September 2, 2014

Month in Review (August), Part 1

By Martha Nimmer

Just Say No?

Early last month, the National Football League (NFL) handed Cleveland Browns receiver Josh Gordon a season-long suspension after he failed another drug test, this time for marijuana. A day later, star player Joe Thomas went before a group of reporters to decry Gordon's punishment, adding that the NFL's drug policy was out of date. "Obviously there were some oversights when they wrote the program and some cultural changes that have happened, so that the program doesn't accurately reflect the morals of society today," Thomas said.

Not wanting to miss an entire season, Gordon attempted to appealed his suspension, arguing through his attorneys that the positive drug test result was due to his inhalation of second-hand smoke; his appeal, however, was denied. Gordon served a two-game suspension last season for failing a drug test, so as a "repeat offender," he was "immediately barred from the team's practice facility," writes USA Today. After the 2014-2015 football season concludes, the NFL will decide if, and when, Gordon will be permitted to apply for reinstatement.

Joe Thomas' comments about the NFL's drug policy represent the changing attitude among many Americans about the League's--and even the federal government's--policy toward marijuana. The NFL's collective bargaining agreement still bans the illicit use of marijuana, even though medical marijuana is permitted in 23 states and the District of Columbia. Ohio, where the Browns are based, does not allow for medical marijuana usage, but does currently provide for "reduced penalties" for possession of the substance. In regard to the NFL's narcotics policy, Thomas also said, "they haven't touched it in a lot of years because it's kind of been the one thing where, when you're collective bargaining, it kind of gets put 'til the end and then when you're close on a deal you say, 'Oh, let's just leave it how it's always been,' rather than actually work on some issues that is there. The problem is, now you're sitting in a situation with a collective bargaining agreement that lasts 10 years, and in the middle of it, no one is going to want to go back and try to hash out things that may be an issue -- as they clearly are on some levels."

Given the NFL's concerns over other controversial matters, such as player head injuries, and the criticism the League received regarding player suspension for domestic violence charges, revising drug policy with regard to marijuana use is unlikely to make the NFL's to-do list for this season.

http://www.usatoday.com/story/sports/nfl/browns/2014/08/29/joe-thomas-nfl-drug-policy-out-of-date-josh-gordon-suspension/14784755/

http://hosted.ap.org/interactives/2014/nfl-marijuana/

Athletic Autonomy

The National Collegiate Athletic Association (NCAA) voted last month to give the five wealthiest conferences and their universities the power to "make their own rules on several issues affecting athletes and competition." If this decision "passes" a 60-day comment period, the Big 5, which include the Southeastern Conference, the Atlantic Coast Conference, the Pacific-12, the Big Ten and the Big 12, will be allowed to raise the amounts of their player scholarships, improve team health insurance and allow players to consult with agents, among other changes.

Supporters of this move towards greater autonomy say it acknowledges the "markedly different" situations faced by Division I schools and the pressures faced by their players, while critics of the change say that smaller schools will have a harder time recruiting talent. "I worry these changes will further escalate the arms race in college sports, which, in my opinion, is not in the best interest of intercollegiate athletics, or higher education more generally," Dartmouth University president Philip J. Hanlon said. The biggest champions of autonomy dismiss their critics, saying that autonomy is really just about giving more benefits to deserving student athletes: "[w]hat [autonomy] means is the ability to provide student-athletes with things that meet the 21st-century model of how we think about intercollegiate athletics," Mike Slive, the commissioner of the SEC, said last month.

Despite the harsh criticism of autonomy, the NCAA remains in support of the measure. As The New York Times writes, "[a]lthough only five of the board's 18 members are presidents of Big 5 universities, the steering committee that refined previous proposals last month into the current model included eight presidents, half of whom run Big 5 universities." All is not lost when it comes to defeating the autonomy measure, however. If 75 universities formally voice their disapproval of the autonomy measure during the 60-day comment period, the board will reconsider its vote. If 125 universities object to the measure, its implementation will be halted "pending that reconsideration," writes The New York Times. If the board later moves to reaffirm the decision, all Division I universities will vote, "with a five-eighths majority required to overturn."

http://www.nytimes.com/2014/08/08/sports/ncaafootball/ncaa-votes-to-give-greater-autonomy-to-richest-conferences.html?_r=0

The Art of Fraud

James Meyer, a former studio assistant to American contemporary artist Jasper Johns, plead guilty late last month to stealing 22 works from the artist's Connecticut studio. Meyer worked for Johns for over two decades and kept a studio file drawer of unfinished pieces that the artist had not authorized for sale.

Over the course of six years, from 2006 to 2012, Meyer took over 20 of these unfinished works and "had them sold by a Manhattan gallery and other purchasers." Prosecutors said that the defendant-assistant claimed that the works were gifts from Johns. According to a 2013 indictment, Meyer made $3.4 million on the transactions and "covered his tracks with fictitious inventory numbers and faked ledger book pages."

Meyer is scheduled to be sentenced on December 10th, and faces nearly four years in prison. As part of his guilty plea agreement, he forfeited almost $4 million. Meyer is also facing a civil lawsuit stemming from his illegal activity: The Francis M. Naumann Gallery of Midtown Manhattan, which sold some of the pilfered Johns artwork, sued Meyer for fraud in May.

http://www.entlawdigest.com/2014/08/27/3295.htm

Appealed, and Bracing for a Fight

The Washington Redskins have filed their appeal of the U.S. Patent and Trademark Office's (USPTO) June decision that canceled six team trademarks. The appeal, filed in the U.S. District Court for the Eastern District of Virginia, claims that the "Trademark Trial and Appeal Board ignored both federal case law and the weight of the evidence." Specifically, the team's appeal argues that Native Americans did not consider the name "Redskins" disparaging when the trademarks were put in place from 1967 and 1990.

Although the U.S. Patent and Trademark Office did decide that the Redskins trademarks should be canceled, the ruling left the trademarks' protections in place until the court hears the team's appeal; this appeals process could end up taking years, however. The USPTO issued a similar decision in a nearly identical case back in 1999, but the Redskins prevailed after the U.S. District Court for the District of Columbia reversed the board's decision four years later, following contentious litigation.

Anger over the name has grown in recent years, with critics calling on team owner Dan Snyder to change the team's name. Snyder, however, along with the NFL, have refused to change the name.

http://thehill.com/blogs/blog-briefing-room/215190-redskins-file-appeal-to-trademark-ruling

August 25, 2014

"Everything You Wanted to Know About Gallery Ethics (But Were Afraid to Ask)"

A slew of cases involving some of the art world's most prolific figures have raised the ever-growing specter of fiduciary obligations of gallerists and dealers. Gallerists are by definition fiduciaries on a number of levels, often without being aware of this. What most art context actors don't know is that fiduciary duties trump contracts or oral agreements, and are imposed by courts. In fact, the core of gallery ethics cannot be understood without knowing what fiduciary obligations are.

Last October, at Sotheby's Institute of Art EASL's Committee on Fine Arts held an interactive panel discussion on cutting edge insights into best practices for gallerists and dealers and how they can limit their professional exposure. The speakers - lawyers and gallerists - also explored many other ethical issues that gallerists, dealers, and artists need to understand now more than ever.

This program was part of an ongoing initiative to create dialogue amongst lawyers, artists and emerging and established art professionals working in the primary or secondary markets. We have prepared a dedicated audio recording and transcript, available at https://stropheus.com/blog/2014/01/22/art-gallery-ethics/.

Panelists:
Andrea Crane, Andrea Crane Fine Art
Richard Lehun, Stropheus Art Law
Serra Pradhan, Marianne Boesky Gallery
Judith B. Prowda, Chair, Committee on Fine Arts, New York State Bar Association, Entertainment, Arts and Sports Law (EASL) Section, Attorney and Faculty at Sotheby's Institute of Art

"Art Fairs: An Irresistible Force in the Art World?"

Are brick and mortar art galleries are becoming the loss leaders in an art world, potentially spiraling beyond viable limits? With more than ninety art fairs now defining the rhythm of globalized art business, how have relationships amongst artists, gallerists, and collectors been altered?

A panel comprised of gallerists and attorneys recently explored and critiqued the impacts and challenges - legal, ethical and business - of the rise of art fairs.

This program, which was organized by EASL's Fine Arts Committee and held at Sotheby's Institute of Art on May 27, 2014, was part of an ongoing initiative to create dialogue amongst lawyers, artists and emerging and established art professionals working in the primary or secondary markets.

We have prepared a dedicated audio recording and transcript in two Parts.

Part I: Gallerists Edward Winkleman and Elizabeth Dee, available at https://stropheus.com/blog/2014/08/13/nyc-art-fairs/

Part II: Attorneys Richard M. Lehun and Nicholas M. O'Donnell (available in about two weeks)

Moderator: Judith B. Prowda, Chair, Committee on Fine Arts, New York State Bar Association, Entertainment, Arts and Sports Law (EASL) Section, Attorney and Faculty at Sotheby's Institute of Art

Panel:

Edward Winkleman, Gallerist

Elizabeth Dee, Gallerist

Richard M. Lehun, Attorney at Stropheus Art Law

Nicholas M. O'Donnell, Litigation Partner at Sullivan & Worcester LLP

Will Telecommuting Be More Costly for Your Business in the Long Run?

By Kristine A. Sova
www.sovalaw.com

Telecommuting is increasingly popular among startups and small businesses, and not surprisingly so. Much has been written extoling the benefits of allowing employees to telecommute, and it's very much the norm at companies earning high ranks on "best places to work" lists. Above and beyond the feel-good benefits to employees, telecommuting also provides cost-sensitive startups a means by which they can attract and retain better talent in exchange for an offset in overhead expenses like office space and compensation.

However, to the extent that cost is a compelling factor in a startup's decision to utilize remote workers, I caution them to think again.

One practical problem for an employer based in one state is that it can't entirely prevent a remote worker from suing the employer in the state where the employee is working. Most laws permit employees to file claims where the work is performed. Futher, while an employer can try to limit where suits are filed by including a venue provision in a contract, there's no guarantee the choice-of-venue provision will be enforced. Being hauled into court outside the employer's jurisdiction will add to the fees and costs of defending the suit, such as additional attorneys' fees and costs of travel.

Similarly, choice-of-law clauses in contracts, which specify that the law of the state of the employer's principal place of business will apply, may not always be enforced either. This is especially true when remote workers are involved. This means that employers have to understand the law in all the states where telecommuting employees are working for them, even if just to confirm that a particular law will or will not apply to the employment relationship.

Case in point: A federal court subjected a Virginia company to Pennsylvania's anti-discrimination law, which applies to employers with 4 or more persons in their employ within Pennsylvania, on the basis of a single employee working remotely from Pennsylvania because that employee hired contractors to service the company's clients in Pennsylvania.

The best advice for businesses looking to "save" with telecommuting is to understand the law of each jurisdiction and conduct appropriate due diligence before hiring remote workers to work from those states. Knowing if your business will be subject to the laws of another state will allow you to undertake a more meaningful cost-benefit analysis of a possible telecommuting relationship. Ultimately, you may find that once you factor in costs like ensuring your wage-and-hour and other human resources policies comply with the laws of multiple states that the perceived savings of telecommuting employees is non-existent.

August 11, 2014

Job Opportunity - Amazon Studios Corporate Counsel


Amazon Studios has an opening at their offices in Santa Monica, California, for a corporate counsel having 5+ years of legal experience (with at least 2 years at a law firm) as a transactional attorney to handle feature film and television development, production and distribution. Here's the job application link: http://www.amazon.jobs/job/264569/corporate-counsel-amazon-studios

July 26, 2014

Center for Art Law Case Updates

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

Matter of Richard L. Feigen & Company, 824996. (N.Y.T.C, July 22, 2014) -- J. Winnifred Maloney of the Division of Taxation denied art dealer Richard Feigen sales tax refund claim from 2011 seeking $215,626 on the sale of a forged Max Ernst painting "La Foret" that was sold in 2004. To recover the sales tax, the dealer should have claimed his refund within a three-year window after filing his sales tax return, which closed in 2008. While the dealer argued he should have been able to avail himself of the statute of limitations contemplated by the CPLR 213, and thus have six years, the decision was based on Tax Law §1139(c), which stipulates that financial matters close sooner. The decision upheld earlier determinations of the Division of Taxation's Audit Division and the Bureau of Conciliation and Mediation Services. In other words, this ruling allows the U.S. government to reap financial benefits from unfortunate sales of fake art; whether the risk is to be born exclusively by the dealer may yet be revisited on appeal. Attorney for Feigen, Malcolm Taub, partner at Davidoff Hutcher & Citron.

Anders Karlsson v. John Leo Mangan III, Art Possible LLC, et al.,2:14-cv-04514-R-JPR (S.D.C.A, Jun. 11, 2014) -- Arizona Plaintiff is seeking damages from residents in New York, Florida, Colorado and California, alleging multiple fraudulent schemes to sell fake artworks of famous artists together with fake authentication and provenance documents. Plaintiff is seeking, among other reliefs, compensatory damages, actual damages, punitive damages and attorney fees. Attorney representing Plaintiff is Meir Westreich.

Schoeps v. Free State of Bavaria, Case No. 13 Civ. 2048 (JSR) (S.D.N.Y June 27, 2014) -- J. Rakoff denies jurisdiction in a Nazi-era looted art dispute over Picasso's "Madame Soler" portrait.

http://itsartlaw.com/2014/07/07/case-review-schoeps-v-free-state-of-bavaria-june-2014/?utm_source=Center+for+Art+Law+General+List&utm_campaign=c432440020-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-c432440020-346773625

Sotheby's v. Kwok (UK, June 2014) -- Auction house sues a client for £3m for failure to pay for purchases.

http://www.telegraph.co.uk/culture/art/art-news/10932158/Sothebys-sues-art-sale-glamour-girl-for-3m-after-client-fails-to-pay.html?utm_source=Center+for+Art+Law+General+List&utm_campaign=c432440020-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-c432440020-346773625

U.S. v "Madonna and Child" (June 2014)" -- On June 23, the U.S. Attorney's Office in New York filed a forfeiture action to cease a 13th-century painting that was probably illegally imported into the United States. The painting went missing from a Swiss safety deposit in the late 1980s.

http://www.courthousenews.com/2014/06/24/68973.htm?utm_source=Center+for+Art+Law+General+List&utm_campaign=c432440020-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-c432440020-346773625

U.S. v. Mask of Ka-Nefer Nefer, No. 12-2578 (8th Cir. June 12, 2014) -- on appeal, the technical decision to deny the government to amend civil forfeiture complaint was affirmed. Judge Murphy concurred, but he wrote: "While this case turns on a procedural issue, courts are bound to recognize that the illicit sale of antiquities poses a continuing threat to the preservation of the world's international cultural heritage. Museums and other participants in the international market for art and antiquities need to exercise caution and care in their dealings in order to protect this heritage and to understand that the United States might ultimately be able to recover such purchases."


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.

Week in Review

By Martha Nimmer

From Panamanian Dictator to Lawsuit Plaintiff

Manuel Noriega, former Panamanian dictator and federal inmate, has sued the publisher of "Call of Duty: Black Ops II", over its unauthorized of his name and likeness. The lawsuit, filed last week in Los Angeles County Superior Court, accuses publisher Activision Blizzard Inc. of portraying Noriega as "a kidnapper, murderer and enemy of the state" in the latest "Call of Duty" game.

The Santa Monica-based company released the "Black Ops II" title back in November 2012. In just two weeks, the game had managed to bring in more than $1 billion in sales. While Activision Blizzard oversees a number of video game titles, "Call of Duty" is arguably the most well known. According to a fan website, Noriega helps the CIA capture the game's antagonist before turning on the U.S.

Noriega became dictator of Panama in 1983. American military action in the Central American nation in 1989 ended his dictatorship, leading to his imprisonment on drug-trafficking charges. For a time, he had been an ally of the U.S. government. Noriega returned to Panama in 2011 after two decades in American and French custody.

http://touch.latimes.com/#section/-1/article/p2p-80816671/

Tackling the Vikings

Following the Minnesota Vikings' release last week of a summary of the investigation into homophobic remarks made by special teams coordinator Mike Priefer, former Vikings punter Chris Kluwe announced that he planned to file suit against the team in Minnesota state court. Now, Kluwe appears to be backing off from that initial threat, opting instead to continue talks with the Vikings. Clayton Halunen, counsel for the former Vikings player, said in an email to ESPN that he had spoken with the Vikings' attorney, and that both lawyers "agreed to recommend continued discussions to their clients." Kluwe intended to file suit against the team to compel it to release the full report from a six-month independent investigation into his claims against Priefer.

Law firm Littler Mendelson was tasked by the Vikings with reviewing the investigation report and creating a summary of the investigation findings. The 29-page summary did support Kluwe's claim that Priefer had made a homophobic remark, but the summary did not confirm Kluwe's accusations that "Priefer had made multiple homophobic statements, or that the Vikings had released the punter because of his activism." Unsurprisingly, Kluwe and his attorney were critical of the report, saying it was rife with inaccuracies and "designed to make [Kluwe] look bad." Kluwe's attorney also called the summary a "'scrubbed version' of the report designed to position the team for possible litigation."

Before the report was released last week, Kluwe's legal counsel "offered the Vikings a set of non-negotiable settlement terms . . . asking the team to suspend Priefer for four to eight games, donate $1 million to LGBT-friendly charities and release the full report." The Vikings, however, did not agree to the terms, instead deciding to release the investigation summary and donate $100,000 to charity; the team also suspended Priefer for two to three games. Despite the initial failure to come to a settlement, it appears that an agreement may, according to ESPN, be back on the table.

Read the summary here: http://espn.go.com/pdf/2014/0718/DSP-MEMO-Re-Kluwe-Investigation.pdf

http://espn.go.com/nfl/story/_/id/11253469/chris-kluwe-file-suit-yet-continue-discussions-minnesota-vikings

Back to Business as Usual?

Retail powerhouse Amazon has started to accept DVD pre-orders of Warner Brothers DVDs, a sign that the companies appear to be moving closer to resolving a pricing dispute. As part of its hardball strategy with Warner Brothers, Amazon had stopped accepting pre-orders for Warner Brothers movies, including The Lego Movie, 300>: Rise of an Empire and Winter's Tale. Now, however, Amazon customers may begin placing pre-orders for Warner Brothers titles.

Amazon has been mired in disputes with various companies as it seeks to use its position as the world's largest online retailer to extract better deals from its suppliers and vendors. Amazon is currently involved in a dispute with Hachette Book Group over e-book pricing.

http://www.bloomberg.com/news/2014-06-24/amazon-resumes-warner-bros-dvd-preorders.html

The Mask

The Eighth Circuit has ruled that the Mask of Ka-Nefer-Nefer, a 3,200-year-old Egyptian mummy, will stay in the St. Louis Art Museum, because the federal government failed to prove that the antiquity was stolen from Egypt when it went missing in 1973. The mask later turned up in 1998, when the St. Louis Art Museum acquired the item from Phoenix Ancient Art of New York and Geneva, an antiquities seller. Once the Egyptian government learned of the mask's reemergence, Egyptian officials asked for its return. Despite these numerous requests, the museum has refused to return the mask.

The federal government eventually became involved in the dispute between the Egyptian government and the Missouri museum, filing a forfeiture action against the mask. In the forfeiture claim, the United States stated that "because the mask was stolen, it could not have been lawfully exported from Egypt or lawfully imported into the United States." A federal judge was unconvinced, however, and ruled for the museum, reasoning that just because the mask went missing in 1973 did not mean the item was illegally imported into the United States.

On appeal, "the government argued that the lower court erred by dismissing its complaint without giving it leave to first amend its pleading." The Eighth Circuit did not agree. Judge James Loken, writing for the three-judge panel, said that the government had sufficient time to amend its pleading before dismissal, but chose not to: "[t]he government knew many months prior to the order of dismissal of the possible need to amend its pleading and elected to 'stand or fall' on its untested legal theory. The government then spent another three months after the order of dismissal was entered urging the court to reconsider its interpretation of the statute before finally deciding it would attempt to plead around the interpretive problem, rather than appeal this legal issue."

So, at least for now, it appears that the mask will remain in the "Show Me" state.

http://www.entlawdigest.com/2014/06/18/3194.htm

Release Removed

The NCAA has removed the controversial name-and-likeness release from the forms that Division I athletes regularly sign before a playing season. The name-and-likeness provision of the "Student-Athlete Statement" gave the NCAA or an associated third party the power to use a player's name or likeness to promote NCAA championships or other events, all without having to compensate the athlete. The decision to eliminate this release comes as the NCAA awaits a decision in the O'Bannon v. NCAA case, which concerns the use of college athletes' names and likenesses. The NCAA had previously stated publically that players were not required to sign the releases, but some plaintiffs in the O'Bannon case submitted evidence showing that college presidents and members of the Atlantic Coast Conference believed that athletes would be ineligible to play if they did not sign the releases.

The elimination of the name-and-likeness release led to the delayed publication of the 2014-15 version of the Student-Athlete Statement. Kris Richardson, NCAA director of academic and membership affairs, wrote that the delay was "necessary to enable appropriate review, including legal review, of the change to this year's form." Despite this change to NCAA rules, "some conferences and schools, including the Big Ten Conference schools, have been requiring athletes to sign more specific name-and-likeness release forms." The form employed by the Big Ten Conference states that by signing the release, an athlete gives the college and conference "'the right to publish, duplicate, print, broadcast or otherwise use in any manner or media, my name, photograph, likeness or other image of myself for any purpose' the school or conference determines is in its interest." According to the form, permissible uses can include "promotional and marketing materials and uses by the Big Ten Network, CBS, ABC and ESPN. ... I agree that neither I nor my heirs shall be entitled to any compensation for the use of my name, photograph, likeness or other image of myself." Therefore, despite the changes to NCAA rules, colleges and conferences seem determined to continue using the name-and-likeness releases in their own Student-Athlete Statements.

http://www.usatoday.com/story/sports/college/2014/07/18/ncaa-name-and-likeness-release-student-athlete-statement-form/12840997/


July 16, 2014

Center For Art Law Case Updates

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

• Schoeps v. Free State of Bavaria, Case No. 13 Civ. 2048 (JSR) (S.D.N.Y June 27, 2014) -- J. Rakoff denies jurisdiction in a Nazi-era looted art dispute over Picasso's "Madame Soler" portrait. http://itsartlaw.com/2014/07/07/case-review-schoeps-v-free-state-of-bavaria-june-2014/?utm_source=Center+for+Art+Law+General+List&utm_campaign=1f0b40784d-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-1f0b40784d-346773625

• Sotheby's v. Kwok (UK, June 2014) -- Auction house sues a client for £3m for failure to pay for purchases. http://www.telegraph.co.uk/culture/art/art-news/10932158/Sothebys-sues-art-sale-glamour-girl-for-3m-after-client-fails-to-pay.html?utm_source=Center+for+Art+Law+General+List&utm_campaign=1f0b40784d-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-1f0b40784d-346773625

• [U.S. v "Madonna and Child"] (June 2014)" -- On June 23, U.S. Attorney's Office in New York filed a forfeiture action to cease a 13th-century painting that was probably illegally imported into the United States. The painting went missing from a Swiss safety deposit in the late 1980s. http://www.courthousenews.com/2014/06/24/68973.htm?utm_source=Center+for+Art+Law+General+List&utm_campaign=1f0b40784d-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_022731d685-1f0b40784d-346773625

• U.S. v. Mask of Ka-Nefer Nefer, No. 12-2578 (8th Cir. June 12, 2014) -- on appeal, the technical decision to deny the government to amend civil forfeiture complaint was affirmed. Judge Murphy concurred, but he wrote "While this case turns on a procedural issue, courts are bound to recognize that the illicit sale of antiquities poses a continuing threat to the preservation of the world's international cultural heritage. Museums and other participants in the international market for art and antiquities need to exercise caution and care in their dealings in order to protect this heritage and to understand that the United States might ultimately be able to recover such purchases."


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.

Garcia v Google Amended Opinion

By Barry Werbin

On Friday, July 11th, the Ninth Circuit issued an amended opinion in the controversial Garcia v. Google case (Innocence of Muslims film case addressing an individual actor's own copyrightable performance right). Chief Judge Kozinski tries to backpedal a bit by sticking to his earlier divisive opinion, but saying:

"It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail based on the record and arguments before us. Nothing we say today precludes the district court from concluding that Garcia doesn't have a copyrightable interest, or that Google prevails on any of its defenses. We note, for example, that after we first issued our opinion, the United States Copyright Office sent Garcia a letter denying her request to register a copyright in her performance. Because this is not an appeal of the denial of registration, the Copyright Office's refusal to register doesn't "preclude[] a determination" that Garcia's performance "is indeed copyrightable." OddzOn Prods., Inc. v. Oman, 924 F.2d 346, 347 (D.C. Cir. 1991). But the district court may still defer to the Copyright Office's reasoning, to the extent it is persuasive. See Inhale, Inc. v. Starbuzz Tobacco, Inc., 739 F.3d 446, 448-49 (9th Cir. 2014). After we first published our opinion, amici raised other issues, such as the applicability of the fair use doctrine, see 17 U.S.C. § 107, and section 230 of the Communications Decency Act, see 47 U.S.C. § 230. Because these defenses were not raised by the parties, we do not address them. The district court is free to consider them if Google properly raises them." [Emphasis added]

The opinion is available here: Garcia v Google Amended Opinion.pdf

July 10, 2014

Judge Rakoff Finally Explains His Fair Use Rationale Respecting Lawyers' Briefs Filed With Courts

By Barry Werbin

Over a year ago in White v. West Pub. et al (S.D.N.Y.), Judge Jed Rakoff granted summary judgment, but deferred issuing an opinion, in favor of West Publishing and Reed Elsevier (LexisNexis) in a copyright infringement class action suit brought by several lawyers, who alleged that West and Lexis/Nexis had infringed copyrights in their electronically filed court briefs by aggregating them in a key-word tabbed and text-based searchable database that was made accessible for a fee. On July 3, 2014 (17 months later), Judge Rakoff finally issued his opinion explaining the reasoning for finding fair use. [The decision can be accessed here: http://www.nysd.uscourts.gov/cases/show.php?db=special&id=412]

After assessing each of the four Section 107 factors, Judge Rakoff initially concluded that under the first factor this was a transformative use, for two reasons: "First, while White created the briefs solely for the purpose of providing legal services to his clients and securing specific legal outcomes in the Beer litigation, the defendants used the brief toward the end of creating an interactive legal research tool.... Second [notwithstanding the commercial aspect of defendants' use], West and Lexis's processes of reviewing, selecting, converting, coding, linking, and identifying the documents 'add[] something new, with a further purpose or different character' than the original briefs."

With respect to the second factor, he noted that the nature of the underlying copyright-protected [arguably] briefs "are functional presentations of fact and law, and this cuts towards finding in favor of fair use."

On the third factor, Judge Rakoff opined: "Although defendants here copied the entirety of White's briefs, such copying was necessary to make the briefs comprehensively text searchable. Thus the Court finds that defendants only copied what was reasonably necessary for their transformative use, and that the third factor is therefore neutral."

Finally, on the fourth factor, he found there was no impact on the potential market for the works. In particular, Judge Rakoff emphasized that "West's and Lexis's usage of the briefs is in no way economically a substitute for the use of the briefs in their original market: the provision of legal advice for an attorney's clients. White himself admits that he lost no clients as a result of West's and Lexis's usage....Furthermore, no secondary market exists in which White could license or sell the briefs to other attorneys, as no one has offered to license any of White's motions, nor has White sought to license or sell them." The reason there is no secondary market for licensing or selling the briefs, said Judge Rakoff, is "because the transactions costs in licensing attorney works would be prohibitively high."

So in the interest of transformative use, all us litigators should keep our fees high!