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November 2011 Archives

November 2, 2011

THE USGA AND R&A ANNOUNCE CHANGES TO THE RULES OF GOLF IN RESPONSE TO FRUSTRATING RULES-RELATED INCIDENTS

WILL THE PGA FOLLOW SUIT AND REVISE THE INFAMOUS LOCAL RULE AT WHISTLING STRAITS?

By Brian Pelanda

The United States Golf Association (USGA) and the R&A, golf's international governing bodies, recently announced significant changes to the Rules of Golf beginning in 2012. A few of these revisions address certain provisions at the heart of several unfortunate incidents at professional golf tournaments in recent years. The question now is whether the PGA will follow suit and revise the unpalatable Local Rule on bunkers at Whistling Straits that fostered the unidentifiable-bunker-scenario that cost Dustin Johnson the opportunity to contend in a playoff at the 2010 PGA Championship (for more information, see "What's A Bunker?: The Curious Case of How Dustin Johnson Lost the 92nd PGA Championship and Why the PGA Must Revise the Now Infamous Local Rule at Whistling Straits" that will be published in the Fall/Winter EASL Journal).

I. THE REVISED RULES OF GOLF FOR 2012

Under the new Rules, a golfer will thankfully no longer be penalized if the wind or other natural circumstance causes his or her ball to move after he or she has addressed it. Rule 18-2b currently penalizes a player one stroke if his or her ball moves after addressing it, regardless of cause. In recent years, several professionals have suffered under this harsh and unreasonable rule in major championships: Fredrik Jacobson at the 2008 British Open, Padraig Harrington at the 2009 Masters, and Rory McIlroy at the 2011 British Open. Webb Simpson also took a Rule 18-2b penalty on the chin at the 2011 Zurich Classic. As Simpson held the outright lead during the final round and lined up for his par putt on the 15th hole, gusting winds caused his ball to move; the resulting penalty forced him into a playoff with Bubba Watson that he ultimately lost.

The revised Rule 18-2b now contains an exception that exonerates a player from penalty if his ball moves after it has been addressed when "it is known or virtually certain that he did not cause the ball to move." Although this much needed change in the Rules has come too late for some, it is better late than never.

Another one of the upcoming changes in the Rules remedies the rare and ridiculous circumstance under the text of Rule 13-4, in which a player could be penalized for raking a bunker that he or she walked through in the course of making one stroke, prior to making the next stroke if his or her ball on that next stroke currently lies in another bunker. This rule victimized Stewart Cink at the 2008 Zurich Classic. Cink's drive on the 15th hole during the third round landed near, but not in, a fairway bunker, and as he surveyed the scene for his second shot he walked through that bunker. He took his second shot, and his ball landed in a greenside bunker. Before moving on to take his third shot from the greenside bunker, adhering to common golf etiquette, his caddie raked the fairway bunker through which Cink had walked in preparation for his second shot. This violated Rule 13-4a's prohibition on "test[ing] the condition of the hazard or any similar hazard" when the player's ball currently lies in a hazard.

As Cink didn't realize that what he had done violated the Rules until the following day, he was unable to add the two-stroke penalty to his score and he was thus disqualified from the tournament under Rule 6-6b for signing and returning an incorrect score card.

The newly revised version of Rule 13-4 now "permit[s] a player to smooth sand or soil in a hazard at any time, including before playing from that hazard, provided it is for the sole purpose of caring for the course and Rule 13-2 [a player must not improve the position or lie of his or her ball] is not breached."

The USGA and R&A also revised several other provisions in the Rules for 2012. Both of the new revisions to the Rules discussed above attempt to remedy unreasonable results that have occurred under the current Rules in recent years at professional golf tournaments. The governing bodies essentially acknowledged that there were problems, considered solutions, and revised the Rules accordingly. The PGA should do the same in response to the controversy that came to fore over the Local Rule on bunkers at Whistling Straits during the 2010 PGA Championship.

II. THE PGA SHOULD FOLLOW SUIT AND REVISE
THE INFAMOUS LOCAL RULE AT WHISTLING STRAITS

During the final round of the 2010 PGA Championship at Whistling Straits, Dustin Johnson incurred a fatal 2-stroke penalty on his final hole pursuant to an ambiguously worded Local Rule on the play of bunkers that knocked him out of a tie for the lead and an opportunity to compete in a three-way playoff with Bubba Watson and Martin Kaymer. Johnson incurred the penalty under Rule 13-4 for grounding his club while his ball allegedly lay in a bunker on his second shot--even though it never occurred to him that his ball was ever in a bunker. The unique condition of the Whistling Straits course contributed to his confusion. Although the location of Johnson's second shot didn't appear to be a bunker at all, the officials determined that the Local Rule established that the area in question was in fact a bunker.

The controversial Local Rule stated that: "All areas of the course that were designed and built as sand bunkers will be played as bunkers (hazards), whether or not they have been raked." Course officials had allowed thousands of tournament patrons to traipse through and stand in the questionable area all week, without maintaining the appearance of the area as a bunker. While the Rules of Golf require a bunker to be (1) a prepared area of ground, (2) from which turf or soil has been removed, and (3) replaced with sand or the like, the Local Rule impermissibly redefined a bunker as being any area that was merely "designed and built" as a sand bunker, regardless of its present condition.

Under the language of the Local Rule, it's easy to imagine an unidentifiable bunker-scenario where the course architect supposedly had "designed and built" an area on the course to be a bunker, but the turf or soil from that area has since returned, or the sand has vanished--things that are more than likely to happen with thousands of spectators trampling through it over a six-day period and when the bunker itself isn't maintained by the grounds crew.

The Local Rule essentially requires players to have an intimate knowledge of the architectural plans for Whistling Straits, a course that was built more than a decade ago and boasts that it has more than 1,000 bunkers, most of which are unmaintained.

Even if we were to presume for the moment that holding players responsible for being familiar with the course's architectural plans would be fair, we can't reasonably apply such a presumption in Dustin Johnson's case, because tournament officials actually admitted after the incident that the reason they didn't provide players with a map of all the existing bunkers on the course was precisely because no such map even exists, primarily due to the fact that not all of them can be readily identified. Among other things, this point raises the troubling question as to how the tournament officials were thus ever able to conclusively determine whether Dustin Johnson actually was in an area that was "designed and built" as a bunker when he took his second shot on the 18th hole, but we've just been left to take their word for it.

Despite the controversy that ensued and the apparent impermissible contradiction between the Local Rule and the definition of a bunker under Rules of Golf, the PGA has nevertheless stated that it plans to maintain the Local Rule at Whistling Straits for future tournaments, such as when the PGA Championship returns there in 2015, and when it hosts the Ryder Cup there in 2020.

Dustin Johnson's confusing penalization under the Local Rule was unfortunate. The Local Rule deprived him of a chance to win the tournament in a playoff, and it deprived Martin Kaymer from a major championship victory untainted by controversy. For the sake of fairness and to prevent another leaderboard-altering bunker blunder, the PGA must change the now infamous Local Rule at Whistling Straits.

As mentioned above, for an in-depth analysis of the Local Rule and other rules at issue in the controversy at the 2010 PGA Championship, see my article "What's a 'Bunker'?" in the Fall/Winter issue of the Entertainment, Arts and Sports Law Journal. Please feel free to send me your thoughts at bpelanda@gmail.com.

November 7, 2011

IF YOU SUE ME, YOU'RE OUT OF YOUR MIND - COPYRIGHT AND MORAL RIGHTS ISSUES SURROUNDING BEYONCÉ'S "COUNTDOWN" VIDEO

By Merlyne Jean-Louis

On October 6, 2011, the video for "Countdown," an upbeat single from the fourth studio album of Beyoncé Knowles (known mononymously as Beyoncé), premiered on MTV. The scenes in the video contained several pop culture references, including Funny Face and West Side Story, and displayed Beyoncé pregnant with her first child (See http://www.youtube.com/watch?v=2XY3AvVgDns). The video immediately sparked controversy because it featured several dance sequences that strikingly resembled choreography from "Rosas danst Santas" and "Achterland," two choreographic works of Belgian contemporary choreographer Anna Teresa De Keersmaeker. (See http://www.youtube.com/watch?v=3HaWxhbhH4c) (video comparing the dance sequences).) Beyoncé stated that she was inspired by the works and thus they were "used to bring the feel and look of ['Countdown'] to life." However, De Keersmaeker commented although she was neither angered nor honored by Beyoncé and her team's appropriation, De Keersmaeker felt they should have been aware of the "protocols and consequences to such actions." (See http://pitchfork.com/news/44269-Beyoncé-accused-of-ripping-off-belgian-choreographer-for-countdown-video/.) To which protocols and consequences did De Keersmaeker refer?

Protection of Moral Rights

If De Keersmaeker desired to simply be asked permission for use of her pieces, then she was probably concerned about her moral rights. Article 6bis of the Berne Convention, a long standing international treaty governing copyright to which the United States is party, provides that any author of a work possesses two moral rights: the right of attribution ("the right to claim authorship of the work") and the right of integrity ("the right . . . to object to any distortion, mutilation, or other modification of [the] work that would harm the author's honor or reputation.") (Berne Convention for the Protection of Literary and Artistic Works, Art. 6bis, Sept. 9, 1886, as revised at Paris, July 24, 1971.) These rights mirror the customary practices of the dance world, where parties ask permission to use the work of a choreographer, who in turn often demands formal artistic credit and the right to have a final say on the presentation of the work. Since the movement in the "Countdown" video could arguably be a distortion of De Keersmaeker's work, De Keersmaeker probably has a valid moral rights claim. However, treaties are non self executing in the United States, which means that the treaty provisions require the implementation of legislation to be valid. The only American federal act promulgated pursuant to Article 6bis is the Visual Artists Rights Act (VARA), which only protects the moral rights of creators of visual art works. (See 17 U.S.C. § 106A.) However, because of supplemental jurisdiction, if De Keersmaeker brought another type of federal claim in a federal court located in a state that had statutes that granted standing to foreigners to enforce their moral rights, then De Keersmaeker could possibly sue under state law for moral right protection. (See 28 U.S.C. 1367.) Thus, if interested, De Keersmaeker may be able to successfully bring a federal moral rights claim against Beyoncé or her team under American law.

Infringement of Copyright

If De Keersmaeker was concerned about the economic value of her works, then she was probably concerned about copyright protection. As her home country of Belgium is a party to several copyright treaties to which the United States is also a party, her work could theoretically be protected in the United States. (See Points of Attachment, International Copyright and Law and Practice, Paul E. Geller and Melville B. Nimmer, 2011, Matthew Bender & Company, Section 6[1][a]; 17 U.S.C. §104 (discussing copyright protection of works of authors of national origin).) Since De Keersmaeker is a foreigner and the alleged infringers would presumably be American, if she claimed a relief of at least $75,000 in damages, a federal court would have subject matter jurisdiction to hear her case if she initiated a copyright infringement action. (See 28 U.S.C. §1332(a)(2) (granting federal jurisdiction over cases between a U.S. citizen and a non-U.S. citizen).)

De Keersmaeker could set forth several claims of infringement of the copyright of her works. The first claim would be based on the holding in Horgan v. Macmillan, Inc., and would be related to De Keersmaeker's exclusive reproduction rights. In this case, the Second Circuit left open the possibility for a book containing still photographs of the production of legendary choreographer George Balanchine's Nutcracker Ballet to be an infringing "copy of Balanchine's copyrighted work because it portray[ed] the essence of the Balanchine Nutcracker." (Horgan v. Macmillan, Inc., 789 F.2d 157, 161 (2d Cir. 1986).) (See also 17 U.S.C. § 106 (1) ("[T]he owner of copyright . . . has the exclusive right[] . . . to reproduce the copyrighted work in copies.").) The court held that the lower court, in determining whether the right to reproduce has been infringed, had to determine whether the alleged infringing photos were substantially similar to the original choreography (not whether the original choreography could be recreated from the allegedly infringing copy, as the lower court had done before the appeal). (See Horgan, 789 F.2d at 162.) Since the parties settled however, the lower court never applied this test. Nonetheless, Horgan's odd holding (which, to the chagrin of the dance world, inferred that something besides actual movement could theoretically infringe the copyright of a choreographic work) is still law. Thus, if the actual physical film of "Countdown" was considered to embody the copy of De Keersmaeker's works, De Keersmaeker could argue that the creation of the film infringed upon her right to reproduce her works.

De Keersmaeker's second claim could set forth two arguments relating to her exclusive right of public performance. (See 17 U.S.C. §101 (defining "to perform...a work 'publicly'" as "to perform. . . at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family. . ."); §106(4) (enumerating exclusive public performance rights related to choreographic works).) The first argument is that the dancers (including Beyoncé) in the video infringed De Keersmaeker's right to publicly perform her works. For example, in one approximate 20 second sequence, Beyoncé and other background dancers perform the exact movement from a portion of "Rosas danst Santas." In another sequence, Beyoncé and the dancers perform only one movement (the shaking of hips and legs) from "Achterland." Thus, the main question that should be asked is how many dance moves or how much dance movement must be performed to constitute infringement of the right to publicly perform a work.

The second argument related to public performance is that broadcasters of the "Countdown" video, including MTV and Google (owner of YouTube), transmitted a public performance of De Keersmaeker's works. (See 17 U.S.C. §101 (defining "to perform . . . a work 'publicly'" as "to transmit . . . a performance . . . to the public, by means of any device or process . . .").) This argument could also simultaneously be set forth as a separate third claim of infringement of De Keersmaeker's exclusive right to display her works. (See 17 U.S.C. § 101 (defining "to display a work 'publicly' as "to display [work] at a place open to the public" or "to transmit . . . a . . . display of [a] work . . . to the public . . ."); §106(5) (enumerating exclusive display rights related to choreographic works).)

As portions of De Keersmaeker's works were performed in the video, De Keersmaeker's could set forth a further claim of infringement based on her right to create derivative works. (See 17 U.S.C §101 (defining "derivative work" as "a work based upon one or more preexisting works . . ."); 17 U.S.C. 106(2) (enumerating the derivative works right for all authors).)

Potential Defenses

There are several defenses to De Keersmaeker's claims. First, the alleged infringer (whether it be Beyoncé, a dancer, or a broadcaster) could argue that De Keersmaeker's works do not meet the United States originality requirement. (See 17 U.S.C. 102 ("Copyright protection subsists . . . in original works of authorship . . . ); Feist Publ'n v. Rural Tel. Servs., 499 U.S. 340, 345 (stating that "original" in the Copyright Act means "that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.").) The sitting court may strike down this defense because De Keersmaeker's works clearly possessed "a modicum of creativity." (Feist, 499 U.S. at 346.) However, choreographers must use dancers to create their works. Does that satisfy the "independent creation" portion of the Feist test? Second, the alleged infringers could attack each of the De Keersmaeker's claims of infringement by stating that the defendants did not engage in the activity for which they are accused. For example, with regards to the public performance claim against Google, Google could argue that it did not display or transmit the works because on the Internet, the only place to see YouTube videos, a viewer would have to take proactive steps to download and view the "Countdown" video. Thus, the viewer would actually be considered to be the infringer. In any event, the DMCA would likely preclude Google's liability, as it is an Internet Service Provider with a Registered Agent, and therefore qualifies for the Safe Harbor provisions. However, MTV would not be able to make this argument if it transmitted the "Countdown" video via television, because videos are transmitted without the requirement of viewers' involvement. Third, the infringers could argue that De Keersmaeker does not have standing to bring the case because the works are not registered under the Copyright Act. (See 17 U.S.C. §411 ("[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim . . .") (emphasis added).) However, as emphasized in the previous citation, this requirement only applies to works of American authors. Furthermore, presuming that De Keersmaeker is the legal owner of the copyright of her works under American law, she has the right to commence an action of her exclusive rights. (See 17 U.S.C. §501(b).)

"If You Sue Me...You're Out of Your Mind"

While the pulse of the dance world is the dancer, the heartbeat that sustains its life is the choreographer. Although there is current explicit copyright protection of choreographic works in America, it is believed that most choreographers do not utilize it. However, it should be noted that the Beyonce's song "Countdown" contains a sample of a countdown from the song "Uhhh Huh" by 90's boy group Boyz-2-Men. (http://www.youtube.com/watch?v=ci8hWx4CR-k). This approximate 10 second sample was sufficient to give the original members of the group songwriting credit, and thus, copyright protection. As a former semi-professional dancer and diehard Beyoncé fan, I find it disappointing that Beyoncé and her team did not follow dance cultural norms and simply ask De Keersmaeker for permission to use her works. However, if credit and recognition is all that De Keersmaeker sought, the use of her works in "Countdown" ironically brought her exactly that - everyone will now know De Keersmaeker's works because the internationally-recognized Beyoncé exposed them to the entire world. If that is the case, it would not make sense for De Keersmaeker to initiate any infringement claim, although the same cannot be said for a moral rights action.


Note: De Keersmaeker could possibly set forth her claims under Belgian law. "If you sue me...you're out of your mind" is a reference to the lyrics of "Countdown."

Merlyne Jean-Louis is a third-year law student at Duke University School of Law. Merlyne trained briefly in ballet, contemporary, and tap dance and specializes in hip-hop and and African dance. If you have any questions or thoughts, please e-mail Merlyne at mjeanlouis32@gmail.com.

November 10, 2011

The Next Chapter in CBS Corp. v FCC

By Nili Wexler

CBS won another battle with the Federal Communications Commission (FCC) regarding a 2004 indecency claim. A panel of three judges in the Third Circuit Court of Appeals ruled last week that the fine imposed on CBS by the FCC for the infamous Janet Jackson "wardrobe malfunction" at the 2004 Super Bowl was inappropriate. (CBS Corp. v. F.C.C., No. 06-375 (3rd Cir. Nov. 2, 2011))

During the 2004 Super Bowl halftime performance by Justin Timberlake and Janet Jackson, Mr. Timberlake pulled down a part of Ms. Jackson's costume, which revealed a portion of her breast for nine-sixteenths of a second. In response to the incident, the FCC fined each of 20 CBS-owned television stations with the maximum penalty of $27,500, resulting in a cumulative fine of $550,000. (http://www.cbsnews.com/stories/2004/07/01/entertainment/main626925.shtml)
CBS appealed the FCC decision, and in 2008 the Third Circuit ruled in favor of CBS in F.C.C v. CBS Corp. (535 F.3d 167 (3rd Cir. 2008)) Subsequently, the Supreme Court ordered a review of the case after it found in an unrelated matter that the FCC was permitted to exercise its enforcement powers to regulate unscripted indecency. (http://idolator.com/6065022/janet-jackson-cbs-super-bowl-wardrobe-malfunction-appeals-case)

The Third Circuit Court's Decision

The court based its decision on prior FCC rulings that were incompatible with the FCC's decision regarding the Super Bowl incident, and ruled that the action against CBS was an inappropriate deviation from the FCC's own policies. "We again set forth our reasoning and conclusion that the FCC failed to acknowledge that its order in this case reflected a policy change and improperly imposed a penalty on CBS for violating a previously unannounced policy." The court claimed that the FCC had acted "arbitrarily and capriciously" in doing so. (CBS Corp. v. F.C.C., No. 06-375 (3rd Cir. Nov. 2, 2011))

Reactions to the Decision

In reaction to the Third Circuit's decision, a CBS spokesman commented, "We are gratified that once again the court has ruled in our favor. We are hopeful that this will help lead the FCC to return to the policy of restrained indecency enforcement it followed for decades." (http://latimesblogs.latimes.com/entertainmentnewsbuzz/2011/11/cbs-wins-again-over-fcc-in-janet-jackson-case.html)

An FCC spokesman who was disappointed with the ruling commented that the FCC would continue to "use all of the authority at its disposal to ensure that the nation's broadcasters fulfill the public interest responsibilities that accompany their use of the public airwaves." (http://latimesblogs.latimes.com/entertainmentnewsbuzz/2011/11/cbs-wins-again-over-fcc-in-janet-jackson-case.html). The FCC is reviewing whether it will appeal the ruling, and if so whether it will appeal to the Third Circuit or the Supreme Court.

Family advocacy groups were outraged over the decision, calling it a "sucker punch to families everywhere" and asking, "[h]ow can nudity and a striptease in front of ninety million unsuspecting TV viewers not qualify as indecency?" (http://www.cnn.com/2011/11/02/justice/cbs-wardrobe-malfunction/)

Constitutionality Issues in FCC Enforcement

The decision in F.C.C. v. CBS hinged specifically on the FCC's ruling from an administrative law perspective, and did not address whether the FCC's enforcement policy was unconstitutional.

However, in another FCC case involving Fox Television (Fox), the Second Circuit questioned the constitutionality of the FCC's enforcement policies. The instances at issue involved two live broadcasts of Fox's Billboard Music awards. In 2002, musician Cher used profanity while accepting an award, and in 2003 Nicole Richie uttered profanities while presenting an award. The FCC issued notices of liability for indecency to the network, though it levied no fines. (http://lawprofessors.typepad.com/firstamendment/2008/03/cert-granted-fc.html) The appeals court ruled that the FCC's new policy against "fleeting expletives" was "arbitrary and capricious" for "failing to articulate a reasoned basis for its change in policy" and vacated the FCC's order. (Fox Television Stations, Inc. v. F.C.C., 489 F.3d 444 (2nd Cir. 2007))

The FCC appealed the Second Circuit's decision, and in June of this year the Supreme Court agreed to hear the case. It is expected to rule on the issue in 2012. Justice Sotomayor, who formerly served on the Second Circuit, has recused herself from the hearing. (http://www.nytimes.com/2011/06/28/business/media/28fcc.html?_r=1) The Supreme Court will limit its consideration to "whether the Federal Communications Commission's current indecency enforcement regime violates the First or Fifth Amendment to the United States Constitution." (F.C.C. v. Fox Television Stations, Inc., 613 F.3d 317 (2nd Cir. 2007), cert. granted, 79 U.S.L.W. 3629 (U.S. June 27, 2011) (No.10-1293))


The Demise of Righthaven Litigations May Finally Have Arrived

By Joel L. Hecker

Most of you are probably familiar with the saga of the litigations brought by Righthaven, LLC, a Nevada limited liability company wherein Righthaven filed in excess of 250 lawsuits for copyright infringement with many of them being brought in the United States District Court, District of Nevada.

The business model for Righthaven was to acquire certain rights from its affiliate, Stephens Media, LLC, which owns the Las Vegas Review-Journal, a newspaper located in Nevada. Righthaven then would basically commence copyright infringement litigation against website owners and others, accusing them of copyright infringement in connection with alleged improper uses of the news articles first appearing in the Las Vegas Review-Journal.

The lawsuits were usually commenced without any previous contact or attempt to negotiate a cease and desist of the allegedly infringing material. Many of the cases were immediately settled because of the cost to defendants in opposing them. This business model has been called nothing less than a blatant money-making venture and not a legitimate attempt at copyright protection. It has acquired the perhaps unflattering nickname of "copyright troll suits".

The judges in the District Court of Nevada in effect finally put a stop to Righthaven's activities by first questioning the legitimacy of Righthaven's claim of copyright ownership and by ruling in the few cases that were actually litigated that the uses in such cases were in fact fair uses.

On November 1, 2011, in what may be one of the final acts in this Righthaven saga, pursuant to an order in Righthaven LLC v. Wayne Hoehn, case number 2:11-cv-00050, of the District Court of Nevada, the clerk of the court issued a writ of execution against Righthaven in the sum of $63,720.80. This writ was issued on a motion of Mr. Hoehn, who successfully defended the case resulting in a decision that use of a newspaper article in his blog was, in fact, a fair use of the material and, in addition and perhaps more important, that Righthaven never owned the underlying copyright in the first place and therefore lacked standing to bring the action.

In another case in Nevada which Righthaven lost, the court assessed a substantial amount against Righthaven for legal fees incurred by the defendant.

All in all, with Righthaven's losing any sense of legitimacy for its business model, judicial decisions holding that it does not have standing to bring these "troll" actions, and the substantial judgments being entered against it, we have undoubtedly seen the end of these copyright trolls.


Joel L. Hecker, Of Counsel to Russo & Burke, 600 Third Avenue, New York, NY 10016, practices in every aspect of photography and visual arts law, including copyright, licensing, publishing, contracts, privacy rights, and other intellectual property issues. He can be reached at (212) 557-9600, website www.RussoandBurke.com, or via email: HeckerEsq@aol.com.

November 11, 2011

California Resale Royalties Act

By Stacy Lefkowitz Brown

On October 18th artists Chuck Close, Laddie John Dill and the estate of Sculptor Robert Graham sued Sotheby's, Christies and Ebay seeking damages for the nonpayment of royalties under the California Resale Royalties Act (CRRA). The complaint also seeks punitive damages and appropriate injunctive and declaratory relief to ensure compliance with the CRRA in the future.

The California Resale Royalties Act and Caselaw

The CRRA effectively codifies the French concept of droit de suite, in which an artist retains the right to an economic interest in the sale proceeds of an artwork for transactions after the initial sale. It requires that a seller pay a 5% royalty to an artist for the resale of a work of fine art defined as a painting, drawing, sculpture or an original work of art in glass, where the seller resides in California or the sale takes place in California, and the artist is a U.S. citizen, or has been a California resident for at least 2 years at the time of the sale. (Ca. Civil Code § 986.) The royalty is to be paid within 90 days of the sale if the sale occurs during the artist's lifetime, or to an artist's legal heirs up to 20 years after the artist's death. (Id.) If the seller cannot locate the artist, the royalty fee goes to the California Arts Council. (Id.)

The CRRA does not apply to the initial sale of the work of art by the artist where the artist holds the legal title to the work at the time of the sale. (Id.) It also does not require a royalty where the initial purchaser is an art dealer who then resells the work of art to another art dealer within 10 years of the initial purchase. (Id.) Finally, the CRRA does not apply to stained glass attached to real property upon the sale or transfer of the property to which it is attached. (Id.)

The CRRA has been the focus of legal controversy in the past, withstanding Constitutional challenges on the grounds of Preemption and violations of Due Process and the Contracts Clause. The preemption issue was addressed most recently in Baby Moose Drawings v. Dean Valentine. There, the assignees of artist Mark Grothjahn's royalty rights sued a dealer to collect the 5% royalty due under the CRRA. (Baby Moose Drawings, Inc. v. Dean Valentine et al., 2011 U.S. Dist. LEXIS 72583.) The California District Court addressed the issue of preemption when the plaintiff moved to remand the case to the California State Court in response to the defendant's removal of the case to federal court. (Id.) The District Court held that the California state court was the appropriate venue as the federal court did not have original jurisdiction. (Id at 12.) A federal court has original jurisdiction over ". . .any civil action arising under any Act of Congress related to . . . copyrights." (Id at 1.) The defendant claimed that removal to federal court was justified because the Copyright Act preempted the CRRA. (Id at 6.) The court disagreed, stating that the Copyright Act did not preempt the CRRA, because the 5% royalty added an extra element of protection to artists. (Id at 8.) This extra element did not "infringe upon the exclusive rights provided by the Copy right Act." (Id.) Similarly, the "royalty right on resale amounts to artists is qualitatively different from the rights granted to copyright holders under the Copyright Act." (Id at 9.) Further, the court looked to Congressional intent to determine that the CRRA did not interfere with the federal law. Specifically, the court noted a Judiciary Committee report on Amendments to the Copyright Act in 1990, which stated:

[s]tate artists' rights laws that grant rights not equivalent to those accorded under the proposed law are not preempted, even when they relate to works covered by [the Copyright Act]. For example, the law will not preempt a cause of action for . . . a violation of a right to a resale royalty." (Id at 10. Emphasis added.)

Preemption was also at issue in Morseburg v. Babylon, which was brought as a test case for the CRRA. (Morseburg v. Babylon, 621 F.2d 972 (1980).) There, an art dealer sued the California Council for the Arts claiming that the 1909 Copyright Act preempted the CRRA. (Id at 975.) He argued that the CRRA interfered with federal law because it "impaired" his ability to "vend" a work of art and restricted the transfer of a work of art under the 1909 Act. (Id.) Morseburg relied on Sections 1 and 27 of the 1909 Act, which provided in Section 1 that "Any person entitled thereto . . . shall have the exclusive right: (1) to print, reprint, publish, copy and vend the copyrighted work." Section 27 stated, "Nothing in this title shall be deemed to forbid, prevent or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained." (Id.) The Ninth Circuit held that the CRRA was not preempted by the 1909 Act because Congress had not intended to occupy the field, inasmuch as "Congress had evidenced no intent, either expressly, or impliedly, to bar the states from exercising their power." (Id at 977.) Notably, the Court opined that CRRA did not occupy the area of the 1909 Act and that CRRA could coexist and "function harmoniously rather than discordantly" with the 1909 Act. (Id). Neither did the Court view the CRRA as conflicting with the federal law, because nothing in the CRRA technically restricted the transfer of the works. (Id at 978). The Court reasoned that the CRRA did not require a lien on the work of art to secure the royalty, "nor is the buyer made secondarily liable for the royalty." (Id.) However, the Court acknowledged that the CRRA may have the effect of slowing down the marketplace, as it surmised that dealers and collectors may be more inclined to hold onto artworks for a longer period of time before resale. (Id.)

The Court then addressed the Contracts Clause issue. It stated that not all impairments of contracts are improper when serving a public need for the impairment. (Id at 979.) The Court then ruled that the CCRA did not violate the Contracts Clause because the impairment it caused to Morseburg's contract was not severe and served a "broad, generalized economic or social purpose." (Id.) Morseburg similarly fell short on his Due Process Argument in which he argued that the royalty required by the CRRA deprived him of property without due process. (Id.) The Court was not moved, as it did not find the acts of the legislature which adjusted the "burdens and benefits of economic life" to be arbitrary or capricious. (Id.)

A Federal Law's Time Has Come?

All the media attention these suits have garnered begs the question, is a federal law conferring resale royalty rights to artists an idea whose time has come? Although Senator Kennedy tried and failed to incorporate such a right into the Visual Artists Rights Act in 1987, there is new life for resale royalties in the form of a Bill sponsored by Senator Cole of Wisconsin. This Bill has the backing of The Artist Rights Society (ARS), an organization that monitors copyrights and licensing for over 50,000 artists worldwide, which has been lobbying for a federal version of the CRRA over the past year. The Bill is also championed by Bruce Lehman, former Commissioner of the United States Patent and Trademarks Office, and has the support of numerous artists, including Frank Stella, an ARS member. Federal resale royalty legislation on artworks would effectively level the playing field of visual artists with other artists who enjoy Copyright status; for example, authors, performers and musicians who receive royalties for each successive use of their work. However, such legislation may be viewed as more of a tax on artworks and may even work to the detriment of up and coming (read -- starving and/or struggling) artists, because collectors, curators, auction houses and dealers who make the market for these artists may be more likely to hold onto works for longer periods of time. Already established or famous artists are not likely to suffer from this, and in fact, may be the primary beneficiaries of any federal resale royalty law, since their works are already sought after and highly desirable in the marketplace. A federal resale royalty would also have administrative costs attached to it (unless built into the royalty) that dealers and auctions houses would most likely pass onto either the purchaser or seller of the art, creating another layer of cost to do business in the art world.

The Europeans Are Doing It

If the time for a federal resale royalty has indeed arrived, then Legislators may look to some of the European models to help determine what might be appropriate in the United States. As of 2006, the European Union required member states to implement an artist resale royalty (ARR) on artwork sold after the initial sale. Different member states treat this tax differently. The UK, in particular, uses a sliding scale, starting at 4% of the resale price to .25% for prices over € 500,000. In addition, when the ARR came into effect in 2006 in the UK, it only benefitted living artists. However, in January 2012, the ARR will go into effect there for deceased artists as well. In France, the ARR is 3% and in Germany 5%. Auction houses are aware of the ARR, and currently demarcate works which are subject to ARR in auction catalogues. This may not bode well for Sotheby's and Christies, if the allegations in the complaint are true, that they do not make the same or similar demarcation for works in their catalogues subject to CRRA, especially since the complaint accuses the auction houses of "an intentional election to flout" the law. (2011 WL 4947397 (C.D.Cal) (Trial Pleading).)

Stacy Lefkowitz Brown is a portrait artist and an attorney admitted to practice in the State of New York. She can be reached via email at stacylefkowitz@gmail.com.


November 17, 2011

Universal Music Group Purchases EMI's Recorded Music Assets for $1.9 Billion

By Tyler Mazey

In a widely reported sale, Vivendi's Universal Music Group (UMG) purchased EMI's recorded music assets at auction for a price of $1.9 billion. However, UMG did not pickup EMI's valuable publishing assets, which were bought for $2.2 billion by a group of investors led by Sony. This split and sale raises a host of issues that look to change the face of the music business in its entirety, including the future of the recording industry, government approval, and current and future licensing deals.

Sale

UMG's purchase of EMI's recorded music operations leaves only three major record labels. It also creates an interesting difference among the three. Prior to the purchase, UMG had close to $6 billion in revenue, Sony had $5.7 billion, and Warner had $3 billion. EMI had $1.8 billion in revenue according to annual reports from March of 2010. (http://www.nytimes.com/2011/11/12/business/media/emi-is-sold-for-4-1-billion-consolidating-the-music-industry.html) With the addition of EMI's, UMG will control close to 40% of the market share in recorded music.

Even though CitiGroup was not able to recoup its entire EMI purchase price from a decade ago, some say that UMG overpaid for EMI's recorded music operations. Warner was a major participant in the EMI auction, but balked at the apparently exorbitant price tag. Warner's purchase of EMI would have been a significant deal, putting it closer to the same market share as the other two majors. Considering that EMI would have been a nice jewel in Warner's crown, one can assume that the value of the assets was not nearly as high as the price UMG paid at auction. Even though consumers are no longer purchasing recorded music at the same levels as they were at the turn of the millennium, record labels are still being purchased at near millennial prices.

Assuming EMI's recording assets were overvalued as a separate entity, those assets still provide an exciting opportunity for UMG to leverage its combined market share in the face of an uncertain digital future. Greater market share creates the opportunity to generate greater revenues from on-demand digital music services. While some independents may be pulling catalogues from services such as Spotify, Rhapsody, and Rdio due to miniscule royalty payments, UMG has the largest catalogue. This leads to the possibility for an extraordinary amount of royalties once a true leader is crowned in the on-demand digital music streaming sector.

Government

While increased market share can help UMG to lead online, that same leverage creates an intense amount of government scrutiny. In Roger Faxon's memos to his staff, he even mentions that "Universal will need to clear the necessary hurdles before they can take ownership. And that too will take time and effort." (http://www.billboard.biz/bbbiz/industry/record-labels/read-emi-ceo-roger-faxon-s-memo-to-staff-1005510952.story) UMG is already planning to divest $500 million in recorded music assets in order to clear regulatory hurdles in the U.S. and Europe. However, Europe's Independent Music Companies Association (IMPALA), expects the deal to be blocked outright, even with this divestment. IMPALA's argument is that the last time the European Commission looked at the company, it ordered UMG to sell off assets to cut itself down to an "acceptable" size. Since that time, UMG has grown substantially and has additional ties with concert giant LiveNation. This would make it less likely for the European Commission to approve UMG purchase of EMI's recording assets. (http://www.billboard.biz/bbbiz/industry/record-labels/impala-says-it-expects-emi-universal-deal-1005511552.story)

UMG's position is therefore quite tricky. It is purchasing EMI to create a bigger, bolder company, but will have to divest assets in order to make that happen. UMG can cut less valuable assets out of its catalogue, but still has to deal with the regulatory and restructuring process. Taking the time and money to jump through regulatory hoops takes valuable investment income away from the core corporate function of finding and developing new artists.

Present and Future

All of this legal hassle will affect the profitability of EMI until it is completely integrated under Vivendi/UMG umbrella. Faxon has said that EMI's continued obligation through the transition period is to continue to drive each of the businesses to the best of EMI's ability. Given the regulatory hurdles to overcome, business is likely to continue as usual until through the fiscal year. EMI will continue to make deals, invest in artists, release records and enter into licenses. There will be no layoffs throughout the transition, and interaction between EMI and UMG is strictly limited until the sale is approved. Therefore it is expected that present deals will not be affected. (http://www.billboard.biz/bbbiz/industry/record-labels/read-emi-ceo-roger-faxon-s-faq-to-staff-1005513552.story)

While it is business as usual for EMI during the transition, its future will likely be significantly altered by the sale. One can assume that UMG will want to consolidate and synergize EMI with existing operations in order to reduce overhead. This will mean layoffs and possible disruptions in the artist release cycles. However, this is not UMG's first rodeo.

Once past the regulatory hurdles and consolidation, UMG will have close to 40% of recorded music market share and be able to flex its muscles. UMG will be able to dictate licensing rates to the rest of the industry; if you want a UMG song, you will have to deal with a UMG price. Having almost 40% of the market cornered may make it difficult for music supervisors to find easy replacements for the plethora of music licensed, creating difficulties for many industries, such as television, movie and commercial ad placements. Music supervisors are under tight budgets and even tighter schedules. Increased rates could throw a big wrench into the way they do business. While there is other music available, UMG's giant market share will make it more difficult to find less expensive alternatives.

There is also the tricky issue of the on demand Internet streaming services. Most of these services survive off of the licensing deals made with the major labels, and if rates go up, profits may never be seen. However, UMG can flex its muscles in order to choose a winner in this space. Considering that most of these services pay based on market share, UMG stands to gain a significant advantage in terms of revenue streams and negotiating power.

Conclusion

As the Internet Age continues to eat away at recorded music revenues, UMG will need to lead the rest of the industry into the future. One thing is certain; UMG will be in a position to make or break the recording music industry. Although record labels were the technological leaders of the past, it now seems as though the major labels are technology followers. Having close to 40% of recorded music market share gives UMG the ability to choose winners and losers. UMG needs to flex its market share muscles for its artists, shareholders, and the future of the industry. Otherwise, UMG will be creating a bleak tomorrow for its own business and the businesses of its peers.

November 19, 2011

Why the Music Industry Isn't Ready for Redigi

By Kyler McGillicuddy

Redigi has been receiving a lot of attention by both the music industry in general and the Recording Industry Association of America (RIAA). The reason for this focus is the type of business Redigi is attempting to create. Redigi is a web based used digital music store. Though it has come up with a unique business plan for digital music, I don't believe that the courts should allow it to continue operating due to the potential market results. To really get a handle on the problem at hand, please bear with me as I explain a bit more.

Redigi works by requiring a user to download its program, which then searches the user's music library for acceptable music to sell. Acceptable music is any that has been legally downloaded, and therefore does not include tracks copied from a CD. Once it has indicated a music track to sell, the program uploads the copy onto Ridigi's website and deletes the corresponding file on the user's computer. Once uploaded, the track is assigned a number and is sold. Redigi does not sell more than 1 track per track uploaded. It works just like a retail store. For example, if 3 people upload the same track, then there are 3 of that particular track for sale. Once 3 people purchase the tracks, that particular track is no longer available until someone else uploads another.

In traditional physical music sales this would not be cause for much concern, passing legal muster by relying on the first sale doctrine of copyright law. The first sale doctrine allows owners of copyrighted material bought legally from the copyright holder to resell without infringement. If one wants to sell a used CD, one simply has to hand over the CD in exchange for money. Although this seems like this would be a fairly simple translation to a used digital music store, but there are some quirks of electronics that make it more complicated than first appears.

The problem with this transaction in the digital realm is that Redigi has to make a copy of the track at least twice; once when it removes it from the computer, and again when the track is sold to someone else. This is the legal basis for the cease and desist complaint brought by the RIAA against Redigi. The way I see it, the argument hinges on whether or not Redigi can copy music to take advantage of the first sale doctrine.

For the time being, I'm going to assume that all of the programming involved in Redigi's business plan works perfectly. This means that no pirated files are allowed, no copying tracks from CD's, and the original is deleted once uploaded. With those assumptions in mind, how would a decision allowing Redigi to continue effect the market and copyright?

First, consider the market. Redigi pays $.32 per track and sells each as low as $.59, considerably lower than iTunes. As a used digital track is just as good as a new one, basic economics would tell us that an identical good offered at a lower price will shift demand towards the cheaper one, so the market for new music will decline. There is a potential for an upswing to the market if people are more willing to purchase new music knowing that they can resell it, but of music users, I highly doubt the approximate $.30 difference in cost is restricting any current purchases.

Second, allowing Redigi to continue would hurt artists. Artists rely on sales of new music to survive. Artists do not get paid for used music sales. Used music sales would also affect artist contracts, as many contain escalation royalty provisions. Escalation provisions increase the percentage of royalty the artists receive as their sales figures increase. A used digital market would reduce the number of new tracks, and correspondingly reduce artist earning potential.

Finally, what about copyright? The courts would have to stretch copyright law to allow copying of digital music for resale. That places the digital copyright arena on an interesting slope. Just how much copying is allowed? What about movies? Will knowing there is a profit to be made from selling used music increase infringing copying? Are there other circumstances where copying to reach the first sale right is not infringing? The decision would have to alter copyright and the market to favor an outcome for Redigi. So let us consider what would happen should Redigi lose the battle.

First, the market would not change. The digital track sales will continue to increase and physical album sales will remain on a steep decline, and new music sales would continue to affect artist contracts. Second, copyright would also be unchanged. No change to the law is needed in order to find Redigi as an infringer, since the necessary copying it employs to upload and sell the track is illegal under the Copyright Act.

Redigi has come up with a novel business plan in the realm of digital music, and should be commended for the achievement. However, the drastic changes necessary to the marketplace and copyright law to accommodate its business plan are too destructive to allow.

November 22, 2011

NBA Season Hangs in Peril

By Nili Wexler

Players from the National Basketball Association (NBA) disbanded their union last Monday, which allowed them to file two antitrust suits the following day in different jurisdictions. The owners and league officials responded negatively to the move, asserting that "[i]t's a shame that the players have chosen to litigate rather than negotiate." (http://www.nytimes.com/2011/11/16/sports/basketball/nba-players-file-antitrust-suit-against-the-league.html)

Conversely, the players claim that the league acted in bad faith and impeded the negotiation process by issuing an expiring ultimatum. After failing to reach an agreement on a new collective bargaining contract, NBA owners locked out the players on July 1, and the ongoing discord between the two parties has forced games to be canceled through December 15.

This Monday the players consolidated their suits and re-filed a single federal claim in Minnesota. This action should "should permit us to expedite the case," said the player's newly appointed attorney David Boies, who represented the National Football League (NFL) owners in a recent labor dispute with players. (http://www.npr.org/blogs/thetwo-way/2011/11/18/142507617/nba-anti-trust-lawsuit-will-take-months-to-reach-court)

Boies also stated that the players' representatives have had no contact with the league's lawyers, and expressed that "[i]f the league's approach is to ignore the litigation...and hope it goes away...I don't think that's in our interest, I don't think it's in their interest...it's certainly not in the fans' interest." (http://www.nytimes.com/2011/11/22/sports/basketball/nba-players-merge-lawsuits.html)

The league has filed a pre-emptive federal lawsuit in New York to validate its claim that the lockout is legal, and it will likely attempt to move the venue of the players' suit to New York as well. League attorney Rick Bauchman criticized the players' choice of venue by noting, "[t]his is consistent with Mr. Boies' inappropriate shopping for a forum that he can only hope will be friendlier to his baseless legal claims." (http://www.nytimes.com/2011/11/22/sports/basketball/nba-players-merge-lawsuits.html)

The players are suing for treble damages, meaning they are seeking triple the amount they make for the games they miss during the 2011-2012 season. They contend that this lockout will cause irreparable harm, given that professional basketball careers are very short and that even a small break significantly impairs their earning capacity.

The thrust of the players' claim is that the teams are conspiring with one another against the players in contravention of existing antitrust law, and that "the express purpose of Defendants' group boycott and price fixing is to reduce the salaries, terms, benefits and conditions of employment available in the market for players." (http://blogs.wsj.com/dailyfix/2011/11/16/nba-players-must-wait-for-day-in-court/)

Boies acknowledged that the suit could take months, in which case the entire season would be canceled, but expressed hope that the matter would be settled in the near term. As of now, the first case management conference is set for March 9, which would be too late to salvage any part of the season, but the parties can request that the date be changed. Alternatively, they might agree to settle prior to the trial phase.
(http://sports.yahoo.com/nba/news?slug=ap-nbalabor)

Labor attorney John Goldman of Herrick Feinstein warned that if the case ultimately proceeds through litigation, it will be a lengthy process. "This case won't be over a year from now...it's probably two years." (http://aol.sportingnews.com/nba/story/2011-11-22/time-might-be-on-the-side-of-nba-players)

Economics professor Andrew Zimbalist, who has worked with the player's association in a previous matter, was interviewed about the players' litigation strategy. He suggested that the players might seek an injunction against the lockout so that they would be able to return to work immediately.

Zimbalist also suggested that the players' suit is more of a bargaining tactic aimed at eliciting concessions than a firm commitment to litigate the issue. As a result, he says, the NBA might argue that the disbanding of the players' union is a "fraudulent decertification" because the union will reconstitute immediately after it achieves its desired outcome.

In a more hopeful tone, Zimbalist suggested that "[m]aybe some of the owners who are more dovish will get together and say 'Enough already. Let's get together and try to get this thing done.' If they do that, maybe we can start playing basketball at some time at the end of December. But it doesn't look great right now." (http://www.grantland.com/blog/the-triangle/post/_/id/9699/an-economics-professor-explains-the-nbpa-and-the-lockout)

November 28, 2011

Hazing in the Locker-Room: The Neepawa Natives Investigation

By Carter Anne McGowan

While the sports airwaves here in the U.S. are filled with stories of unfolding sexual abuse scandals at Penn State and Syracuse, Canada is doing its own soul-searching due to a hazing incident in junior hockey which has resulted in a just-closed Royal Canadian Mounted Police (RCMP) investigation, an ongoing league investigation into the involvement of the assistant coach, issues of minor consent, and questions about the legitimate boundaries of humiliating initiation rituals.

In September of this year, up to five rookies on the Neepawa Natives of the Manitoba Junior Hockey League (MJHL) were made to engage in several hazing rituals. Veterans on the team made one 15 year old (Player One) walk around the locker room with a water bottle rack tied to his scrotum as other players tossed towels on the rack to add weight to it. Other rookies were tasked to engage in a locker room striptease, on which they were rated and for which the lowest-rated players were penalized by doing pushups over tubs of ice water.

Soon after these events, Player One left the team. His story became public when he shared the facts of the incident with his girlfriend, who told her father. Word of the hazing made it back to Player One's father, who confronted the Natives' head Coach Bryant Perrier, and informed him that not only were players in the locker room during the hazing, but so too was assistant coach Brad Biggers.

While the Natives did inform the MJHL of the hazing incident, team management told Player One that if he desired to return to the team, he must first apologize to his teammates because he didn't seek to handle the situation internally but instead spoke to outsiders about the situation. Player One did apologize to the team, but management then requested that he stay away from the team during the investigation. As of now, Player One has not returned to the team but is instead making plans to play in the U.S.

After the MJHL completed its initial investigation - during which the members of the team were interviewed and informed the MJHL Commissioner that Biggers was not in the room - the MJHL handed down a $5,000 fine and issued 18 suspensions: five games for assistant coach Biggers; five games for the team captain; three games for each of the assistant captains; two games for Coach Perrier; and 12 one-game suspensions for 12 other players. These were the most suspensions and largest fines ever handed down by the MJHL.

Yet the story was not over. After the completion of the MJHL investigation, the team's board of directors engaged in its own investigation of the hazing incident. During this second investigation, four players stepped forward to admit that they had lied about Biggers' involvement in the hazing, stating that he was in the locker room when the hazing occurred. Biggers resigned; the MJHL reopened its investigation, suspended Biggers from the league indefinitely (which operates to ban him from all coaching in Canadian junior hockey leagues), and appointed a retired Winnipeg detective to serve as an independent investigator.

Unlike many U.S. jurisdictions, Canada - where criminal law is an exclusively federal body of law - does not have an anti-hazing statute. This incident naturally raised the question of whether Canada should have a federal anti-hazing statute, as the law available to the Crown Attorney is the law of assault, which, unlike anti-hazing laws, carries with it questions of consent. Under the Canadian Criminal Code (RSC, 1985, c.C-46 §265):

(1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
[...]
(2) This section applies to all forms of assault, including sexual assault [...]
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of:
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
[...]
(d) the exercise of authority.

The Neepawa Natives rapidly moved to establish a consent defense in its apologetic press release of November 3rd:

First and foremost, no player was forced or threatened to take part in anything they were not comfortable doing, this was and remains a team policy from the start of the season. The victims of the incident participated in the events that took place in the month of September on [sic] their own will and were not pressured in any way by any member of the team. We are truly sorry for allowing this kind of immature behavior to happen in our dressing room.

Taking the statute at face value, there are several reasons why consent, even if given, would seem to be of dubious validity: the minority of the hazed players; the questions of force applied; the exercise of authority (captains/veterans have at least informal authority over rookies; assistant coaches obviously have authority over all the players). Yet Canadian legal commentators felt the issue of whether consent had been granted was a significant barrier to prosecution of any locker room hazing under the assault statute. This week, the Crown Attorney appeared to agree, and the RCMP announced that no criminal charges would be filed arising from the hazing incidents. The MJHL's second internal investigation is ongoing and is likely to be completed within a week, and according to reports focuses on Assistant Coach Biggers and his involvement. If nothing else, this incident serves as yet more evidence - as if after the last several weeks North America needed more evidence - that the culture and power structures exhibited in too many sports locker rooms are in need of significant overhaul.

November 29, 2011

From Chair Judith B. Prowda - Additional EASL Law Student Liaisons for 2011-2012

I am delighted to announce the appointments of the following 6 additional Law Student Liaisons for the 2011-2012 academic year.

Megan Bellamy is a law student at BPP Law School in London, where she is also a student adviser on employment matters for the BPP Legal Advice Clinic. She is currently interning at the National Coalition Against Censorship and the law firm White Fleischner & Fino. Megan has also interned at the Art Loss Register, where she helped the recoveries team address legal issues surrounding the return of stolen art. In addition, she worked as a legal assistant at several law firms in the UK, U.S.A. and New Zealand. Megan holds a BA (Hons) in Geography from Durham University, England, a Diploma in Art and Design from Chelsea College of Art and Design in London, and is a member of the Institute of Art and Law in London. During her undergraduate studies, Megan was a member of the Durham Arts Festival Committee where she helped organize Durham's first arts festival, and has worked in an art gallery and at a creative design agency.

Peter Dagher is a 1L at Fordham. He spent the year prior to law school at as a paralegal in the Litigation Department at Paul Weiss LLP. Peter received his undergraduate degree from Georgetown University and majored in both Finance and International Business. As an undergraduate, he interned at several government institutions, including the International Conservation Caucus Foundation (a NGO which promotes educational events between private conservation groups and Congressional staffers) and the Department of the Treasury. He also worked at the Export-Import Bank in the International Business Development Department in the areas of Environmental Exports and Sub-Saharan Africa.

Caitlin Dempsey is a 2L at Fordham, and over the summer she clerked with the Chief Justice of the Supreme Court of Ireland. She presently serves as a research assistant to Professor Sonia Katyal in the area of intellectual property, and as secretary of Fordham Law Women. A triple major at Northwestern, Caitlin studied politics, art history and legal studies while doing internships at the Whitney, as well as two boutique law firms and the New York City Law Department. She also spent a year at the London School of Economics studying international government and interning at Art Review Magazine and Bloomsbury Auctions. She was awarded "thesis of distinction" for her study of the cooperation of the art world and governments to create guidelines on the repatriation of Nazi era stolen art.

Kibum Kim is an adjunct faculty member at the Sotheby's Institute of Art and a freelance writer whose work has appeared in The New York Times, Salon, and Foreign Policy. He received his B.A. in English and Economics from Georgetown and his JD from the NYU School of Law. He is awaiting admission to the New York State Bar.

William A. Lorenz, Jr., is a 3L at the State University of New York at Buffalo Law School. He hopes to eventually combine his passion for sports and entertainment with a career in law. William is the current Justice of Phi Alpha Delta Law Fraternity, International (Alden Chapter) at UB, and is also Vice President of UB's Entertainment for the Sports & Entertainment Law Society. His work during law school has included summer internships in the legal department of World Wrestling Entertainment (WWE) in Stamford, CT, and the Appeals Bureau of the Erie County District Attorney's Office in Buffalo, NY. He has extensive mock trial and moot court experience, and last spring competed in the Jessup International Law Moot Court Competition in New York City while coaching a mock trial team for Phi Alpha Delta. William received his All-College Honors Bachelor's degree from Canisius College (Buffalo) in Political Science, with a minor in Classics. His Honors thesis, "Alter Ego: Understanding American Society through Superheroes," chronicled the changes to major comic book characters since their creation to keep up with the current zeitgeist of society. Outside of law school, William holds a third-degree black belt in Isshinryu Karate, and volunteers his time to teach students of all ages at a karate school in Elma, NY.

Shannon Zhu is a 1L at the Benjamin N. Cardozo School of Law. She graduated cum laude from Stony Brook University ('10) with a BS in Finance and wrote an Honors Thesis entitled "Toxic Assets for Intoxicated Consumers." Prior to law school, Shannon worked in finance and the entertainment industry and has lived in Shanghai, China. She is currently a dancer in a contemporary dance company as well as a pianist and photographer. Shannon has a long-standing interest in music, traveling and sports.


About November 2011

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in November 2011. They are listed from oldest to newest.

October 2011 is the previous archive.

December 2011 is the next archive.

Many more can be found on the main index page or by looking through the archives.