February 13, 2018

5Pointz Decision

By Barry Werbin

Yesterday's decision by Judge Block (51 pages plus images of all the art) awarded the 5Pointz aerosol artists maximum statutory damages of $150,000 for all 45 works in issue. Judge Block was clearly perturbed by developer Gerald Wolkoff's attitude, emphasizing: "If not for Wolkoff's insolence, these damages would not have been assessed."

It will be interesting to see how this fares before the Second Circuit, which has never ruled on a VARA case substantively as to the test and required evidence for a "recognized work", and of course on damages.


February 11, 2018

Week in Review

By Nick Crudele
Edited by Elissa D. Hecker

Judges Slowing Deportations

Federal judges are slowing the deportation process for thousands of illegal immigrants, even though they lack jurisdiction to decide the immigration cases themselves. Several district courts are giving the immigrants time to fight in immigration courts, insisting that the immigrants have a right to due process despite that fact that they had known for years they could be expelled.


U.S. Spies Paid Russian Peddling Trump Secrets

A shady Russian bilked at least $100,000 from U.S. spies seeking information about stolen cyberweapons, but instead received unverified and fabricated information involving President Trump. The payment was part of a $1 million deal to try and recover stolen NSA material.


John Kelley Willing to Resign Amid Criticism

According to officials in the White House, Chief of Staff John Kelley offered his resignation over his handling of spousal abuse against staff secretary Rob Porter. Kelley denied that claim.


Trump Blocks Democratic Memo Release

President Trump will not release a Democratic memo rebutting a Republican intelligence memo alleging FBI abuse. He sent the memo back for changes to "properly classified and especially sensitive passages".


Climate Change Skeptic Dropped as Environmental Advisor

President Trump withdrew the nomination of Kathleen Hartnett White to be the chair of the Council of Environmental Quality after it became known that she was a climate change skeptic with ties to the fossil fuel industry. In a contentious Senate hearing in November, White defended her statement that particulate pollution released by burning fuels is not harmful unless a person were to suck on a car's tailpipe.


Trump Lawyers Advise Against Mueller Interview

Lawyers for President Trump advised him against sitting down for a wide-ranging interview with special counsel Robert Mueller. Their concern stemmed from Trump's history of false statements and contradictions that could put him in danger of being charged with lying to investigators. President Trump has said publicly that he is eager to speak with Mueller regarding the Russia election interference.


Trump-Managed Hotel Seeks a $6 Million Tax Break

A hotel under construction in the Mississippi Delta with the Trump name, which is expected to be managed by the Trump Organization, is seeking $6 million in tax breaks to offset the $20 million is costs for the hotel. The developers requested the break to improve cash flow.


Lululemon's CEO Resigns Over Conduct Issues

Lululemon CEO Laurent Potdevin resigned after complaints about behavior issues. The company didn't provide specifics about the issues, but said it expects its employees to "exemplify the highest level of integrity and respect for one another."


Lawyer Agrees He is the Least Qualified to Defend Terror Case

Lawyer Alaric Piette agrees with his critics - he is not qualified to defend the alleged mastermind of the bombing of American destroyer Cole in 2000. After the legal team defending Abd al-Rahim al-Nashiri quit, following a courtroom dispute involving classified snooping, Piette was left as the sole defense attorney in the case. The former Navy Seal with just six years of legal experience has never tried a capital case. Military tribunal rules require a learned counsel who have tried capital cases before. Despite this, the judge decided to move forward.


Wynn Resigns from Company Amid Sexual Misconduct Allegations

Casino mogul Steve Wynn resigned as chairman and CEO of his company, Wynn Resorts, after multiple allegations of sexual misconduct. In a statement, Wynn said "an avalanche of negative publicity" created an environment in a rush to judgement came before facts. Last month, the Wall Street Journal published an in-depth investigation, which found that Wynn had harassed female employees and coerced them into sex for decades. The focus now turns to the survival of the company without its chief visionary. Wynn's casinos from Macau to Massachusetts face scrutiny from regulators trying to find out how much the company knew about Wynn's alleged misconduct.



SpaceX Rocket Launch Brings It One Step Closer to Mars

The launch of SpaceX's Falcon Heavy rocket from the launch pad at Kennedy Space Center brings Elon Musk one step closer to realizing his dream of putting humans on Mars. The launch, which carried a playful payload of Musk's personal Tesla Roadster accompanied by a test dummy wearing a SpaceX space suit, was the first time a private rocket this powerful was sent into space by a private company. The Falcon Heavy's success brings Musk one step closer to realizing his dream of developing his B.F.R. (Big Falcon Rocker or playfully Big F*** Rocket) generation of rockets powerful enough to bring human to space, and possibly Mars.


Bribery Scandal Kept Corporate Sponsors Away from Olympics

Corruption scandals, including those of Samsung chairman and South Korea's former president, have made South Korean big name sponsors reluctant to sponsor the Pyeongchang Olympic Winter Games. The scandals, which mostly involved bribery via sports sponsorship, had a financial impact on the usually sponsorship laden Olympics. While big corporations have done their part in paying for and sponsoring the games, they are doing so less aggressively then in the past.


Russian, North Korean Hackers Likely Targeting the Olympics

The Department of Homeland Security warned Americans attending the Olympics that cybercriminals will likely target the games. Experts believe that North Korean hackers, who have probed South Korean networks for years, and Russian cybercriminals angry about Russia's ban from the games, will try and target athletes and visitors, searching for embarrassing information or simply looking to cause trouble. More than 300 Olympic-related systems have already been hit and a second wave of attacks is underway.


Polish President Signs Controversial Death Camp Legislation into Law

Poland enacted a law making it illegal to accuse the Polish nation of being complicit in the Holocaust and Nazi atrocities. The law outlaws the phrase "Polish death camps", which historical scholars agree is misleading, since the Nazis erected and controlled the camps. However, the law also makes any accusation that the Polish nation was complicit in the Holocaust and other atrocities punishable by a fine and three years in prison. Critics say the Polish government is trying to whitewash the role the Poles played during the war and Holocaust. Many Poles, however, feel that Poland's wartime experience and suffering has not been properly told.


Bermuda Revokes Same-Sex Marriages

In what is believed to the first jurisdiction to do so, Bermuda has reversed its law legalizing same-sex marriage. Instead, Bermuda will allow same-sex couples to enter into domestic partnerships, but not marry. In May 2017, Bermuda's Supreme Court legalized same-sex marriage. Bermuda's Senate and House of Assembly passed legislation to overturning the Court's decision in December. Most voters on the socially conservative island opposed same-sex marriage.


Cambodian Opposition Challenges Facebook in U.S. Court of 'Likes'

A Cambodian opposition leader has asked a U.S. court to compel Facebook to release records of advertising purchases by Cambodian's authoritarian prime minister Hun Sen. The opposition argues that the prime minister and his allies use the platform to manipulate public opinion and strengthen his hold on power through the spread of false news and death threats directed at political opponents.


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


Federal Copyright Board Raises Streaming Royalties by More Than 40%

The Copyright Royalty Board raised the music streaming royalties for songwriters and music publishers by more than 40% to narrow the financial divide separating them from recording labels. The decision stems from a dispute between the artists and popular streaming services like Spotify and Apple. While hailed by music publishers as a win, streaming services will still be receiving around $3.82 for every $1 paid to the artists.


Recording Artists Ask Congress to Protect Their Rights

Recording artists Aloe Blacc and Booker T. Jones testified in front of the House Judiciary Committee asking the members to support legislation that protects the rights of artists. The Music Act would establish a performance right for artists, including paying those whose songs are played on the radio, establish rights for producers to receive royalties, and create a blanket license for royalties when songs are reproduced in various formats.


11 Years After His Death, James Brown's Estate Still Not Settled

James Brown's estate remains unsettled 11 years after his death. More than a dozen lawsuits have mired the process and delayed all distributions. One case claims that Brown's widow made illegal back-room agreements with the estate; another case is challenging whether Brown's wife was actually his wife (a lower court said that she was). All the litigation has held up disbursements of money set aside for scholarships and his grandchildren.


Top Female Music Executives to Recording Academy: Organization "Woefully out of Touch"

A joint letter from six top female music executives to the Recording Academy's board of trustees called the organization "woefully out of touch with today's music, the music business, and...society", and called for more transparency and inclusiveness. The six executives also note that they write not only on behalf of themselves, but also their companies, adding more weight to the message. This comes on the heels of Recording Academy President Neil Portnow's remarks that women need to "step up" to get ahead in the music business. The letter stops short of asking for Portnow's resignation.


Hispanic Group Protest for Inclusion Outside of Oscars Luncheon

Seven dozen protestors picketed outside a lunch held for Academy Award nominees at the Beverly Hilton, demanding more Hispanic/Latino characters on movie screens. Hispanics make up 18% of the U.S. population, but only 3% of speaking characters in films.


Tarantino Says Uma Thurman Car Stunt is His Biggest Regret

A car stunt on the set of "Kill Bill Vol. 2" nearly 15 years ago, which resulted in an accident that severely injured actress Uma Thurman, was the biggest mistake of director Quentin Tarantino's life. Thurman's account of the accident stemmed from an article that centered around Harvey Weinstein's sexual assault of Thurman on the set of the film. Thurman recalls that she wanted a stunt person to do the scene, expressing doubt about the car's safety, but that she was forced to do the scene after Tarantino became furious with her.


Fembots Taking the Internet by Storm

Fembots, or Female Robots, are no longer a thing of fantasy - at least on the internet. These creations of artificial intelligence persuasively mimic the female physical form, which can be constantly resized and reshaped to a viewer's liking. Fembots like Poppy, an android-themed pop star, has 257 million YouTube views and is in the middle of a U.S. concert tour, and Lil Miquela, a life-like computer animated Instagram model with her own merchandise, have captivated their online audiences. While their images may be that of the "perfect" physical form, they are mentally deficient.



The Metropolitan Museum of Art Can Keep Picasso's "The Actor"

U.S. District Judge Loretta Preska dismissed a lawsuit against the Metropolitan Museum of Art by the great-grandniece of a German Jewish businessman who claimed that a Pablo Picasso piece, "The Actor", was sold at an artificially low price to fund an escape from the Nazis. The judge said the great-grandniece of Paul Leffman, who once owned the piece, could not show that the painting was sold under "duress" under New York law.


Berkshire Museum Gets Approval to Sell its Art

The financially struggling Berkshire Museum was given approval by the state of Massachusetts to sell dozens of its artworks. The museum announced this past summer it would sell up to 40 pieces, but the plan immediately drew criticism from the state and the heirs of Norman Rockwell, who said that the plan violated various trust provisions of the artwork. The museum's famous Rockwell painting "Shuffleton's Barbershop" will be sold to another museum, and will remain open to public view.


Looted Art Gets New Space at Louvre

The 31 paintings of all different shapes, styles, and subjects have one thing in common - they were all looted by the Nazis and returned to France. While tens of thousands of looted artworks have been returned to their rightful owners, many, including 807 entrusted to the Louvre, have not found their rightful home. Now, these 31, which depicted Roman ruins, small children, German portraits, and Dutch landscapes, will be exhibited in one space. Critics say that the exhibit does nothing to help find the rightful owners, while the museum has said it has done its best to find them.


Louboutin Loses Sole Battle

An advisor to a court in The Netherlands said that French designer Christian Louboutin did not have an exclusive right to the famous red soles. An advocate general at the European Court of Justice advised The Netherland court that Louboutin's trademark protection on the shade of red used might be invalid. The advocate general told the court that the red color is not considered apart from the soles' shapes, which is not usually protected under trademark law. The judge usually heeds the advice of the advocate.



Olympic "Ban" on Russians Allows Many Athletes to Still Compete

The International Olympic Committee (IOC) in December banned Russia from competing in this year's Winter Olympics. Despite the ban, the IOC still allowed about 400 Russian athletes to compete under a neutral flag, if they could prove they did not violate antidoping protocols. Russia has named 170 athletes to it Olympic "team", even though it was banned from having a team, with 150 of them being cleared to compete. Another 47 athletes appealed to the Court of Arbitration for Sport in the hopes of a last-minute reprieve, some even traveling to South Korea. The appeals, however, failed.




Nassar Gets Another 40 to 125 Years in Final Sex Abuse Case

Sexual predator Larry Nassar was sentenced to up to 125 years in prison for molesting 265 girls and women in the final case stemming from his sexual abuses in the guise of medical treatment. Nassar was previously sentenced to up to 175 years in jail for molesting seven girls and 60 years in prison for possession of child pornography.


Former Gymnastics Coach Under Investigation

Former U.S. Olympic gymnastics coach John Geddert is under investigation. Complaints against Geddert, who ran a gym with convicted child molester Larry Nassar, were filed in Michigan. The nature of the complaints are unknown.


Senators Call for Investigation Into U.S.A Gymnastics

A bipartisan group of Senators have called for a special committee to investigate the handling of sexual abuse of athletes by U.S.A. Gymnastics and the U.S. Olympic Committee. The committee would determine the extent to which U.S.A. Gymnastics and Olympic Committee were complicit or negligent in allowing its employees to abuse athletes.


Former U.S. Olympic Swimmer Accuses Ex-Coach of Sex Abuse

Former U.S. Olympic Swimmer Ariana Kukors accused her ex-coach, Sean Hutchison, of sexually abusing her when she was 16. Kukors said that Hutchison began "grooming" her for a sexual relationship when she was only 13. Hutchison denies the accusations of sexual abuse or "grooming" Kukors, but did admit to having a sexual or romantic relationship when she "was old enough to legally make those decisions".



North Korea Sends Delegation to Winter Olympics

North Korea said it would send a high-level government delegation to the opening ceremony of the Winter Olympics. The delegation will meet with South Korean President Moon Jae-in. The delegation will be the highest level North Korean official visit since 2014.


Olympic Diplomacy Made Tricky by Sanctions

Are hockey sticks luxury goods? Can South Korea provide fuel to ferry carrying North Korean athletes after it ran out in the South? These are some of the many questions facing South Korea and the international community as the Winter Olympics get underway with a contingent of North Korean athletes. Normally, athletes are showered with free gifts and equipment from sponsors of the games. However, North Korea's participation has some wondering what can and can't be provided to North Korean athletes for fear of breaking the sanctions. To get around any potential violations, North Korean athletes are borrowing uniforms and equipment that will be returned after the games. Further, their athletes will not enjoy the SWAG, including Samsung phones, the other athletes will get. As for the Ferry, the South is still deciding whether to give it fuel.



Cox Communications Forfeited Copyright Safe Harbor

The Fourth Circuit ruled that Cox Communications forfeited its protections under the Digital Millennium Copyright Act's ("DMCA") safe harbor, which shields providers from infringement liability linked to users, when it failed to terminate users who repeatedly pirated music. The Court found that Cox failed to terminate users in "any consistent or meaningful way" thus losing the safe harbor provided for under the DMCA. The Court however, vacated a $25 million verdict.


Fox News Removes a Top Exececutive Over Column

John Moody, an executive vice president and executive editor of Fox News, was removed after his op-ed caused a social media uproar. The article mocked American Olympic officials who emphasized diversity in this year's team of athletes. The column sarcastically suggested that the U.S. Olympic Committee adopt a new motto: "Darker, Gayer, Different".


Democracy in Jeopardy as Kenya Government Silences Critics

The Kenyan government blacked out television stations against court orders, arrested politicians and journalists, and designated some of its opponents "an organized criminal group" in its latest democracy crisis. All of this comes mere months after Kenya's historic presidential election, which saw the Supreme Court overturn the election and order a new one. Opponents of President Kenyatta, who ran unopposed in the new election after his opponents claimed the process was unfair, fear the President's actions are sliding the country away from democracy.

The Kenyan government utimately ended the blackout of some television stations after a court ordered the immediate restoration.



TufAmerica v. Diamond

By Mike Steger

In a recent Southern District of New York decision, Judge Nathan reduced the attorneys' fee award she had previously granted to the prevailing defendants in TufAmerica v. Diamond. Plaintiff TufAmerica had requested a reduction in the fee award from approximately $850,000 to $50,000 because of (1) its claimed lack of assets, (2) that its prior attorney had failed to properly investigate the faulty chain of title of the copyright on which it filed its claim, and (3) the Supreme Court's decision on attorney's fees in Kirtsaeng v. John Wiley & Sons ("Kirtsaeng II"). After reviewing all of the relevant factors, Judge Nathan found that TufAmerica's positions in the case were objectively unreasonable, and that a substantial attorney's fee award was necessary to deter such actions in the future. Given the evidence of TufAmerica's financial position, however, she did reduce the attorney fee award to $450,000.


February 10, 2018

Week in Review (week ending in 2/4)

By Eric Lanter
Edited by Elissa D. Hecker

When a T-Shirt Gets You in Trouble at the Voting Booth

The Supreme Court is scheduled to hear a case this month involving a law in Minnesota that prohibits voters from wearing any T-shirts, hats, or buttons that may have a political message. The law's proponents suggest that it is designed to create a "contemplative" atmosphere for voting, free of pressure to support one issue over another. Critics of the law claim that it is a violation of the First Amendment's free speech protection and amounts to nothing more than blatant censorship.


New Scrutiny Coming for Refugees from "High-Risk" Nations

The Trump administration announced that it is resuming the admittance of refugees from 11 "high-risk" nations but with additional screening measures, after having conducted a 90-day review of procedures. While officials did not name which nations will be labeled "high-risk," the list is "widely reported to be Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen." Those countries account for "more than 40 percent of all refugee admissions in recent years," and the additional screening measures are expected to make it harder for Muslims to qualify for approval for entry into the United States. Critics of the policy allege that the new screening measures, including more "in-depth" interviews and "deep-dive" background checks, will not serve as an effective barrier to those who want to commit acts of terrorism within the United States but instead delay or bar those who have no such intentions.


Federal Government Does Not Like Cuomo's 'I Heart NY' Signs

Governor Andrew Cuomo's project of installing blue "I ♥ NY" signs beside the state's highways has drawn federal scrutiny as a violation of highway rules and a distraction to drivers. While they had an initial cost of $8 million, the Federal Highway Administration gave the state until September 30, 2018 to bring the signs into compliance by changing the font and removing unapproved images for highway signs or face a $14 million cut in federal funding for roads and highways in the following fiscal year.


Justice Department Office to Make Legal Aid More Accessible is Quietly Closed

During the Obama administration, the Justice Department, led by then-Attorney General Eric Holder, created a division called the Office for Access to Justice, which sought to direct resources to indigent litigants in "civil, criminal, and tribal courts." That program, which did not draw much publicity or scrutiny, has come to an end under the Trump administration with Attorney General Jeff Sessions. While civil rights groups objected to the closure of the office, which was effectuated by depriving it of funding, the Justice Department did not respond to The New York Times' "repeated requests for comment."


Activists Try to Recall Judge for Stanford Sex Attack Case

Judge Aaron Persky in California received intense scrutiny approximately two years ago when he sentenced Brock Turner, a Stanford University swimmer accused of sexual assault, to only six months in jail. That scrutiny recently further intensified as activists and victims' rights advocates are leading an effort to petition removal of the judge for a June ballot. While some have supported the effort, others are concerned that it could influence judges who might otherwise show leniency in sentencing and ultimately lead to a higher imprisonment rate.


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


In Canada, a #MeToo Movement Emerges

Canada's House of Commons is debating a bill regarding sexual harassment, serving as a reflection of the #MeToo movement emanating from the United States. The reflection is not mirror-like, however, as Canadian politicians from all political parties are "strongly calling for changes and supporting victims who are increasingly coming forward." Its institutions have seen several leaders and ministers resign in recent weeks amidst allegations of sexual harassment, and many in Canada see the moment as "a perfect storm for reform."


Canceled Lorde Concert Prompts First Use of Israel's Anti-Boycott Law

Two New Zealand activists were named as defendants in an Israeli lawsuit seeking damages for their role in the singer Lorde's decision to cancel a Tel Aviv concert. The lawsuit seeks to be the first to apply a new Israeli law against "calling for boycotts of Israel or the territory it controls." The lawsuit seeks damages of approximately $13,200 on behalf of three Israeli teenagers who bought tickets for the concert prior to its cancellation. If the lawsuit succeeds, analysts see it having broader implications for the "growing movement in the United States, Europe and elsewhere to boycott, divest from and sanction Israel, primarily in protest against its settlement and security practices in the West Bank."



Should Chuck Close's Works Carry an Asterisk?

Amidst allegations that the acclaimed artist Chuck Close engaged in sexual harassment with several women he was photographing, a debate rages as to how to treat Close's works, which until the allegations surfaced, were revered. The Pennsylvania Academy of the Fine Arts announced that it will continue showing its display of Close's work, but also add a nearby gallery that examines gender power imbalances. Other institutions, like Seattle University, have removed Close's works or moved them to less prominent areas, largely as a result of pressure from others in the arts community.


Metropolitan Opera Fires Stage Director, Citing 'Inappropriate Behavior'

John Copley, the veteran British stage director, was fired from his role as director of the Metropolitan ("Met") Opera. His termination comes as the Met Opera received a complaint about what the company called "inappropriate behavior in the rehearsal room." Several British critics and singers who have worked with Copley expressed outrage at the firing and called it an "overreaction."



Justice Department Escalates Inquiry on Global Sports Corruption

The United States Department of Justice has escalated its inquiry into international sports corruption by issuing grand jury subpoenas to explore possible racketeering, money laundering, and fraud within FIFA, the International Olympic Committee, and the United States Olympic Committee. One target of the investigation is Helios Partners, a firm that has been involved in lobbying global sports officials and helped Russia secure the 2014 Winter Olympics and 2018 World Cup.


FIFA Issues Integrity Warning for 2026 World Cup Vote

FIFA issued a warning letter, signed by its secretary general, Fatma Samoura, warning its 211 member federations not to accept any inducements from World Cup bid committees ahead of this summer's vote to pick the site for the 2026 World Cup. Investigations, including a prominent one by the United States Department of Justice, have revealed widespread corruption and bribing in the World Cup bidding competitions in recent decades. While there have been institutional changes within FIFA, such as opening voting to its membership rather than the 24-member executive board, there is still fear that the bribery and corruption will instead target a vast swath of member federations rather than members of the board.


North Korea Cancels Pre-Olympic Event, Blaming South Korean Media

Ahead of the Olympics' opening in South Korea, North Korea cancelled a joint cultural event that was planned as a show of unity between the two Koreas. North Korea's reason for cancellation: "insulting" South Korean news media coverage of North Korea's participation in the Winter Olympics. Nonetheless, North Korea proceeded with sending its delegation of 22 athletes, to the Games as well as a group of performers and dancers.


Russia is Banned from Paralympics for Doping but 28 Athletes Win Appeals of Doping Bans

The International Paralympic Committee announced that it is banning Russia from the 2018 Paralympic Games for "an insufficient recovery from the Russian doping scandal." However, the International Olympic Committee has had 28 bans handed to Russian athletes overturned by the sport's top court just days before the start of the Winter Games in South Korea. The Court of Arbitration for Sport ruled that there was insufficient proof that the athletes breached antidoping regulations at the 2014 Olympics in Sochi, Russia. These developments tarnish the reputation of the International Olympic Committee, which has struggled with determining how to deal with Russia's state-sponsored doping program and its implications for Russian athletes, clean and dirty.


Cleveland Indians Will Abandon Chief Logo Next Year, Following University of Illinois

The Cleveland Indians announced that the team will no longer use the "cartoonish Chief Wahoo logo" on its uniforms, following a trend in recent years of sports teams (professional and collegiate) ending the use of Native American imagery. Several teams remove the imagery for fear that it perpetuates racist or offensive stereotypes surrounding Native Americans, but these decisions often prompt outrage from fans that see the mascots or logos as being an honoring of indigenous people. For those at the University of Illinois, Chief Illiniwek was retired years ago, but it does not stop its fans from appearing at games dressed as Chief Illiniwek and parading the Native American imagery, raising a question as to whether removing the imagery is effective in protecting Native Americans from stereotyping.


A Soccer Tournament Breaks Through the Boycott of Qatar

When the United Arab Emirates ('U.A.E.") and Saudi Arabia led a boycott of Qatar, accusing it of "cozying up to Iran" and "harboring fugitive dissidents," there were questions raised as to how Qatar would manage to host soccer, the region's most popular sport. A regional championship tournament had to be moved from Qatar to Kuwait, as Saudi Arabia, the U.A.E. and Bahrain refused to go to Qatar. However, the Asian Football Confederation announced that when Qatari clubs play in the Confederation's Champions League, the games will not be moved out of Qatar, and teams from Saudi Arabia and the U.A.E. will have no choice but to travel and play within Qatar.


Texas Police Will Investigate Sexual Assault Allegations at Karolyi Ranch

Allegations have emerged that the Karolyi Ranch, a former national gymnastics training center near Houston, Texas, was a site of Dr. Lawrence Nassar's sexual assault of scores of women, which has prompted Governor Greg Abbott to recommend the Texas Rangers to investigate the accusations. U.S.A. Gymnastics only cut ties with the ranch in January after it came to be widely known that Dr. Nassar sexually assaulted victims at the ranch. There is still an outstanding question of who knew about the sexual assault and may have facilitated its perpetuation over the course of many years.


Football's True Believers Circle the Wagons and Insist the Sport is Just Fine

At the annual conference of USA Football, former National Football League ("NFL") coaches and players spoke to a receptive audience with a "stern warning: Football is under attack and your job is to change the narrative." With the ongoing revelations that the sport causes the fatal brain disease CTE, there has been a decline in viewership over the past two seasons that have caused concern about the viability of the sport. The president of the Pro Football Hall of Fame, David Baker, announced to the crowd: "If we lose football, we lose a lot in America. I don't know if America can survive."


NFL Players' Union Says That It Will 'Prepare for War' Over New Contract

The NFL Players Association announced that it is preparing for war in its contract negotiations with the NFL over the collective bargaining agreement, set to expire after the 2020 season. The players are set to focus on the "commissioner's right to suspend players, rookie contracts, and health care coverage."



New York Attorney General to Investigate Firm that Sells Fake Followers

Eric Schneiderman, the New York Attorney General, and his staff are investigating firms that sell fake followers on Twitter, as federal and state authorities begin to crack down on fraudulent social media engagement. Already, more than one million followers have disappeared from accounts of prominent Twitter users. Companies like Devumi promise to deliver customers active, English-speaking followers to those who pay for followers, but The New York Times found that "virtually all of the followers" are fake. Twitter explicitly prohibits buying followers.


Tronc Names New Editors at The New York Daily News and Los Angeles Times

Newspaper company Tronc is combating rising tensions at the Los Angeles Times and the New York Daily News and has named new editors for both papers, in an effort to quell the turmoil in both newsrooms, with the Los Angeles' newsroom having recently attempting to unionize and put out aggressive coverage of the sexual harassment in the entertainment industry.


Federal 5G Network Proposal is Panned by Federal Communications Commission and Industry

While the Trump administration has expressed an interest in having the government control the next-generation mobile broadband network, known as 5G, because of security concerns emanating from China, federal regulators and telecommunications companies have pushed back against this idea. The chairman of the Federal Communications Commission ("FCC"), Ajit Pai, has come out against the idea, saying it may hurt the private sector and overall economy. The White House has since said that the idea is in a preliminary stage and could take months before reaching the president's desk for consideration.


Vice Media's Digital Chief Loses Job After Sexual Harassment Investigation

Mike Germany, the chief digital officer for Vice Media, announced that he will not return to the company after sexual harassment allegations surfaced, prompting an internal investigation. He was placed on leave in December 2017 for telling an employee that he hired her to have sex with her and putting another employee onto his lap. He declined to comment on the allegations.


Kenya's Government Goes After Journalists Then Defies Court Order

The Kenyan government defied a court order to "put four private television stations back on the air," raising questions about the government's dedication to the rule of law. The government disconnected four stations when they began showing an opposition rally in Nairobi, and the Milimani High Court ruled that the Kenyan government must immediately restore the stations. The director of the Kenya Human Rights Commission called the moment an "absolutely unprecedented" one in the history of Kenya, but President Uhuru Kenyatta appears to be behind the effort as he won two elections recently, one being tossed out for fraud.


BBC Managers Face Barrage of Criticism in Gender Pay Dispute

A former BBC editor "blasted managers for operating a 'caste' system," and lawmakers in Britain's Parliament "described the organization as being in crisis." The source of the tension is BBC's pay structure, which has prompted grievances and resignations over its pay disparities, paying male journalists more than women. Many lawmakers have questioned the BBC's commitment to equal pay, despite the director general noting that the network wanted to be "an exemplar on gender pay, and equal pay."


February 7, 2018

Defamation, Right of Publicity and Sovereign Immunity

By Barry Skidelsky
Edited by Elissa D. Hecker

The above issues and more were implicated in a recent case involving a photograph of a woman. The photo was licensed by Getty Images ("Getty") to the New York State Division of Human Rights ("DHR"), in connection with DHR's public service announcement ("PSA") campaign intended to enhance public awareness that HIV-positive New Yorkers should not be the targets of discrimination.

The photographer, who originally took the woman's picture in connection with an online magazine article about New Yorkers' music interests, later sold the photograph to Getty without the woman's knowledge or consent. The photographer had also neglected to obtain a release from the woman, and in turn Getty mistakenly led DHR to believe that she had signed one.

Failures by each of those involved to conduct proper due diligence, if not to consult with counsel before the you-know-what hit the fan, obviously contributed to the creation of a messy situation. A friend of the woman saw the advertisement in print, and alerted her to its existence (including the implication that the woman had AIDS). The woman then commenced litigation against New York State in the NY Court of Claims. That court granted her motion for summary judgment on the issue of liability on her defamation "per se" and Civil Rights Law §50 and §51 claims.

New York State then appealed. On appeal, the First Department modified to deny the Claimant summary judgment on her Civil Rights Law claims, to grant New York State summary judgment dismissing those claims, and to grant New York State summary judgment dismissing the standard defamation claim. In part, the appellate court held that the State of New York is entitled to sovereign immunity against the Civil Rights Law claims asserted.

The case is interesting for this and other reasons, including additional matters of interpretation regarding New York State's Right of Publicity as embodied in the Civil Rights Law (a proposed modification of which is currently pending before the New York State legislature), differences between per se and standard defamation, and whether people with HIV or AIDS have a "loathsome disease."

See Nolan v. State of New York, 2018 NY Slip Op 00269 (decided January 16, 2018): http://nycourts.gov/reporter/3dseries/2018/2018_00269.htm

February 2, 2018

Center for Art Law Case Law Updates

The following case selection first appeared in this week's Center for Art Law newsletter:
Edited by Elissa D. Hecker

Berkshire Museum Lawsuits (Mass. App. Ct. Jan. 16, 2018) After the Massachusetts Appeals Court granted a 30 day injunction to halt the sale of 40 works from the Berkshire Museum, appellate briefs were filed on behalf of the heirs of Norman Rockwell (https://cdn2.hubspot.net/hubfs/878449/17-P-1548%20-%20Appellant%20Brief%20-%20to%20file(B2239282).pdf?t=1516804118800&mc_cid=18d2d325e7&mc_eid=8a2eda70d8) and the Berkshire Museum trustees (https://cdn2.hubspot.net/hubfs/878449/17-P-1548%20-%20Appellant%20Brief%20-%20to%20file(B2239282).pdf?t=1516804118800&mc_cid=18d2d325e7&mc_eid=8a2eda70d8). Both filings contested the Superior Court's decision to allow the sale of the Museum's artworks to proceed, and reiterated the arguments put before the trial court. As part of the ongoing saga, the Massachusetts Attorney General's Office ("AGO") has been investigating the Museums' planned sale. The AGO recently filed a motion to extend the injunction and have further time to review the plan. On February 1st, the Appeals Court granted the AGO's motion, and continued the injunction until February 5th (http://www.ma-appellatecourts.org/display_docket.php?dno=2017-J-0510&mc_cid=18d2d325e7&mc_eid=8a2eda70d8).

Estate of Chu v. Jacquet, 161429 (N.Y. Sup. Ct. Dec. 27, 2017) The plaintiff brought several claims on behalf of her sister's estate against her sister's estranged husband. The plaintiff claims that her sister never meant for her art to remain with the defendant, but passed away before she could update her will. Further, the plaintiff claims that the defendant denied the plaintiff's family access to her artwork for eight months while he improperly stored the artwork in a storage container behind a gas station. As a result, the artwork was "severely damaged." The plaintiff alleges negligence, fraudulent concealment (and, in the alternative, negligent misrepresentation), breach of contract, that she is entitled to an inventory of her sister's artwork in the defendant's possession, as well as an accounting of previously-undisclosed gifts or sales of her sister's artwork by the Defendant. Plaintiff also claims entitlement to damages of at least $500,000. The Answer was filed on January 18, 2018. The Complaint is available here (https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=PTxIR_PLUS_RX1uXPk7hsw9bzYw==&system=prod&mc_cid=18d2d325e7&mc_eid=8a2eda70d8), and the Answer is available here (https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=XevQE/WYkqva9q0u6wa28g==&system=prod&mc_cid=18d2d325e7&mc_eid=8a2eda70d8).

De Pury v. Staechlin, High Court (UK, Eng. 2017) Simon de Pury and Michaela de Pury won their legal battle against Ruedi Staechlin over the commission for the sale of Gauguin's "Nafea faa Ipoipo". Justice Morgan of the High Court in London ruled that the de Pury couple was entitled to a $10 million commission fee as a result of the $210 million sale.

Hearty v. The Bonfoey Company, 1:18-cv-00015 (N.D. Ohio Jan. 3, 2018) Plaintiffs, a married couple, filed suit against the Bonfoey Gallery, the Bonfoey Company's president, and an art dealer in Florida to whom Bonfoey sold the painting at issue. The plaintiffs stored their painting, "Shades of Evening", by George Inness, at their 94-year-old mother's home, after defendant Bonfoey failed to sell the painting under a consignment agreement. Four years later, Bonfoey's president approached the mother, without informing the plaintiffs, had her sign a new consignment agreement, and sent the painting to the defendant art dealer in Florida. The defendant art dealer allegedly had a buyer for the painting when the plaintiffs demanded its return. Consequently, the plaintiffs brought this suit alleging replevin, conversion, intentional infliction of emotional distress, fraud, breach of bailment, civil theft, and civil conspiracy. The plaintiffs seek to enjoin and restrain the defendants from transferring the painting to a third party, and request return of the painting, damages, attorney's fees, and costs of this action. The Complaint is available here (https://www.courthousenews.com/wp-content/uploads/2018/01/Richard-Hearty.pdf?mc_cid=18d2d325e7&mc_eid=8a2eda70d8).

Hayden v. 2K Games, Inc., 1:17-cv-02635 (N.D. Ohio Dec. 18, 2017) Artist James Hayden filed suit in district court for copyright infringement, violation of the Visual Artists Rights Act, and unjust enrichment under Ohio common law against the creators of the popular video games NBA 2K16, NBA 2K17, and NBA 2K18. Hayden is an Ohio-based tattoo artists who creates original tattoos for high-profile NBA players. He alleges that six of his copyrighted tattoo designs are depicted in the games on the player avatars for LeBron James, Kyrie Irving, Danny Green, and Tristan Thompson. The plaintiff seeks damages and enjoinment of the defendant's further use of his tattoo designs. The Complaint is available here (https://www.courthousenews.com/wp-content/uploads/2017/12/James-Hayden.pdf?mc_cid=18d2d325e7&mc_eid=8a2eda70d8).

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.

January 29, 2018

Week in Review

By Angela Peco
Edited by Elissa D. Hecker

Below is general news from the week, followed by EASL-related news:

President Trump Ordered Mueller's Firing Last June

Following reports that special counsel Mueller was examining a possible obstruction case, President Trump argued that Mueller had conflicts of interest that disqualified him from overseeing the investigation and ordered his firing last June.

The news came to light as investigators interviewed current and former White House officials into whether the president obstructed justice.

It was reported that the president ultimately backed down, after White House counsel Donald F. McGahn refused to ask the Justice Department to dismiss the special counsel and threatened to resign.


Lawsuit on Emoluments Gains Traction in Court

A lawsuit filed in Maryland by the District of Columbia and the State of Maryland appeared to inch forward last week. The lawsuit claims that President Trump is violating the Constitution by failing to divorce himself from his businesses. The complaint says in part that the Trump International Hotel in Washington diverts customers from businesses that D.C. or Maryland license, tax or own, thereby depriving them of revenue.

Judge Messitte seemed more sympathetic to claims that the president had created an unfair playing field for facilities that compete against Trump-owned properties, stating that there was some evidence that the president is unduly attracting business. He also expressed skepticism about the Justice Department's arguments that he should dismiss the lawsuit on the grounds that Trump's continued ownership of his businesses was a political issue, not a legal one.

Judge Daniels of the U.S. District Court in Manhattan threw out a similar lawsuit last month, although the Maryland court is not bound by that ruling.


Casino Mogul Wynn Accused of Sexual Misconduct

The Wall Street Journal reported allegations that billionaire casino magnate and prominent political donor Steve Wynn engaged in a decades-long pattern of sexual misconduct with employees of his casino. Some employees described being pressured into performing sex acts with him.

Wynn Resorts stock plunged more than 10% following the report. In light of the allegations, a planned casino near Boston has come under renewed scrutiny, with the Massachusetts Gaming Commission noting that ensuring the suitability and integrity of its gaming licensees is an active and ongoing process.

Wynn also resigned as finance chairman of the Republication Nation Committee, a position he held since 2016.



Trump Immigration Plan Demands Tough Concessions from Democrats

President Trump proposed legislation that would provide a path to citizenship for young undocumented immigrants, including the 690,000 individuals signed up for protection under the Deferred Action for Childhood Arrivals (DACA), and another 1.1 million undocumented workers. In exchange, the plan calls for an end to family-based migration policies, a $25 billion trust fund to pay for a border wall, and a crackdown on other illegal immigrants.

Democrats already rejected the proposal, while senators work on a narrower bipartisan plan focused on legal status for DACA recipients. The DACA program is set to expire on March 5th, when recipients will no longer be able to work legally and face the threat of deportation. The proposed plan would put DACA recipients on a 10-to-12-year path to citizenship plan.


Manhattan D.A. No Longer Accepts Donations From Lawyers With Pending Cases

Cyrus R. Vance Jr. faced significant criticism over his decision not to prosecute high-profile individuals whose lawyers had made large contributions to his campaign. Vance will no longer be accepting contributions from lawyers with celebrity clients under investigation by his office. The ban is meant to counter the public impression that donations could sway a D.A.'s decisions.

Donations to candidates running for district attorney from defense lawyers are legal in New York. Individual contribution limits are based on the number of voters in a county and are capped at $50,000 in Manhattan.

A think-tank at Columbia Law School recently issued a report aimed at limiting the influence of donations on the criminal justice system. It recommends that D.A.s never accept donations from people under investigation or indictment; and that prosecutors enforce a strict separation between their campaign and office staffs.


Difficult for Chinese Women to Organize #MeToo Movement

Government censors have been deleting online petitions demanding investigations into sexual harassment and blocked certain phrases that render it difficult for women to organize social media campaigns.

Campaigns have primarily targeted universities for failing to investigate harassment complaints, but have also sparked a larger debate about the government's role in preventing a resurgence of sexism and workplace discrimination.


Legal Scholar Geoffrey C. Hazard Jr. Dies at 88

Geoffrey C. Hazard Jr., a leading scholar and teacher of civil procedure and legal ethics, died on January 10, 2018. He co-authored leading treatises and casebooks on civil procedure and professional ethics, and was a faculty member at Yale Law School for 23 years.


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


Russell Simmons Sued Over Rape Accusation

Jennifer Jarosik, a Los Angeles a documentary filmmaker, accused music mogul Russell Simmons of sexual battery and rape in a civil lawsuit filed in federal court. Jarosik had expressed interest in interviewing Simmons for a documentary that Simmons had allegedly agreed to help produce and finance. Jarosik claims that she was raped in 2016 during a visit to Simmons's home in L.A.

The lawsuit asks for $5 million in damages from the Def Jam Recordings co-founder, who has also been accused of sexual misconduct, assault or rape by at least 10 other women. Simmons denied any wrongdoing.


Connecticut Theater Cancels Woody Allen Musical

Goodspeed Musicals, the theater that gave "Annie" its start, cancelled a planned production of Allen's 1994 film "Bullets Over Broadway". The theater's executive director pointed to the current dialogue on sexual harassment and ongoing media reports as the reasons behind the decision. Allen's daughter, Dylan Farrow, has repeatedly claimed that Allen molested her as a child, and Allen has always denied the accusation.


Long Wharf Theater's Artistic Director Fired Over Misconduct Allegations

Four women accuse Gordon Edelstein of groping or other forms of unwanted touching. Several former employees also allege that Edelstein used sexually explicit language toward and about women in the workplace. The board acknowledges having knowing about three of the complaints, and will launch an independent review of the theater's procedures for reporting misconduct.


Grandma the Clown Resigns from Big Apple Circus

Barry Lubin resigned from the world-renowned circus after it was revealed that in 2004 he pressured Zoey Dunne, then a 16-year-old aerialist, to pose for pornographic pictures. He claimed that the photos were part of a modeling job for a tattoo company, and warned Dunne not to tell the circus, as their activities would be considered outside work.

Dunne went to the police in 2011/12, but was told that the statute of limitations for pursuing child pornography charges had expired. Lubin was no longer employed at Big Apple when she contacted the circus that same year, and she was surprised to learn of his return in 2017. He has acknowledged the reports and apologized.


Casey Affleck to Skip Oscars

Ending months of speculation and breaking from tradition, last year's best actor winner will not attend the Oscars and present the award for best actress. Many wondered whether Affleck would be a disruptive presence at the ceremony during a season marked by revelations of widespread sexual harassment and defined by the #MeToo movement.

Two women sued Affleck for sexual harassment during the production of the 2010 film "I'm Still Here," which Affleck directed. The actor denied any wrongdoing and settled with both.


Latinos Seek Their Hollywood Moment

Latinos make up 18% of the US population and 23% of frequent moviegoers. Yet only 3% of speaking characters in films during the last decade were Latino, according to a study at the University of Southern California.

The glaring absence of Latino nominees in the four acting categories for this year's Oscars underscores the group's under-representation in film, though Latino directors have recently received recognition for films like "Gravity", "Birdman" and "The Revenant".

Some activists point to the diversity of Hispanics themselves as one of the reasons they find it difficult to rally uniform support for Latino-focused projects. Activists hope that diversity efforts at talent agencies will also help change Hollywood practices from the bottom up. As for the academy, which is currently 72% male and 87% white, it has pledged to double female and minority membership by 2020.


Contentious Bollywood Film Hits Theaters in India

The movie "Padmaavat" hit theaters following days of protests in India. Rajput activists claimed that the movie is historically inaccurate and disrespectful to the Rajputs, traditionally a caste of warriors. The story is based on an epic about a legendary Hindu queen said to have committed suicide rather than submit to a Muslim ruler.

Critics cite questionable clothing choices and inappropriate scenes among their complaints. Hindu extremists had previously attacked the crew while the film was in production and offered a bounty to behead the lead actress and director. India's Supreme Court overturned all bans and ordered the film's release; however, many cinema owners are refusing to show it, citing safety concerns. The movie has not garnered positive reviews.



Russia Pulls Stalin Comedy from Theaters

Russia's Culture Ministry withdrew the film's distribution license, banning it on grounds of "extremism" based on its unfavorable portrayal of national heroes responsible for defeating Fascist forces. Russia's Culture minister had previously denied claims of an impending ban as his ministry continues to bankroll patriotic films that portray Russia's past in a positive light.



National Gallery of Art Cancels Chuck Close Exhibition Over Accusations of Sexual Misconduct

Following an earlier cancellation of a photographs exhibit by Columbia professor Thomas Roma, the gallery cancelled the Chuck Close exhibition after a New York Times report that Close had asked women who visited his studio to undress and made unwelcome explicit comments.
Meanwhile, the Metropolitan Museum of Art is not reconsidering its decision to hang a Close painting on view in its galleries, and the National Portrait Gallery has not received any inquiries about Close's portrait of Bill Clinton, which remains on loan there.


New York City Names Four Artists to Tackle Social Issues

The city named four new public artists in residence who will receive $40,000 to develop projects with city agencies in 2018. The artists will spend the first three months of their residency researching and interacting with their communities so as to better tailor their projects.


Jeff Koons Concept is Criticized in France

Prominent figures have called on the City of Paris to abandon plans to install a sculpture by American contemporary artist Jeff Koons donated in honor of Paris terror victims. Koons's donation consisted of the concept for the commemorative sculpture only; the funds for its production were raised separately.

The "Bouquet of Tulips" is intended to evoke the hand of the Statue of Liberty holding a bouquet of multi-color flowers. The chosen location across the river from the Eiffel Tower is also criticized for providing "such strong visibility and recognition [that it] would amount to advertising or product placement."


Museum Curators Object to Rebekah Mercer as Trustee

Tenured curators at the American Museum of Natural History expressed profound concern about Mercer's alliances with and donations to organizations that they say "challenge and politicize climate change science". In their letter, they note that Mercer, a leading Trump donor, supports groups that "directly contradict the museum's mission and impede our ongoing efforts to educate the public about the science of past and future climate change."


Prisons' Banned Books Under Review

Prompted by state ACLU affiliates, North Carolina and New Jersey will remove "The New Jim Crow" for their list of prohibited books. The best-selling book by civil rights lawyer Michelle Alexander discusses race-related issues and mass incarceration.


Harvard Theater Troupe Will Cast Women

Harvard's Hasty Pudding theater troupe says it has committed to casting women in its annual production next year. The Hasty Pudding Theatricals calls itself the world's third-oldest theater organization, and boasts Franklin D. Roosevelt and Jack Lemon as alumni.

The troupe is known for comedic revues that feature men in drag playing female characters, keeping its cast all-male since it began staging productions in 1844. Women have only been able to work behind the scenes.

The decision comes amid years of debate over the fate of Harvard's single-gender organizations and exclusive social clubs. Last year, the university considered banning exclusive clubs but decided to continue a policy of sanctions instead, according to which students who participate in single-gender clubs cannot hold on-campus leadership positions.


Chinese Police Seize Book Publisher on Train

Hong Kong-based book publisher and Swiss national Gui Minhai was snatched from a Beijing-bound train under the eyes of two Swedish diplomats as he traveled to a medical appointment. It is alleged that plainclothes police officers boarded the train and led him away. This is the second time Gui has disappeared. In 2015, he was accused by Chinese state news media outlets of publishing books that slurred Communist Party leaders, and was later jailed for two years for a drunk driving offense.

Supporters call the detention a campaign by the Chinese government to shut down publishers of books critical of the party elite. This incident is expected to rekindle strains between China and European nations, as well as magnify worries that China has grown dismissive of legal guarantees that protect Hong Kong from mainland interference.


Dutch Museum Cancels Sottsass Retrospective After Museum and Estate Clash

The Stedelijk Museum cancelled the show after a clash with the architect and designer's estate over the show's content and the "museum's role in presenting art".

Sottsass's widow and heir withdrew her art and threatened to speak publicly against the show. She was joined by the estate manager, who also withdrew his own collection of Sottsass works, citing the curator's "refus[al] to detail her curatorial outline of the exhibition and her choice of works until a late date."



Disgraced Gymnastics Team Doctor Larry Nassar Sentenced to Up to 175 Years

Dr. Lawrence Nassar was sentenced to 40 to 175 years in prison for multiple sex crimes, following a seven-day hearing, where more than 150 women, with the encouragement of a judge, described the abuse they had endured.

"I just signed your death warrant," Judge Rosemarie Aquilina said as she imposed the sentence.

Last November, Nassar pleaded guilty to sexually abusing seven girls and had already been sentenced to 60 years in federal prison for child pornography convictions.


Entire USA Gymnastics Board Steps Down

Moments after Dr. Nassar's sentencing hearing came to a close, the U.S. Olympic Committee called on the entire USA Gymnastics board to resign, threatening to decertify the sport's national governing body if members refused.

The organization has since released a statement that it will comply with all USOC requirements, including seating an interim board by the end of February.

USA Gymnastics also came under fire after McKayla Maroney said she was forced to agree to a nondisparagement clause and confidentiality provision as part of an earlier settlement. The organization later said that it would not penalize the gymnast for breaking the confidentiality agreement to speak out against Dr. Nassar.


Michigan State President and Athletic Director Resign

President Lou Anna Simon resigned under pressure over the way she handled the scandal involving Dr. Nassar, who had spent years on the faculty and was the team physician for two female varsity squads.

A lawyer for Michigan State said an inquiry had found no evidence that high-ranking university administrators knew about Dr. Nassar's conduct before a newspaper report in 2016. The Detroit News reported that Dr. Simon knew of a Title IX investigation against an unnamed sports medicine doctor in 2014. Public records show that he continued to treat patients at Michigan State for 16 months after university police began a criminal investigation.

Athletic Director Mark Hollis announced his resignation two days later and pledged to cooperate with any investigations.



State Authorities and NCAA Launch Investigations

In the latest fallout from the widespread sexual abuse scandal involving MSU athletic physician Larry Nassar, Michigan State is facing several investigations, including ones from the state's attorney general and the NCAA.

A recent ESPN investigation argues that Michigan State's troubles go beyond Nassar and extend to a pattern in which sexual assault complaints involving prominent athletes were handled by the athletic department and not through regular university channels.

The investigations have also sparked debate about the proper role of the NCAA, especially in light of arguments that it overstepped its authority in managing the Sandusky scandal at Penn State. Donald M. Remy, the NCAA's chief legal officer, acknowledged that he was aware of the context in which people would view this latest action. In a letter to Michigan State, the NCAA cited as grounds for the inquiry the principle that member schools are obliged to safeguard their athletes' well-being.




Bill Reintroduced in New York State to Ban Tackle Football for Children

Sponsored by state assemblyman Michael Benedetto, the bill would prevent organized youth football leagues and schools from offering tackle football to children under 12.

In recent years, youth sports organizations introduced safety initiatives to raise awareness of the dangers associated with head hits, especially as research increasingly shows a correlation between brain disease and the age at which children begin playing and sustaining hits to the head.


Guilty Verdict in Killing of Former Jet

Ronald Gasser, who fatally shot former Jets running back Joe McKnight in a December 2016 road-rage confrontation in New Orleans, was found guilty of manslaughter. The offense carries a sentence of up to 40 years and sentencing is set for March 15th.

McKnight played three seasons for the Jets, one with the Kansas City Chiefs, and spent a season in the Canadian Football League.


"Passionate Kissing" Defense Clears Sprinter Accused of Doping

Olympic sprinter Gil Roberts had his 'passionate kissing' defense upheld by the Court of Arbitration for Sport (CAS). Roberts was suspended last May for testing positive to probenecid, a masking agent prohibited by sports regulators for its ability to disguise other drugs.

Ruling against the World Anti-Doping Agency's appeal, CAS arbitrators deemed it more likely than not that the presence of probenecid in the athlete's system resulted from kissing his girlfriend, who had been taking an antibiotic with traces of the prohibited probenecid to fight a sinus infection and had kept her sickness hidden at the time.

Testifying at the hearing was Dr. Pascal Kintz, whose expert testimony figured into the first precedent-setting kissing case. Tennis player Richard Gasquet escaped a lengthy doping ban in 2009 when the International Tennis Federation ruled that he inadvertently took cocaine by kissing a woman.

Athletes are strictly liable for any substance in their systems, even if a substance is ingested unintentionally, but will avoid a ban where they can show that they took reasonable precaution.


Ex-Athlete Accused of Killing Chiropractor

Former all-state athlete Owen Morris is accused of first degree murder in the killing of Clive Bridgham, a sports medicine specialist and chiropractor who worked at the Rio and Salt Lake City Olympics. Bridgham had voluntarily surrendered his license to practice in November 2017. Police confirmed that Morris was the patient who made the complaint about the chiropractor's professional conduct.



Montana Governor Signs Order to Force Net Neutrality

Gov. Bullock signed an executive order that prohibits any internet service provider that does business with the state from blocking or charging more for faster delivery of websites to any customer in Montana. The requirements apply to new and renewed contracts signed after July 1, 2018. Similarly, bills in New York and Rhode Island reflect state attempts to regulate the practices of internet service providers through their procurement power.


More Light on Allegations Against Radio Personality Garrison Keillor

In a letter addressing concerns and questions from listeners, Minnesota Public Radio disclosed that it had received substantial and detailed allegations of inappropriate behavior by Keillor prior to opening an investigation and ultimately severing ties with him late last year.

Keillor continues to dispute the network's position that he was informed of the claims and able to respond to them with counsel present.


Sudan Frees Journalists

Sudan released two Sudanese journalists working for Reuters and Agence France-Presse. They were among the last of 15 detained last week for covering protests about rising prices in Khartoum. Authorities provided no explanation or information on what charges they may have faced. Press restrictions in Sudan have intensified over the last few years, according to the press-advocacy group Reporters Without Borders.


BBC, Criticized Over Pay Gap, Cuts Salaries of Some Male Journalists

Britain's publicly funded broadcaster reduced salaries of several prominent male journalists following the departure of its China editor, Carrie Gracie, in protest of pay inequity at the organization. She returned to the BBC newsroom in London, where, she said, she would be "paid equally".

BBC published salaries last summer, revealing a startling gap in pay between its most senior male and female journalists. A report commissioned by the BBC found the gender pay gap was 9.35, half that of the national average.


British Competition Regulator Rules Against 21 Century Fox's Sky Bid

In provisional findings, the regulator said that 21 Century Fox's bid to take control of the 61% of Sky it does not already own would give Murdoch "too much control over news providers in the UK across all media platforms and therefore too much influence over public opinion and the political agenda".

The competition authority then set out possible remedies addressing their media plurality concerns: (1) halt the deal entirely; (2) require Sky News to be spun off or sold; or (3) insulate Sky News from the rest of the Murdoch media empire. The decision could also affect Disney's planned $52.4 billion acquisition of 21 Century Fox, including Murdoch's 39% stake in Sky. Britain's culture minister is expected to rule by May 1st.


Britain's Presidents Club Charity to Shut Down

The Presidents Club Charitable Trust will hand out its remaining funds and shut down, following an undercover investigation that reveals that female staff at an all-male charity dinner for prominent men in business and media had been groped, harassed and propositioned. The women were encouraged to drink and required to sign nondisclosure agreements. Two beneficiaries of the fundraiser, including a children's hospital, will be returning the money.


January 28, 2018

Who Pays the Price for "My Other Bag"?

By Cheryl L. Davis
This blog updates the article "All's Fair (Use) in Love and Trademarks", EASL Journal, Fall/Winter 2017, Vol.28, No.3

In Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 156 F.Supp.3d 425, (S.D.N.Y. 2016), the Southern District found that the defendant My Other Bag's (MOB's) parodic mimicking of Louis Vuitton's famous mark on MOB's canvas totes neither constituted trademark or copyright infringement, nor was it trademark dilution. This decision was affirmed by the Second Circuit (774 Fed. Appx. 16 (2nd Cir. 2016)), and the plaintiff's petition for certiorari was denied (138 S. Ct. 221 (2017).

Having won, MOB could have taken its bag and gone home. Instead, it moved to recover its attorneys' fees and costs, as it was entitled to do under both the Lanham and Copyright Acts. The Southern District, however, refused to award attorneys' fees. With respect to the trademark claims (infringement and dilution), the court stated: "although the Court (and, by all appearances, the Second Circuit) did not find this case to be a particularly close call, it cannot say that Louis Vuitton's arguments were so objectively unreasonable (as either a legal or factual matter) that no party 'could see an opening...through which the argument[s] could be squeezed. [citation omitted]" Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 2018 U.S. Dist. LEXIS 3035 (S.D.N.Y. 1/8/18) at *4. The court also found that "the use of a mark as parody does not necessarily resolve either a [trademark] dilution or an infringement claim" (Id. At *6), and cited to a prior decision in Louis Vuitton's favor (Louis Vuitton Malletier S.A. v. Hyundai Motor Am., No. 10-CV-1611, 2012 U.S. Dist. LEXIS 42795 (S.D.N.Y. 2012)).

The court was equally unpersuaded to award damages for the copyright infringement claim, finding that "[t]he analysis and conclusions above with respect to MOB's application under the Lanham Act all but compel denial of its application under the Copyright Act." 2018 U.S. Dist. LEXIS at *13. The court summed up the situation (and explained its decision to split the litigation baby) as follows: "As this Court's decision granting summary judgment to MOB made clear, Louis Vuitton certainly needs to learn how to take a joke. [citation and quotation omitted.] Its lack of a refined sense of humor, however is not a reason to pile on further by awarding MOB - however sympathetic its cause may be - attorney's fees and costs." Id. At *15.

January 21, 2018

Week in Review

By Jana Slavina Farmer
Edited by Elissa D. Hecker

U.S. Government Shutdown

Democrats and Republicans traded blame for the government shutdown, as the House and Senate reconvened this past weekend to discuss the stopgap spending measures. Republican Representatives attempted to use the extension of Children's Health Insurance Program (CHIP), which provides coverage for nearly nine million children, as an incentive in their bid to secure Democratic votes for the spending measures. Democrats insisted that the measures must address the plight of young undocumented immigrants known as the Dreamers. To reopen the government, the votes of about a dozen Democratic Senators are needed.



Supreme Court Appears to Side With a Death Row Inmate

In McCoy v. Louisiana, No. 16-8255, a case argued on Wednesday, the Supreme Court appeared inclined to agree with Robert McCoy that his lawyer acted improperly when he disregarded McCoy's explicit instruction not to admit guilt for three murders. McCoy's counsel believed that admission of guilt gave McCoy better chances during the trial's sentencing phases. This strategy ultimately failed, and McCoy was sentenced to death in Louisiana. During the argument, several justices said a decision as fundamental as admitting guilt in a capital case belonged to the client rather than the lawyer. Formal decision to follow.


Supreme Court Temporarily Blocks Ruling on North Carolina Gerrymandering

The Supreme Court on Thursday granted a stay of an order of a North Carolina court, which required the state's legislators to draw up a new congressional voting map by January 24th. The trial court previously held that the existing voting map violated the Constitution and hurt the electoral chances of Democratic candidates. Representative David Lewis admitted that the congressional map was originally drawn up with a specific purpose of affording Republicans an advantage over Democrats. The Supreme Court has never held partisan gerrymandering to be unconstitutional.


Battle Over Net Neutrality Regulations Continues

Multiple lawsuits were filed against the Federal Communications Commission in connection with the recent repeal of net neutrality regulations. Plaintiffs include 21 state attorneys general, Mozilla, the Open Technology Institute, Free Press and Public Knowledge public interest groups.


Former Department of Energy Photographer Seeking Whistle-Blower Protections

Last year, Simon Edelman, a former photographer for the Department of Energy, shared with journalists a photograph of Secretary of Energy, Rick Perry, which he took for official purposes. In one of the photographs, Senator Perry is depicted giving a bear hug to Robert E. Murray, the head of one of the country's largest coal mining companies, Murray Energy. Another showed a photo of a cover of a confidential "action plan" that Murray brought to the meeting, calling for changes benefiting coal industry. Edelman said in an interview that he wanted to expose the close relationship between the two men. He lost his job and is now seeking whistle-blower protections.


Justice Department Appeals the Deferred Action for Childhood Arrivals Ruling to the Ninth Circuit

The Department of Justice (DOJ) appealed the decision in The Regents of the University of California and Janet Napolitano v. U.S. Department of Homeland Security and Elaine Duke, seeking review before the U.S. Court of Appeals for the Ninth Circuit. The DOJ is also expected to file a petition for a writ of certiorari before judgment, seeking direct review in the Supreme Court. This is an unusual step, which will allow the Supreme Court to hear the case prior to the Ninth Circuit. The DOJ maintains that Elaine Duke, the acting homeland security secretary, was within her discretion to rescind the Deferred Action for Childhood Arrivals (DACA) program.



The Woman Who Started the French Equivalent of #MeToo is Sued for Defamation

Sandra Muller, a French journalist working in New York, was sued for defamation by Eric Brion, a former television executive, whom she accused of sexual harassment. On October 2017, Muller started a hashtag #BalanceTonPorc (ExposeYourPig), similar to #MeToo in the U.S., in a series of Twitter posts encouraging women to speak out against sexual harassment. Tens of thousands of French women used the hashtag to tell their own stories. Unlike many, however, Muller named Brion in her tweets. Brion is not denying the advances, but takes issue with their characterization as sexual harassment.


Prominent Activist Detained In China After Making An Appeal To Change the Constitution

Yu Wensheng, a prominent lawyer and political activists in China, was taken into police custody on Friday after posting an appeal to change China's Constitution, including the procedure of election of China's President.


Writer Accuses Yale of Blocking Misconduct Complaint

Naomi Wolf, author of the Beauty Myth, claims that Yale University officials blocked her from filing a complaint against Harold Bloom, English professor and literary critic, who she claims had groped her while she was a college student.


Felony Conviction Does Not Preclude Bar Admission

Washington State's attorney licensing panel voted to block a candidate with felony convictions and a bankruptcy from taking the bar licensing exam. The candidate successfully appealed the ruling.


Representative Meehan Settles Sexual Misconduct Claim

Representative Patrick Meehan (R-Pennsylvania), who took a leading role in combating sexual harassment in Congress, settled a complaint for sexual misconduct made against him by a former aide.


Thousands Participate in Women's March 2018

Thousands of demonstrators marched on Saturday in cities across the U.S. in protest against the policies of the Trump administration. More than 200,000 protesters attended the march in New York.


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


Will More Accusers Be Able to Testify at Bill Cosby's Retrial?

Last year, Bill Cosby's sexual assault trial ended with a hung jury. Cosby will face a retrial in April. Has the #MeToo movement effected a cultural shift that it would lead to a different result this time? While that remains to be seen, the prosecutors filed a motion asking Judge O'Neill of the Montgomery County Court of Common Pleas in Norristown, Pennsylvania, to reconsider the previously set limitations on the testimony of other women allegedly assaulted by Cosby to help support the accusations of Andrea Constand. In Pennsylvania, evidence of prior bad acts may be admitted to show intent or similar conduct inferring a common scheme or plan. It is expected that Cosby's counsel will vehemently object to the inclusion of additional accusers.


Actress Accuses Stuntman of Sexual Assault

Actress Eliza Dushku accused Hollywood stuntman Joel Kramer of sexually abusing her during the filming of "True Lies" when she was 12. Kramer denied the accusation in an email to the New York Times on Tuesday. He also disputed two other accusations of sexual misconduct, both involving women who were not named. James Cameron, who directed the movie, reportedly said Dushku was "brave" for speaking up.


Continuing Support to Time's Up

Actor Timothee Chalamet will donate his entire salary from the upcoming Woody Allen film, "A Rainy Day in New York," to Time's Up, the LGBT Center in New York and the Rape, Abuse and Incest National Network. His co-star, Rebecca Hall, earlier announced that she would donate her salary from the movie to the Time's Up legal defense fund. Woody Allen was previously accused of sexually abusing his adoptive daughter, Dylan Farrow.



Early Banksy Work Saved From Destruction

Over 18 years ago, Banksy, a renown street artist whose identity has still not been officially confirmed, painted a bird with a gas plump handle for a beak on a derelict container at a beach in protest against the oil industry. During recent beach cleanup efforts, the artist's work was salvaged and restored by Brandler Galleries.


UNESCO Partners Holocaust Memorial In Commemorating International Holocaust Remembrance Day

UNESCO is organizing a series of events in partnership with the Holocaust Memorial, to take place between January 22nd and 25th, in advance of the International Holocaust Remembrance Day, commemorated each year on January 27th.


Russian Court Extends Artistic Director's House Arrest

Kirill S. Serebrennikov, the artistic director of the Gogol Center in Russia, is accused of embezzling the ruble equivalent of $2.3 million in government funds allocated for one of his theatrical projects. He claims that he was falsely accused by his former accountant, who turned state's witness in the case. Serebrennikov's case has raised concerns of repression of artistic freedom and return of censorship to the arts in Russia, as he has staged plays that featured nude actors and touched on socially-divisive topics in his productions. Last week, his house arrest was extended another three months while he is awaiting trial. President Putin commented that the Bolshoi Theater recently staged "Nureyev," a ballet directed by Serebrennikov, suggesting that this production is evidence that the latter is not being persecuted.


Costa Rica Exhibits Artifacts Recovered from Venezuela

The National Museum of Costa Rica's exhibition of 196 pre-Columbian artifacts recovered from Venezuela represents a major victory in an ongoing battle for repatriation of cultural artifacts in Latin America.


Stolen Furniture of an Egyptian Monarch Resurfaces in the U.S.

A mahogany and mercury-gilded bedroom suite of Egypt's late King Farouk disappeared from the royal rest house in Giza Zoo in 2013, replaced by a cheap replica. The suite was originally crafted by Antoine Krieger, a top Parisian cabinet-maker of the 19th century. Internet users have recently discovered the furniture for sale on an American antiques website. Egypt's attorney-general is investigating.


Anonymous Collector Puts a Possible El Greco Painting on Public Display

The Visitation, a large canvas depicting the Virgin Mary greeting her cousin Elizabeth, was revealed to the public in 2014 as the possible work of the artist Doménikos Theotokópoulos, or El Greco. The painting is owned by an anonymous private collector, who has not yet allowed any experts to examine its authenticity. It was recently put on display at the Oballe Chapel in San Vincente, Toledo. The available records suggest that the painting was completed after 1608, including the contract commissioning the El Greco with the work. Several versions of the painting were allegedly created. Another example of the Visitation paintings is located in Washington. While some experts believe it very probable that the newly revealed painting is authentic, others are not convinced.



Assault Victims Testify at Dr. Nassar's Sentencing; Michigan State University President Under Pressure to Resign

Dr. Lawrence G. Nassar, a former doctor at Michigan State University, pleaded guilty in November to several sexual assault charges after being accused of molesting over 150 former female patients while he worked as a physician for the Olympic gymnastics team. Last week, almost 100 women, including several Olympic medalists, testified at his sentencing. Meanwhile, there are growing calls for the Michigan State University president, Lou Anna K. Simon, to resign over how much she knew about the abuses.







Koreas Agree to Cooperate on Olympics

North and South Korea agreed on Wednesday that their athletes will march under one flag at the Winter Olympics next month. North Korea is also sending its 140-member pop orchestra to perform. Furthermore, South Korea proposed that it fields a joint women's hockey team with North Korea. While South Korea seeks to thus deescalate the tensions on the Korean Peninsula, the U.S. is concerned that Kim Jong-un will unify the Koreas under one flag.




400 Russian Athletes Are Clear To Compete at the Winter Olympics

While Russia remains barred, the International Olympic Committee provisionally cleared nearly 400 Russian athletes to compete at the 2018 Winter Games. The International Paralympic Committee is still expected to announce whether Russia can compete in Pyeongchang.


Russian Investigators Claim To Have Found Evidence Rebutting Doping Allegations

Russia's Investigative Committee claims to have found evidence rebutting the accusations of systematic doping during the 2014 Winter Olympics in Sochi. Specifically, the Committee apparently obtained documents relating to the chain of custody of the doping samples of 15 Russian athletes, who were recently banned for life from the Olympic Games. Grigory Rodchenkov, the head of the Sochi laboratory during the 2014 Winter Olympics, previously came forward with a description of a scheme he allegedly carried out at the direction of Russian sports officials, which involved replacing steroid-laced urine with clean urine, collected months earlier, on each evening of the Games. Russian officials have vehemently denied Rodchenkov's allegations and the existence of a state-sponsored doping program.


New Rules Appear To Reduce Withdrawal Rate at Austrian Open

Fewer players were scratched from competition during this year's Australian Open, following the adoption of a new rule allowing injured players to withdraw before taking the court and still receive half of their first-round prize money.



Senator Jeff Flake Condemns President Trump's Attacks on the Press

This past Wednesday, Senator Flake (R-Arizona) took to the Senate floor to defend the news media on the same day Trump's "fake news awards" were to be announced. Flake compared Trump's language to that of Joseph Stalin, and said that the president's attacks on the press are "a source of great shame".


Journalists Arrested in Sudan After Covering Protests

Several reporters for Reuters and Agence France-Presse were arrested by Sudan's National Intelligence and Security Service as they covered economic protests in Sudan last week. There is no information as to why the reporters where arrested and when they are to be released. These arrests raise concerns of the increasing censorship of the media in Sudan.


Reporters at the Los Angeles Times Form A Union

248 out of 293 journalists of the Los Angeles Times, one of the largest newspapers in the country, voted to join the NewsGuild, which represents 25,000 workers at news organizations across the United States. The union will now negotiate a collective bargaining agreement with management.


Condé Nast to Adopt Rules Protecting Models From Harassment

In light of the sexual harassment outcry in fashion, entertainment and other industries, Condé Nast is working on a new code of conduct, scheduled to go into effect this month. Under the new rules, the publisher will not work with underage models, alcohol will be prohibited on sets, and any shoots involving nudity will be detailed and agreed upon by the models beforehand.


YouTube's New Monetization Policy Disfavors Small Accounts

YouTube raised the minimum threshold for which videos can accept advertisements in addition to promising human oversight over most viewed videos amid concerns that ads appear alongside extremist videos. Only channels with over 1,000 subscribes and whose videos have over 4,000 watch hours in the last 12 months will be able to accept advertisements.



January 19, 2018

WYWH: "Inside Auction Houses" [By lawyers for lawyers]

By Laura B. Richardson

On October 26, 2017, the EASL Section hosted a panel discussion, "Inside Auction Houses: The Legal Issues", at the New York City offices of Arent Fox, LLP. The program was attended by approximately 30 attendees. The panelists included Sherri Cohen (Bonhams), Mari-Claudia Jiménez (Sotheby's), Jonathan Illari (Phillips Auctioneers), Margaret J. Hoag (Christie's), and Daniel H. Weiner (Hughes Hubbard & Reed LLP). The discussion, moderated by Lena Saltos and Elizabeth Urstadt, offered experienced insights on the inner workings of auction houses and the legal issues specific to their unique business models, which entails regularly acting as trusted agent of clients looking to sell high-value artwork, objects, or collections to buyers at auction or through private sale. The panelists described the exciting, challenging and varied legal work they do, both as in house counsel at auction houses and in their capacity as external counsel to auction houses.

Mari-Claudia Jiménez, formerly with Herrick, who is now Senior Vice President and Managing Director of Trusts & Estates and Valuations, introduced and explained the auction sale process from consignment to post-sale. She included in her discussion common sources of consigned objects - private collectors, estates of deceased collectors, museums, and dealers - as well as the frequent challenge that auction houses face when collecting sale funds due from successful bidders for their lots. She also explained the procedure an auction house may follow when it does not wish to accept an object or has a conflict of interest, but may wish to refer it to another regional or specialized auction house that would be a more appropriate venue to sell a certain object or price point.

Sherri Cohen, Director of Bonhams' Trust and Estates Department and an expert on title insurance with years of work at ARIS, laid out the process of obtaining appraisals for purposes including insurance and estate tax liability, as well as how auction houses evaluate and use different types of appraisals and valuations, such as insurance valuations, tax valuations, and fair market value appraisals. She also highlighted the difference between appraisals and auction estimates, which unlike a valuation, are given ranges of what an auction house expects property to fetch at auction based on various factors such as dimensions, provenance, past sales history, expected appreciation, comparable sales, and prevailing market conditions. Sherri elaborated on the protocol followed when auction houses receive or realize they have a fake offered for sale. There is an expectation of extensive due diligence and research on provenance that the auction houses undertake to mitigate any sort of risk or liability from these threats of in-authenticity. She also described the terms regarding rescission included in buyers' conditions of sale. For example, one term reads:

"If within one year from the date of sale, the original purchaser (a) gives written notice to us alleging that the identification of Authorship of such lot as set forth in the... catalog description of such lot...is not substantially correct based on a fair reading of the catalog, and (b) within 10 days after such notice returns the lot to us in the same condition as at the time of sale, and (c) establishes the allegation in the notice to our satisfaction (including by providing one or more written opinions by recognized experts in the field, as we may reasonably require), then the sale of such lot will be rescinded and, unless we have already paid to the consignor monies owed him in connection with the sale, the original purchase price will be refunded." (Bonhams Conditions of Sale, Limited Right of Rescission)

To illustrate how seriously auction houses take safeguarding against fraud, Mari-Claudia Jiménez noted that Sotheby's even employs scientific forensic testing for purposes of art authentication.

Jonathan Illari, who has worked with both brick and mortar auction houses (Bonhams and Phillips) as well as online auctions, described common financial and legal consignment terms found in the industry. For example, the auction house (as consignee) agrees to take possession of the property and act as agent of the consignor in the sale of the property; the consignor must warrant that he is the sole owner of the property, that there are no other encumbrances on the property, and that the property is genuine and as described in the agreement; the consignor will agree to pay a seller's fee that can be calculated in a number of different ways; a reserve amount may be specified, under which the consignee may not sell the property; while the property is in the consignee's possession, it will be insured (at consignee's expense) for the estimated value listed in the agreement; the consignee will obtain the right to market and promote the property for sale. He also examined how online sales have altered the auction house business, which pieces are better suited to online sales (such as lower value items, or pieces such as rare or fine wine, or watches), and how he thinks in certain situations online auctions allow a wider reach to a broader audience of potential buyers while taking in a broader range of property. He also discussed the ad-hoc determinations auction houses make to broker a private sale of high-value pieces as opposed to selling an object at public auction. Some considerations include the wishes of the seller, whether that be privacy, urgent liquidity, or to shelter the work from the risk of not selling at auction.

Maggie Hoag described the important application of the laws of agency in the auction house business. Auction houses predominantly play the role of agent of a seller and represent their interests as they endeavor to sell the property. This inevitably creates important considerations of fiduciary duties. This clear agency relationship between auction houses and sellers was contrasted with the uncertain roles art dealers or galleries can at times play in the art world, as Dan H. Weiner commented. He warned of the complexities of having several "middle men" and unknown players involved in art sale transactions, as is common for the art world. Maggie and Dan went on to discuss the challenges of collecting sale proceeds from successful auction bidders, the significance of third party guarantees for auctions, and the steps taken prior to potential litigation.

Auction houses that handle art and fine objects have a special allure, and the legal work that is done on behalf of these businesses connect sellers and buyers of these luxury goods. EASL succeeded in bringing together an array of experiences and experts from the leading auction houses, who were all knowledgeable and experienced on the topic. The time-pressures and competition between auction houses to obtain the best lots for upcoming sales was secondary to the stimulating work attorneys receive at Bonhams, Phillips, Sotheby's, and Christie's, as was made apparent through colorful examples and the collegiality shown in the panel setting. Their command of the legal and commercial issues for auction houses allowed for an interesting and informative afternoon of discussion.

Cases involving auction houses for further reading:

Mitchel Gray v. Jeff Koons et al.,(S.D.N.Y. Docket No. 15-cv-9727)

Phillips Auctioneers LLC v. Zhang Chang (NY Supreme Court Index No. 652901/2017)

JP Morgan Chase Bank, N.A. v. Comm'r (In re Estate of Newberger), T.C. Memo 2015-246
Estate of Kollsman v. Comm'r, T.C. Memo 2017-40