January 16, 2018

Drafting a Lactation Break Policy to Accommodate Nursing Mothers

By Kristine A. Sova

Federal and New York law both require covered employers to provide reasonable unpaid break time to nursing mothers to express breast milk. Federal law mandates that the breaks be provided for one year following child birth, and New York law mandates that the breaks be provided for three years following child birth.

These requirements beg the question: How much lactation break time is sufficient to be considered reasonable and actually accommodate a nursing mother?

Under New York law, breaks must be a minimum of 20 minutes in duration, or a minimum of 30 minutes when the lactation room is not in close proximity to the employee's work area. However, the number and frequency of breaks needed to express milk as well as the duration of each break will vary depending on the amount of time the employee is separated from the nursing infant and the mother's physical needs.

In most circumstances, it would be reasonable for an employer to provide unpaid break time at least once every three hours if requested by the employee. With a very young infant, though, the mother may need to express milk more frequently.

Further, since the break time includes not only the time actually spent expressing milk, but also set up, clean up and storage of milk, employers should be amenable to providing breaks longer than 20 minutes (or 30 minutes, as the case may be) if the mother's needs necessitate it. For example, mothers who must spend 20 minutes expressing milk may not have sufficient time to do so with a 30-minute break once one factors in the time needed to set up, clean up and store breast milk. The total length of the break will depend on additional factors, such as:

-How long it takes for the employee to express breast milk;
-How long it takes the employee to walk to and from the lactation space and whether she needs to wait to use the space;
-Whether the employee needs to get her pump and other supplies from another location (such as a locker room);
-Whether the employee needs time to set up her pump and how long the set up takes;
-The efficiency of the pump used;
-How long it takes the employee to clean the pump and other supplies and the location of the sink she can use for this purpose; and
-How long it takes the employee to walk to and from the location where she can store her expressed milk.

January 14, 2018

Week in Review

By Leslie Berman
Edited by Elissa D. Hecker

Supreme Court Weighs Purge of Ohio Voting Rolls

The plaintiff was struck from Ohio's voting rolls after he failed to vote for a few years and did not respond to a state communique. The Justice Department previously opined that failure to vote was not a valid reason for purging a voter. However, it has now reversed that position. "The Supreme Court appeared deeply divided over whether Ohio may kick people off the voting rolls if they skip a few elections and fail to respond to a notice from state officials." Justice Sonia Sotomayor said that Ohio's approach effectively disenfranchised minority and homeless voters in the state's major cities and was part of a broader effort to suppress voting. She said that: '"All of these impediments result in large numbers of people not voting in certain parts of the state."

Yet Justices Anthony M. Kennedy and Stephen G. Breyer expressed concern about maintaining the integrity of the state's list of eligible voters. '"The reason they're purging them," Justice Kennedy said, "is they want to protect the voter rolls from people that have moved."

'The Justice Department for decades took the position that failing to vote should not lead to disenfranchisement.

'After the last presidential election, the department switched sides in the case, Husted v. A. Philip Randolph Institute, No. 16-980.

'Questioning Solicitor General Noel J. Francisco, Justice Sotomayor said that it "seems quite unusual that your office would change its position so dramatically," particularly where the new stance had "a negative impact on certain groups in this society."


President Trump's Most Recent Unpresidential Statement

Despite the Twitter bombs and counter-reportage on the usual range of topics, for sheer volume of opinionated weigh-ins, it was hard to top the story of the President's "vulgar insult to immigrants," perpetrated and reported widely over the last week, even by the newspaper of record, which printed the scatological term "shithole" for what may be the first time the word has been seen in that outlet. Not surprisingly, Trump finding pushback and outrage from many quarters, later claimed that what he said was "tough" and "not derogatory."

Across Long Island, Vulgarity Attributed to Trump Draws Denunciations

Long Island Republican Congressman Peter King, who is usually a Trump supporter, called the President's comments "wrong". Democratic Congressman Thomas Suozzi posted "Awful, Inappropriate, Unpresidential" in a social media tweet. Many others also called out the President for his racist anti-immigrant slurs. Trump apologist and Republican Lee Zeldin seemed to give the president the benefit of the doubt, saying that he isn't going "to call for the President's mouth to be washed out w soap."


However, not everyone disagreed with Trump. Some analysts see the rise of crude, dehumanizing and racist language emerging in the mainstream as a signal that racism is becoming an acceptable part of political discourse.

Trump's Immigration Remarks Outrage Many, but Others Quietly Agree

'LONDON -- The Czech president has called Muslim immigrants criminals. The head of Poland's governing party has said refugees are riddled with disease. The leader of Hungary has described migrants as a poison.

'This week, Austria's new far-right interior minister suggested "concentrating" migrants in asylum centers -- with all its obvious and odious echoes of World War II.

'So when President Trump said he did not want immigrants from "shithole" countries, there was ringing silence across broad parts of the European Union, especially in the east, and certainly no chorus of condemnation.'


Porn Star Was Reportedly Paid to Stay Quiet About Affair with Donald Trump

President Trump's lawyer allegedly made a payoff to a porn star known as Stormy Daniels, to keep her mum about her claimed pre-election affair with Trump. "A lawyer for President Trump orchestrated a $130,000 payment to a pornographic-film actress in October 2016 to prevent her from going public with claims of a consensual sexual encounter with Mr. Trump, The Wall Street Journal reported on Friday.

"The reported payment came shortly before the presidential election and as the actress, Stephanie Clifford, 38, was discussing sharing her account with ABC's "Good Morning America" and the online magazine Slate, according to interviews, notes and text messages reviewed by The New York Times.


Google Memo Author Sues, Claiming Bias Against White Conservative Men

"James Damore was fired from his engineering job at Google last year after he wrote a memo that criticized the company's diversity efforts and argued that the low number of women in engineering positions was a result of biological differences.

'Now he is suing his former employer for workplace discrimination, claiming that Google is biased against white men with conservative views.

'The lawsuit, filed Monday by Mr. Damore and another former Google employee with California Superior Court of Santa Clara County, also claims that the company uses illegal quotas in order to hire women and minorities.


H&M Apologizes for 'Monkey' Image Featuring Black Child

"The clothing retailer H&M apologized on Monday for an image appearing in its online store that showed a black child model wearing a hooded sweatshirt that said "coolest monkey in the jungle." The company removed the image on Monday and said it would also pull the shirt from its stores worldwide.

'The image was widely criticized online for its reference to a monkey, an animal that has long featured in racial and ethnic slurs. The Weeknd, a Canadian pop star of Ethiopian descent, was one of those who criticized the clothing giant, writing on Twitter that he would decline to work with the company in the future.'


The following stories of note fall into Entertainment, Arts, Sports, and Media categories:


Live Nation Settles Suit With Ticketing Start-Up, Buying Its Assets

"Two years ago, Songkick, a ticketing start-up that operated out of a loft in Brooklyn, filed an antitrust suit against Live Nation Entertainment, the colossus of the concert business.

'The David-and-Goliath suit included accusations of abuse of market power by Live Nation and its Ticketmaster subsidiary.

'But on Friday, less than two weeks before the start of a trial, Live Nation announced that it had settled the suit for $110 million and an additional undisclosed sum to acquire some of Songkick's remaining technology assets and patents."


Radiohead Denies Suing Lana Del Rey Over Copyright (but Still Wants Credit)

Warner/Chappell confirmed that it was seeking credit for Lana Del Rey's "Get Free" from her album "Lust For Life". The story refers to the '"Blurred Lines" effect: a new song accused of stealing from an old one by borrowing chords, texture or "feel," the kind of generic elements that have long been considered fair game.'


Broadway San Diego Moves to End Ties With Ben Vereen

'Broadway San Diego, a touring production group, announced that it cut ties to the actor Ben Vereen, whose name was on an awards program rewarding outstanding local high school performers. . . . 'The New York Daily News reported that multiple women were accusing Mr. Vereen of sexual misconduct connected to a 2015 community theater production of the musical "Hair" in Florida.

'"Effective immediately, Broadway San Diego is ending its association with Mr. Ben Vereen," the company said in a statement reported by The San Diego Union Tribune.'"




Purge of Kevin Spacey Gives 'All the Money in the World' a Pay Problem

"The kidnapping drama "All the Money in the World" became a new flash point in the debate over gender equality in Hollywood.

'Ridley Scott, who directed the movie, and Imperative Entertainment, the company that produced and financed it, were lauded in December for purging the disgraced actor Kevin Spacey from the film. After multiple men accused Mr. Spacey of unwanted sexual advances, the "All the Money in the World" team replaced him with Christopher Plummer and hastily reassembled much of the cast and crew in London for reshoots.

'But the movie... now finds itself embroiled in a new scandal. And it involves the reshoots made necessary by the attempt to release the movie with a clear conscience.

'The film's female star, Michelle Williams, was paid a per diem of $80, a bit above the union minimum, for 10 days of added work. Her male counterpart, Mark Wahlberg, received the same per diem -- plus $1.5 million.'


Mark Wahlberg and Agency Will Donate $2 Million to Time's Up After Outcry Over Pay

Wahlberg and his agency, William Morris, will share in the payment to Time's Up.


Cairo's Self-Appointed Lawsuit King Sues Actors, Belly Dancers, and Even Puppet Shows

In Egypt, a self-appointed watchdog of Egyptian morality files suit against entertainment figures, human and puppet, who "promote debauchery, "insult the nation" or commit other alleged offensive acts. In Egypt, an individual can sue another for these crimes, and though many of his suits are dismissed as frivolous, those that have succeeded have "stifled free speech, hobbled the arts and even swayed national politics."



The Authenticity of Modigliani Paintings Questioned Once Again

"The tormented artist Amedeo Modigliani is beloved both by art aficionados and forgers.

'Now, an art expert has written a report, leaked by the Italian news media, for state prosecutors that says a third of the works in a popular Modigliani exhibition last year in Genoa, Italy, are fakes.

'The expert, Isabella Quattrocchi, said that seven drawings and eight oil paintings by Modigliani, as well as six oil paintings attributed to his friend and sometime collaborator, Moise Kisling, were not authentic. The art works were lent by private collectors and museums in Italy, Switzerland, Israel, Argentina and the United States."

Quattrocchi said in the report that the works had been "crudely forged," "both in terms of style and pigments," according to the news agency ANSA. She also wrote that the frames came from Eastern Europe and the United States, and had little to do with Modigliani in terms of context and historical period.


Inside the Battle for Arthur Miller's Archive

Arthur Miller's literary remains have been in limbo since his death in 2005. One hundred and sixty boxes of archival materials have been at the Harry Ransom Center at the University of Texas at Austin for decades, uncatalogued and inaccessible to scholars, while other documents, including 8,000 pages of private journals, have remained at his home in rural Connecticut. Yale University tried to buy the archive, including the holdings at the Ransom Center plus 70 boxes held privately by the estate - a treasure trove containing 332 feet of material including an unpublished essay about Marilyn Monroe that Miller began writing following her death - but after a tussle, the Ransom Center paid what Yale offered, as the Texas archive asserted that it had a right of first refusal.


Charles Dutoit, Conductor Accused of Sexual Assault, Leaves Royal Philharmonic

The reckoning over sexual misconduct is international in scope, as evidenced by the departure of Royal Philharmonic artistic director and principal conductor Charles Dutoit, who was also dropped by other orchestras.

"Charles Dutoit is stepping down from his post as artistic director and principal conductor of the Royal Philharmonic Orchestra in London following accusations that he sexually assaulted several women between 1985 and 2010, the orchestra announced Tuesday.

'Mr. Dutoit, 81, had originally planned to retire from the orchestra nearly two years from now, in October 2019, when he was to be named its "honorary conductor for life."" However, after several women publicly accused him last month of sexual misconduct, the orchestra's board held an emergency meeting, consulted with Dutoit and, the orchestra said in a statement Tuesday, "together decided to bring forward his resignation" to take immediate effect.


Male Models Say That Mario Testino and Bruce Weber Sexually Exploited Them

"Fifteen current and former male models who worked with Bruce Weber, whose racy advertisements for companies like Calvin Klein and Abercrombie & Fitch helped turn him into one of the foremost commercial and fine art photographers, have described to The New York Times a pattern of what they said was unnecessary nudity and coercive sexual behavior, often during photo shoots."


The #MeToo Moment: Art Inspired by the Reckoning

Feminist political artworks have shown the state of the status of women since Judy Chicago called women together to collectively make "The Dinner Party" (which is permanently installed at the Brooklyn Museum). Two decades later, "[t]he Guerrilla Girls forced attention to the fine art world's gender and racial disparity with their gorilla masks and guerrilla-style stunts. ("Guerrilla Girls' definition of a hypocrite?" read one poster. "An art collector who buys white male art at benefits for liberal causes, but never buys art by women or artists of color."). The New York Times has collected some works by contemporary artists inspired by #MeToo.



Russian Doping

Whistleblower Grigory Rodchenkov will testify, but his life is under 'serious threat'.


After Pledging Reform, FIFA Pays Millions to Ruling Council

"Despite promises of reform and mounting losses, FIFA, world soccer's governing body, paid members of its ruling council nearly $10 million last year.

'According to three people with direct knowledge of the payments, FIFA, a nonprofit organization, paid each of the elected representatives on its 37-member council $250,000 salaries, plus tens of thousands of dollars more in travel expenses, in 2017. The people asked not to be identified because they were not authorized to disclose the information before FIFA officially releases it in March.

'That level of compensation -- for a council that is scheduled to meet only three times this year -- far exceeds payments for similar work at some of the world's largest for-profit companies. It also appears to contradict the pledges, made repeatedly by FIFA's president, Gianni Infantino, since his election in 2016, to restore the organization's credibility by implementing fiscal discipline."


Gymnast Maggie Nichols Wants 'Everyone to Know' About Larry Nassar's Abuse

"Maggie Nichols announced Tuesday that she, too, was sexually abused by the former U.S.A. Gymnastics team physician Dr. Lawrence G. Nassar, and that she was the first to report the abuse to the sport's national governing body."


He Helped Ex-Players Get Benefits, But His Family Is Still Waiting

Mike Webster's diagnosis of "chronic traumatic encephalopathy" - the degenerative brain disease linked to repeated hits to the head - has led to a substantial settlement for disability benefits, but his family might be unable to share in those funds which could be five million dollars ($5,000.000) per player. The National Football League insisted on a provision in the settlement that could prevent players who died before 2006 from receiving compensation.


Vegas Golden Knights, Named to Avoid Trademark Dispute, Face Trademark Dispute

"[The owner of the Vegas Golden Knights hockey team,] Bill Foley, is a graduate of the United States Military Academy, whose athletic teams have long competed as the Army Black Knights. Mr. Foley had initially hoped to call his new hockey team the Black Knights but encountered resistance, including some from West Point.

'So he went with Golden Knights instead -- but now, it seems, that wasn't enough.

'The Army, it turns out, has a parachute team known as the Golden Knights. And when the hockey franchise unveiled its name in November 2016, West Point officials took note, saying they were "reviewing the situation and figuring out what the way ahead would be."


Yankees Announce Details of Extended Netting at Stadium

In September, "when a toddler was severely injured when she was hit in the head by a line drive behind the third-base dugout at Yankee Stadium, left players for the Yankees and the visiting Minnesota Twins shaken, and drew widespread attention. It prompted at least five other teams to make announcements that they would add netting. The Yankees joined them on the final day of the regular season.

'On Wednesday came the details: nets that will extend nine feet above the dugout roofs and five and a half feet above the short walls that extend down the foul lines."


Tonya Harding Would Like Her Apology Now

In the wake of the new biopic, "I, Tonya," Tonya [Harding] Price is interviewed about her life before and after, and of course, about, the event for which she will forever be known - the attack on competitor figure skater Nancy Kerrigan - in which she tries to set the record straight, and to describe life after being banned forever from the national organization for professional figure skating.


New Sound at Saudi Soccer Game: Women Cheering From the Stands

In the soccer-obsessed but ultraconservative Islamic kingdom, the match between the local teams Al-Ahli and Al-Batin in Jidda was the first time that women were allowed to attend a game at a public stadium, a new step in the government's efforts to loosen gender restrictions.



Steve Bannon Steps Down From Breitbart Post

Stephen K. Bannon's fortunes having waxed him into the White House, and waning, waltzed him out just as unceremoniously, are now melting away. In extensive interviews with author Michael Wolff for Fire and Fury: Inside the Trump White House, Bannon questioned the President's fitness for office and disparaged Donald Trump, Jr., bringing down tweet storms in rebuttals that had him soon backpedaling from those statements. Yet it was only the most recent attack by the President that has caused conservatives, including Breibart funders, to abandon Bannon, leading to his decision to step down from his post as Executive Chairman of Breitbart News. SiriusXM, on which he hosted a radio program, cancelled him as well.


'Media Men' List Creator Outs Herself, Fearing That She Would Be Named

According to a tweet stream, essayist Katie Roiphe was about to expose the author of a Google spreadsheet listing "Shitty Media Men" - 70 men who were known or rumored to be sexual predators - in her upcoming story to be published in Harper's magazine in March. Although Roiphe says that she did not name the author, that rumor triggered a number of other authors of upcoming Harper's articles to pull their stories, hoping to pressure Harper's to protect the confidentiality of the author of the list. Then the author of the list outed herself in a story published online on New York magazine's website 'The Cut', with the headline "I Started the Media Men List: My Name Is Moira Donegan."



Condé Nast Crafts Rules to Protect Models From Harassment

"Prompted by the sexual harassment outcry that has enveloped fashion and other industries, Condé Nast said it began working in late October on a code of conduct that will go into effect this month...

Separately, in response to allegations of sexual harassment and abuse of power from numerous male models against the photographers Bruce Weber and Mario Testino, the media company said in a statement on Friday [January 12] that it would stop working with the two men, at least for now."


Tech Backlash Grows as Investors Press Apple to Act on Children's Use

'"A creator of the iPhone called the device "addictive." A Twitter founder said the "internet is broken." An early Facebook investor raised questions about the social network's impact on children's brains.'

'Barry Rosenstein, managing partner of Jana Partners, an investment firm that wrote an open letter to Apple this weekend pushing it to look at its products' health effects, especially on children [said that companies have a role to play to help address such issues.] "As more and more founders of the biggest tech companies are acknowledging today, the days of just throwing technology out there and washing your hands of the potential impact are over." . . . Jana, an activist hedge fund, wrote its letter with Calstrs, the California State Teachers' Retirement System, which manages the pensions of California's public-school teachers."


January 9, 2018

Copyright Registration vs Application

By Cynthia Arato

The plaintiff in Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, where the Eleventh Circuit held that a copyright plaintiff cannot get into federal court merely upon filing an application for registration, has sought cert. from the U.S. Supreme Court. The Court just called for the view of the Solicitor General on the issue.

In its petition asking for Supreme Court review, the plaintiff said that the "question presented not only recurs repeatedly in copyright infringement cases but also frequently leads to wasteful litigation... Worse, the interpretation adopted by the Eleventh Circuit can deprive the owner of a valid copyright of statutory remedies for infringement."

The defendant responded that "registration, not simply application, is necessary," and that "Petitioner asks for an end-run around that legislative judgment, an invitation the Eleventh Circuit correctly declined."

January 8, 2018

Net Neutrality Update

By Barry Skidelsky

On January 4, 2018, the Federal Communications Commission (FCC) released the formal text of its "Restoring Internet Freedom" Order, previously approved by a 3 to 2 vote along political party lines on December 14, 2017 (http://transition.fcc.gov/Daily_Releases/Daily_Business/2018/db0105/FCC-17-166A1.pdf). The 524 page tome (supplemented by statements from each of the FCC Commissioners) spells out details relating to the expected roll-back of the prior administration's net neutrality rules and policies, and it includes language obviously intended to defend against likely challenges.

In short, the FCC re-classified all broadband internet access services (BIAS) as "information" services, rather than as more heavily regulated "telecommunications" services -- regardless of whether service providers own or lease their facilities, and regardless of what technology platforms are employed, including without limit, wired (such as DSL, cable and fiber), fixed and mobile wireless (using licensed or unlicensed spectrum), and satellite services.

This de- or re- regulatory change affects, inter alia, consumers and those in entertainment who do not own or control digital distribution channels. Many fear that it enhances both the incentive and ability of vertically integrated companies to raise prices or unfairly compete.

As my recent EASL Journal article and blog post elaborate, given the absence of relevant federal legislative action, administrative and judicial challenges are likely to be made by various parties and amici -- including technology titans, such as Facebook, Amazon, Netflix, and Google (collectively, FANG), New York and other state attorney generals, and ad hoc coalitions that may be organized to address common concerns.

For more information, please contact me directly.

Barry Skidelsky is an attorney, consultant, arbitrator and mediator, who provides diverse legal and business services nationwide, focused on individuals and entities directly or indirectly involved with entertainment, media, technology and telecommunications (including inter alia lenders, investors, other lawyers and law firms). Currently co-chair of EASL's Television & Radio Committee and previous chair of the NY Chapter of the Federal Communications Bar Association (whose members' practices in part involve work before the FCC in Washington DC), Barry's background also includes being a broadcaster, bankruptcy trustee and in-house General Counsel. Contact Barry at bskidelsky@mindspring.com or 212-832-4800.

January 7, 2018

Week in Review

By Nick Crudele
Edited by Elissa D. Hecker

President Trump Disbands Voter Fraud Commission

President Trump shut down a White House commission investigating voter fraud despite what he claims is "substantial evidence of voter fraud." In a tweet following his decision, Trump called for voter identification requirements for the country's "rigged" voting system, and cited states' refusals to cooperate with the commission as the reason for its end. The President did not address the commission's inability to find any evidence of fraud.


Trump Ordered White House Lawyers to Stop Sessions Recusal

The New York Times reported that President Trump ordered White House lawyers to stop Attorney General Jeff Sessions from recusing himself from the Russia investigation. According to the newspaper, Trump expected the Attorney General to protect him like he believed Robert Kennedy protected John F. Kennedy and Eric Holder protected Barack Obama, and was furious when Sessions recused himself.


Utah's Orrin Hatch's Retirement Sets Path for Trump Critic Romney

Despite personal pleas from President Trump, Orrin Hatch, the longest serving Republican in the Senate, announced his retirement. Hatch's retirement clears the path for former Massachusetts governor and presidential candidate Mitt Romney to fill his seat. Romney, now a Utah resident, has been an outspoken critic of President Trump and could pose a significant challenge to the President's agenda, if elected.


Sessions Names New U.S. Attorneys for Manhattan and Brooklyn

Attorney General Jeff Sessions named interim U.S. Attorneys for Manhattan and Brooklyn. Sessions named Geoffrey Berman to the Southern District and Richard Donoghue to the Eastern District. The appointments last for 120 days.


Ex-Securities and Exchange Commission Official Khuzami Named interim U.S. Attorney in Manhattan

Ex-Securities and Exchange Commission (SEC) official Robert Khuzami was named as the deputy U.S. Attorney in Manhattan by interim U.S. attorney Geoffrey Berman. Khuzami led the enforcement division of the SEC for four years under the Obama administration.


Republican Senate Edge Cut After Two Democrats Sworn In

Democrats Doug Jones of Alabama and Tina Smith of Minnesota were sworn into the Senate this week. Republicans now hold a one vote majority of 51-49.


Justice Department Shift Brings Uncertainty to Legal Marijuana Industry

In what he called a "return to the rule of law," Attorney General Jeff Sessions rescinded an Obama administration policy to not interfere with state laws regarding medical and recreational marijuana use. In a statement, Sessions said that the previous guidance by the Obama administration "undermines the rule of law." In a one-page memo, Session wrote that Congress already determined that marijuana is a dangerous drug, and related activities are serious crimes and federal prosecutors should weigh the seriousness of the crime and priorities set by the Attorney General when deciding on which cases to prosecute. Despite President Trump's campaign comments that marijuana was an issue for the states, the White House said that the president supported the Justice Department's action.



Control of Virginia's House of Delegates Decided by Random Drawing

Republican David Yancey won a seat in Virginia's House of Delegates after his name was picked from a bowl. Yancey and Democrat Shelly Simonds tied in the general election. The random drawing was needed to break the tie. Yancey's win gives the Republicans a narrow control of the
state's House of Delegates. By law, Simonds can ask for a recount, She said that "all options are still on the table."


Republican Senators Formally Recommend Author of Anti-Trump Dossier for Federal Investigation

Republican Senators Chuck Grassley and Lindsey Graham formally recommended that the Justice Department and FBI investigate the author of an anti-Trump dossier. The dossier was authored by former British intelligence agent Christopher Steele, who was hired by an opposition research firm GPS for the Clinton Campaign and the Democratic National Committee. The Senators told the Justice Department that they had reason to believe Steele had lied to federal authorities investigating his contacts and information regarding the dossier.


Mail Problems Impacted the Applications of More 1,900 Immigrants

More than 1,900 immigrants' applications were wrongly rejected due to delays with the mail, according to the U.S. Citizenship and Immigration Services. Many rejected applicants have already lost their work permits, and others are scrambling to overcome the error. The immigration agency has given applicants 33 days to resubmit their renewal forms.


Notorious Ethiopian Prison to Close

The prime minister of Ethiopia announced the closing of Maekelawi prison and release of some prisoners across the country, including political prisoners.


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


Disney Deal Solves Family Problems for Murdoch

21st Century Fox's proposed sale to Disney may not only solve a business problem for Fox's Chairman Rupert Murdoch, it might also solve some family dysfunction. The Disney deal allows Fox to focus on its news holdings instead of trying to compete in the changing landscape of the entertainment industry. It also puts Murdoch's oldest son, Lachlan, co-chairman of Fox, squarely in line to take over for his father. However, Murdoch's other son James, who is the current CEO of Fox, will have to find another role at Disney or Fox, or strike out on his own.


Prominent Hollywood Women Come Together to Fight Harassment

300 of Hollywood's most prominent female actresses, agents, writers, directors, producers, and executives formed an initiative to fight sexual harassment in Hollywood and blue-collar workplaces nationwide. Called "Time's Up", the initiative includes a legal defense fund to protect less privileged women from sexual misconduct in the workplace, legislation to penalize companies that tolerate persistent harassment, and a drive for gender parity in the entertainment industry.


Gretchen Carlson to Lead Miss America Pageant

Former Fox News anchor, Miss America contestant, and outspoken opponent of sexual harassment Gretchen Carlson was picked to lead the Miss America Pageant as the organization deals with fallout from its own harassment scandal. Several executives and board members recently resigned after it was revealed that leadership derided and made misogynistic remarks towards former contestants. Carlson, who accused former Fox chairman Roger Ailes of sexual harassment.


Apology from YouTube Star for Video of Suicide Victim

YouTube star Logan Paul, who rose to fame with his juvenile and physical humor, apologized for a video he posted of a body hanging from a tree in Japan's "Suicide Forest." Amid widespread criticism, Paul released a statement apologizing to anyone who saw the video, anyone affected or touch by mental illness or depression, and the victim's family.


Hoda Kotb To Replace Matt Lauer

Hoda Kotb will replace Matt Lauer as co-anchor of NBC's "Today" show. Kotb will co-anchor the first hour of the program with Savannah Guthrie and remain co-host of the 10:00 a.m. hour of the show with Kathie Lee Gifford.


Spotify Plans To Go Public with Direct Listing

Spotify, the on-demand music service with 140 million active users, has filed paperwork with the Securities and Exchange Commission to direct list its shares on the New York Stock Exchange. A direct listing is an unusual method for a company to go public: Typically, companies undergo an initial public offering to raise money and work with underwriters to help set up and increase the value of the shares. In a direct listing, the company's shares will be transferred to the exchange without underwriting activity, and it is unclear how the market will value the shares. Based on a recent valuation in connection with a share swap between Spotify and Tencent Holdings Ltd. (China), Spotify may turn out to be one of the largest technology companies to become listed on an American exchange. If successful, other highly valued startups, such as Airbnb Inc., may follow Spotify's lead and opt for direct listing. Of concern to Spotify may be a recent string of copyright infringement lawsuits by songwriters and music publishers.


Fighting Back Wearing Black

As a show of solidarity with sexual misconduct victims, Hollywood women were asked to wear black for the Golden Globes. Some critics however, said silently posturing in black will achieve nothing; staying home would be a better gesture.


YouTube White Noise Video Hit With Copyright Claims

The creator of a 10 hour YouTube video of continuous white noise was hit with five copyright infringement claims. The video by musician Sebastian Tomczak is an indistinct electronic hissing. The claimants include publishers of sleep therapy white noise. They are not demanding the removal of the video, but want the advertising revenue.


Japanese Blackface Comedian Faces Criticism

Japanese comedian Masatoshi Hamada faces backlash for his New Year's Eve show in which he performed in blackface while attempting to imitate Eddie Murphy in "Beverly Hills Cop". Hamada appeared in a Detroit Lions football jacket, curly wig, and dark makeup. The Twitter hashtag #StopBlackfaceJapan was started by outraged viewers.



New York City Ballet Chief Retires Amid Sexual Harassment, Abuse Accusations

New York City Ballet (City Ballet) Chief Peter Martins decided to retire amid sexual harassment and physical and verbal abuse allegations. Martins, who has been on leave from City Ballet as the accusations are being investigated, has denied all such accusations. In a statement, City Ballet Chairman Charles Scharf thanked Martins for his contributions, but said the investigation into the allegations will continue.


Looted Antiques Seized From Billionaire's Home

New York investigators raided the office and home of billionaire hedge fund manager Michael Steinhardt and carried out several ancient works. The raid is part of Manhattan District Attorney Cyrus Vance Jr.'s effort to repatriate looted antiquities. Last month, Vance formed an Antiquities-Trafficking Bureau. Among the pieces seized was a fifth century Greek oil vessel worth at least $380,000 and a seventh century B.C. Proto-Corinthian figure worth about $250,000.


Columbia Photography Professor Accused of Sexual Misconduct

Thomas Roma, the director of the photography program at Columbia's School of Arts, is accused by five former students of sexual misconduct. The accusations, which mostly occurred in the 1990's, depict a pattern of sexual relationships with his students. One incident was investigated by the school in 2000, when it found both parties complicit in the incident. A statement by Roma said that he was "shocked" by the other accusations. Columbia said that it has a policy forbidding faculty-student relationships and will investigate the recent accusations against Roma.


The Met To Charge Non-New Yorkers Entrance Fee

Starting in March, the Metropolitan Museum of Art will change its longstanding admission policy of pay-what-you-wish and start charging adult out-of-towners $25. New York State residents will still be able to pay what they wish.


Public Art Project Image of Female Empowerment

A sculpture of a white neon outline of a uterus with boxing gloves in place of the ovaries outside of The Standard hotel in West Hollywood is another sign of female empowerment amid widespread sexual harassment claims. Artist Zoe Buckman hopes the sculpture "offers a completely different view of femininity" in contrast to the advertisements and billboards objectifying young women which line the Sunset Strip.


"Movie-Worthy" Heist Nets Sheikh's Jewels

In what the Italian media has dubbed a "movie-worthy heist," thieves made off with a gold brooch and earrings from an exhibit in Venice. The two thieves were able to disarm a sophisticated alarm system and steal the pieces in plain view of the closed-circuit cameras before disappearing into the crowd of tourists. The brooch and earrings belonged to a Qatari Skeikh, and are said to be worth millions of euros.


Toronto Theater Director Resigns Over Sexual Misconduct Claims

Prominent Toronto theater director Albert Schultz resigned as leader of the Soulpepper Theater Company amid allegations of sexual assault and harassment. During a news conference, four actresses claimed that Schultz harassed, groped, touch, and propositioned them repeatedly over 13 years. Four other actors, three men and one women, joined the accusers and announced that they would not work for Soulpepper until Schultz left. Schultz plans to "vigorously defend himself against the allegations."



Rich Rodriguez Fired as Arizona's Football Coach

The University of Arizona fired Rich Rodriguez as its football coach after an investigation over workplace misconduct. In October, the university conducted an investigation into sexual harassment allegations by a former athletic department employee. The accuser refused to cooperate, but the university become aware of other information during the investigation. A statement by the university explained that Rodriguez's firing was "based on several factors, including the direction and climate of our football program." The University of Arizona will pay Rodriguez $7 million as a buy-out of his contract.


FIFA Accused of Stalling Doping Inquiry Into Russia's Doping Program

Anti-doping leaders are criticizing FIFA for its failure to aggressively investigate whether Russia covered up positive doping tests of the country's top soccer players. This comes on the heels of Russia's ban from the Olympics for its doping program. With the Russia's World Cup just six months away, the U.S. Anti-Doping Agency called FIFA's inaction "exasperating". FIFA released a statement saying that "FIFA will continue its investigation."


Donovan McNabb and Eric Davis Fired By ESPN

ESPN hosts Donovan McNabb and Eric Davis were fired after a lawsuit was filed detailing sexual misconduct at NFL Network. McNabb and Davis were two players named in a lawsuit filed by former wardrobe stylist Jami Cantor. Cantor accuses McNabb of sending inappropriate text messages, lewd comments and rubbing his body against hers. She accuses Davis of asking her to have "rough sex" with him.


University of Minnesota Suspends Star Reggie Lynch Amid Sex Assault Claims

University of Minnesota basketball player Reggie Lynch was banned from playing in any games while he appeals his suspension and ban from campus over findings of sexual misconduct. The findings stem from a complaint from a woman who claimed that Lynch sexually assaulted her in April 2016. Prior to coming to Minnesota, Lynch was arrested on allegations of assault on another woman, but charges were never filed. Lynch will be allowed to practice with the team while he appeals.



Big Tech to Fight Net Neutrality Repeal

Big technology companies such as Facebook, Google, and Netflix vowed to fight the Federal Communications Commission's repeal of its net neutrality rules. The group Internet Association will use its reputation and financial clout for a legal battle seeking to block the policy.


Twitter Will Not Block World Leaders

Twitter says that it will not block or remove tweets from world leaders even if the tweets violate its rules. Twitter said censoring leaders "would hide important information people should be able to see and debate", and removing tweets would "silence that leader, but it would certainly hamper necessary discussion around their words and actions."


Vice Execs Put On Leave Over Harassment Claims

Vice Media put its president Andrew Creighton and chief digital officer Mike Germano on leave after the New York Times published an article detailing misconduct and misogyny claims at Vice and four settlements reached by the company regarding allegations of sexual harassment and defamation. Germano acknowledged and apologized for one incident, but said it was resolved internally.


L.A. Times Newsroom Cast Ballots on Unionization

L.A. Times newsroom employees began a vote on whether to unionize. The vote is believed to be the first time that journalists have held a union vote in the newspaper's 136-year history. Workers are calling for competitive salaries, equal pay for women and minorities, more generous benefits, and improved working conditions.


"The Circus" to Continue Without Halperin

Showtime's political series "The Circus" will return in April without star Mark Halperin. Halperin, who was removed from the show after allegations of sexual harassment and assault were made against him, will be replaced with CBS News anchor Alex Wagner. The show has not decided whether it will address Halperin's absence on air.


Chinese Internet Users Want More Privacy

Fueled by widespread internet fraud and personal information theft, Chinese internet users are calling for more privacy when it comes to their internet activity. Chinese culture does not emphasize personal privacy and internet companies and the Chinese government itself regularly gathers data on internet users. However, users are starting to get a sense of personal privacy. Ant Financial, an affiliate of Alibaba, apologized for automatically enrolling users in its social credit program that tracks personal relationships and behavior patterns.


Iran Authorities Block Protesters' Social Media Tools

The Iranian government blocked social media tools and internet access throughout the country in the hopes of quelling widespread anti-government protests. Social media sites such as Twitter, Facebook, and Telegram have become crucial tools for protesters to organize and share information. The government claims that social networks are "causing violence and fear." Some cybersecurity experts believe the sanctions imposed on Iran by the U.S. government has made it easier for the Iranian government to crack down on social media use by protesters because encryption tools, readily available throughout the world, are not available in Iran.


German Lawmaker Suspended from Twitter Under New Hate Speech Law

A member of the German Parliament had her Twitter account suspended under Germany's new hate speech law after she posted an anti-Muslim message. In a New Year's Eve tweet, Beatrix von Storch accused police of appeasing "barbaric gang-raping Muslims." Under the new law, social media companies can be fined up to $60 million for failing to quickly remove hate speech and fakes news posts from their sites.


New Jersey Woman Jailed In Zimbabwean For Twitter Post Freed

A New Jersey woman arrested in Zimbabwe for calling the country's president a "sick man" on Twitter was released from prison after prosecutors failed to prepare their case. Martha O'Donovan could have faced 20 years in prison for the charges of subverting the government and undermining the authority of the president.


Vienna's New Year's Baby Is Welcomed With Hate and Racism

The announcement of Vienna, Austria's "New Year's Baby" was greeted with racism and hate filled social media messages. The public announcement of the birth of babies on New Year's Day is usually met with well wishes. However, the announcement of the birth of Asel Tamga, to Muslim parents, was met with racist and hate filled social media posts. One wrote: "I'm hoping for a crib death". Another wrote: "Deport the scum immediately". The newspaper where the racist posts were made removed them and is examining whether any broke laws against hate speech.


China Tries Tibetan Businessman With Inciting Separatism

China tried Tibetan businessman Tashi Wangchuk on charges of inciting separatism, after Wangchuk appeared in a 2015 New York Times report and video documentary in which Wangchuk visited Beijing in an attempt to win support for the Tibetan language. In the video, Wangchuk said, "if one nation wants to eliminate another nation, first they need to eliminate their spoken and written language. If effect, there is a systematic slaughter of our culture." Wangchuk faces 15 years in prison if convicted.


January 4, 2018

California Decision Undercutting Copyright in Video Games

By Barry Werbin

On this stormy wintry day, what better to cheer one up than an odd decision from the CD Cal. In a December 11th decision, the court ruled on a motion to dismiss by EA based on copyright preemption tied to right of publicity claims by college athletes whose avatars appeared in Madden video games. EA argued that the case, which was filed in Cal. state court and then removed, should be dismissed based on the 9th Circuit's decision last April in Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017), holding that state law claims for right of publicity brought by student athletes was preempted under the Copyright Act (the athletes' images did not appear in advertising or marketing materials).

However, rather than granting the motion based on Maloney, this District Court, while agreeing that video games generally were copyrightable (EA held registrations for the subject games), ruled that the changing game play that was controllable by players did not meet the "fixation" test, which seems really bizarre:

Here, game play in the Madden games is dynamic, interactive, variable, and in the hands of the consumer. Plaintiffs contend the avatars allegedly representing their likenesses even have performance characteristics representing plaintiffs' own capabilities in their time as active NFL players. While recordings of actual football games are subject to copyright notwithstanding the independent actions of players during the course of the games, such recordings satisfy the requirement of copyright that the work be "fixed" in a tangible medium of expression. See Dryer v. Nat'l Football League, 814 F.3d 938, 942 (8th Cir. 2016) ("Although courts have recognized that the initial performance of a game is an 'athletic event' outside the subject matter of copyright. . . the Copyright Act specifically includes within its purview fixed recordings of such live performances."); 17 U.S.C. § 101. The Madden games, in contrast, allow game play that is not fixed in a tangible medium of expression, and part of plaintiffs' claims is that their identities are reflected in that game play. Thus, Maloney, which involved fixed photographs, does not govern here and the motion to dismiss must be denied. [Emphasis added]

Yes Maloney did involve reproductions of player photographs that could be downloaded by end users. Yet to rule that changing video game screen displays and output are not sufficiently fixed -- when whatever appears on-screen is the direct product of software and is thus limited in the visual iterations that can be displayed -- seems off base.

A copy of the decision is available here: https://dlbjbjzgnk95t.cloudfront.net/0993000/993656/https-ecf-cand-uscourts-gov-doc1-035116175407.pdf

Second Circuit Declares Business Named "Wandering Dago" Protected by Matal v. Tam

By Cynthia Arato

The Second Circuit yesterday applied Matal v. Tam to hold that a New York business entitled "Wandering Dago" could not be deprived of state benefits because of its name.

From the opening paragraphs:

Plaintiff‐appellant Wandering Dago, Inc., ("WD") operates a food truck and 3 brands itself and the food it sells with language generally viewed as ethnic slurs. Defendants‐appellees ("defendants") are officials within the New York State Office of General Services ("OGS") who played a part in twice denying WD's applications to participate as a food vendor in the Summer Outdoor Lunch Program ("Lunch Program"), an activity that is organized by OGS and takes place in Albany's Empire State Plaza annually in the summer months. WD contends that defendants violated its rights to free speech and equal protection under the United States Constitution and the New York State Constitution by denying WD's application because of its branding practices.

We conclude that the District Court erred in granting summary judgment in defendants' favor, and should instead have awarded judgment to WD. It is undisputed that defendants denied WD's applications solely because of its ethnic‐slur branding. The Supreme Court's recent decision in Matal v. Tam, 137 S. Ct. 1744 (2017), clarifies that this action amounts to viewpoint discrimination and, if not government speech or otherwise protected, is prohibited by the First Amendment. That the action violates the First Amendment leads directly to the conclusion that defendants also violated WD's equal protection rights and its rights under the New York State Constitution.

wandering dago.pdf

January 2, 2018

Week in Review

By Eric Lanter
Edited by Elissa D. Hecker

William Barber: Trump's Terrible Choice for Judge

As an op-ed contributor, William Barber argues that Thomas Alvin Farr, one of President Trump's nominees for the judiciary, is unqualified to be a judge in the United States District Court for the Eastern District of North Carolina. He is allegedly a "product of the modern white supremacist machine" that has "incited hostility toward African-Americans" in North Carolina. One campaign with which he was involved distributed over 100,000 postcards to North Carolinians suggesting that blacks were "ineligible" to vote and "could be prosecuted for fraud if they tried to cast ballots." Barber calls on senators from both parties to condemn Farr and not approve his nomination.


President Trump, the Insurgent, Breaks with 70 Years of American Foreign Policy

After a year in office, President Trump "has transformed the world's view of the United States from a reliable anchor of the liberal, rules-based international order into something more inward-looking and unpredictable." He has cozied up to the strongmen leaders in the world, including President Xi Jinping of China and President Vladimir Putin of Russia. He has confronted Kim Jong-un of North Korea, deriding him with personal insults, and denounced the nuclear deal with Iran, which many supposed was a deal likely to secure peace in the Middle East. His advisers insist that his approach is one that is fresh and is constantly being informed by the "realities of the world," but close allies like Germany, France, and Britain are left to wonder their positions of priority in the Trump era. President Trump, thus far, has not allayed those fears, instead deeming the postwar international order as "not working at all."


President Trump Says Russia Inquiry Makes U.S. 'Look Very Bad'

In an interview with The New York Times, President Trump said that the investigation by special counsel Robert S. Mueller III makes the U.S. look "very bad," given that there was no collusion between the Trump campaign (or administration) and the Russian government. He also insisted that he is entitled to direct the trajectory and scope of investigations at the Justice Department. He attempted to bolster his reputation by claiming that he knows more about "the big bills" in Congress "than any president that has ever been in office."


Alabama Certifies Doug Jones Win, Brushing Aside Challenge from Roy Moore

Officials in Alabama pushed aside Roy Moore's challenge of the U.S. Senate special election and certified its results, confirming that Doug Jones is the winner. That move was the last in seating Jones in the Senate, but the confirmation runs in contravention to Moore's claims that Jones' victory was secured with voter fraud. There is no evidence of fraud or improprieties with the Alabama election, but Moore still refuses to concede the race.


Martin Shkreli's Ex-Lawyer is Convicted of Fraud

Attorney Evan Greebel, who previously represented Martin Shkreli, a former drug company executive, was convicted of helping Shkreli to defraud a pharmaceutical company. A Brooklyn jury found him guilty of conspiracy to commit wire fraud and securities fraud, after finding that Greebel was involved in paying investors of Shkreli's hedge funds with fraudulent funds obtained through "settlement and sham consulting agreements" procured with Shkreli's pharmaceutical company Retrophin.


Australian Fake News Site Gains Popularity

Two men, known as Clancy Overell and Errol Parker, started a fake web-newspaper called the Betoota Advocate in Australia, which has become known for its satirical and provocative fake headlines. The two men started the website together, and within three months, had a readership sufficient to make the site's revenues their primary source of income. Since then, the site has consistently grown, even leading to the two men (actually named Archer Hamilton and Charles Single) to host fake press conferences with real journalists. The site has duped several real news organizations and mocked celebrities and institutions alike.


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


Songwriters, Streaming Companies Strike Landmark Deal on Music Licensing

Songwriters and music streaming companies are working together on federal legislation that would streamline the licensing and royalty process for copyright owners. The goal is to ease the burden of acquiring licenses and also to eliminate liability within the industry. The end result will likely be that streaming companies will more easily be able to license songs, and songwriters and publishers will see an increase in revenue from digital downloads and streaming.



Second Circuit Strikes Down Department Of Justice Ban on 'Fractional' Licensing

"The Second Circuit on Tuesday shot down a U.S. Department of Justice rule barring music licensing groups BMI and ASCAP from so-called fractional licensing, saying the agency must formally modify long-standing antitrust settlements if it wants to ban the practice."


BMI Wins Legal Battle with the Justice Department Over Music Licensing

BMI, a music rights organization, won in the Second Circuit Court of Appeals after a long fight against the Department of Justice (DOJ) as to the issue of licensing music. The DOJ instituted a 100% licensing rule, which requires that all owners of a song consent to its licensing, which BMI and ASCAP said would affect the Nashville songwriting model characterized by a "handful of owners" working together with organizations. The Court's ruling eliminates the requirement, but there is the potential that the DOJ appeals the decision to the United States Supreme Court.


Apple Hit with Class Action Lawsuit Over Unpaid Independent Artist Royalties

Independent songwriter Bryan Eich filed a suit against Apple Music asking for $30,000 for each song the company allegedly infringed, after Apple failed to license mechanical rights for the compositions played. Several streaming services have been the subject of lawsuits similar to this one, where it is alleged that the service did not obtain all of the mechanical licenses necessary to stream a musical work. In this case, even though Eich is not a well-known artist, it is irrelevant as the statutory damages for infringement are calculated on a per work basis. There is the potential for a class action in this suit for songwriters who have submitted material "through aggregators," which could include thousands of members in the class.



Jury Win for NYC Graffiti Artists 'Erroneous,' Court Told

"A real estate developer urged a New York federal court on Monday to reject a jury's finding that he violated an obscure federal statute when he demolished the famous New York City graffiti space known as 5Pointz, saying the court wrongly instructed the jury that whitewashing was a form of mutilation."


Clock is Ticking on $10 Million Reward in Gardner Art Heist

In 1990, thieves stole 13 works valued at $500 million dollars from the Isabella Stewart Gardner Museum, including works by Rembrandt, Vermeer, and Degas. The museum offered a $10 million award for information leading to the recovery of the works, which was set to expire on December 31, 2017 at midnight. After January 1, 2018, the reward was to be halved to $5 million. The museum, which is based in the Boston area, had determined that the criminals behind stealing the work may react to $10 million rather than $5 million as an award, but there were no significant leads as the year came to a close.



Vitaly Mutko Steps Down as Head of World Cup Organizing Committee

A top Russian official for organizing the 2018 World Cup stepped down and announced that he will be succeeded by Alexei Sorokin. His announcement comes as Russia is preparing to host the World Cup in the summer of 2018, and wants to deflect international criticism about its hosting the event. Mutko served as Russia's sports minister during the 2014 Winter Olympics in Sochi and has denied all doping allegations. While the International Olympic Committee did not accuse him of being involved in doping, his organization and Russian athletics in general demonstrated a "failure to respect" the antidoping rules.


Manuel Burga, Soccer Official From Peru, Acquitted in FIFA Trial

The former top soccer official in Peru, Manuel Burga, was acquitted in the Eastern District of New York after a trial involving three global soccer leaders accused of corruption involving bribes and kickbacks. He had been charged with racketeering conspiracy and soliciting $4.4 million in bribes, but prosecutors acknowledged that he did not collect the money, unlike others whom juries have convicted in relation to bribery and corruption.



U.S. Copyright Office Requires Reregistration of DMCA Agents

"Retailers that allow website users to generate and post content on their websites are required to reregister their Digital Millennium Copyright Act (DMCA) agents with the US Copyright Office by the end of the year in order to continue receiving protection under the DMCA's safe harbor provision."


Unions Are Gaining a Foothold at Digital Media Companies

Vox Media announced that it will form a union, joining several other digital publishers that have organized unions in recent months. Many publishers have opted to affiliate with the Writers Guild of America East, citing the likelihood of increasing wages and benefits after joining. Employees have increasingly unionized as a result of the industry having upstart sites with poor treatment of employees. Sites like BuzzFeed have avoided unionization, despite having a "liberal editorial voice."


Myanmar Court Extends Detention of Reuters Journalists

A Myanmar court has extended the detention of two Reuters journalists for two weeks, even in light of the international condemnation surrounding their detention. The journalists were covering the Rakhine State, where Rohingya Muslims have been fleeing into neighboring Bangladesh. This is not the first detention in recent weeks: two other foreign journalists, an interpreter, and driver received two months in prison for filming with a drone without permission. It is expected that those four will be released in January.


Tibetan Filmmaker Flees to U.S. After Escape from China

Dhondup Wangchen, a prominent Tibetan filmmaker, has fled to the U.S., according to his supporters. He reunited with his wife and children, who received political asylum in 2012. Wangchen gained notoriety after documenting Tibetans living under Chinese rule and police surveillance, which was released in his documentary, "Leaving Fear Behind". He was arrested and sentenced to six years in prison for "inciting subversion." Wangchen's experience is increasingly common under President Xi Jinping's rule, as activists are persecuted for revealing the Chinese government's crackdowns on human rights and "civil society."


Facebook Removes Chechen Strongman's Accounts, Raising Policy Questions

Facebook removed the Facebook and Instagram accounts of Ramzan Kadyrov, the strongman leader of the Chechen Republic, which is an autonomous region under the control of Russia. He has reportedly been involved in "acts of torture, kidnapping and murder, among other human rights abuses," and his name was added to the U.S. list of sanctioned individuals and companies. Facebook does not have a comprehensive set of rules for removing accounts of posts, relying on a set of "community standards," an algorithm, and users' reports of offensive content. The Russian government and Kadyrov are seeking answers from Facebook as to the rationale for the removal, but Kadyrov has already taken to focusing his social media use on a Russian social media platform known as VKontakte.


December 31, 2017

2017 Week in Review Highlights

Thank you to our amazing 2017 Week in Review bloggers: Tiombe Tallie Carter, Anna Stowe DeNicola, Eric Lanter, and Michael Smith.

Below are some "Best Of 2017" from our bloggers:


Soviet Soviet and South by Southwest

A spot to perform at South by Southwest (SXSW) is coveted by national bands as well as international groups. So one can imagine the anguish that members of Soviet Soviet experienced when they were deported from Seattle last March before arriving at the Austin megafestival. The three-member Italian postpunk band was booked to play at SXSW, as well as in Los Angeles and Long Beach. However, their Department of Homeland Security Visa Waiver authorizations (ESTAs) were deemed insufficient for travel. Under President Trump's newly instituted immigration enforcement, the intricacies of the Visa Waiver program proved troublesome. The trio had authorized ESTAs, in addition to an invitation from SXSW organizers, and a letter from the U.S. record label Felte Records, which is usually enough documentation to allow international bands to travel. Yet there was one small glitch. The band had stipulated on its application that its performances were promotional only, as it would be performing in the U.S. for free. Since SXSW doesn't pay bands to perform at the festival, the ESTA application was authorized. However, it was discovered that at some of Soviet Soviet's other U.S. performances, attendees would be charged. U.S. Customs and Border Patrol arrested the trio, interrogated them individually for four hours, and took them to jail without phone privileges before they were deported. This was the first prominent detainment and deportation incident affecting international performers, and illustrated the far-reaching effects of the newly minted immigration policies. Independent artists and small labels will be faced with the burden of navigating the new rules.

Fyre, Fire!

The Fyre Festival is one for the books. Many are still trying to fathom how Billy McFarland, Ja Rule, and the rest of the festival organizers thought it could work. There are fast talkers in the world of entertainment, but Frye goes beyond a typical overhyped concert. We're talking about bringing hundreds of people to an island with no potable water, sewer lines, or reasonable transportation. Six weeks before the festival was scheduled, the lauded beautiful beach was infested with sharks and swarms of sand flies. According to Chloe Gordon, an event producer, "the festival site was a development lot covered over in gravel with a few tractors scattered around...No vendors had been secured, no stages rented, no transportation was arranged...There was not enough space to build all the tents and green rooms necessary. Plus, the billed artists were complaining of not receiving their typical deposit payments." Yet the decision was made to proceed, allowing hundreds of festivalgoers to fly to the ill-prepared island of Exumas. Less than a week after, lawsuits were filed. One was by personal injury attorney John Girardi, for breach of contract, fraud, and negligent misrepresentation on behalf of festivalgoers. The first multi-million dollar class action lawsuit was filed by attorney Mark Geragos, for his client Daniel Jung. That suit accused the organizers of fraud, citing the festival's "lack of adequate food, water, shelter, and medical care created a dangerous and panicked situation among attendees--suddenly finding themselves stranded on a remote island without basic provisions." A second class action suit defined the class into three categories of harm: those who bought tickets or packages but did not attend after being made aware of the conditions, those who bought tickets and tried to go to the festival but didn't make it to Exuma because flights were canceled, and those who made it to the festival and were confined on the island for any amount of time. Finally, there is the criminal wire fraud case against McFarland for producing fake documents to induce investors. At least two investors invested $1.2 million in his companies, in addition to reports of more than 80 investors. No crisis management public relations company will be able to erase the infamous aftermath of the Fyre Festival.

Rapper Meek Mill (whose legal name is Robert Rahmeek Williams) has seen his share of legal troubles. The Philadelphian native was convicted of guns and drugs possession in 2008. After serving eight months in prison, he was placed on five years' probation. Judge Genece Brinkley, who has overseen Williams' case, sentenced the rapper to two to four years in prison due to various violations, including two arrests for an airport fight and reckless driving, plus scheduling concerts in barred locations. These types of cases are not altogether uncommon, although the sentence may be heavy-handed. However, it is atypical that the overseeing judge would request to be put in an artist's song. According to Williams' attorney, Joe Tacopina, Judge Brinkley not only asked Meek Mill to add her name to one of his songs, but also gave him unsolicited career advice on who he should hire as his manager. Tacopina is appealing the decision on Williams' behalf.

For Diehard Fans, Iran's Zumba Ban Will Not Stop Them

The Iranian government issued an edict: Zumba was illegal and contrary to Islamic precepts. The country recently went through a fitness revolution, with both men and women flocking to the gym to exercise. Women in particular were participating in group fitness classes, and Zumba quickly took off and gained a cult following. The Zumba craze highlighted the tension between leaders of Iran and its evolving middle-class. Shiite Muslim clerics codified hundreds of regulations that are meant to deter sinful activity, which they believe undermines families. Though punishment can be harsh, the laws are seldom enforced, and in many cases are tolerated as long as the "sins" are committed out of the public eye. Zumba has been taught and practiced for years in Iran, and it was a surprise to many that suddenly Sports for All Federations issued a letter stating that Zumba was not an accepted sport, and citing the ban on dancing as the basis. The instructors who have built the Zumba craze are passionate and dedicated, and despite the ban, vow to return to the gym and proceed with their scheduled classes.



Trove From Nazi Era Art Dealer To Go On Display in Bern and Bonn

In November, sister exhibits in Bern, Switzerland and Bonn, Germany will feature works from the collection of Cornelius Gurlitt, the son of a Nazi-era art dealer who had concealed a collection of 1,200 - 1,500 works in his apartment in Munich and house in Salzburg for decades. The exhibits are scheduled in the wake of a Munich court ruling that held that Gurlitt had been of sound mind when he bequeathed the collection to the Kunstmuseum Bern. No works with an unknown or incomplete provenance will be included. A German-lead task force, created after the discovery of the works, continues to investigate the provenance of the works in the collection, and along with the Kunstmuseum is committed to returning any looted works to their rightful owners.


Christo Walks Away From 'Over the River' in Protest Against President Trump

Said to be the art world's largest protest yet over President Trump, Christo announced that he will abandon the 'Over the River' project, and along with it 20 years of planning and $15 million of his own money. The project was subject to multiple lawsuits from environmentalists who claim the instillation would endanger wildlife and disrupt habitats. Despite prevailing in every lawsuit, Christo stated that since the land upon which the project was to be installed is owned by the federal government, he will walk away. The project was slated to be the largest Christo project attempted in the United States.


Gaping Gender Gap in Leadership Roles at Top Museums

The Association of Art Museum Directors released a study of gender in leadership at museums, which shows that only three out of 20 of the largest museums in the U.S. are lead by women. While that percentage is alarming, the great news is that out of all the art museums in the country, 48% of them are lead by women. At the smallest museums, the number of women leaders increases to 54%. Smaller museums lead in offering comparable salaries between genders. However, as the budget size of the museum increases, the study revealed that the gender salary gap widened. Notable among female leaders at top-tier museums is Anne Pasternak, Director of the Brooklyn Museum. She was a unique and unconventional choice to lead a large museum, not having risen through the traditional ranks. The Board and Search Committee of the Brooklyn Museum was comprised of a large percentage of women, which may explain the Board's willingness to think outside the box and hire an unconventional candidate. Generally, women who aspire to a museum directorship often enroll in curatorial leadership programs. Alumnae of these programs have been successful in securing top posts at museums across the country. The hope is that these graduates, and now museum leaders, continue to feed into the pool of executives for some of the larger posts. Of course, the most attractive opening of all is currently vacant, with many watching who will fill the role at the Metropolitan Museum of Art.


Philanthropist Agnes Gund Establishes a Criminal Justice Fund, Seed Funding From the Sale of a Lichtenstein

At an event this week at the Museum of Modern Art (MOMA), the new Art for Justice Fund was announced by Agnes Gund. Gund, a prominent arts philanthropist and president emerita of MOMA, started the fund with $100 million of the proceeds from the January sale of Lichtenstein's "Masterpiece." The sale netted $165 million and was sold specifically to start this fund, which will be administered by the Ford Foundation. Gund is hoping that the fund will inspire other arts philanthropists to follow suit - and she has challenged the philanthropic community to match her $100 million over the course of the next several years. The idea of using art collections to "advance social justice" is new in arts philanthropic circles. Already committed to the cause are Laurie M. Tisch, Kenneth and Kathryn Chenault, Jo Carole Lauder, Daniel S. Loeb, and Brooke Neidich. The Art for Justice Fund will give grants to leaders and organizations that have an established record in criminal justice reform. The inspiration for the Fund came from within Gund's family - six of her grandchildren are African-American. Michelle Alexander's book on mass incarceration of African-Americans and Ava DuVernay's documentary, "13th," inspired her to take steps to impact change in the criminal justice system. Many people, including Bryan Stevenson, founder and executive director of the Equal Justice Initiative, hope this fund will "energize" support over criminal justice reform and the role philanthropists can play in effecting change.


In a Rare Showing, Members of Venezuela's El Systema Movement Take to the Streets in Protest

Venezuela's El Systema program has been celebrated world-wide as an incredible system that has transformed the country, and has given hundreds of thousands of children the opportunity to learn an instrument and become global ambassadors. Despite years of growing unrest in Venezuela, the program and its members have maintained a neutral façade and refrain from expressing political viewpoints. However, a young violist named Armando Cañizales was recently killed in the middle of a protest, and musicians trained in the program are speaking out en masse, instruments in hands, and denouncing the increasing violence. Many people protest under cover, but others bring their instruments and play amidst the fighting. El Systema has been Venezuela's pride and joy for four decades. After the 2013 death of Venezuelan President Hugo Chavez, the country faced serious inflation and lack of basic resources that are now affecting the program, from drops in teacher salaries, to concert halls and instruments that are not properly maintained. The death of Mr. Cañizales shocked the El Systema community, which now is showing a greater willingness to take a public stand against the current Venezuelan government.


Remembering David Rockefeller's Arts Philanthropy

Besides being the head of Chase Manhattan Bank, an internationally revered businessman, a stalwart in New York black tie gala social circle, and the last surviving grandson of John D. Rockefeller, David Rockefeller was a prominent arts philanthropist with a legendary art collection of about 15,000 works. He served as Chair of the Museum of Modern Art and used his influential role in the business community to encourage corporations to purchase and display art in their buildings and offices, and to subsidize local museums. Rockefeller joined the Board of the Museum of Modern Art in 1940, replacing his mother, who had helped found the museum in the 1920s. He spent time wooing art dealers, and coordinated a syndicate to buy Gertrude Stein's modern art collection. Works from his own collection remains on permanent loan to the Museum.
In addition to his arts philanthropy, Rockefeller was a strong voice in the development of lower Manhattan. He founded and served as Chair of the Downtown-Lower Manhattan Association. He recommended the construction of the World Trade Center and established Chase's headquarters in the Wall Street area, providing financial stability and leverage to complete the World Trade Center project. When the city began defaulting on loans and bonds in the mid-1970s, he was instrumental in pulling city leaders together with federal and state officials to compose an economic plan for the city. Two presidents offered him the position of Treasury Secretary, but he turned the job down both times.

Later in his life, Rockefeller pledged a $100 million bequest to the Museum of Modern Art. Energetic until his last days, his 90th birthday celebrations included a celebrity-filled gala with a price tag of up to $90,000 for a table. More than 850 people clamored to celebrate his life and impact on New York City. His lasting philanthropic endeavors and contributions will be felt for generations to come.



In Spain, A Surprising Boost for Girls Soccer

A Spanish soccer team comprised of 13- and 14-year old girls recently clinched the championship in a league comprised mainly of boy's teams. Efforts in Spain to promote women's and girl's soccer lag behind other countries, and clubs that include girls' rosters often focus their time and resources nurturing the boys. One club, AEM Lleida, has been focusing on girls for a decade, and recently capitalized on a Spanish soccer federation rule that allows clubs to put both boys and girls at play - including mixed teams - for junior league competition. Parents were reluctant in the early years, but have united behind the effort, as they experienced the girls' success. The club believes a large part of the that success is discipline - players absorb feedback from their coaches and do what is asked of them. The club is currently raising money specifically for the coaching program, as sponsors are slow to get behind girls' and women's teams, and their success has increased female membership in the club by 25%.


Hyperandrogenism Again in the Forefront at the Court of Arbitration for Sport

In 2015, the Court of Arbitration for Sport temporarily suspended an international track and field rule that prohibited women with naturally-elevated testosterone levels from competing against other women. The rational was that it presented an unfair advantage - and in order to compete with women, they had to take hormone-suppressing drugs or have surgery to limit testosterone production. In the wake of the temporary suspension, female athletes, like Indian track and field star Dutee Chand, could compete freely and without having to undergo therapy or surgery. The International Association of Athletics Federations (IAAF), the governing body for track and field, spent the past two years compiling data about competitive advantage and naturally-elevated testosterone levels in women. Its report, due to the Court of Arbitration for Sport, shows that the competition advantage associated with elevated testosterone varies according to the event. The largest advantage was in the hammer throw, where a 4.53% advantage was shown. Other events where elevated testosterone created an advantage include the pole vault, 400-meter hurdles, and the 400-meter and 800-meter sprints. However, all were well below the 10-12% threshold generally recognized as the natural performance difference between men and women. Furthermore, the Court said in 2015 that the IAAF should reconsider its ban on women with hyperandrogenism if the advantage was found to be "well below" 12%. Experts in the 1990s suggested that women with hyperandrogenism should compete as women if they were raised as women - and that it should be considered a natural genetic advantage, like Usain Bolt's long stride or Michael Phelp's large feet. This issue, however, will continue to challenge the sports world as gender continues to become a more fluid concept with "nuanced distinctions."


Medal Reallocation Ceremonies - Attempting to Right a Wrong in Track and Field

Track and Field is riddled with doping scandals, to the point that fans and athletes are no longer shocked by doping revelations. Retroactive testing of samples, now with better technology to detect banned substances, has caused many athletes to be stripped of their medals. In an effort to make things right, the IAAF has been conducting medal reallocation ceremonies to finally recognize the achievements of those athletes who engaged in clean competition. Many athletes that are just now receiving medals described the ceremonies as "awkward and bittersweet." Athletes are grateful for the recognition, but note that the ceremonies serve as a reminder of doping's pervasiveness throughout the sport. In addition to these ceremonies serving to bring the doping conversation back to the forefront, sprinter Justin Gatlin's surprise win over Usain Bolt also sparked debate. Gatlin served two suspensions for doping violations and has been seen (perhaps unfairly) as an athlete representative of the problem. As for addressing the systemic problem, the IAAF has been firm in its resolve to address the problem and enforce suspensions.



In Effort to Wire Rural Communities, Microsoft Attempting to Harness Unused Television Channels

10 years in the making, Microsoft announced its plans to tap into "white space," or unused television channels, as a vehicle to provide Internet access to rural parts of the country that are without access to broadband service. Called "super Wi-Fi," the technology behaves like Wi-Fi but instead of using broadband technology, it uses low-powered TV channels. Super Wi-Fi is more powerful than traditional wireless access because the vehicle, TV channels, cover greater distances than wireless hot spots. It also is more powerful than cellular technology because it can penetrate concrete barriers and other obstacles. Over 24 million people in rural areas are currently without Internet access, and Microsoft believes this is an untapped market ripe for development. There are many barriers to this effort, including the current prohibitive cost of white-space technology. Devices compatible with white-space technology cost upwards of $1,000. Rural areas don't provide economies of scale to incentivize device makers to find ways to reduce costs. Microsoft has four devices it believes can be produced at a cost to consumers of $200 each. The bigger hurdle, however, may be regulatory. Microsoft is seeking approval from federal and state regulators to guarantee the use of the unused television channels. Television broadcasters are fighting back against white-space technology, which they argue causes interference with broadcasts being run on neighboring channels.


Center for Art Law Case Updates

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

Halperin v. Gfoeller, 657184/2017 (Sup. Ct. NY Cnty. Dec. 3, 2017) -- after the defendant refused to refund the sale price, a complaint was filed on behalf of an Israeli resident alleging breaches of contract and express warranty based on a 2008 sale of a painted wooden mask attributed by Juan Gris.

Catlin, The Estate of Thomas Lopresti and William Beauty v. Hogan and Christie's, Inc., 160370/2017 (Sup. Ct. NY Cnty. Nov. 21, 2017) -- The plaintiffs allege tortious activities on behalf of the defendants with regard to a unique numbered Andy Warhol screen print "Electric Chair." Whereas Hogan was a co-owner of the artwork, he consigned the work to Christie's without notifying other owners. The work was sold in May of 2006. According to the complaint, the other joint owners of the work learned of the sale in 2016.

Tobin v. The Rector, Church Wardens, and Vestrymen of Trinity Church, in the City of New York, 17 Civ. 2622 (LGS) (S.D.N.Y. Nov. 14, 2017) -- J.Schofield dismissed the Visual Arts Rights Act (VARA) violation complaint brought by an artist against the Trinity Church and others, because in 2004 the artist transferred all of his rights, including copyright in the contested work, to Trinity. The court found that "simply relocating The Trinity Root does not by itself constitute distortion, mutilation or modification under VARA." As to the site-specific nature of the art, the court applied the 7th Circuit decision in Kelly v. Chicago Park Dist., 635 F.3d 290 (2011) to find that unless gross negligence can be established site-specific work is not protected under VARA.

Chowaika & Co. Fine Arts Ltd., Case No. 17-13228 (MKV) [Carpenter Fine Violins and Collectibles, LLC v. Ezra Chowaiki and David E.R. Danger, 65929/2017 (Sup. Ct. NY Cnty. Nov. 15, 2017), RH9 Group, LLC et al v. Chowaiki, 656930/2017, Sup. Ct. NY Cnty. Nov. 15, 2017, Leser v. Chowaiki & Co. Fine Art Ltd. et al, 656870/2017 (Sup. Ct. NY Cnty Nov. 12, 2017)]
Three lawsuits filed agains Chowaiki & Co. Fine Art corporation have precipitated the filing for bankruptcy by the private gallery and art advisory service founded in 2004 by Ezra Chowaiki, who is now accused of defrauding clients. The cases are stayed pending the U.S. Bankruptcy Court for SDNY decision.

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

Berkshire Museum Lawsuits: Two groups of plaintiffs -- members and heirs of Norman Rockwell -- filed two lawsuits in an attempt to enjoin the deaccessioning of 50 artworks in a planned November 13th Sotheby's auction. The heirs of Norman Rockwell filed a complaint arguing that the deaccession "violates the museum's establishing statute, promises made to donors and the fiduciary obligations of its trustees." The Massachusetts Attorney General, Maura Healey, supported the Rockwell plaintiffs in a filing. The second complaint, brought by members of the Museum, argues that the museum reneged on its obligations to its supporters by putting the works up for auction. The theory is that because, under Massachusetts law, members of a nonprofit are treated like shareholders in a corporation, the relationship between the corporation and its governing charters and bylaws must be treated like a contract. A hearing was held on November 1, 2017. The Court denied the request for an injunction, allowing the planned November 13th sale to proceed.

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

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

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.