January 13, 2017

Week in Review

By Eric Lanter

Billionaire Art Dealer Cleared of Tax Fraud

A French tribunal of judges cleared Guy Wildenstein of tax fraud. He was charged with money laundering allegedly facilitated with the formation of foreign trusts to avoid inheritance taxes with his art collection. After his father died in 2001, prosecutors alleged, Wildenstein and his brother developed a scheme of complex trusts and moved assets to tax havens in Switzerland. The court's decision acknowledged that Wildenstein's behavior fell into a gray area of French law, in that he was required to declare foreign trusts. His attorneys argued that he had no knowledge of the structure of his financial assets.


Doping at Beijing Olympics Costs China Three Golds

The International Olympic Committee (IOC) stripped three Chinese women of their gold medals in weightlifting from the 2008 Beijing Olympics. This came as a result of retesting of samples, and China may incur a one-year ban from international weightlifting. This round of IOC retesting has yielded eight disqualifications thus far.


National Antidoping Groups Want Russian Athletes Barred

Organizations focused on antidoping from 19 countries have called for sanctions against Russia for its doping offenses. The IOC has been reluctant to impose a punishment as severe as banning Russian athletes outright, but the organizations advocated for such a ban, particularly after recent developments. Last month, the World Anti-Doping Agency released a report showing that the Russian doping program extended to 1,000 athletes in 30 sports.


Team Relocations Keep National Football League Moving Up Financially

The San Diego Chargers announced that they will be leaving their city and moving north, permanently. The team will take the name the Los Angeles Chargers and join one other team in that city, the Rams, giving Los Angeles two football teams in two years after decades without any. Additionally, there is the potential for the Oakland Raiders, located in the San Francisco metropolitan area, to move to Las Vegas in the coming weeks. These moves are part of the National Football League's (NFL's) plan to increase revenue by $1 billion annually. Already, the Rams' move from St. Louis to Los Angeles has produced an increase in revenue for the teams in the NFL, and the same effect is expected with the movement of the Chargers, and potentially the Raiders. Some analysts have concluded that the drop in ratings and momentum for the sport because of the link between concussions and brain disease will not stop the upward financial trajectory that the NFL desires.


President-elect Donald Trump pledged to name a nominee to the United States Supreme Court "within about two weeks" of his inauguration. He indicated at a press conference at Trump Tower that he intends to choose a strong conservative to fill the seat left vacant by Justice Antonin Scalia's death. Democrats vow to put up a vigorous fight against any nominee "out of the legal mainstream," citing the Republicans' not considering the nomination of Judge Merrick Garland, who was nominated by President Barack Obama in early 2016.


HarperCollins Pulls Book by Trump Pick After Plagiarism Report

Monica Crowley's 2012 book What the (Bleep) Just Happened? was pulled from bookshelves after evidence has come to light that she may have plagiarized. President-elect Donald Trump picked Crowley to be in a high-ranking communications role in the National Security Council. Since then, it has been revealed that her book plagiarized passages from Wikipedia and newspaper articles with no attribution of credit. While plagiarism used to spell the end of a writer's career, some publishers, like Simon & Schuster, have given second chances to those who plagiarized.


Fox News Settled Sexual Harassment Cases Against Broadcast Personality Bill O'Reilly

Around July 2016, when Roger Ailes was being ousted as chairman of Fox News, company executives were also dealing with allegations that broadcaster Bill O'Reilly had sexually harassed an employee of Fox News in 2011. The employee rejected his advances, and he sought to "derail her career" afterward, according to a draft letter from her lawyers to Fox News. It is rumored that the matter settled out of court and the employee received a sum of money in the high six figures for remaining silent about his conduct. This also came at the time that Fox News was dealing with a former anchor, Gretchen Carlson, alleging that Ailes had sexually harassed her.


France Arrests 17 in Kardashian Robbery

French police arrested 17 individuals who are suspected of being involved in the robbery of Kim Kardashian West in October 2016. Under French law, police can hold suspects for four days before charging or releasing them. While information about the suspects was not entirely revealed, it is known that at least some of the suspects are older individuals who have a history in organized crime, including drug trafficking and aggravated theft. The suspects were located through DNA evidence, which was left on a necklace dropped in the street and found by a passer-by.


Norway Becomes the First Country to Start Switching Off FM Radio

Norway, as a measure to save money, ended the broadcasting of FM radio and switched all radio to digital broadcasting. Proponents of the switch say that it is beneficial, as it will result in a wider range of options for listening and superior sound quality. Others have articulated concerns, such as the risk drivers face as their cars will no longer have an emergency alert system, as they had with their FM radios. One analyst has argued that Norway is uniquely suited to eliminating FM radio and switching to digital, noting that the possibility of FM radio disappearing in the United States is very slim.


Martha Swope, 88, Photographer of Dance and Theater, Has Died

Martha Swope, a photographer revered for her compelling photographs of dancers and actors, died in New York at the age of 88. As a young amateur photographer, she photographed the directing and choreography of "West Side Story," and when Life Magazine published one of her photographs, her career blossomed. By the end of her career, she had a studio with over a million images, which she sold to Time and Life Pictures. The deal did not go smoothly. After a saga of litigation, she regained possession of her archive as a result of a settlement in 2002. In 2010, she donated her life's work to the New York Public Library for the Performing Arts at Lincoln Center.


January 6, 2017

Week in Review

By Michael Smith

Petition Seeks to Keep Painting out of Trump Inauguration

An art historian and an artist have initiated a petition calling on the St. Louis Art Museum to reverse its decision to make a painting in its collection, George Caleb Bingham's "the Verdict of the People", available for display at Donald Trump's inauguration luncheon on January 20th. As of Thursday, the petition had fewer than 2,000 signatures. The museum has said it will meet with the two women who initiated the petition.


Artist's Grandson Sues to Keep Works in Prague

In 1913, American philanthropist Charles R. Crane, who financed the creation, by Czech artist Alphonse Mucha, of a series of enormous paintings titled "Slav Epic", agreed that the works would be donated to the city of Prague on the condition that they be permanently housed in their own facility. Last month the Prague City Gallery announced that it would be lending the works to the National Art Center in Tokyo. Mucha's grandson has sued for ownership of the works to be transferred back to the Mucha estate.


Simon & Shuster Criticized for Publishing Breitbart Editor's Book

Simon & Schuster has come under attack in the Twitterverse for publishing a book by Milo Yiannopoulos, an editor of Breitbart News. Mr. Yiannopoulos, who openly delights in the public humiliation of others -- and in particular of women -- was permanently banned from Twitter for inciting his Twitter followers to bombard "Saturday Night Live" and "Ghostbusters" actor Leslie Jones with abusive tweets.


Annotated Mein Kampf Big Hit in Germany

A two-volume annotated version of Adolf Hitler's manifesto, Mein Kampf, the first edition of the book to be officially published in Germany since 1945, has sold roughly 85,000 copies and spent 35 weeks on Der Spiegel's best-seller list. The 70-year copyright in the work, which had been held by the German state of Bavaria, expired in 2015. An audiobook version narrated by David Hasselhoff is rumored to be in development.


Cowboy Receives Third Suspension for Drug Use

The National Football League (NFL) suspended Dallas Cowboys defensive end Randy Gregory for the third time this season--this time for at least a year--for violating the NFL's substance-abuse policy.


Announcer Criticized for Praising Player Who Punched a Woman

ESPN announcer Brent Musburger was on the receiving end of harsh Twittercism on Monday after he said that he hoped Oklahoma running back Joe Mixon "goes on to have a career in the National Football League." In 2014, Mixon was videotaped punching a woman in the face, breaking her jaw and cheekbone--an act for which he received a deferred prison sentence and community service. Musberger defended his statement later in the game, saying that Mixon's actions ware "brutal" and "uncalled-for," but that he hoped Musberger made the most of his second chance.


Cooperstown Considers Canonizing Jocks Who Juiced

The New York Times reports that many of the sports writers who decide who gets into the Baseball Hall of Fame in Cooperstown, NY, are reconsidering whether to keep out players who used performance-enhancing drugs. Many pointed to the recent induction of former baseball commissioner Bud Selig (by a separate committee of voters), who was widely criticized for failing to combat the use of steroids, as a justification for including the players who actually used the drugs. One of the voters, sports writer Kevin Cooney, said it would be "hypocritical to put the commissioner of the steroid era and a manager who had connections with the steroid era in and leave out the greatest pitcher and the greatest hitter of that time," referring to Barry Bonds and Roger Clemens. It is not clear whether Mr. Cooney considered whether Bonds and Clemens would have been as successful without cheating, and whether playing by the rules should be considered when evaluating a player's "greatness."


Draft Ops Loss is Good News/Bad News Situation

The good news for Emil Interactive Games LLC (Emil), operator of daily fantasy sports operator Draft Ops, is that the U.S. District Court for the District of Minnesota has declined to conclude that daily fantasy sports contests are illegal in that state. The bad news is that the court therefore rejected Emil's argument that its sponsorship agreement with National Hockey League team the Minnesota Wild is illegal and therefore void. However, the other good news is that the court declined to sanction Emil for making that argument. Yet the other bad news is that it did so because a court could still determine that Emil's conduct violated the Unlawful Internet Gambling Enforcement Act and the Illegal Gambling Business Act. A classic win/win/lose/lose situation.


vay' rIgh Hov Trek References DaH nobvam qaStaHvIS Blog Qujmey Da'ovQo' jIH (in Kingon)

On Tuesday, the U.S. District Court for the Central District of California found that an unauthorized "Star Trek" fan film was not protected by the "fair use" doctrine, paving the way for Paramount Pictures Corp. to move forward with its copyright infringement lawsuit against Axanar Productions, Inc. At the same time, the Language Creation Society has renewed its request for leave to file an amicus brief arguing that languages (specifically, the "constructed" Klingon language featured in the "Star Trek" franchise) are not copyrightable. The briefs, and the decision, are lousy with painfully forced references to the series.


Texas Sports Fans Could Find Themselves Alone in the Bathroom

On Thursday, Texas officials announced a bill that would require persons to use the bathrooms corresponding to their "biological sex." The law is similar to one passed last year in North Carolina, which triggered a backlash that included moving several major sports events out of the state. If the law passes, the 2017 Super Bowl may be the last national sporting event to be held in Texas for a while.


Federal Circuit Declines to Revisit Alice Lip-Sync Ruling

The Court of Appeals for the Federal Circuit has denied the request by Electronic Arts and other gaming companies that the court reconsider its ruling that plaintiff McRO Inc.'s lip-sync animation technology was not an abstract idea ineligible for patent protection under the Supreme Court's 2014 decision in Alice Corp. Pty Ltd. v. CLS Bank International. The defendants had argued that McRO's patent merely described an automated version of a process previously performed manually by animators, but the appellate court found that the computerized process claimed by McRO was "unconventional" and represented a technological improvement over existing animation techniques.


Ex-Manager Loses Bid to Avoid $9.35 Million Judgment on Jurisdictional Grounds

In 2012, the record companies that hold the distribution rights to songs by David Bowie, Iggy Pop, and John Mellencamp won a $9.35 million judgment against the rock stars' former manager, Anthony Defries, for distributing songs without authorization. Defries, a resident of California, filed a "Motion to Confirm that Plaintiffs do not have Personal Jurisdiction over Defendants", seeking to have the judgment vacated and declared void ab initio. The court denied the motion, stating that there was no case or controversy and that the court's authority over the matter had expired.


Record Labels Settle with Amway in "Ambush" Lawsuit

In a lawsuit filed in the U.S. District Court for the Middle District of Florida in 2014, Amway accused Sony Music Entertainment, Warner Music Group Corp., and UMG Recordings Inc. of "ambushing" Amway with infringement claims in breach of their agreement to notify Amway of infringement claims prior to filing suit. Earlier this week, the case was dismissed as part of a confidential settlement.


Court Finds No Jurisdiction Over Allegedly Infringing Label

On Wednesday, the U.S. District Court for the Northern District of Illinois dismissed claims that UMG Recordings, Inc. infringed the copyright for plaintiff Syl Johnson's 1968 song "I Feel the Urge" by using it without permission in a 1991 song "Know the Ledge." The court found that Johnson failed to establish specific jurisdiction over UMG by alleging that UMG shipped "6,194 wholesale units to third-party distributors and/or retailers with Illinois mailing addresses over the course of 16 years."


January 5, 2017

Paramount Pictures Corp. v. Axanar Productions, Inc. - "Star Trek" Copyright Infringement Case

By Cynthia Arato

Essentially on the eve of trial of a copyright infringement case against the producers of an unauthorized "prequel" to the "Star Trek" enterprise -- of which only a trailer was produced, and which was to be distributed for free -- an L.A. District Court Judge made several substantive rulings, including:

a) that the Ninth Circuit's "objective extrinsic similarity" test had been met;

b) that the Circuit's "subjective substantial similarity" test was for the jury;

c) that the character "Garth of Izar" "is entitled to copyright protection";

d) "all four factors" compel the rejection of the defendants' "fair use" defense; and

e) the issue of willfulness was for the jury.

The Order is available here: paramount.pdf

January 4, 2017

Moore v. Cognizant Tech. Solutions & Walt Disney Parks & Resorts United States, Inc.

By Michael Cataliotti

Case Update

The case against Cognizant and Disney for replacing Disney employees with H-1B workers was dismissed.

Moore filed a putative class action suit, in which she alleged that Cognizant and another contractor colluded with Disney to make false statements on the ETA Form 9035 "Labor Condition Application" when petitioning for workers to receive H-1B status. Moore further alleged that those false statements were violations of: (1) the civil RICO statute, (2) the RICO conspiracy statute, and (3) conspiracy at common law. Counts 2 and 3 were dependent upon Count 1, so the court began by evaluating the civil RICO claim.

In his analysis of Count 1, Judge Presnell concluded that the facts failed to substantiate the claim, because: (i) Cognizant's affirmations that the employment of H-1B workers would not adversely impact its U.S. workers did not pertain to Disney employees; (ii) Cognizant was not bound to certify that it would not displace U.S. workers, because the certification did not pertain to the workers petitioned by Cognizant, which Moore expressly stated in her complaint; and (iii) Cognizant was not required by law to file the other forms that allegedly contained false statements. It followed then, that without any false statements, there could be no conspiracy to make false statements (Counts 2 and 3), and the complaint was dismissed.

None of these findings are revolutionary, but we must keep an eye on future cases and developments regarding the H-1B program.


December 31, 2016

Week and Year in Review

By Eric Lanter and Michael Smith


Russians Fess Up to Systematic Doping Conspiracy

Russian officials finally admitted to the "institutional conspiracy" enacted by Russian sports officials, the staff of the drug-testing lab for the Sochi Olympics, members of the Russian Federal Security Service (FSB), and hundreds of athletes. Officials continued to deny that President Vladimir Putin and his closest advisers had knowledge of the scheme.


Prosecutors Give Gophers Second Look, No Charges

The county attorney's office for Hennepin County, Minnesota, has again declined to press charges against 10 suspended University of Minnesota football players accused of sexual assault. After declining to press charges in October due to lack of evidence, the county attorney reviewed the details of the University's investigation into the accusations, and concluded that, while the University's report "shined a light on what can only be described as deplorable behavior," there was insufficient evidence to warrant criminal charges.


Deceased Heisman Winner's Brain Won't Be Tested

The family of Rashann Salaam, who won the Heisman Trophy in 1994, refused to consent to tests that would determine whether he suffered traumatic head injury during his career playing football. The tests would have helped research into chronic traumatic encephalopathy (CTE), which is believed to contribute to depression and suicide among former athletes who suffered head trauma. Salaam shot himself to death.


Buccaneer to Enter Treatment After Drug-Use Suspension

Tampa Bay buccaneers running back Doug Martin said on Wednesday that he would enter a drug treatment program rather than appeal the four-game suspension for violating the National Football League (NFL)'s policy against using performance-enhancing drugs.


Archaeologists Employ Drones to Preserve Threatened Historical Sites

As wars, terrorists, and looters continue to devastate historical monuments and antiquities in Syria and elsewhere in the Middle East, archeologists have been using drones to take photographs of historical ruins. These images may be the only way to preserve some sites, which are being systematically destroyed by ISIS, and drones are the only safe way to obtain them. The images collected could be used to virtually reconstruct ancient structures. The Grand Palais in Paris currently is hosting an exhibition of 40,000 drone images taken at Palmyra, in Syria.


Cosby Wants New Jury Pool

Lawyers for accused rapist and former entertainer William (Bill) Henry Cosby asked the judge presiding over the upcoming criminal trial to move the trial and/or jury pool out of the county where Cosby allegedly committed the sexual assault because of "pervasive negative coverage" in local media.


DMC sues Amazon, Walmart, for Trademark Violation

Darryl McDaniels, a/k/a DMC, of the legendary hip-hop group Run-DMC, sued retailers for exploiting products bearing the Run-DMC logo that were not authorized by the group.


Playwright Sues Seuss, Says the Grinch Wasn't Stolen

Playwright Matthew Lombardo filed an action in the Southern District of New York against Dr. Seuss Enterprises, seeking a declaration that his play, "Who's Holiday!", does not infringe on "How the Grinch Stole Christmas," to which Dr. Seuss Enterprises holds the copyright. He also seeks $130,000 in damages. Lombardo's play was cancelled after Dr. Seuss Enterprises complained. Lombardo argues that elements borrowed from "How the Grinch Stole Christmas" are fair use. "Who's Holiday!" is a one-woman show featuring the Grinch's ex-wife, who was imprisoned for murdering him.


Poland Buys Private Collection to Keep it in Poland

Piotr Glinski, deputy prime minister and minister of culture of Poland, signed an agreement that will give the Polish government ownership of a collection of 250,000 historic manuscripts and documents, 86,000 museum artifacts, and 593 precious artworks (including works by da Vinci, Rembrandt, Renoir, and Durer. The $105 million purchase (the collection is estimated to be worth more than $2 billion) was part of a campaign by the Polish government to focus on national heritage.


With Artworks Stuck in Iran, Berlin Exhibition Canceled

An exhibition originally scheduled to open at the Gemaldegalerie in Berlin was postponed, and then canceled, after Iranian President Hassan Rouhani failed to sign export licenses necessary for the works to be transported from the Tehran Museum to Berlin.



Russia's Doping Program is Revealed

With Rio de Janeiro hosting the 2016 Summer Olympics and the International Olympic Committee (IOC) investigating doping, it came to light in the weeks leading up to the Olympics that Russia had engaged in an extensive doping scheme for a number of years going back to the 2008 Olympics in Beijing. Dozens of Russian athletes were banned from competing in the Rio Olympics, drawing outrage from the Russian sporting authorities and praise from European and American organizations. International sporting authorities conducted tests on samples from the 2008 Beijing Olympics and the 2012 London Olympics. Finding that a significant number of Russian athletes doped leading up to winning medals in those Olympic Games, the IOC reallocated medals, surprising athletes who had finished off the podium nearly a decade ago, only to be given their medals this year.

A Crackdown on Stolen Art

This year brought hope to those who had art stolen, even dating from Nazi Germany, as President Obama signed a piece of legislation extending the statute of limitations for individuals to bring suit seeking to reclaim the stolen artwork. In 2016, a prominent case in California became an example of how a family could have artwork stripped from it without any recourse, when a judge held that the family's inaction for a number of years precluded it from bringing suit to reclaim the stolen artwork. While this protected museums, which often can acquire notable pieces of art that were unwittingly stolen, that benefit came at the expense of families of collectors who may lack the resources of art institutions.

Sumner Redstone and Viacom Battles End

For Viacom, a battle broke out pitting Sumner Redstone and his family against the remainder of the Board of Directors. Several Directors sought to remove Redstone from the Board, arguing that he was mentally incompetent and incapable of administering his duties as a Director of the corporation. As evidence of his incapacity, the Directors called on Redstone's ex-girlfriends, who claimed he was mentally incompetent. Ultimately, Redstone and his family prevailed, agreeing to settle the matter by having the adversarial Directors resign. Redstone brought a lawsuit, claiming damages of $150 million against his ex-girlfriends. Following the resignation of the Directors from the Board, Redstone and his family installed a slate of new Directors. Near the end of 2016, Redstone announced that he was resigning his position from the Viacom Board.

NFL Grapples with Concussions and Brain Disease

In 2016, the NFL introduced a new protocol for dealing with players that potentially have sustained a concussion during the course of a football game. The NFL, headed by Commissioner Roger Goodell, has struggled to deal with the fallout coming from the frequency of concussions, which scientists have connected to the degenerative brain disease known as CTE. 2016 follows in the footsteps of previous years, with former players continuing to die seemingly as a result of CTE. To mitigate the dangers of concussions, and hopefully prevent instances of CTE, the NFL adopted protocols that require players who are suspected of a concussion to not play in a game and undergo medical procedures to determine the existence of a concussion. If teams do not comply with the new protocol, there are significant monetary penalties.

Bill Cosby's Litigation Moves Forward

Throughout 2016, the actor and comedian, Bill Cosby, was plagued with litigation from California to Pennsylvania relating to sexual assault accusations from a growing number of women. At the beginning of 2016, Cosby's attorneys argued that the cases could not move forward on the basis of the applicable statutes of limitations expiring and immunity from prosecution based on promises from one district attorney's office. As the year progressed, the judge in the Pennsylvania case determined that there was sufficient evidence for the matter to move to trial. Then, toward the end of the year, the battle for Cosby's attorneys focused on what evidence could be introduced at the trial. The trial is scheduled for June 5, 2017.

December 24, 2016

John Wiley & Sons v Kirtsaeng

By Barry Werbin

On December 21st, Judge Cote (SDNY) denied Kirtsaeng's motion for attorneys' fees following the Supreme Court's reversal of the Second Circuit's prior decision, which had affirmed the District Court's initial rejection of Kirtsaeng's motion. Following a Second Circuit mandate issued on August 26, 2016, vacating the District Court's decision in light of the Supremes' reversal, Judge Cote held that Wiley was reasonable to submit its claims and that the claims were not frivolous. Judge Cote also noted that Wiley had acted in good faith.

The Supreme Court had remanded to ensure that while substantial weight could be given to the reasonableness of Wiley's litigation position, that alone should not be dispositive, and all other relevant factors had to be considered, as articulated in the SCOTUS Fogerty and 16 Casa Duse decisions.

A copy of the decision is attached at John Wiley & Sons v. Kirtsaeng.pdf. It will be interesting to see if Kirtsaeng appeals once again.

And here is new copyright case about the Grinch:


Center for Art Law Case Law Updates

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

Mueller v. Michael Janssen Gallery, et al, 1:15-cv-04827-NRB (S.D.N.Y., 12/02/2016) On Dec. 1, 2016, District Judge Buchwald dismissed the 2014 lawsuit related to Cady Noland's artwork "Log Cabin," which the artist disavowed due to replacement of rooted wood logs. The plaintiff, the purchaser of the artwork, alleged unjust enrichment and breach of fiduciary duties against the gallery and art advisors who facilitated the sale. The dismissal provides some clues as to the business relationships between collectors and art experts. The Memorandum and Order in the case are available at https://drive.google.com/file/d/0B9yHAtGD-3ZGNjVhbllIY1RSTWkyZl94V3M3dWpRbVRpTEI0/view?mc_cid=a65515225f&mc_eid=8a2eda70d8.

McNatt v. Prince, 1:2016cv08896 (S.D.N.Y. Nov. 16, 2016) Photographer Eric McNatt sued Richard Prince, alleging copyright infringement over his use of McNatt's photo of musician Kim Gordon. Prince posted the photo on his own Instagram account and then displayed a 20 square foot screenshot of the Instagram post at a Tokyo gallery in 2015.

Statkun v. Klemens Gasser & Tanja Grunert, Inc., 1:13-cv-05570, (S.D.N.Y. Dec. 8, 2016) Tanja Grunert, former owner of the gallery Klemens Gasser & Tanja Grunert, Inc., was ordered to pay $500 for every day she ignores inquiries from contemporary artist Joseph Statkun stemming from a default judgment awarded to Statkun in 2014. Statkun alleged that Grunert violated VARA by cropping one of his paintings without authorization.

Heritage Capital v. Christie's, 3:16-cv-03404-N (N.D. Tex. Dec. 9, 2016) The plaintiff accused Christie's in federal court of copyright infringement, alleging that research, images and price information for 3 million different auction listings generated by the Dallas-based auction house were appropriated by the London-based auction house and resold as part of its own subscription database.

Banach v. Dedalus Found., 600918/2009 (Sup. Ct. N.Y. Cty. Dec. 8, 2016) J. Geoffrey D. Wright ruled for the defendant in the 2009 lawsuit brought by Joan Banach against the Daedalus Foundation, alleging gender discrimination in its discharge of her employment. The non-profit, which claimed to have fired Banach out of suspicion that she misappropriated art, counter sued to recover that art. The Supreme Court of New York County recently dismissed Banach's gender discrimination claim and denied her motion for summary judgment on Dedalus' counterclaims.

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 Eric Lanter

SiriusXM Wins New York Appeal Over Older Songs

The New York Court of Appeals sided with SiriusXM in ruling that common law did not protect the public performance of songs composed prior to 1972. The Turtles, a band popular in the 1960s, challenged SiriusXM, a satellite radio company, as its stations were playing the Turtles' songs without paying royalties. This comes just a month after SiriusXM settled a counterpart case in California, also involving the Turtles, where SiriusXM agreed to pay up to $99 million.


Prominent Antiquities Dealer Accused of Selling Stolen Artifacts

Nancy Wiener, a prominent New York art dealer, was arrested on charges that she made millions of dollars from selling stolen artifacts "by creating fraudulent documents to camouflage their history." She, along with other conspirators, are alleged to have engaged in fraudulent activity since at least 1999. Her attorney, Georges G. Lederman, reported to the New York Times that he and his client were examining the charges and would respond when appropriate.


Rutgers Football is Facing National Collegiate Athletic Association Inquiry

The National Collegiate Athletic Association (NCAA) informed Rutgers University that it is investigating potential rule violations in the football program. Allegedly, one former coach at Rutgers, Kyle Flood, took steps to ensure that an academically struggling player received extra-credit work. Additionally, it is alleged that 16 players on the football team roster were allowed to compete even when they tested positive for banned substances. This investigation comes just a year after six Rutgers football players were dismissed for suspected involvement in criminal activities.


Bob Stoops Revisits Handling of Joe Mixon's Assault Case

Bob Stoops, the coach of the Oklahoma Sooners' football team, said that if his star player Joe Mixon had punched a woman now, he would have been removed from the team (rather than taking no action, which is what occurred over two years ago, when Stoops believed that Mixon would redeem himself). Now, Stoops has said that he hopes even players at the high school level understand that discipline is necessary for such misconduct.


Russian Cyberforgers Steal Millions a Day with Fake Sites

A group of Russian cyberforgers created over 500,000 fake internet users and 250,000 fake websites so that advertisers would pay nearly $5 million a day for advertisements that were never watched on some of the web's most popular sites, including Fox News and CBS Sports. White Ops, a computer security firm, released a report announcing these findings and informed "170 advertisers, ad networks and content publishers" of the result of its investigation. The cyberforgers exploited known loopholes with advertising and devised robots to perform the tasks at a volume not previously known before.


Judge Dismisses Case Against Motherwell Foundation

A New York State Supreme Court judge in Manhattan dismissed a lawsuit where the plaintiff was a former director and curator for the Dedalus Foundation. The Dedalus Foundation represents the interests of the artist Robert Motherwell, and the plaintiff, Joan Banach, sued for wrongful termination after being accused of stealing the artist's work and selling it for her own benefit. Her lawyers said that they will appeal the court's decision.


U.S. Blacklists Alibaba Unit Over Counterfeit Sales

The United States Trade Representative announced that it was placing Alibaba's Taobao marketplace on its blacklist, for permitting the sale of fake or pirated goods. While there are no penalties that come as a direct result of being blacklisted, Alibaba has been working to shed its reputation for selling fake goods. Alibaba has responded, questioning whether the blacklisting was done as a result of factual circumstances or the political climate between China and the United States.


FBI Agent's News Leaks May Doom Federal Case

In the Southern District of New York, Judge P. Kevin Castel held a hearing in a major insider trading case involving a Las Vegas sports bettor, William Walters. The case against Walters is set to unravel, as it has come to light that a federal agent leaked confidential information to the media. The agent claimed that the leak was made solely to draw attention to the case and the dangers of insider trading. The judge expressed shock in response to the leak of information, and suggested that Walters' lawyers file a motion to dismiss the case. If the matter is dismissed, it would be a blow to Preet Bharara, who is the United States attorney for the Southern District of New York, and has an established reputation for vigorous insider trading prosecutions.


North Carolina Fails to Repeal Bathroom Law that Prompted Boycotts

North Carolina legislators went home on Wednesday after failing to repeal the state law that "prompted economic boycotts, lawsuits, political acrimony and contributed to the defeat of the Republican governor." House Bill 2, which requires transgender individuals to use a public restroom that corresponds with the gender on their birth certificate, has been a contentious law in the state. Just days before the new governor, Roy Cooper, a Democrat, is set to be sworn in, the Republican-majority legislature was unable to make any change to the law. The impetus for change comes as a result of several businesses and artists, such as the NCAA and Bruce Springsteen, have boycotted visiting North Carolina.


December 19, 2016

He Wanted to Be a Producer

By, Bennett Liebman
Government Lawyer in Residence, Albany Law School

President-elect Donald Trump on November 19th tweeted a series of complaints about how the cast of the hit musical "Hamilton" had treated Vice President-elect Mike Pence. This was hardly the President-elect's first foray onto the Great White Way. In fact, he has been involved with Broadway for over 45 years, including a brief but unsuccessful stint as an investor and associate producer in 1970.

Soon after graduating from college, the 23-year-old Trump invested in the Broadway show "Paris is Out", which opened on Broadway in the winter of 1970. "Paris Is Out" was a comedy about an elderly Jewish couple who was planning a long-anticipated trip to Europe, while simultaneously dealing with problems about their children. It starred the venerable actors Molly Picon and Sam Levene. Trump, with a $70,000 investment, financed half the production cost. The Playbill program for the show lists David Black as the producer "in association with Donald J. Trump." Trump's bio in Playbill read, "Donald J. Trump who joins Mr. Black in this production as Associate Producer is making his theatrical debut. He is in the investment and real estate business, and will be associated with Mr. Black in his new musical, W.C." ("W.C." was never made.)

While Trump allegedly was not involved in the day-to-day production of the show, the production team was extraordinarily enterprising in its approach to the show. "Paris Is Out" was not a good show. It was unlikely to be a critical success. It was likely, however, given its stars and subject matter, to appeal to a distinct crowd of Jewish senior citizens who frequented the theater. The first innovation of the production team was to reduce the role of the critics by not officially opening the show. The show went into previews on January 19, 1970, and there was not to be any opening night. Instead, the critics were invited to attend the show several weeks after it started. At that point, critics would be welcome, and tickets would be made available to them. Management would not be soliciting any reviews. The producers ran ads from alleged theatergoers, and even from critic Rex Reed, in support of their non-opening night policy.

The policy was modified after critics threatened to review the play after its first preview. The critics were urged to come to the show but only after the show had been frozen. After the Associated Press and the Newark News had reviewed the play during its first week in previews, the policy was further changed to invite the critics to attend the show from January 28th to January 31st, with reviews embargoed for publication until February 3rd. Even then, the Daily News refused to review the show.

Not unexpectedly, the reviews were dismal. George Oppenheimer in Newsday found it "embarrassingly bad" and suggested that "Paris Is Out" "is the sort of play whose situations and dialogue you whistle as you enter the theater." Clive Barnes in the New York Times found the show "pitiable" with the writing "deplorable." Walter Kerr for the New York Times added, "I simply sat there and looked at it." He found the production "professional while the play is not."

Martin Gottfried for Women's Wear Daily was probably the most venomous. He wrote, "Frankly, it is terrible - gross, thick-witted, senseless, humorless, narrow-minded, hypocritical, boring, archaic, exclusively commercial, embarrassing, short-sighted, long-winded, uneducated, uninformed, uninteresting and unsuited for anyone un-Jewish and under age 50."

In fairness, most every reviewer mentioned that the audience seemed to love the show. There were also a minimal number of critics that liked it. The Wall Street Journal found it "warmly entertaining." Undoubtedly the most favorable review appeared in the horse racing daily, The Morning Telegraph. Its reviewer Leo Mishkin found the play to be "rich and delicious and as filling as a large helping of apple strudel." A play was surely in trouble when this was its main booster.

Faced with these harsh reviews, but with a receptive audience, the production team remained steadfastly creative. In an era when almost all shows held only two matiness (Wednesday and Saturday), "Paris Is Out" became the first show to move to four matiness. It had afternoon performances on Wednesday, Thursday, Saturday and Sunday. Business appeared to pick up for a time, but sank in April of 1970. The final performance of the show was April 19, 1970. Variety claimed that it ran 96 performances with 16 previews.

The show had a brief afterlife when the actor Pat O'Brien and his wife Eloise converted the show from a Jewish family comedy into an Irish family. They toured with the show across the country on the straw hat circuit and dinner theater circuits for half a decade. However, the play has hardly been seen in the past 35 years.

Week in Review

By Michael Smith

Obama Signs Law to Aid in Recovery of Nazi-Looted Art

Last Friday, President Obama signed legislation that will extend statutes of limitations to allow heirs of those whose artwork was stolen by Nazis during World War II to sue for recovery of the art.


German Court Rules That Collection of Questionable Provenance can go to Museum

When Cornelius Gurlitt died in 2014, he bequeathed 1,500 artworks to the Museum of Fine Arts in Bern, Switzerland. His cousin, Uta Werner, challenged the bequest, arguing that Gurlitt was not mentally competent when he drew up his will. Last Thursday, a Munich court found that Gurlitt was competent, and that the works should be transferred to the museum. Even as that question is resolved, however, hundreds remain. A team of researchers continues to look into the history of all the works and has already identified 680 pieces within the collection that may have been looted by Nazis.


Dutch Court Rules That Crimean Artifacts Must Be Returned to Ukraine

In 2014, Crimean museums lent 565 artifacts to the Allard Pierson Museum in Amsterdam. After the Dutch exhibition opened, Russia annexed the Crimean peninsula. Ukraine, which considers the annexation to be a violation of international law, claims ownership over the artifacts and sued for their return to Kiev. On Wednesday, a Dutch court ruled that the works should be returned to Ukraine, but that an Ukranian court would determine the ownership of those pieces.


Facebook Tries to Compensate for Ignorance, Apathy of Users

Under fire for its role as a conduit for fake news, Facebook announced that it is taking steps to limit such misinformation by crowdsourcing fact-checking, as well as partnering with outside fact-checking organizations. Facebook also says that it will change some advertising practices to make it harder to profit from dissemination of fake news stories.


"Porn Troll" Lawyers Indicted

Paul Hansmeier and John Steele of Prenda Law were charged this week with fraud, perjury, and money laundering in connection with their scheme to extort millions of dollars through sham lawsuits. Prenda Law filed "John Doe" complaints based on the IP addresses of downloaders of pornography, obtained defendants' identities through discovery, and then extorted "settlement" payments.


Supreme Court Declines to Review National Football League Head Trauma Settlement

Last Monday, the United States Supreme Court denied a request by some retired players that it review a settlement reached between the National Football League (NFL) and former players who accused the NFL of hiding and ignoring the dangers of head trauma. The NFL is now free to begin implementing the settlement, which could involve payments of $1 billion to former players who have or develop conditions covered by the settlement.


Texas Launches Study of Brain Trauma in High School Sports

The state of Texas has began tracking two dozen high school sports to determine what can be done to better protect athletes from head trauma. The state is working with the O'Donnell Brain Institute at the University of Texas Southwestern Medical Center.


National Basketball Association and Players Reach Labor Deal

The National Basketball Association (NBA) reached an agreement in principle with the players' union, the National Basketball Players Association, on a 7-year collective bargaining agreement. The deal keeps the players' share of basketball-related income roughly the same at 51%, but expands the definition of "basketball-related income" such that the players' share will be worth hundreds of millions of dollars more. The NBA also agreed to limit back-to-back games--an acknowledgement of player concerns about the physical toll of consecutive games.


Russia Loses International Frozen Water Slide Competition

The International Bobsleigh and Skeleton Association announced that it will be removing the upcoming world championships from Russia to avoid a boycott due to reports of widespread state-sponsored doping by Russian teams, including the recently-released World Anti-Doping Agency report. A new location has yet to be announced.


Princeton Trails Harvard, Columbia Yet Again

In response to an anonymous complaint about vulgar, offensive, misogynistic, and racist materials, Princeton suspended the season of its men's swimming and diving teams. Last month, Harvard and Columbia each suspended the seasons of their men's soccer and wrestling teams, respectively, for similar behavior. Just last week, Harvard put its men's cross-country team on probation.


Gophers Show Solidarity with Accused Teammates

The University of Minnesota Golden Gophers have threatened to boycott all football activities to protest the suspensions of 10 players accused of sexual assault. The football players believe that their teammates did not receive due process, and as a result have had their names unfairly "destroyed." The University has said that it could not discuss the case, but the football coach tweeted his support for the team on Thursday.


Louisville Suspends Coach Involved in Wake Forest Scandal

Lonnie Galloway, a co-offensive coordinator for the University of Louisville Cardinals, was suspended for his failure to alert Wake Forest that he had received confidential game play information about their Deamon Deacons. Galloway received the information from Tommy Elrod, a former broadcaster for the Wake Forest Demon Deacons, who gave similar information to Virginia Tech and Army.


FBI Records Reveal Monitoring of Muhammad Ali's Involvement with Nation of Islam

Newly-released government records from 1966 show that the FBI was closely monitoring the involvement of boxer Muhammad Ali with the Nation of Islam, which is referred to in the documents as an "all-Negro, semireligious, antiwhite" organization.


New Jersey Drops Domestic Violence Charges Against Mets Pitcher

A municipal court judge in Fort Lee, New Jersey dismissed a domestic violence charge against Mets relief pitcher Jeurys Familia for lack of evidence. Familia may still face discipline from Major League Baseball (MLB) under its relatively new domestic violence policy.


Buccaneers Quarterback Settles Rape Suit

Jameis Winston, quarterback for the Tampa Bay Buccaneers, reached a settlement with Erica Kinsman, who accused Winston of raping her when they were both students at Florida State University (FSU). Winston was never prosecuted, and FSU found insufficient evidence of misconduct. Kinsman also sued FSU for violating her rights under Title IX, a suit FSU settled in the high six figures without admitting liability.


Argentine Marketing Company Fined in Soccer Bribery Scandal

Torneos y Competencias, an Argentinian sports marketing firm, agreed to pay over $112 million in penalties for bribing high-ranking FIFA officials to secure World Cup broadcast rights. The deal spares the company prosecution by the United States Department of Justice.


MLB Rookies Can No Longer Dress Up as Pretty Princesses

MLB established a new rule that would prevent players from dressing up as women during the ritual hazing of new players. The rule comes as a response to increasing complaints that some of the costumes were demeaning and offensive to women. Players can still dress up, just not in drag.


Manslaughter Conviction for Slayer of Saints' Smith

Cardell Hayes was convicted of manslaughter for fatally shooting retired New Orleans Saints football player Will Smith after their cars collided. Hayes testified that he was acting in self-defense and that Smith had a gun. This testimony appeared to conflict with Hayes' prior statements. Hayes faces 40 years in prison when he is sentenced in February.


Morehead Coach Accused of Battery Resigns

Morehead State University men's basketball coach Sean Woods resigned after two players accused him of assaulting them during a game last month. Woods is facing a misdemeanor battery charge.


Atlanta Councilwoman Proposes Restrictions on Hip-Hop Studios

Citing concerns about noise and safety, an Atlanta councilwoman has proposed beefing up the permitting process for music recording studios, requiring them to be soundproofed, and keeping them out of residential areas. The proposal met with sharp resistance from many in a city whose cultural and economic identity is increasingly tied to hip-hop.


Cosby's Lawyers Move to Exclude Accusations of Assault

Just days after losing their bid to exclude his own admission that he used drugs to aid in his pursuit of sexual encounters, Bill Cosby's lawyers asked the Pennsylvania judge presiding over Cosby's criminal trial to exclude the testimony of 13 women who have accused Cosby of sexual assault. Cosby's lawyers attacked those women's credibility and argued that their testimony was not relevant to the issue in the criminal case, namely, whether Cosby drugged and raped Andrea Constand in 2004. The district attorney argued that the testimony was admissible as evidence of a pattern of behavior consistent with the charged offense.


Redstone's Ex Sues his Daughter for Spying

Sydney Holland, who dated media mogul Sumner Redstone for five years, accused Redstone's daughter, Shari Redstone, of hiring private investigators to spy on her as part of a scheme to interfere with Mr. Redstone's plans to support her financially. Mr. Redstone sued Holland for elder abuse, claiming Holland and another ex-girlfriend tricked him into giving them money.


Fox Offers to Buy Sky

21st Century Fox, which owns a minority stake in British entertainment company Sky PLC, has formally submitted a $14.6 billion offer to purchase the remaining shares. The deal may face challenges from shareholders and regulators.


Fox News Reporter Suit Alleges Harassment by Ailes

Lidia Curanaj, a reporter for Fox 5 in New York, is the latest to accuse former Fox News chairman Roger Ailes of sexual harassment. Curanaj sued 21st Century Fox for discrimination and creating a hostile work environment. She alleges that Ailes turned her down for a job at Fox News because she would not "put out."


Warner Elevates Emmerich

Toby Emmerich has been promoted from manager at New Line Cinema to President and Chief Content Officer for Warner Bros. Pictures Group. Meanwhile, Greg Silverman will step down as President of Ccreative Development and Production for Warner Bros. Pictures.


Cerutti Ascends at Christie's

Guillaume Cerutti will replace Patricia Barbizet as Chief Executive Officer of Christie's auction house. Cerutti left Sotheby's last year to become Christie's President of Europe, Middle East, Russia and India operations.