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Week in Review

By Martha Nimmer

Friend Request Denied

U.S. District Court Judge Richard Seeborg has given his initial approval to a settlement offer made by Facebook in the case of Angel Fraley et al. v. Facebook, Inc. This is the social networking giant's second attempt to resolve a class action lawsuit that was commenced last year. The case, filed in the Northern District of California and involving over 100 million potential class members, centers on the "critical issue of proper notice to users of social media as to their relationship to advertising online . . . ." Specifically, the lawsuit involves the use of Facebook's main advertising vehicle "Sponsored Stories." Plaintiffs allege that their names and likenesses were used without their prior consent in Sponsored Stories ads shown to their Facebook friends, in violation of the plaintiffs' right of publicity. Judge Seeborg rejected Facebook's initial settlement offer from August, which failed to award money to Facebook users whose personal information had been used unlawfully.

Under Facebook's new settlement proposal, users may claim a cash payment of up to $10 each, the funds to be paid from a $30 million settlement fund. Facebook also agreed to develop new online tools that would permit members to see what personal content may have been displayed in Sponsored Stories advertisements. A hearing on the fairness of the settlement offer is scheduled for June 28, 2013.

This news comes just a day after Facebook started to allow its more than 1 billion members to begin voting on changes to the website's policies, changes that include new privacy practices stemming from Facebook's recent acquisition of photo sharing program Instagram. Another policy at issue would "loosen the restrictions on how members of the social network can contact other members using the Facebook email system." These changes to Facebook's privacy practices have gained the attention of privacy advocates and other watchdog groups around the globe. The Ireland-based Data Protection Commission has asked Facebook to provide more information about its policy proposals.

Facebook members have until December 10th to vote on the policies. The vote, according to Facebook, is only binding if at least 30% of users vote. The last two "elections" held by Facebook failed to reach that threshold, however. Whether these privacy policy changes bring Facebook new legal troubles remains to be seen.

http://newsandinsight.thomsonreuters.com/California/News/2012/12_-_December/U_S__judge_gives_initial_OK_to_revised_Facebook_privacy_settlement/

http://www.reuters.com/article/2012/12/03/facebook-vote-idUSL1E8N3FT320121203


America's Next Top Rapper

Whether your dream is to become a supermodel, live on a deserted island with a bunch of strangers, or be yelled at by fitness guru Jillian Michaels as you exercise, there is probably a reality television show that can make that goal a reality. This was the thinking behind the rap competition, "America's Next Top Rapper," scheduled for December of last year. A website promoting the competition claims that aspiring rap and hip hop artists can win $20,000, a record deal with Universal and help from "a hit production team." To garner media attention for the event, creators Omnipresent Media and Lawrence "Amar" Wright enlisted the help of hip hop artist "Trina"--also known as Katrina Taylor. Taylor agreed to promote the event and serve on a three-person panel that judged the rap competition. Taylor, however, failed to promote the competition and demanded more money to ensure her appearance, according to a complaint filed by Omnimedia and Lawrence Wright in Queens County Supreme Court in New York.

"Trina, despite being paid to do so, never attended or participated in the competition in any form or fashion as agreed," the complaint states. As a result of Taylor's breach, plaintiffs aver, event promoters were "forced to arrange for a substitute artist to appear, on short notice . . . ." Plaintiffs are seeking $50 million in damages.

http://www.courthousenews.com/2012/12/04/52801.htm

Royalty Rules (No, Not Kate Middleton and Prince William)

Meanwhile, in the nation's capital: the Copyright Royalty Board has issued new regulations for licensing public broadcasting organizations, such as National Public Radio (NPR) and Public Broadcasting Service (PBS). The Copyright Act requires that the federal government must update its licensing rules and rates for noncommercial television and radio broadcasting every five years.

The Copyright Royalty Board received input from various noncommercial broadcasting organizations concerned about the new regulations, among them the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and the Harry Fox Agency. The new rates will take effect on January 1, 2013 and will remain on the books until December 31, 2017.

Notable changes to the rates include the royalty rates paid by PBS and NPR: under the new rates, licensing a musical composition for use in a PBS feature presentation will cost $232.18; the performance of a work on a NPR feature presentation will now cost $23.53. The new rates also include a new tiered system for determining the royalty rates paid by college radio stations--the rates will be based on the number of students enrolled at a college or university. Finally, the rules also laid out tiered rates for Christian and talk radio stations, whose rates will be based on the number of people the station reaches.

http://www.courthousenews.com/2012/12/03/52782.htm

Read the final rate rules: http://www.loc.gov/crb/fedreg/2012/77fr71104.pdf

Read the petitions submitted as part of the determination of reasonable rates and terms for noncommercial broadcasting: http://www.loc.gov/crb/proceedings/2011-2/ptp/

Show Me the Money!

Crowdfunding uses the Internet to elicit small monetary contributions from a large number of contributors. Crowdfunding platforms such as Kickstarter and Indiegogo have made it easier for start-up projects and young entrepreneurs to raise funds, despite the fact that traditional lending institutions are not "loaning money like they used to." Now, there is a move to allow contributors to reap financial rewards from their contributions to indie film projects: according to Variety, "equity crowdfunding would allow investors to see a return on their money, opening the door for financiers to contribute from $100 up to $100,000 each toward the next breakout hit." The problem with this plan, however, is that it is not exactly legal--yet.

Crowdfunding risks running afoul of federal securities law on two grounds. First, some crowdfunding involves selling securities, which brings into play the registration requirements of the 1933 Securities Act. Second, the websites that make crowdfunding possible may fall under the definition of "broker" or "investment adviser," according to the amorphous language applied by the Securities and Exchange Commission. To clarify these ambiguities, the SEC has commenced the preliminary stages of the rule drafting process, which normally takes three months. Hopeful members of the independent film and crowdfunding communities are cautiously optimistic that the SEC will release guidelines by the second quarter of 2013.

http://www.variety.com/article/VR1118063122

For more information on crowdfunding, see: http://www.sec.gov/info/smallbus/acsec/bradford_crowdfunding.pdf and Ronald L. Barabas, Crowdfunding: Trends and Developments Impacting Entertainment Entrepreneurs, Volume 23, Number 2 of the Entertainment, Arts and Sports Law Journal, (Summer, 2012).

Same Suit, Different Defendant

Undeterred by previous unsuccessful attempts to sue Marvel Entertainment, Stan Lee Media, Inc. (SLMI) has now gone after Disney in an effort to regain control over famed and iconic characters Spider Man, X-Men and the Fantastic Four, among others. Stan Lee, the comics legend who created the Spider Man, X-Men and Fantastic Four comic books series, founded SLMI in 1998 after disputing with Marvel. SLMI's suit, filed in October in Colorado federal court, alleges that Lee (who is no longer associated with SLMI) did not properly assign the works to Marvel, and that Disney never recorded its agreement with Marvel with the U.S. Copyright Office. As a side note, it should be pointed out that Disney purchased Marvel in 2009.

In its complaint, SLMI seeks billions of dollars in damages for the unauthorized use of Lee's comic creations in numerous films such as Spider Man and The Avengers. SLMI, according to Hollywood Reporter, "hoped to put the burden of proving rightful ownership upon Disney." So far, however, that plan has yet to succeed: On November 30th, Disney filed a motion to dismiss SLMI's complaint, calling it "flawed beyond cure." Among Disney's assertions, the company states that there is "no conceivable basis" on which SLMI can bring a copyright claim against The Walt Disney Company. Firstly, Disney avers, Colorado lacks personal jurisdiction over the defendant. Additionally, Stan Lee Media's complaint neglected to "plead a plausible copyright infringement claim," by failing to mention which specific works and characters it owns, instead simply referring to "comic book characters . . . that (Lee) had previously created or would create." Finally, among the many deficiencies listed by Disney, SLMI's suit seeks to relitigate the issue of copyright ownership, even though three different courts on three different occasions ruled on the issue. "The instant suit is just plaintiff's latest attempt to assert the same rights allegedly stemming from the 1998 agreement," says the Disney motion to dismiss.

http://www.hollywoodreporter.com/thr-esq/disney-wants-stan-lee-medias-396751

Read the motion to dismiss here: http://www.scribd.com/doc/115375211/gov-uscourts-cod-136103-21-0

Time to Talk Turkey

And now, to a different type of art: ancient antiquities. On Monday, the Dallas Museum of Art returned an ancient mosaic to the nation of Turkey. The piece dates from approximately 194 C.E., and depicts Orpheus--the ancient Greek musician, poet and prophet--using his lyre to tame a group of wild animals. The museum decided to return the marble mosaic after researching its provenance and deciding that the work was likely looted years ago from an archaeological site in the area around the city of Sanliurfa, located in present day southeastern Turkey. The decision to return the ancient mosaic is part of the museum's plan to foster good relations with foreign museums, in an effort to facilitate exchange agreements with art institutions abroad. Maxwell L. Anderson, the director of the Dallas Museum of Art, also said that the return was part of a broader effort to tackle provenance issues head on: "[w]hat I didn't want to happen here was a succession of slow-motion claims coming at us." Turkish officials, according to Anderson, had been trying to locate the mosaic for some time, and "provided photographs of a looted site near [modern day Sanliurfa] whose physical characteristics closely matched those of the mosaic."

The decision of the Dallas Museum of Art follows robust efforts by Turkey to repatriate antiquities it says were unlawfully acquired by American and European museums. In the last few months, Turkey has demanded that the Metropolitan Museum of Art return artifacts that the Met says were legally acquired in the 1960s before being donated to the museum in the late 1980s. Unconvinced, Turkish officials filed criminal charges in Turkey this summer, seeking an investigation into the allegedly illegal excavation of 18 antiquities that are now part of the Met's Norbert Schimmel Collection. Directors from the Pergamon Museum in Berlin have even accused Turkish officials of "undue intimidation."

Turkey's efforts to reclaim allegedly looted antiquities from abroad has spurred international debate over who owns these priceless works of art, given the fact that national and regional borders have changed frequently in the last 100--let alone 1,000 --years. The UNESCO Convention of 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property is the international treaty that permits museums to "acquire objects that were outside their countries of origin before 1970." Although Turkey ratified this treaty in 1981, the country has relied on a 1906 law created during the Ottoman Empire that instituted a flat out ban on the export of cultural artifacts. Whether Turkey has any moral or cultural claim to these artifacts, however, is further complicated by the fact that its own museums are filled with pieces acquired by the Ottoman Empire during their rule over parts of the Middle East and southeastern Europe.

http://artsbeat.blogs.nytimes.com/2012/12/03/dallas-museum-volunteers-to-return-mosaic-to-turkey/

http://www.nytimes.com/2012/10/01/arts/design/turkeys-efforts-to-repatriate-art-alarm-museums.html?pagewanted=all&_r=0

Read the UNESCO Convention here: http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html

Tax Woe for LiLo

Lindsay Lohan is not having a very good year. Last month, the Liz & Dick star was arrested in New York for allegedly punching a woman in the face, and is now being charged with third-degree assault. This charge comes on the heels of charges filed against her in Los Angeles for obstruction of justice and lying to a police officer following a car accident this past summer. Now, the IRS has seized all of her bank accounts and has filed tax liens against the star for 2009 and 2010. The once-promising star also has unpaid taxes from last year. The Huffington Post reports that Lohan is said to owe the federal government over $230,000.

http://www.huffingtonpost.com/2012/12/03/lindsay-lohan-irs-back-taxes-charlie-sheen-debt_n_2233554.html

In Memoriam: Dave Brubeck

Dave Brubeck--the jazz musician best known for pieces such as "Take Five"--passed away on Wednesday, a day short of his ninety-second birthday.

Mr. Brubeck was born in 1920 near San Francisco, California. His mother, a choir director at a local church, introduced him and his two brothers to various musical instruments. Until attending college, however, Mr. Brubeck had no interest in pursuing a career in music--he planned to follow in his father's footsteps and become a cattle rancher. Luckily for the music world, however, Mr. Brubeck switched his major from veterinarian sciences to music.

After serving in the Army during World War II and playing with the Army band, Mr. Brubeck attended Mills College where he studied jazz and forged important connections with other musicians. Mr. Brubeck's first musical ensemble was composed of several fellow Mills students.

In 1954, Mr. Brubeck became the second jazz musician, after Louis Armstrong, to be featured on the cover of Time. That same year, he signed with Columbia Records, promising to deliver two albums a year, including the album "Time Out," recorded in 1959. Notably, "Time Out" has since sold about two million copies. By the end of the 1950s, Mr. Brubeck had "broken through with mainstream audiences in a bigger way than almost any jazz musician since the Second World War." The popularity of his music remains today.

In addition to jazz music, Mr. Brubeck is also remembered for his strong convictions. In the 1950s, the composer clashed with college deans who told him not to perform with a racially mixed band. In 1958, Mr. Brubeck refused to visit South Africa when it was revealed that he would be contractually required to play with an all white band. Additionally, as his obituary in the New York Times notes, the composer also used jazz "to address religious themes and to bridge social and political divides." Specifically, the work "The Gates of Justice" dealt with African Americans and Jews in America. Another piece, "Truth Is Fallen," commemorated the killing of students at Kent State University who were protesting the Vietnam War.

Mr. Brubeck was named a Jazz Master in 1999 by the National Endowment for the Arts, and in 2009, received a Kennedy Center Honor. He is survived by his wife, five children, ten grandchildren and four great-grandchildren.

http://www.nytimes.com/2012/12/06/arts/music/dave-brubeck-jazz-musician-dies-at-91.html?pagewanted=all&_r=0

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