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July 2012 Archives

July 1, 2012

The Explorers Club "Artists In Exploration" Program Seeking Applications for Awards

By Kim Swidler

The Explorers Club (www.explorers.org) is now accepting applications from both members and non-members for its new "Artists in Exploration" program, underwritten by Rolex Watch, USA. This is a rare chance for artists to be funded for particular works while working in the field - whether it be photography, music, painting, sculpture, or other art form. A total of $25,000 will be distributed among the 2012 winners.

Headquartered in Manhattan and founded in 1904, the Explorer Club's members have been responsible for an illustrious series of famous firsts: to the North Pole, to the South Pole, to the summit of Mount Everest, to the deepest point in the ocean, and to the surface of the moon.

The deadline for submissions is 5:00PM EDT on July 20th, 2012.

Those interested may contact Executive Director Matt Williams for an application at mwilliams@explorers.org or by calling 212-628-8383.

July 2, 2012

Sony Purchases EMI Music Publishing

By Elissa D. Hecker

On June 29th, investors led by Sony acquired EMI Music Publishing. The cost was $2.2 billion, which gave Sony control over more than two million songs and a larger share of the market than its closest competitor, Universal.

Even though Sony will administer the new EMI catalog through its publishing division, Sony/ATV, the companies will remain separate entities. Martin Bandier, chairman of Sony/ATV (and formerly of EMI), will run both companies.

July 4, 2012

United States Anti-Doping Agency Formally Charges Lance Armstrong

By Jennifer N. Graham

The United States Anti-Doping Agency (USADA) formally charged seven time Tour de France winner Lance Armstrong with violating anti-doping policies that could ultimately cause him to forfeit his titles and ban him from cycling for life. As an immediate result of the charges, Armstrong is unable to compete in Ironman Triathlons, which he has been competing in and winning since he retired from cycling in 2012.

In a 15 page charging letter dated June 12, 2012, the USADA accuses Armstrong of using, possessing and trafficking the blood booster erythropoietin (EPO), blood transfusions, testosterone and masking agents from 1998 to 2011.

The USADA further alleges that Armstrong was involved in a doping conspiracy from 1998 to 2007, along with several members of his cycling team, including Armstrong's team manager, Johan Bruyneel, and Michele Ferrari, Armstrong's former trainer. The USADA claims to have at least 10 former teammates and associates of Armstrong willing to testify before the arbitration panel in support of these charges. The USADA also states that Armstrong's blood samples obtained by Union Cycliste Internationale (UCI), the world governing body for cycling, from 2009 and 2010 are consistent with blood doping.

Armstrong's attorney, Robert D. Luskin of Patton Boggs, responded to the charges as baseless and without merit and a product of a malicious campaign led by USADA's chief executive, Travis Tygart, against Armstrong. Armstrong maintains his innocence and on his website, www.lancearmstrong.com, asserts he has passed more than 500 drug tests over the course of his career and has never failed one.

Armstrong's attorneys affirm that they are exploring all legal options and have hinted at filing federal charges against USADA investigators for compelling false testimony from witnesses in exchange for promises that those witnesses would avoid facing their own doping charges.

In February 2012, U.S. Attorney Andre Birotte Jr. ended a two-year long investigation of Armstrong involving doping allegations without filing criminal charges against the 40 year old iconic athlete. While the USADA cannot bring criminal charges against Armstrong, the 12 year old agency, which is funded jointly by the U.S. Olympic Committee and the federal government, has authority to suspend athletes from competition and to rescind awards.

The USADA is a signatory of the World Anti-Doping Agency (WADA) and adheres to its World Anti-Doping Code. Article 17 of the World Anti-Doping Code sets forth the statute of limitations and requires actions to be commenced within eight years from the date of the alleged violation.

United States Anti-Doping Agency Formally Charges Lance Armstrong

By Jennifer N. Graham

The United States Anti-Doping Agency (USADA) formally charged seven time Tour de France winner Lance Armstrong with violating anti-doping policies that could ultimately cause him to forfeit his titles and ban him from cycling for life. As an immediate result of the charges, Armstrong is unable to compete in Ironman Triathlons, which he has been competing in and winning since he retired from cycling in 2012.

In a 15 page charging letter dated June 12, 2012, the USADA accuses Armstrong of using, possessing and trafficking the blood booster erythropoietin (EPO), blood transfusions, testosterone and masking agents from 1998 to 2011.

The USADA further alleges that Armstrong was involved in a doping conspiracy from 1998 to 2007, along with several members of his cycling team, including Armstrong's team manager, Johan Bruyneel, and Michele Ferrari, Armstrong's former trainer. The USADA claims to have at least 10 former teammates and associates of Armstrong willing to testify before the arbitration panel in support of these charges. The USADA also states that Armstrong's blood samples obtained by Union Cycliste Internationale (UCI), the world governing body for cycling, from 2009 and 2010 are consistent with blood doping.

Armstrong's attorney, Robert D. Luskin of Patton Boggs, responded to the charges as baseless and without merit and a product of a malicious campaign led by USADA's chief executive, Travis Tygart, against Armstrong. Armstrong maintains his innocence and on his website, www.lancearmstrong.com, asserts he has passed more than 500 drug tests over the course of his career and has never failed one.

Armstrong's attorneys affirm that they are exploring all legal options and have hinted at filing federal charges against USADA investigators for compelling false testimony from witnesses in exchange for promises that those witnesses would avoid facing their own doping charges.

In February 2012, U.S. Attorney Andre Birotte Jr. ended a two-year long investigation of Armstrong involving doping allegations without filing criminal charges against the 40 year old iconic athlete. While the USADA cannot bring criminal charges against Armstrong, the 12 year old agency, which is funded jointly by the U.S. Olympic Committee and the federal government, has authority to suspend athletes from competition and to rescind awards.

The USADA is a signatory of the World Anti-Doping Agency (WADA) and adheres to its World Anti-Doping Code. Article 17 of the World Anti-Doping Code sets forth the statute of limitations and requires actions to be commenced within eight years from the date of the alleged violation.

July 6, 2012

Weekly Issues in the News

By Geisa Balla

MGM

MGM, the film studio behind Martin Scorcese's 1980 film "Raging Bull," filed a lawsuit against former boxer Jake LaMotta and the producers of "Raging Bull II" on July 3, 2012 in the California Superior Court. MGM alleges that LaMotta violated a 1976 agreement giving MGM the right of first refusal on his 1986 memoir "Raging Bull II," upon which the new film is based, or any other "owner-written sequel." The complaint also alleges that Raging Bull II Productions is publicly associating the sequel with the original, which was directed by Martin Scorcese and starred Robert DeNiro, neither of whom has any involvement with the new film. MGM is seeking to halt production of the new film, as well as compensatory and other damages. The complaint alleges that if the new film is allowed to go forward, it will "irreparably tarnish the value of the original."

http://artsbeat.blogs.nytimes.com/2012/07/04/mgm-sues-to-stop-raging-bull-ii/

Shakespeare Theater Company

Shakespeare Theater Company filed a lawsuit on June 12, 2012 against one of its landlords, the Lansburgh Theater in Washington DC, in attempt to fight its threatened eviction from its home of 20 years. The Lansburgh Theater, a nonprofit that serves as the landlord for one of the sites for the Shakespeare Theater Company, told Shakespeare Theater last year that its annual rent would increase from $70,000 to $480,000. When Shakespeare Theater refused to pay the increase, Lansburgh demanded that it vacate the site and that its managing director resign from the Lansburgh board. The Shakespeare Theater Company has now filed suit against the Lansburgh Theater to stop the eviction, claiming that its actions are contrary to its mandate to support the company.

http://artsbeat.blogs.nytimes.com/2012/07/04/in-rent-dispute-shakespeare-theater-company-fights-to-stay-put/

E.U. Rejects ACTA

The European Union rejected an international treaty targeting digital piracy on July 4, 2012. The Anti-Counterfeiting Trade Agreement, or ACTA, had been signed by the United States, Japan, Canada, Australia, South Korea, and a number of individual EU members. Opponents of the treaty rallied tens of thousands of protesters into the streets of European capitals last winter, saying that approval of the treaty would lead to the proliferation of anti-piracy measures. Opponents also argued that even if other countries would ratify the treaty, it would have little authority since the EU represented 27 of the 39 countries that participated in the talks. The vote was seen as a victory by internet freedom groups. After the vote, some members of the Parliament stood up in the chamber, holding up signs reading: "Hello democracy, goodbye ACTA." The media industry however, bemoaned the vote, saying that protesters had twisted the debate to make the treaty seem more menacing than it actually is. The Parliament "has given in to pressure from anti-copyright groups despite calls from thousands of companies and workers in manufacturing and creative sectors who have called for ACTA to be signed in order that their rights as creators be protected," said Angela Mills Wade, executive director of the European Publishers Council.

http://www.nytimes.com/2012/07/05/technology/european-parliament-rejects-anti-piracy-treaty.html

Michael Kors

Michael Kors won a lawsuit against a number of websites selling counterfeit goods under the brand's name. Kors first filed suit in the Southern District of New York in November 2011 against 35 infringing websites, which were selling inauthentic bags, jewelry, and other accessories bearing Michael Kors trademarks. Judge Shira Scheindlin ruled in Kors' favor, holding that the counterfeit products caused consumer confusion as they were sold at price points similar to authentic Michael Kors products. Kors was awarded $2.4 million in damages, which will likely be collected from defendants' PayPal accounts.

http://www.fashion-law.org/2012/07/michael-kors-wins-against.html

U.S. Copyright Office Statement of Policy

The U.S. Copyright Office released a Statement of Policy on June 18, 2012, making it clear that "functional physical movements such as sports movements, exercises, and other ordinary motor activities alone" are not works of authorship protected under U.S. copyright law. The statement was released to clarify the practice of the Office relating to examination of claims of compilations involving uncopyrightable subject matter, and to clarify the Office's policy with respect to registration of choreographic works. The Copyright Office stated that in order for a compilation to be protected by copyright, its content must fall within one or more of the categories of authorship listed in Section 102 of the Copyright Act. The compilation of any other materials that do not fall within one or more of the specified categories of Section 102 is not protected by copyright law. The Copyright Office concluded that a compilation of exercise or yoga poses cannot be protected by copyright since it is not one of the eight categories, and the underlying material constitutes a "functional system or process."

Additionally, the Statement states that "although a choreographic work, such as a ballet or abstract modern dance" incorporate "simple routines, social dances, or even exercise routines as elements of the overall work, the mere selection and arrangement of physical movements does not in itself support a claim of choreographic authorship." Rather, it is explained that such a work must contain "at least a minimum amount of original choreographic authorship," which for copyright purposes must be a "composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent, and expressive [compositional] whole."

http://www.gpo.gov/fdsys/pkg/FR-2012-06-22/html/2012-15235.htm

July 13, 2012

Weekly Issues in the News

By Geisa Balla

Aereo Inc.

Judge Alison Nathan of the Southern District denied a request for preliminary injunction by major U.S. broadcasters to stop Aereo Inc. from rebroadcasting some of its programming over the Internet.

Aereo is an online television venture, available only in New York City for $12 per month. Walt Disney Co's ABC, CBS Corp, Comcast Corp's NBC Universal and Telemundo, News Corp's Fox, Univision Communications Inc. and the Public Broadcasting Service had filed lawsuits accusing Aereo of copyright violations. The broadcasters sought to stop Aereo from streaming programs to phones, tablet computers and other devices, arguing that they would lose their right to retransmission fees from cable and other companies that rebroadcast their programming, and would lose significant advertising revenue. Judge Nathan held that while the broadcasters demonstrated that they faced irreparable financial damage if the venture were allowed to continue, Aereo also showed it would face severe harm if the requested preliminary injunction was granted. Judge Nathan agreed that Aereo would damage the broadcasters' ability to negotiate advertising and retransmission agreements, given that the service could artificially lower Nielsen viewership ratings. However Nathan also said Aereo, in addition to facing the risk of closure, could lose employees, the ability to attract new investors, customer goodwill, and its "substantial investments" in the service. The judge stated: "First and foremost, the evidence establishes that an injunction may quickly mean the end of Aereo as a business," and that "the balance of hardships certainly does not tip decidedly in favor of (the broadcasters)." The broadcasters said they would appeal, calling the decision "a loss for the entire creative community."

http://newsandinsight.thomsonreuters.com/Legal/News/2012/07_-_July/Judge_refuses_to_block_Diller_s_Aereo_online_TV_venture/

Kate Spade

The Vera Company, which controls the work of the late artist Vera Neumann, filed a copyright infringement lawsuit against Kate Spade in the Southern District. The lawsuit alleges that Kate Spade copied Neumann's 1979 work "Poppy Field" in the Kate Spade line of floral-print dresses and cell phone cases released in 2011. The complaint alleges that Spade publicly acknowledged "that among the items and products that have inspired her designs are the silk-screened scarves of [Neumann]." A Spade representative said the disputed design was "in fact created from a 'vintage' design," which was "obviously the plaintiff's."

http://www.nypost.com/p/news/local/manhattan/fashionista_spade_poppy_cat_suit_TUkEpaHCRtaRDSnzj0zcMI#ixzz20HNuINAN

Copyright Royalty Board

The U.S. Court of Appeals for the District of Columbia Circuit held on July 6th that the Copyright Royalty Board, which sets the rates broadcasters have to pay for copyright licenses, runs afoul of the Constitution. The U.S. Court of Appeals for the District of Columbia Circuit found that the three-judge board, appointed by the Librarian of Congress, violates the Appointments Clause of the Constitution, which requires officers with significant authority to be appointed by the President with Senate confirmation. The basis for the ruling was that "the Judges' exercise of significant ratemaking authority, without any effective means of control by a superior (such as unrestricted removability), qualifies them as "principal" officers who must be appointed by the President with Senate confirmation." The court found that it could fix the constitutional problem by giving the Librarian of Congress greater ability to fire the judges on board. "To remedy the violation, we follow the Supreme Court's approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 130 S. Ct. 3138 (2010), by invalidating and severing the restrictions on the Librarian of Congress's ability to remove the CRJs. With such removal power in the Librarian's hands, we are confident that the Judges are 'inferior' rather than 'principal' officers, and that no constitutional problem remains."

http://newsandinsight.thomsonreuters.com/Legal/News/2012/07_-_July/Court_finds_Copyright_Royalty_Board_unconstitutional/

http://www.cadc.uscourts.gov/internet/opinions.nsf/FA61419C0274D3FA85257A33004D6663/$file/11-1083-1382307.pdf

Lance Armstrong v. USADA

Lance Armstrong filed a 111-page complaint against the U.S. Anti-Doping Agency (USADA) on July 9th, after the USADA formally charged him with doping at the end of June. If found guilty, Armstrong could be stripped of all seven of his Tour de France titles, forced to turn over all the money he won from 1999-2005, and banned from Olympic sports for life. Armstrong's lawsuit alleged that USADA rules violated athletes' constitutional right to a fair trial, and that the agency does not have jurisdiction in his case. It also accused USADA's chief executive, Travis Tygart, of waging a personal vendetta against Armstrong. The lawsuit sought an injunction barring USADA from pursuing its case or issuing any sanctions against Armstrong. In the lawsuit, Armstrong called the USADA a "kangaroo court," stating that his Constitutional and common law due process rights were at risk. The complaint alleged that the USADA believed it "is above the United States Constitution, above the law, above court review, free from supervision from any person or organization, and even above its own rules."
Hours after the lawsuit was filed, it was dismissed by Judge Sam Sparks, who gave Armstrong leave to refile. Judge Sparks called the complaint a "lengthy and bitter polemic" against the defendants, and stated that the court "is not inclined to indulge Armstrong's desire for publicity, self-aggrandizement, or vilification of Defendants, by sifting through eighty most unnecessary pages in search of the few kernels of factual material relevant to his claims." In a footnote, Judge Sparks noted: "Contrary to Armstrong's apparent belief, pleadings filed in the United States District Courts are not press releases, internet blogs, or pieces of investigative journalism. All parties, and their lawyers, are expected to comply with the rules of this court, and face potential sanctions if they do not."

Armstrong's attorneys refiled a much shorter, 25-page complaint on July 10th.

http://abovethelaw.com/2012/07/benchslap-of-the-day-lance-armstrongs-lawsuit-needs-some-training-wheels/

July 20, 2012

Weekly Issues in the News

By Geisa Balla

Three's Company

DLT Entertainment, the copyright owners of the 1970s sitcom "Three's Company", sent a cease-and-desist letter to producers of the off-Broadway play "3C," claiming that the play infringed on the "Three's Company" copyright by borrowing too many elements of the TV series, including the main premise of the show of a man pretending to be gay to live with two female roommates. The issue is whether "3C" is enough of a parody of "Three's Company" to be protected under the fair use doctrine. "3C"'s producer and playwright are concerned with the financial ability to fight the legal threats. David Adjmi, the playwright, initially agreed to the demands that he turn down any future productions of "3C" or any publication or circulation of the script, allowing his play to die after its Off Broadway run at Rattlestick Playwrights Theater, which ended on Saturday. "I can't afford a fancy lawyer," Mr. Adjmi said, "and I was getting all sorts of conflicting advice from my agents at CAA and my producers, some of whom doubted that the play would meet the legal standards of parody." However, Mr. Adjmi has not signed any document, and follow playwrights are urging him to fight. Mr. Adjmi said his intent was to write "a deep critique of the ideologies and assumptions behind the television series, leading to a collective nervous breakdown for the characters." DLT Entertainment is very protective of the overall brand of "Three's Company", as the show has earned substantial revenues from syndication on TV Land and home video. Donald Taffner Jr., president of DLT Entertainment explained: "We're up for renewal soon with TV Land, and we're playing around with the idea of doing a theatrical version of 'Three's Company' ourselves, so we don't want anything out there that might cause harm. And we think '3C' borrows far too many elements to make a fair-use parody argument."

http://www.nytimes.com/2012/07/18/theater/threes-company-lawyers-object-to-the-play-3c.html?_r=2

Macy's v. Martha Stewart

Macy's won a preliminary injunction against Martha Stewart on Friday, July 13, 2012, temporarily blocking plans by Martha Stewart Living to sell certain branded products at J.C. Penney stores. In December 2011, J.C. Penney announced plans to sell Martha Stewart-branded goods starting in 2013. Macy's filed a lawsuit against Martha Stewart Living, claiming that it had exclusive rights to sell certain Martha Stewart products, including soft furnishings, dinnerware and cookware. Macy's claims that Martha Stewart Living granted Macy's the exclusive rights to manufacture and sell Martha Stewart branded product in a 2006 contract that runs until 2018. New York State Supreme Court Justice Jeffrey Oing issued the preliminary injunction requested by Macy's, saying that Macy's had shown likelihood of ultimate success in its lawsuit. Justice Oing said that putting Martha Stewart products at J.C. Penney stores would deprive Macy's of its competitive edge. Martha Stewart Living plans to comply with the restrictions, but still will proceed with its deal with J.C. Penney early next year. "We continue to believe that we have not breached our agreement" with Macy's, the company said.

http://www.reuters.com/article/2012/07/13/us-macys-marthastewart-idUSBRE86C12I20120713

David Cassidy

A judge has ruled that the dispute between David Cassidy and Sony Pictures Television over Partridge Family will be heard by an arbitrator, and not a jury. Last year, the actor sued Sony and claimed that despite reports that ABC's top-rated series in the 1970s had generated nearly $500 million from games, magazines, posters and more, he was only paid a "paltry sum." Cassidy further alleged that his contract entitled him to 15 percent of net proceeds from merchandise and 7.5 percent of the net proceeds derived from the exhibition and exploitation of the underlying property rights of the show. Lost Angeles Superior Court Judge Joseph Kalin has decided to honor the arbitration provision of the actor's 1971 contract. Judge Kalin held that "There is no support for (Cassidy's) argument that he was fraudulently induced to enter into the arbitration agreement." Cassidy is appealing, as he would rather present his case before a jury.

http://www.hollywoodreporter.com/thr-esq/david-cassidy-partridge-family-jury-trial-lawsuit-349561

Madonna

VMG Salsoul recently filed a copyright infringement against Madonna, alleging that Madonna borrowed horn and string samples from a 1977 dance song by Salsoul Orchestra titled "Chicago Bus Stop (Ooh, I Love It)". The allegedly infringing song is "Vogue," released in 1990. VMG argues that it became aware of the samples only after they were detected by new technology that allows listeners to isolate and observe individual sounds within a song. The company seeks unspecified damages.

http://news.yahoo.com/blogs/abc-blogs/madonna-sued-over-alleged-horn-samples-vogue-154958191--abc-news-celebrities.html

Canada

Canada's Supreme Court ruled on July 12th that no performance royalties need to be paid to songwriters and song publishers for downloaded music. The court also said that previews of songs in online stores such as Apple Inc's iTunes are not an infringement of copyright laws and do not merit the payment of royalties, but that the royalties from streaming music are still valid. The court's distinction between downloads and streaming music is similar to the difference between buying a CD, where the recording company collects the royalties, and listening to a song on the radio, where the station pays the royalties to the artist via the music publisher or a copyright collective. The ruling was seen as a blow for music composers and the organizations that disburse royalties on their behalf.

http://www.cnbc.com/id/48165506/Canada_Supreme_Court_ends_royalties_for_music_downloads

Aereo Update

By Gergana H. Miteva www.mitevalaw.com

There were some firecracker developments in the eagerly anticipated Aereo case last week. The Southern District of New York denied the broadcasters' motion for a preliminary injunction (http://www.scribd.com/doc/99853009/American-Broadcasting-Companies-WNET-v-Aereo-TV#download), which was immediately appealed to the Second Circuit (http://www.scribd.com/doc/99939213/Broadcasters-Appeal-Decision-in-Aereo-Case) - clearly the plaintiffs were prepared for a negative outcome of their motion. As previously reported on this blog (nysbar.com/blogs/EASL/2012/05/aereo.html), broadcasters such as NBC, CBS, ABC, FOX, PBS and Univision sued Brooklyn-based Aereo for re-transmitting their content via an army of mini antennas to Aereo subscribers' digital gadgets.

This case presents an interesting stress test of the copyright framework in the context of a copyright owner's exclusive right to public performance. In a nutshell, Aereo argued that its antennas do not publicly perform the plaintiffs' content because its system stores a unique copy of the content and then individually performs it for each subscriber. This, Aereo contends, amounts to a private and not public performance of the plaintiffs' content.

Aereo's second defense to copyright infringement of the exclusive right to public performance was that the performance occurs not at Aereo's will, but at the will of the viewer - it is he/she who controls the operation of Aereo's system and initiates the performances. In its decision denying the broadcasters' request for preliminary injunction, the court went into a very detailed analysis of whether Aereo's technological setup and transmission of the plaintiffs' content amounts to a public performance. It did not reach Aereo's "willful performance" argument.

At stake in this stage of the litigation was whether the court should pull Aereo's plug before the conclusion of the case to prevent any further copyright infringement of the plaintiffs' content. The broadcasters' motion for a preliminary injunction was based on the part of Aereo's functionality, which allows contemporaneous viewing of copyrighted programs - in other words - the service allowing Aereo subscribers to view programs at the same time as viewers watching them on their televisions.

A major disputed point was the tiny antennas' ability to function independently of each other, which is essential to showing that every Aereo transmission to a subscriber is unique, and therefore private. The broadcasters contended that the antennas are too small to be able to handle the bandwidth necessary to provide the service. Their expert witness claimed that the antennas function in unison and multiple antennas need to be engaged to deliver content to each subscriber. Aereo's expert witness, on the other hand, insisted that each time a subscriber uses its service, a dedicated antenna is ascribed and that antenna alone is doing all the heavy lifting necessary.

The court was not persuaded by the broadcasters' expert witness' conclusion that the antennas could not function independently. For the court, Aereo's proposition that a sufficiently strong signal may overcome the obstacles associated with the size of the antennas, was more persuasive. The seemingly insignificant factual finding in Aereo's favor, that its antennas function independently, may prove quite important because it would affect not only the decision on the preliminary injunction but, if it stands on appeal, but it may also strongly tilt the outcome of the ultimate question - whether Aereo is engaging in unauthorized public performance of copyrighted content.

To determine whether it should grant a preliminary injunction for the broadcasters, the court also looked to its controlling precedent - Cartoon Network LP, LLLP v. CSC Holdings, Inc., (536 F.3d 121 (2d Cir. 2008)) ("Cablevision"). In Cablevision, the technology in question allowed customers who did not have DVRs to record cable programs at Cablevision's remote facilities and view them at times and locations of their choosing. Similarly to Aereo's position, Cablevision's argument was that each of its customers wishing to record a program had a unique copy of that program created and only that customer could play the program back from that copy. Like Aereo, Cablevision also argued that its technological setup privately performed the copyrighted content and did not infringe the copyright owner's exclusive right to public performance.

In Cablevision, the Second Circuit clearly defined how it interprets the meaning of "public performance" within the copyright framework. The court reasoned that it did not matter that the same copy of the content broadcasted was then transmitted to multiple viewers, because each such transmission was a separate performance of the content. Thus, the inquiry as to whether that performance was public should be focused on the manner in which the re-transmission reaches the viewer and not on the manner in which the content reaches the re-transmitter. In other words, the relevant question is: who is capable of receiving the re-transmitted performance? If it is multiple people, then the performance is public, if it is one person, then it is private. In the Cablevision context, the court concluded that a performance of a unique copy of a program sitting on the Cablevision system, which may only be viewed by one customer, was a private performance and did not infringe the copyright owners' exclusive right to publicly perform it.

The broadcasters in Aereo's case argued that Cablevision should not apply because Aereo is merely using a "technological gimmick" to re-transmit the very copy the broadcasters are transmitting since the customers are able to watch the content at "real-time" - with minimal or no delay. The court rejected this argument. It held that Aereo's transmissions, like Cablevision's, are of a unique copy on Aereo's system, and the viewer's ability to watch the program contemporaneously with its broadcast was not legally significant. To reach this conclusion, the court distinguished the process of "buffering," which merely serves as a fleeting repository for the copyrighted content, with Aereo's storing of the content, even when the "watch" function is engaged. The significance of this is that Aereo's system makes a copy from which the content is separately performed for the viewer, as opposed to a "buffer" which would effectively retransmit the "master" copy broadcasted by the plaintiffs.

The court further rejected plaintiffs' contention that, for Aereo to be effectuating a performance separate from the broadcasted performance, there needs to be a "break in the chain of transmission" or "complete" time-shifting (meaning that a complete copy of the program must be stored before it is performed for the viewer). Even if this was an inquiry relevant to other issues, such as if Aereo's use amounted to fair use or whether it copied copyrighted content without permission, it was not an inquiry relevant to the determination whether there was an unauthorized public performance of copyrighted content. Finally, the ability to view Aereo's transmissions on a number of different devices, such as smart phones and iPads, as opposed to a television set or a single device, was immaterial to the discussion.

Having concluded that the plaintiffs would not likely prevail on the merits of the public performance claim, the court ran through the remaining preliminary injunction factors, anyway, to facilitate the anticipated appeal of its decision, which promptly followed. Once again the stakes in this case have been raised - it not only gives the federal courts an opportunity to precisely define the meaning of "public performance" within the copyright framework, but it is also representative of the times we live in, it is another clash between the technological giants of yesterday with those of tomorrow.

July 23, 2012

The NCAA Sanctions Penn State

By Jordan Walsh

It is undoubtedly true that the full impact of the sanctions levied upon Penn State University by the NCAA in the wake of the Freeh Report and Sandusky verdict will not be understood for years to come. Yet a few things are certain. One of these is that the forfeiture of the program's 112 wins between the years 1998-2011 and the removal of Joe Paterno from the record books as the NCAA's winningest football coach in Division 1-A football is more severe than the so-called "death penalty" alone would have been. If, as NCAA President Mark Emmert stated "[t]he sanctions needed to reflect our goals of providing cultural change," the removal of the football wins from the record books is quite possibly the most appropriately tailored portion of a punishment, which also includes a 4-year postseason ban -- championship games and Bowl games --and a scholarship reduction of 10 scholarships per year for 4 years for the football team, a five-year probation for all Penn State sports, the hiring of an academic monitor by the NCAA, and a $60 million fine.

Leading up to today's press conference, much had been made of the so-called NCAA "death penalty," or the elimination of the football program for a set number of years -- considered to be the ultimate punishment. Taken together, though, the NCAA's sanctions will hurt more than a so-called "death penalty." The sanctions have in fact, ended Penn State's football program as we knew it, as the forthcoming cover of Sports Illustrated has so aptly depicted it.

A one-year ban on play would have been less effective in changing the culture of Penn State. As little as a mere 365 days later, it would have been business as usual in Happy Valley. New recruits could simply choose to red-shirt one season and play for a national title the very next year. The NCAA protected the local economy, which needs football game weekends, and the student athletes affected, who were given a choice -- to stay at PSU and keep their scholarships whether they play or not as long as they maintain their grades, or transfer to another school. Perhaps most importantly, the NCAA has waived the one year of lost eligibility usually required of transfers, allowing them to play immediately.

A choice is something that Sandusky's child victims certainly never had, and it is important --particularly for the native Pennsylvanians on the roster -- that the NCAA recognized in some fashion that these kids (ages 17-21 or so) currently at PSU deserved one. Now these athletes have a choice, and further, Penn State football must deal with an entire roster of what are essentially immediate free agents.

True, a "death penalty" would mean lost revenue -- television and otherwise -- for Penn State for that year or years, but the NCAA at least symbolically addressed this concern by making the fine amount of $60 million equivalent to one year's gross revenue for the football program. The $60 million(to be paid over 5 years) is to be used to start an endowment to help child abuse victims nationwide. There is some degree of poetic justice in the Penn State football team literally playing for the survivors for a year. Further, the loss of post-season eligibility and the overall tarnish on the brand will cost Penn State plenty in revenue for far longer than even the 4 year post-season ban. The only people buying Penn State memorabilia now will be the diehards. Further, the Big 10 conference has barred Penn State from its Bowl revenue sharing program, and will also be donating PSU's share to child abuse advocacy organizations for 4 years.

As for long-term effects, there is no single greater punishment than the forfeiture of the football wins from 1998-2011 inclusive. Pennsylvania bleeds blue and white as a state, and the NCAA has erased part of its history. There is no greater institution for most Pennsylvanians than Penn State, and during the time period in question most Penn State fans cared about nothing more than "Joe Pa" passing Bobby Bowden of Florida State for winningest Div. 1-A football coach (or subsequently Eddie Robinson of Grambling, in 2011, for winningest football coach ever). The battle for winningest coach was most certainly on the radar of Penn State in 1998 -- it was part of the national discourse. Penn State and Florida State had winning seasons and played in bowl games in 1998 -- it would have been very inconvenient for Coach Paterno and the program to turn in Sandusky in 1998. Instead, Sandusky retired.

Before the 1998 season, Paterno had (and now in fact has again) 298 wins. He won 111 games between 1998-2011, although there were several lean losing seasons between 2000-2004 where the main argument for Joe Paterno keeping his job was to pass Bobby Bowden in the record books. Many commentators openly pondered if Paterno was too old, and whether he had lost the ability to motivate his team to compete at a championship level. Had Penn State reported Sandusky to the police during any of these losing years, it likely would have tipped the tide in favor of Paterno needing to retire then as well. A major child abuse scandal going on under the longtime coach's nose while the team languished in the Big 10 cellar would have been the last straw. Bobby Bowden's team was winning regularly during these years, and Bowden took back the overall wins lead for a time. The flip-flopping of the coaches for most wins overall was fodder for major national media coverage throughout the early 2000s. Paterno did not finally pass Bobby Bowden for overall wins for the last time until 2008, at 383 wins. (Bowden himself then forfeited 6 wins due to an ineligible player on the field. Bowden retired with 377 wins in 2009 -- he earned approximately 108 of those wins in the years between 1998 and his retirement in 2009.) Thus, it is not a stretch to say that without the cover-up of Sandusky's abuse by Paterno and PSU administrators in the years of 1998-2011, he never would have remained head coach at Penn State long enough to become the winningest coach in NCAA Div-1, much less all of NCAA football history. It was always about the wins for Penn State and Paterno. The wins are the symbol of shame, of the culture that put the institution before the vulnerable. Only with the wins and Paterno's record erased can Penn State ever hope for a clean slate.

Jordan Walsh, Cardozo School of Law 2011, is a Graduate Fellow to Professor Marci Hamilton and a native Pennsylvanian. She can be reached at jordan.walsh610@gmail.com.

July 27, 2012

Weekly Issues In The News

By Geisa Balla

Coach

Coach Inc. was awarded a permanent injunction and $44 million verdict against Linda and Courtney Allen of Syosset, New York, who operated websites BellaFashions.net and MyClassyFashion.com, advertising and selling counterfeit Coach handbags. Southern District of New York Judge Colleen McMahon ruled that the Allens had "willfully" violated Coach's trademarks on 11 types of goods for a total of 22 separate infringements. The websites maintained by the Allens state that the items are "not original" and are "in no way affiliated with the authentic manufacturers." Linda Allen was similarly sued by Chanel in 2007 for trademark counterfeiting and infringement. "Linda Allen plainly requires substantial deterrence because she has not been deterred by prior judgments," Judge McMahon told the court. "She persists in her contumacious behavior. This award may be crippling, but it is plainly needed to prevent Allen from going back once again into the business of counterfeiting." Nancy Axilrod, Coach's deputy general counsel, stated that Coach was exceedingly pleased with the ruling, and added: "The decision in Coach v. Linda Allen, et al. should serve as a warning to defendants in all pending Coach lawsuits that courts consider counterfeiting a serious issue and are prepared to order defendants to pay large sums of money. This decision should also serve as notice to all who traffic in counterfeit goods that Coach will vigorously pursue you, and will win."

http://fashionetc.com/news/fashion/6439-coach-wins-44-million-judgment-against-mother-and-daughter-counterfeiters-linda-allen

Modern Family

The cast of the award-winning TV show "Modern Family" filed suit against the show's production company, 20th Century Fox Television, on July 24, 2012 for violating their work contracts under California law. The lawsuit is largely seen as a negotiation tactic for higher pay. The show's stars Sofia Vergara, Eric Stonestreet, Jesse Tyler Ferguson, Julie Bowen and Ty Burrell filed the lawsuit in Los Angeles in a legal move to void their current contracts. Ed O'Neill later joined the lawsuit. The lawsuit alleged: "Modern Family has been a breakout critical and financial success. That success, however, has been built upon a collection of illegal contracts." The complaint said the current contracts for Ferguson, Bowen, Burrell and Stonestreet violated a California law that limits personal service contracts to no longer than seven years. After starting in January 2009, most of actors' deals were set to run until June 2016, making them illegal, the lawsuit said. One source says that the actors were offered $150,000 per episode with a $50,000 bonus per episode for the upcoming fourth season and $200,000 for the fifth season. A spokesperson for 20th Century Fox had no comment on the lawsuit, but confirmed that a table read was canceled on Tuesday, when the cast was to return to production in preparation for the fourth season of the show.

http://newsandinsight.thomsonreuters.com/Legal/News/2012/07_-_July/_Modern_Family__stars_sue_over_contracts/

Lady Gaga

MGA Entertainment Inc, the maker of Bratz Dolls, filed a lawsuit against Lady Gaga and her management company in New York Supreme Court alleging breach of contract for failing to approve a line of dolls in the singer's image. The complaint alleges that it agreed to produce dolls in Lady Gaga's image in December 2011 at the "request and insistence" of Bravado International Group, a merchandising company that works with Lady Gaga. MGA claims that it paid Bravado $1 million in advance for the doll production. In April Bravado allegedly informed MGA that Lady Gaga wanted to delay production of the dolls until her new album is released in 2013. MGA says the defendants have continued to withhold final approval in order to delay marketing the dolls until next year and instead sell a licensed Lady Gaga perfume called "Fame." "Defendants' conduct is egregious, in bad faith and is pretextual, especially in light of the fact that MGA has, among other things, paid Bravado a $1,000,000 advance, agreed to an excessively generous royalty rate, invested millions in the preproduction of the Lady Gaga dolls and put its reputation and goodwill on the line in order to secure distributors and retail shelf space," MGA Entertainment said in the complaint.

http://www.bloomberg.com/news/2012-07-24/lady-gaga-sued-by-maker-of-bratz-dolls-over-contract-breach-1-.html

Gucci

Gucci Group filed a lawsuit against the great-grandson of Gucci's original founder, Guccio Gucci and his brother Alessandro, for using the name "Guccio Gucci" when marketing their own handbags and accessories firm ToBeG Srl. Gucci's original founder was also named Guccio Gucci. The court has found Guccio in the wrong, ruling that the name usage "constitutes an act of unfair competition to Gucci's detriment because the advertising materials of the defendant caused confusion with Gucci's products and business activities and took unfair advantage of the qualities and reputation of Gucci's products." In the past, Gucci Group has successfully sued family members Jennifer Gucci, Gemma Gucci, Cosimo Gucci, and Elisabetta Gucci for all trying to start companies using their own names.

http://www.refinery29.com/gucci-sues-gucci

About July 2012

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in July 2012. They are listed from oldest to newest.

June 2012 is the previous archive.

August 2012 is the next archive.

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