congress-20160420-story.html

Supreme Court Rejects Authors Guild Challenge to Google Books Settlement

On Monday, the U.S. Supreme Court denied certiorari in the Authors Guild's appeal from the Second Circuit's ruling that Google's online library of millions of scanned books constitutes fair use. Google Books allows users to search the contents of the books, and displays relevant excerpts. Google says users cannot access "any substantial portion of any book."

http://www.reuters.com/article/us-usa-court-google-idUSKCN0XF1O3

https://www.authorsguild.org/industry-advocacy/supreme-court-declines-review-fair-use-finding-decade-long-book-copying-case-google/

Twins Aim for Nothing but Net

On Wednesday, the Minnesota Twins announced they intend to comply with Major League Baseball's "Fan Safety Recommendations" by installing new protective netting in Target Field.

http://m.mlb.com/news/article/159803376/twins-installing-new-netting-at-target-field

Prescribing Fiancée Linked To Pharmacist's Role in Doping Controversy

Charles Sly is the pharmacist at the center of Al Jazeera's report implicating Peyton Manning, Ryan Howard, and others in the use of performance-enhancing drugs. In the report, Sly admitted to providing performance-enhancing drugs to many athletes. After the report aired, he recanted his statements. An ongoing investigation by the United States Anti-Doping Agency has expanded to include Sly's fiancée, Karen Lopez-Bartlett, who committed suicide two months prior to the airing of the report. Lopez-Bartlett was a nurse practitioner who, unlike Sly, had the authority to write prescriptions. Sly told Al-Jazeera that Lopez-Bartlett had written prescriptions for him, and that he had access to her prescription pad.

http://www.nytimes.com/2016/04/16/sports/role-of-nurse-is-said-to-be-of-interest-after-report-on-doping.html?_r=0

Pro Cyclists Accused of "Mechanical Doping"

On Sunday, journalists in France and Italy published evidence obtained using thermal imaging implicating seven cyclists in the use of hidden motors on their bicycles. The International Cycling Union has been investigating "technological fraud" in the sport since January. The journalists allege that five riders were using tiny electric motors and two were using magnetic propulsion systems.

https://www.newscientist.com/article/2085403-hidden-motors-cyclings-mechanical-doping-problem-hits-new-low/

Third Circuit Upholds $1 Billion Concussion Settlement

In 2013, football players settled a lawsuit against the National Football League (NFL) for head injuries. As part of the settlement the NFL admits no fault, but agrees to pay nearly $1 billion to the class of over 8,000 retired players. The settlement was challenged by approximately 150 players, who may yet seek en banc review. The Court acknowledged that the settlement was not perfect, but called it "fair."

http://www.nydailynews.com/sports/football/appeals-court-upholds-nfl-1-billion-concussion-settlement-article-1.2605499

National Hockey League Suspends Blackhawk for Anti-Gay Slur

During Game Four of the Stanley Cup playoffs, which the Chicago Blackhawks lost to the St. Louis Blues, forward Andrew Shaw shouted a homophobic slur from the penalty box and "direct[ed] an inappropriate gesture" at referees. In response, the National Hockey League suspended Shaw for one game and fined him $5,000. Shaw expressed remorse, and the team expressed disappointment.

http://espn.go.com/nhl/story/_/id/15281995/blackhawks-forward-andrew-shaw-suspended-one-game-anti-gay-slur

ESPN Fires Curt Schilling Over Offensive Facebook Post

ESPN released a statement Wednesday announcing that it had fired Curt Schilling as an analyst for the network due to his "unacceptable" Facebook post objecting to the use of public women's rooms by transgender males. Schilling shared a grotesque photograph with an offensive caption, and then posted his own, sympathetic views. ESPN suspended Schilling last year for a tweet comparing Muslims to Nazis.

http://www.npr.org/sections/thetwo-way/2016/04/20/475049786/espn-fires-curt-schilling-for-unacceptable-conduct

European Broadcasters Fined for Soccer Cartel

Italy's antitrust authority fined European broadcasters Mediaset Premium TV and Sky Italia for "carving up" the rights to broadcasting soccer matches to the exclusion of their competitors. Mediaset is owned by former Italian prime minister Silvio Berlusconi; Sky Italia is controlled by Rupert Murdoch's 21st Century Fox.

http://www.dailymail.co.uk/wires/reuters/article-3550322/Italian-regulator-fines-Mediaset-Sky-soccer-TV-rights.html

Producers Make Profit-Sharing Deal With Cast of "Hamilton"

Attorney Ronald H. Schechtman, who represents the original cast members of the top-grossing Broadway musical, "Hamilton" announced that the show's producers agreed to give those cast members a share of the show's profits. Details have not been disclosed, but some think it will lead to an increase in such arrangements.

Lin-Manuel Miranda, who wrote the book, lyrics and music to the musical, also received the 2016 Pulitzer Prize in Drama.

http://variety.com/2016/legit/news/hamilton-actors-profit-sharing-deal-1201755004/

http://www.pulitzer.org/winners/lin-manuel-miranda

La Scala Must Reinstate Outspoken Ballerina

In 2012, the La Scala Theatre Ballet School fired Mariafrancesca Garritano after she publicly accused La Scala of encouraging eating disorders among its dancers. Earlier this week, Italy's highest court affirmed a ruling against La Scala, and ordered it to reinstate Garritano.

http://www.theguardian.com/stage/2016/apr/18/la-scala-ballerina-anorexia-row-mariafrancesca-garritano

Artists Want Works Returned In Ace Gallery Bankruptcy

Los Angeles art dealer Douglas Chrismas has lost control of Ace Gallery, which he founded in 1967. Chrismas was replaced by a chapter 11 trustee after he failed to make a $17.5 million payment in the gallery's bankruptcy proceedings. The gallery holds an estimated 2,750 works, which the trustee said he plans to sell. Several artists filed claims for the return of their art and, because California law protects works held on consignment that therefore cannot be used to satisfy creditors, the trustee must determine which works are on consignment. This task is complicated by the fact that Chrismas kept no computerized inventory.

http://www.nytimes.com/2016/04/21/arts/design/artists-fight-to-get-works-back-amid-ace-gallerysbankruptcy-case.html

Conflicting Claims (Even Within India) on the Koh-I-Noor Diamond

India has been asking for the return of the 105-carat Koh-I-Noor diamond since its independence in 1947. The gem has been in British possession since 1849, and currently encrusts the Queen Mother's crown. Britain says it obtained the stone legally as part of its annexation of Punjab. Earlier this year, the nonprofit All India Human Rights and Social Justice Front sued for the diamond's return, claiming that the British "illegally and forcefully" took the stone from India. During a hearing in India's Supreme Court on Monday, lawyers for India's culture ministry surprised everyone when they said the diamond was a "gift" to the British. On Tuesday, the culture ministry issued a statement clarifying that that was the government's "historical" stance, and that it would "make all possible efforts to bring back the Koh-I-Noor diamond in an amicable manner." Pakistan, Iran, and Afghanistan also have claimed ownership of the stone.

http://www.nytimes.com/2016/04/21/world/asia/india-britain-koh-i-noor-diamond.html

Granddaughter Questions Viacom Mogul's Mental Health

Keryn Redstone, granddaughter of Viacom's controlling shareholder, Sumner Redstone, has asked to join a lawsuit filed by Sumner Redstone's former girlfriend, Manuela Herzer. Herzer alleges that Sumner Redstone, 92, was not mentally competent when he removed her from his healthcare directive and replaced her with Shari Redstone--Sumner Redstone's daughter and Vice Chair of Viacom and CBS. Keryn Redstone filed an affidavit claiming that Shari Redstone opposed medical treatment for her grandfather and said "[l]et him die at home." Karyn Redstone also suggested that Shari Redstone had destroyed documents. Shari Redstone said Keryn Redstone's statements were false.

http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-sumner-redstone-lawsuit-granddaughter-keryn-redstone-20160419-story.html

Merkel Greenlights Erdogan Suit Over Blue Poem

German Chancellor Angela Merkel has granted the request of Turkish president Tayyip Erdogan for the prosecution, in Germany, of Jan Böhmermann, the German comedian who gained international attention for his poem insulting Turkish president Tayyip Erdogan (or, more accurately, for Erdogan's reaction to that poem). Böhmermann would be prosecuted under section 103 of the German criminal code, which makes insults against representatives of foreign states punishable by up to three years in prison, and five years if the insult is found to be slanderous. Merkel's decision is itself controversial, and many have accused her of sacrificing freedom of the press for diplomatic expediency. Merkel has defended her decision, saying that "[i]n a constitutional democracy, weighing up personal rights against freedom of the press and freedom of expression is not a matter for governments, but for public prosecutors and courts." Merkel nevertheless said she considers the law under which Böhmermann would be prosecuted unnecessary, and that she would work to have it removed from the penal code.

http://www.theguardian.com/world/2016/apr/15/angela-merkel-agrees-prosecution-comedian-erdogan-poem

U.S. Patent and Trademark Office Seeks Review of Offensive Trademark Ruling

The U.S. Patent and Trademark Office has filed a writ of certiorari asking the United States Supreme Court to review the Federal Circuit's en banc ruling that Section 2(a) of the Lanham Act, which bars the registration of trademarks that "may disparage...persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute," is unconstitutional. In December, the Federal Circuit overturned the examiner, the Trademark Trial and Appeal Board, and the three-judge panel that initially heard the appeal, concluding that musician Simon Tam can register his band's name, "The Slants," as a trademark. The Fourth Circuit is scheduled to hear an appeal from the Eastern District of Virginia's ruling upholding the revocation of the Washington Redskins' trademarks.

http://www.worldipreview.com/news/uspto-asks-supreme-court-to-hear-slants-case-9906

April 22, 2016

Center For Art Law Case Updates

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

Toren v. Villa Grisebach Auctions, Inc., 651667/2016 (N.Y. Sup. Ct. March 29, 2016) -- The 89-year old New Yorker, David Toren, claims that the German art dealer Villa Grisebach Auctions sold two works that were looted from his grandfather, David Friedman. In his efforts, Toren seeks to uncover names of people to whom the Max Lieberman painting, "Basket Weavers" and the Franz Skarbiner painting, "Nach House" were sold in 2000 and 1995, respectively.

Miller v. The Robert Mapplethorpe Foundation, Inc., No.1:16-CV-2510 (S.D.N.Y. April 5, 2016) -- Photographer Bobby Miller filed a $65 million suit for copyright infringement against the Foundation and multiple galleries and museums that have previously shown the works at issue. Miller claims that while spending time with Mapplethorpe in the late 1970s, he snapped a number of photos of the artist dressed in drag that have since been reproduced and publicly displayed.

Maestrali v. Helly Nahmad Gallery Inc., 650646/2014, New York State Supreme Court (Manhattan)-- Plaintiff Philippe Maestracci filed suit against Helly Nahmad Gallery, seeking declaration of title, conversion, and replevin or restitution of a painting, "Seated Man with a Cane, 1918" by Amedeo Modigliani, a renowned Italian Jewish artist. The defendants currently possess, control, and own the painting. The painting has been referenced widely in connection with the recently-publicized Panama Paper.

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 (http://cardozo.us2.list-manage.com/subscribe?u=78692bfa901c588ea1fe5e801&id=022731d685), the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog (http://itsartlaw.com/blog/)and calendar of events (http://itsartlaw.com/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: www.itsartlaw.com or write to itsartlaw@gmail.com.

Holmes v. Love

By Pia Katerina Tempongko

According to the company website, Twitter was created in March 2006 by Jack Dorsey, Evan Williams, Biz Stone and Noah Glass, and launched in July 2006. As of December 31, 2015, the social media platform had more than 320 million users, with one billion unique visits monthly to sites with embedded tweets. Twitter has been used for different purposes -- crowdsourcing, business promotion, keeping up with the news, favorite celebrities, brands, restaurants, microblogging, maintaining connections with peers, and perhaps the most common use of it all -- Twitter serves as an avenue for anyone who uses it to exercise his or her right to freedom of speech. As Twitter's website states: "Tell your stories here."

Courtney Love Cobain, an American actress, singer, and songwriter, has been a household name for the past three decades. She is the lead singer of the rock band Hole and also the widow of Kurt Cobain, who was the lead singer of the rock band Nirvana. Her mainstream popularity can be attributed to her success in the worlds of music, acting, fashion, and lately, her Twitter presence. Like many celebrities, Cobain tweets to share her thoughts, one of which (famously dubbed as "Twibel") is the subject of this case.

After her husband's death, Cobain believed that various persons defrauded her, her daughter and her husband's estate that was worth millions of dollars. Cobain hired plaintiff Rhonda J. Holmes in 2008 to represent her and investigate her claims. Holmes worked on Cobain's claims from December 2008 through May 2009, and helped Cobain draft a press release that was published in the New York Post on April 7, 2009. The article quoted Holmes as stating she had "been able to "track down" $30 million but that more was missing and that they will be filing civil cases within the next 30 days." Cobain sent 80 boxes of documents to Holmes to help in preparing the complaint. Based on the press release and the documents sent, Cobain expected Holmes to file a civil case by May 7, 2009. However, Holmes did not file a complaint, and later told Cobain that her computer was hacked. Holmes also stated the following: that Cobain's former counsel threatened her, $140,000 was stolen from Holmes's bank account, Holmes had been a victim of credit card fraud, and her phone was tapped. Holmes claimed that these incidents occurred because of the press release. Holmes emailed Cobain on May 8, 2009, stating she was still representing her client. However, that was the last time Cobain heard from Holmes, and no complaint was ever filed on Cobain's behalf.

By June 2010, more than a year after the New York Post press release, Cobain assumed that Holmes had decided not to continue representing her, and tried to determine if Holmes "vanished" or was bought off. In what Cobain thought to be a private Twitter conversation, she was asked by two users if she thought that her lawyer was bought off. She replied, "I was f*****g devastated when Rhonda J. Holmes, Esquire, of San Diego was bought off @FairNewsSpears perhaps you can get a quote." She removed the tweet after five to seven minutes.

Holmes filed a case of libel per se because of this tweet, and the jury returned a special verdict stating that the Twitter statement was false and had a natural tendency to injure Holmes's profession. However, the jury did not believe that Holmes proved by clear and convincing evidence that Cobain knew the statement was false or had serious doubts about the truth of the statement.

In the case of New York times Co. v. Sullivan (1964) 376 U.S. 254, the Court ruled that actual malice is required to prevail on a liber per se claim. There has to be a clear and convincing proof of a knowing falsehood or of reckless disregard of the truth. Recovery by public officials in defamation actions is constitutionally barred unless evidence is produced of either deliberate falsification or reckless publication despite the publisher's awareness of probable falsity. The crucial focus of actual malice is the defendant's attitude or state of mind toward the allegedly libelous material published. (McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 860). In this case, the jury found that Holmes failed to prove actual malice and failed to establish by clear and convincing evidence that Cobain knew the tweet was false or had serious doubts about the truth of her statement. The jury came to this conclusion by examining the surrounding circumstance that led to the Twitter statement. Although Cobain's statement was injurious to Holmes, the jury did not find malice, and the Court of Appeals affirmed.

Public figures benefit from using Twitter, but accessibility and freedom of speech make celebrities easy targets, as the spotlight is on them 24/7 and the standard in defamation cases concerning public figures is high.

Holmes v. Love (http://www.courts.ca.gov/opinions/nonpub/B256367.PDF)

April 19, 2016

Investigations and the Faragher-Ellerth Affirmative Defense

By Kristine A. Sova
www.sovalaw.com

Although laws like Title VII seek to make persons whole for injuries suffered on account of unlawful harassment, its primary objective is not to provide redress, but to avoid harm. This means that the law gives employers many opportunities to avoid liability for the harassing conduct of their employees and supervisors, most significantly, when employers investigate and take steps to promptly correct any harassing behavior.

Consider harassment allegedly perpetrated by a supervisor. Where the alleged harassment involves a supervisory employee, courts addressing a Title VII claim first look to whether the supervisor's behavior culminated in a tangible employment action against the employee, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 765, 118 S. Ct. 2257,141 L. Ed. 2d. 633 (1998). If the harassment resulted in an adverse employment action, the employer will be vicariously liable. Id.

When no adverse employment action is taken, however, a defending employer may avoid liability for a supervisor's harassment if the employer can demonstrate that:

it took reasonable steps to prevent and promptly correct sexual harassment in the workplace, and
the aggrieved employee unreasonably failed to take advantage of the employer's preventive or corrective measures.

This principle often is referred to as the "Faragher-Ellerth affirmative defense," a reference to two 1998 United States Supreme Court decisions in which the Court established the defense.

Although there is no reference to investigations under either prong of the defense, investigations are crucial under both prongs if an employer wants to take advantage of the defense.

Under the first prong of the Faragher-Ellerth defense, an employer must establish that it exercised reasonable care in preventing and correcting any sexually harassing behavior. Reasonable care includes training staff and supervisors and establishing reporting procedures. The very presence of the second prong - that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise - means that an employer is not required to prove success in preventing harassing behavior to avoid vicarious liability, nor is it required, in all circumstances, to establish unreasonable conduct on the part of the employee in order to avoid vicarious liability. Cajamarca v. Regal Entm't Group, Civil Action No. 11 Civ. 2780 (BMC), 863 F.Supp.2d 237, 249, 252 (E.D.N.Y. May 31, 2012). However, this means that an employer must take reasonable steps to promptly correct a hostile work environment once the employer has knowledge of its existence. Id. at 252. This includes investigation and issuance of appropriate, corrective remedies if harassment is found.

For example, in Cajamarca, the employer adopted appropriate training and reporting procedures, the plaintiff complied with those procedures for the most part, and the employer remedied the hostile work environment accordingly. As the incentives provided by the Faragher-Ellerth defense worked exactly as they were supposed to, the court saw no reason why the employer should be held vicariously liable for a hostile work environment solely because the employee reported it. Id.

Investigations are equally important under the second prong of the Faragher-Ellerth defense. The second prong requires the employer to show that the employee unreasonably failed to take advantage of the employer's harassment complaint procedures. Ellerth, 524 U.S. at 765. Evidence of "any unreasonable failure [by the employee] to use any complaint procedure provided by the employer . . . will normally suffice to satisfy the employer's burden." Id. (emphasis added). However, an employee's "credible fear that her complaint would not be taken seriously" will overcome the employer's burden. Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999). Such fear can be evidenced by proof that the employer has ignored or resisted similar complaints, see Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001), providing another reason for employers to investigate employee complaints in order to take advantage of the Faragher-Ellerth defense.

***

One final note: Although the Faragher-Ellerth defense was established in the context of hostile work environment sexual harassment, since the defense was established, it has been applied to defend against claims on the basis of other protected characteristics as well. For this reason, employers should investigate all complaints of harassment, not just those premised on sex.

Google Books Update

The Supreme Court denied cert in the Google Book case.

https://www.washingtonpost.com/news/the-switch/wp/2016/04/18/google-books-just-won-a-decade-long-copyright-fight/

http://www.bbc.com/news/technology-36072243

Authors Guild response:
CertDenied_PressRelease_Final.pdf

April 17, 2016

Week in Review

By Ben Natter

Senate Votes to Ban Imports of Syrian Art and Antiquities

The Senate unanimously voted earlier this week to ban the import of ancient art and antiquities from Syria. The ban, once enacted, should serve to discourage looting of artifacts from Syria and close existing loopholes in U.S. law that were allowing the antiquities to enter the country. While the law bans trade of stolen antiquities, it does not ban the trade in ancient art or artifacts, including from Syria, that were obtained before 1970, when an international law was passed to prevent the trade of such goods.

The United States previously received criticism for its lack of action to counter the trade of stolen Syrian art and antiquities within its borders.

http://www.nytimes.com/2016/04/14/world/middleeast/senate-votes-to-ban-imports-of-syrian-art-and-antiquities.html

Federal Prosecutors and Defense Attorneys Argue over FIFA Trial Date

Eight federal prosecutors and 15 defense attorneys appeared before Raymond J. Dearie of the Federal District Court for the Eastern District of New York earlier this week to discuss potential trial start dates for the accused fraudulent activities of FIFA officials.

The defense argued that an early 2017 start date would not be reasonable, given the government's excessive evidence that currently amounts to over 1 terabyte of data (700-900 million pages of documents). Prosecutors stated that more new evidence would be added, and Judge Dearie acknowledged that he did not think it would be fair to schedule a trial date in early 2017 if the prosecution continued to collect data that the defense would need to be familiar with prior to trial. Judge Dearie expressed that he would need to consider if it was at all reasonable to schedule a tentative start date, given the large and still growing amount of data to be turned over to the defense.

Another hearing is scheduled for August.

http://www.nytimes.com/2016/04/14/sports/soccer/lawyers-in-fifa-corruption-case-discuss-possible-trial-date.html

WADA Drug Guidelines May Overturn Suspension

The World Anti-Doping Agency (WADA) sent a notice to national anti-doping bodies earlier this week that acknowledges that it is unsure of the excretion period for meldonium. This notice is expected to have a major impact on many of the 172 athletes who have tested positive for the performance-boosting drug since the ban it became a prohibited substance on January 1st. Russian officials had insisted that their athletes took the drug prior to January 1st, but still tested positive in March. Notably, Maria Sharapova was suspended for a positive test for meldonium earlier this year.

WADA seemed to acknowledge the possibility of the positive tests in instances where the drug was taken prior to becoming a banned substance: "There is currently a lack of clear scientific information on excretion times."

http://www.forbes.com/sites/ritarubin/2016/04/14/wada-meldonium-taken-before-ban-could-show-up-in-test-after-it-sharapova-hasnt-made-that-claim/#6ed2483c3b9f

"We Shall Overcome" Copyright Challenged

The same law firm the challenged the "Happy Birthday" song copyright filed a complaint in the Southern District of New York challenging the copyright to "We Shall Overcome", which is currently owned by The Richmond Organization, Inc. and Ludlow Music, Inc. The plaintiffs argue that the work, which was popularized during the civil rights movement, should be in the public domain.

http://www.bbc.com/news/entertainment-arts-36043455

A copy of the complaint is available at: http://arstechnica.com/wp-content/uploads/2016/04/We.shall_.overcome.complaint.pdf

Cosby's Wife to Testify Again in Defamation Suit

Camille O. Cosby will have to again testify in the defamation lawsuit filed against her husband. Mrs. Cosby had previously testified, and Mr. Cosby's attorneys had tried to prevent her from again testifying due to offensive questions previously asked by the plaintiffs' attorney. Although the Magistrate Judge denied Cosby's request, he instructed counsel for the plaintiffs that he could not ask Mrs. Cosby questions about her opinions, and admonished the attorney for asking an offensive question.

Mrs. Cosby had attempted to prevent her being deposed for a number of reasons, including spousal disqualification.

http://www.nytimes.com/2016/04/13/arts/judge-rules-camille-cosby-must-testify-again-in-civil-case.html

What the Panama Papers Reveal About the Art Market

The leak of 11.5 million files from the Panama law firm of Mossack Fonseca shed some insight into shell companies and the art world. Owners of art collections are not always who they seem to be; in one instance, the files revealed, the owner of a collection auctioned for over 200 million dollars at Christie's was not actually the family who had owned it for years. Rather, it was owned by a British financier who acquired the collection months earlier and flipped it. Another instance displayed how the firm moved an art collection out of an ex-wife's reach during her divorce from a Russian billionaire.

A third set of files showed how off-shore entities can make ownership claims or claims of theft very difficult to prove if the owner's identity is masked. Currently Philippe Maestracci, a French resident, has been able to claim a Modigliani painting, "Seated Man With a Cane," which he says was taken from his grandfather by the Nazis. The gallery where the work is displayed states that it has no connection with the Panamanian entity that owns the work.

http://www.nytimes.com/2016/04/12/arts/design/what-the-panama-papers-reveal-about-the-art-market.html

Activists Push to Continue a Libel Suit Against Them

Chemrisk, a scientific consulting firm, has long been aggressive in filing libel and defamation claims against its critics. After having a libel case that was filed in both New York and Massachusetts dismissed in New York, the company is seeking to drop the suit in Massachusetts. In a recent filing, the defendants asked the judge to order Chemrisk to pay their attorneys fees and to issue a public apology for initiating litigation.

http://www.nytimes.com/2016/04/12/business/activists-push-to-continue-a-libel-suit-against-them.html

Dershowitz and Two Other Lawyers Settle

Two attorneys acknowledged that they made "a mistake" when they accused famed attorney Alan Dershowitz of having sex with their client when she was a minor.

The attorneys, Cassell and Edwards, filed a federal lawsuit in Florida that involved one of Dershowitz's former clients, billionaire Jeffrey Epstein. The lawsuit challenged a 2008 agreement involving Epstein's sentencing. In a later motion, Cassell and Edwards asked a judge to allow the addition of two plaintiffs to the suit. One of the additional plaintiffs alleged that Epstein had forced her to have sexual relations with Dershowitz and a number of other prominent men. The motion was denied, but Dershowitz chose to pursue the defamation claim against the two attorneys. Dershowitz produced significant evidence to discredit the plaintiff and show that the Cassell and Edwards should have attempted to verify the plaintiff's claims prior to filing a motion.

http://www.reuters.com/article/us-dershowitz-lawsuit-idUSKCN0X6004

Fan Video Highlights Purported NBA Discrimination

A group of Jeremy Lin fans who connected through an online Jeremy Lin fan forum put together a video showing over six minutes of flagrant fouls (a particularly hard foul that calls for an ejection) against Lin that went uncalled by NBA referees. The compilation video and a version of the video with Chinese subtitles went viral in both the U.S. and Asia, and initiated discussion over racism and unfair treatment of Lin by the NBA. Combined, the two videos have close to two million views.

A follow-up report by ESPN noted that Lin has drawn more fouls over the past three seasons than any other player, however he has not drawn one flagrant foul. The NBA issued a statement that supported its referees.

http://www.nytimes.com/2016/04/15/sports/basketball/jeremy-lin-video-hard-fouls-fan-charlotte-hornets.html?_r=0

Center For Art Law Case Updates

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

USA v. Roohparvar, No. 3:16-cr-00096-CRB (N.D. Cal. Mar. 8, 2016). -- A Saratoga resident, Shahram "Ron" Roohparvar, has been charged with illegally selling art pieces constructed from elephant ivory (a practice banned since 1976). This is not Roohparvar's first run-in with the law; he has previously faced other federal criminal charges for money laundering.

Sotheby's, Inc. v. Mao et al., 652283/2015 (NY Sup. Jun. 25, 2015). -- Sotheby's is suing Christophe Mao and the gallery he owns, Chambers Fine Art LLC. Mao has failed to pay over $2.1 million that he borrowed from Sotheby's after signing a Secured Revolving Loan and Sale Agreement.

Max v. Moskowitz et. al., No. 162953/2015 (NY Sup. Dec. 22, 2015). -- Mary Max, wife of artist Peter Max, filed suit against his agent, ALP, Inc. (a company that runs the NJ warehouse where Ms. Max claims she stored her paintings), and two of Peter Max's children for stealing 82 paintings. The paintings were stored in a warehouse, and Ms. Max claims they are worth more than $4.2 million. The family has recently been embroiled in a public scandal covered in New York tabloids.

Fisher v. Petr Konchalovsky Foundation et al., No. 1:15-CV-09831 (SDNY Dec. 17, 2015) -- Richard Fisher of Malibu is suing the Petr Konchalovsky Foundation, saying that when he bought the oil painting "Still Life with Grinder" in 1991 from Sotheby's, the organization declared it an authentic work by Konchalovsky, a Russian artist. In 2012, Fisher decided to sell the work and asked Sotheby's in New York to auction it, but the Foundation claimed that it wasn't authentic. Fisher alleges that the Moscow-based Foundation did not examine the work, dated 1920, and instead relied on photos.

Sam Francis Foundation v. Christie's, Inc. (9th Cir. 2014), cert. denied, 136 S.Ct. 795 (Jan. 11, 2016) -- The Supreme Court declined to hear an artists' resale royalty suit against auction houses like Christie's, Sotheby's and eBay. Artists like Chuck Close argue that these auction houses are failing to pay royalties, which the artists claim is in direct violation of the California Resale Royalties Act of 1976. New York Congressman Jerrold Nadler is the lead proponent of the ART Act, which will directly address the royalty issues if passed by Congress.

Mlinar v. United Parcel Service Inc. et al., No. SC14-54 (Fla. 2016) -- The Supreme Court of Florida recently reinstated an art theft lawsuit between artist Ivana Vidovic Mlinar and three defendants - Pak Mail, a South Florida packing store, the United Parcel Service Co. (UPS), and Cargo Largo, UPS's lost goods contractor. The suit alleges that these parties stole Mlinar's work, profited from the theft of her paintings, used her name or likeness without Mlinar's authorization, and, finally, that the defendants violated Florida's Deceptive and Unfair Trade Practices Act.

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 (http://cardozo.us2.list-manage.com/subscribe?u=78692bfa901c588ea1fe5e801&id=022731d685), the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog (http://itsartlaw.com/blog/)and calendar of events (http://itsartlaw.com/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: www.itsartlaw.com or write to itsartlaw@gmail.com.

April 8, 2016

Week in Review

By Eric Lanter

Bill Cosby's Wife May Have to Testify Against Him in Spite of Spousal Privilege

In the context of the Massachusetts defamation action filed against Bill Cosby, his wife, Camille Cosby, is facing the prospect of testifying against her husband of over 50 years. The point of contention is whether the spousal disqualification rule in Massachusetts prohibits Mrs. Cosby from testifying against her husband. At the first deposition of Mrs. Cosby, her attorney directed her not to answer 98 questions on this basis, leading the adversary to pursue a second deposition on the basis that there is no spousal disqualification. The Massachusetts court must decide whether Mrs. Cosby will be forced to answer questions about Mr. Cosby's sexual activities, which forms the basis for the action.

http://www.nytimes.com/2016/04/07/arts/heres-why-bill-cosbys-wife-can-testify-in-case-against-him.html?ref=arts

The Prices and Scarcity of Tickets for Broadway's Hit 'Hamilton'

Broadway Producer Jeffrey Seller faces a dilemma in managing the success of "Hamilton", a Broadway smash hit. Pricing and selling tickets has been complicated for Mr. Seller, as there has been recent growth in the number of ticket brokers, which have effectively legalized ticket scalping. Mr. Seller grapples with how many tickets to make available in one batch, given the fact that some ticket brokers' bots can and do buy up as many as 20,000 tickets at a time. As the Richard Rodgers Theater only has 1,300 seats, one can understand how Mr. Seller is having difficulty, given the extremely high resale values that "Hamilton" tickets garner.

http://www.nytimes.com/2016/04/10/magazine/the-ceo-of-hamilton-inc.html?ref=arts

After Panama Papers, New Questions for FIFA

After the release of the Panama Papers, a slew of documents from the prominent Panamanian law firm Mossack Fonseca, and a raid by Swiss authorities on the Federation Internationale de Football Association (FIFA), it has come to light that the organization's newly elected leader, Gianni Infantino, may have been involved in the allegations of bribery and corruption against FIFA. Mr. Infantino has said he would usher in a "new era", however, given those allegations, Mr. Infantino may be another casualty to the reform FIFA is undergoing.

http://www.nytimes.com/2016/04/07/sports/soccer/panama-papers-raise-new-questions-for-fifa.html

Panama Papers Expose Secrecy in Art Market

The Panama Papers have also exposed the art market's level of secrecy, shedding light on its inner-workings. In the 11 million documents from Mossack Fonseca, the art industry's thin international regulations are revealed, as the pervasive use of "freeports" is resplendent in the papers. A freeport is a location that does not require art owners to pay import taxes or duties, and the oldest and most oft-used is Geneva, Switzerland. These freeports, and the art they protect, forms the basis for a significant amount of litigation dealing with these works.

https://news.vice.com/article/how-the-panama-papers-exposed-secrecy-in-the-art-market

New York State Judge Rejects Kesha's Claims in Dr. Luke Case

The pop singer Kesha, whose full name is Kesha Rose Sebert, lost the battle for asserting eight counterclaims against producer Dr. Luke, whose full name is Lukasz Sebastian Gottwald. Kesha originally filed an action in Los Angeles in October 2014, alleging that Dr. Luke had emotionally and sexually abused her after he signed her in 2005; however, Dr. Luke filed the subject action in New York State Supreme Court, alleging defamation and breach of contract against Kesha and her mother. Kesha filed eight counterclaims for infliction of emotional distress, gender-based hate crimes, and employment discrimination. Justice Shirley W. Kornreich dismissed all of those counterclaims, without the possibility of amending them.

http://www.nytimes.com/2016/04/07/arts/new-york-state-judge-rejects-keshas-claims-in-dr-luke-case.html

Germany Geared Up to Enact New, Widespread Cultural Protection Laws with Questionable Logic

The German government has proposed legislation that seeks to tighten export regulations, requiring all artworks, even those traveling within the European Union, to have government-issued export permits if the works are older than 70 years and valued over approximately $326,000. This has created outrage in the German art industry, as it will complicate the flow of art through Germany for the sake of German cultural heritage. There will be a second debate of the bill later in April, which, if approved, will proceed to a vote in Parliament.

https://news.artnet.com/market/german-cultural-protection-global-market-455411

Sweden's Highest Court Rules That Wikimedia's Art Database Violates Copyright Laws

Sweden's Supreme Court ruled that organizations and individuals do not have the right to post images of public artworks on the website Wikimedia, absent having the artists' permission. However, there is a question as to how far this ruling extends. Wikimedia Sverige hosts a website, www.offentligkonst.se, which was the subject of the action. The Swedish lobby group, Bildkonst Upphovsratt i Sverige, argued that the holding only applies to Wikimedia Sverige's website, and not to all individuals who have images of public artworks and wish to post them online.

http://arstechnica.co.uk/tech-policy/2016/04/wikimedia-art-database-violates-copyright-law-rules-sweden-supreme-court/