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March 1, 2013

Reflections on Transitions: Things I Have Learned

By Jessica Thaler

Have you ever felt as though you are having a bad day, bad week, bad month, bad year, bad decade? I found myself having all of the above simultaneously. I was unhappy at my job, going through a bunch of personal struggles and feeling very alone, estranged, disregarded, unsatisfied and lost. I was in my mid-30s, single and living in New York City, one of the most exciting and wonderful and lonely places you could possibly inhabit. I had a constant internal struggle between what I was "supposed" to be doing and how I was "supposed" to be living at that stage of my life, and disliking what I was doing and how I was living. I felt like I was constantly in an uphill battle with The Abominable Snow Monster of the North, who was constantly hurling meteor-sized snowballs at me.

"Work is just a means to live" was the motto my father said my grandfather lived by. As wonderful and enlightened as it sounds, in this day and age, with the advent of the computer, the Internet, the cell phone, Citrix, video conferencing, the Treo, the BlackBerry, the iPhone, email, cloud computing, virtual conference rooms, Skype and more, there is no longer a distinction between work time and family time. My grandfather was a hard worker. He came out of the Depression, working and building a very healthy nest egg for his wife and children despite his lack of formal education. (He got his high school diploma the year before I did, his pride hiding that fact from his children and grandchildren - only my grandmother knew the truth.) But his workday was early morning until early evening, not 48-hour stints in the office. His workweek was generally five days, not back-to-back weekends making one week flow undetected into the next. It was not awful if a person did not love what he or she did because work could be compartmentalized, as people knew there was an end to each workday and each workweek. Work as a means to an end was not a daunting statement.

The Plunge

At the time my father shared these words with me, I was struggling to find purpose in what I was doing and to find happiness and satisfaction professionally. I kept hearing my grandfather's words; I understood them intellectually, but they were not bringing me comfort or helping me get through the day. I wanted more out of my job and my career. I wanted to enjoy what I was doing each day because I was spending far too much time working not to. It was 2008. I left the firm I was working for to pursue my dream, but my timing was off. My expertise and client relationships were in banking and finance, an industry that was the heavy stone pulling the economy down, so, like many others, I found myself looking for a new job. Like many others finding themselves in transition, I found myself feeling like I was alone.

Every situation is different. Some people have money saved. Some have spouses or other life partners who can help alleviate some of the financial pressures or provide the needed emotional support. Some choose to move home. Some pretend the transition is not happening. Some have a great deal of education. Some have little. Some are very senior level. Some are very junior. Some will choose to grab their passports and take off on trips to restore the soul. Some will not be comfortable taking even one day off until they have found something. Some will become hermits and speak to no one. Some will go to therapy or turn to religion for guidance. Some will speak to anyone willing to lend an ear. Some will spend their days working out. Some will spend them goofing off. Some will focus on all the home projects they had been meaning to do for years. Some will wake each morning and spend hour upon hour searching through websites for jobs. Some will attend conferences. Some will fill their schedules each day with coffee, lunch and drink dates - all in the name of networking. Some will have supportive family and friends. Some will want to divorce themselves from their family and friends. Some will become sleepless, get stomachaches and have their TMJ act up. Some will breathe deeply for the first time in years. Some will cry. Some will be angry. Some will look at it as a blessing. Some as a curse. For me, I was able to identify with and directly relate to many, if not most, of these people at some point during my transition.

Working Within and Without

Transition is discouraging. It can be very hard to stay positive. I have been in transition for a while now and, during that time, set up my own firm. I get an unsteady flow of work from clients and other small and solo firms and have obtained a full-time contracting position for which I am grateful, especially when the ebb and flow of my practice starts to weigh on me. I have made it work. I have struggled, failed, fallen down and been scraped off the floor. I have spent hours talking to many people. I discovered that, upon first hearing that a person is in a job search, people are generally very sympathetic, offering drinks, hugs, advice, contacts and more. It is not that sympathy wanes as the months of searching go on, but rather that people just do not know what more to say.

I have read countless books and attended numerous seminars trying to figure it all out. I do not have all the answers but I have made great strides in my outlook, which has significantly improved my access to opportu¬nities, personal and professional relationships, as well as my physical and mental well-being.

When I first started to look for a position, I was in a very negative place, the victim, fighting for control over things I would never have control over, looking for answers and explanations where there were none. I have learned many things about control (or the lack thereof), about how things work (and do not work), about people and about myself. Someone recently commented that I appeared much calmer, happier, at peace and, after we spoke about what had changed in my life and my outlook, he smiled and asked, "So, you have finally accepted your situation?" I thought about it and answered, with a grin, "No, I have surrendered to it."

Whether characterized as surrender or acceptance, I have come to realize that the key is understanding that I can actually control only a small part of my transition. I can control what I do, how I present myself and how I take care of myself. I have little to no control over how I am perceived, even when I put my best foot forward, what assumptions people may make, what is going on with the economy, how many people I am competing against, the decisions a business makes concerning its hiring needs or the candidates it chooses. All I can do is to understand that a large part of the process is luck. In the interim, while I keep pushing, applying, interviewing and getting rejections, I need to take care of myself.

I have had many leads. I have had offers that I turned down and some that were reneged due to a change of financial circumstances of the company. I have quadrupled my already large network. I have joined every jobsite and every social networking site. I have gotten contract work. I have started my own business. I have spent multiple hours per day making calls; attending meetings; emailing; writing and rewriting my resume, my cover letter and my biography. Not being a coffee drinker, I have never visited as many different Starbucks as I have during this time of transition. I went from never having a cup of coffee to having a few each week. Despite being someone who does not enjoy working out, I have become a regular at the gym, if only to get out of the house for an hour or so each day. I have taken up drawing and painting again after not picking up a brush in more than 14 years. I have learned to enjoy a quiet night at home and stopped filling my evening calendar to the brim. I have come to appreciate the day away from the City with "away" being the suburbs, as opposed to an alternative continent. I have spent the day with the TV on from 7:00 a.m. until midnight without knowing what I watched, as it was on only to provide the companionship and background noise I used to get by being in an office surrounded by others. I have started to learn that asking for help is okay. I have learned how to just say "thank you" when someone offers to pick up the tab, whether for a cup of coffee or for a meal, and not to feel guilty about it. I have gotten further involved with volunteer work - Make a Wish, the Red Cross, my alumni associations and more - figuring if I cannot feel fulfilled while making money, I will seek that fulfillment through doing good for others.

Fullness of Transition

Transition is a word I have used much more frequently since 2008, and I have recognized that it has many meanings. With regard to a career transition, it may mean a person is looking for a position after a layoff, after raising a family or after some other hiatus from working, generally; starting his or her own firm or business, or leaving one or the other; shifting to a different industry focus or type of organization or role; or entering or exiting from a profession. No matter the form transition takes, I have come to realize the experiences and emotions and methods for managing, prevailing or coping in the face of those experiences and emotions have many commonalities. It is scary, exciting, daunting, fun, frustrating, fulfilling and stimulating all at one time. What has gotten me through this process so far?

Accepting, or surrendering to, my circumstances. I have come to understand and embrace the reality that there is an element completely in the hands of the universe, the almighty, faith, karma, luck, or however else the unknown can be characterized, and it plays a large role in reaching the end goal of this transition process. I do need to take control of the things that I do have control over and take comfort in that fact. If I do everything I can actually do that I have control over, the only thing left to do is become comfortable with the fact that there is nothing more I can do other than wait for the stars to come into alignment. (If only I could control the stars.)

Allowing myself to feel down. This is not a call for martyrdom but rather a knowledge that transition is hard, very hard, and there will be good and bad days in the process. Both the good and the bad are to be expected. I try to remember that I am not made of steel, as much as that was a hard reality to grasp, having always prided myself and presented myself as someone who can handle anything thrown at me. However, accepting my vulnerability was liberating. It allowed me to say it is okay not to plan six meetings in a single day, to take a few days off from submitting job applications, to spend a few hours or a full day on the couch watching mindless TV, crying off and on, not answering the phone, to let my friends and family see my fears and then allow them to take care of me.

Forgiving people who do not know what to say to or do. People want to help. They care for me. But, not knowing what to say, they will often try to provide a pep talk or words of wisdom and inspiration. Although these words often feel empty, obvious and annoying, they do come from a good place, normally. I also have come to understand that they can stem from the other person's fear that he or she may end up in the same position and that they do not know how to tackle that fear or how they would possibly get through what I am managing my way through. If nothing else, these words often do work great as screensavers. Once I had compiled a list of proverbs so long that I was able to ensure the ability to change them monthly for the next three to four years, how did I avoid an unintended feeling of resentment for and frustration with these well-intended friends, family members and colleagues? I worked up the courage to tell people what I needed, whether it is meeting me at Starbucks, for a quick lunch, a movie or just a hug. They do want to help. Most will be very grateful to know how they can help and be supportive.

Getting - even more - involved. Once people come to know of you as doer, as someone looking for networking opportunities, for ways to enhance your resume, you will be asked time and again to do one more thing, join one more committee, plan one more event, write one more article or speak on one more panel. With all the positives of this predicament, it did often leave me struggling to balance my sanity with what I thought I "should" do and trying to come through for everyone. I tried to set up rules as to how many things I would take on, meetings I would agree to and activities I would participate in daily, monthly and weekly, but I have found that nothing in my job search has been more beneficial than the volunteer work I have done, whether with professional organizations, nonprofits or otherwise. As a result, I quickly gave up on those rules. When I feel at my most overwhelmed and find myself struggling to prepare for, or even just get dressed for, yet another meeting, I remind myself that "you never know from where the next great opportunity will come." It has proven true time and again.

Realizing that I am not alone. Although misery does love company, although we have all had the nights commiserating with colleagues and friends, and although the occasional evening of venting can help me to feel better, I have learned that a "woe is me" mentality not kept in check will throw me quickly, and with added velocity, down Alice's rabbit hole, nothing to grab onto, walls too slippery to brace against, no cushion identifiable below, in the dark, hearing scary noises (sounding very much like insults) emanating from the abyss. I found the best thing to do is talk with people who are transitioning but who are also being proactive and those who have recently successfully transitioned. Those compatriots can provide a knowing nod and sympathetic smile when I am describing the latest sleepless night, my frustration that an opportunity fell through, my exasperation with feeling like my resume is in the void somewhere and my fear of an interviewer's unexplained silence. They will be less likely to walk me so close that I find myself teetering on the edge of the rabbit hole and more likely to ask why, exactly, it is that I am even looking into that hole again. They will help me see that hole ahead, recognize it is there, understand why it is appearing, and help me to steer in another direction. They will also understand the bumps and bruises I have after a recent fall and may have a trick for alleviating the lingering pain and discomfort.

Knowing that I am, and my situation is, not unique. It is not as harsh as it sounds. Despite always being praised for and encouraged to be unique, and in many ways I am very much my own person, and although my specific situation differs in degrees, the commonality I share with others in transition is just that - being in a state of transition. That process brings about uncertainty, vulnerability, stress and fear. As much as acceptance of this lack of distinction was a blow to my ego, when I finally accepted it, I was able to take a deep breath, recognize that there are others similarly situated who have survived this before, will survive it again and, because I also possess many of the same skills, education, resources, resilience, strength, perseverance, power, spirit, desire and drive, I too will survive. Not only will I survive -- I will succeed in my transition.

There Just Will Be Bad Days

Despite all the good, hard work and having a great screensaver, there are still those days that are just bad. The days when I decide I will never work again. I will never be successful. I am a failure. I never deserved to get where I was prior to this transition. For me, those days tend to happen when a job opportunity falls through, whether after one or more interviews or, sometimes, after finding out it has been filled before even having had the opportunity to interview. It is the day when I am told "you're too senior" and "we need someone to hit the ground running" during two separate conversations regarding two similar positions at two different companies. It is when I am heading to a wedding, a baby or bridal shower or a birthday and want to get a gift, knowing I would have gotten a "better" gift if I were in a different financial position. Those days also happen after having a great meeting or interview, when I become so fearful of getting my hopes up, I begin convincing myself that it will not happen before the BlackBerry can even reset itself and start receiving the emails and texts that came through while on the interview.

I have to work hard to get myself through those days. I battle my demons. I know I will not get through every day unscathed. I am learning to have compassion for myself. I am figuring out what I need to feel safe and supported and to seek it out, to take care of myself, to put myself first when I need to, to allow myself to feel and to just be, and to know, at risk of using one of much dreaded proverbs, "this too shall pass."

Moving From Negative to Positive

I truly believe that this will pass and that this period of my life, although challenging in many ways, is part of the cycles that we all must go through in our lives. I believe that, at some point, having had the courage to go out on my own to build a practice, the ability and expertise to acquire and service clients of various sizes and structures in a multitude of industries, the resourcefulness and fortitude to find and maintain a full-time (and now very long-term) contract position that adds to my experience and supplements my income, the altruism and ambition to volunteer for (and often take a leadership role in) professional, philanthropic and other organizations, the initiative and sociability to expand both my personal and professional networks and the great appreciation for and the good fortune to have people in my life who have advised, supported, mentored, listened, assisted, comforted, encouraged and even just hugged me, will all work collectively not only to allow me to find a new job but also to permit me to find professional and personal satisfaction and fulfillment in and through that new job. Like Rudolph who turned his bad experience with The Abominable Snow Monster of the North into friendship, I know that I will look back at this time of transition with the knowledge that I embraced that which scared and challenged me, and transformed my experience into a positive one.

JESSICA THALER is a lawyer in New York City, practicing as a corporate-transactional generalist, counseling clients in connection with various types of corporate transactions including lending and finance, mergers and acquisitions, development and cooperation, services, real property and licensing, in the fields of sports, media, telecommunications, biopharmaceuticals, video games and virtual worlds, entertainment, environmental, mobile advertising, technology and construction, among others. She is also a member of the New York State Bar Association and serves as the Chair of NYSBA's Committee on Lawyers in Transition, as Co-Chair of Membership of its Entertainment, Art and Sports Law Section and as an active member of the Sports Lawyers Association. Ms. Thaler is a graduate of UCLA, cum laude, and Fordham University School of Law. A version of this piece originally appeared in the September 2012 issue of the New York State Bar Association Journal, Vol. 86, No. 7.

Deputy General Counsel Lincoln Center for the Performing Rights

JOB DESCRIPTION: Reporting to the General Counsel, the Deputy General Counsel provides support for the General Counsel of the world's leading performing arts center in all aspects of the organization's legal affairs.

Candidates MUST have significant Digital and Media experience.

Specific responsibilities include:

• Provide support to the General Counsel as legal advisor on performing arts and education related matters, with a focus on programming/production and digital media matters but also including a wide range of other matters such as facilities, fundraising and operations.

• Draft and review a wide variety of contracts to ensure that the best interests of the organization are served, including contracts involving artists, co-productions, consultants, contractors, licenses and rentals, corporate sponsorships, artistic commissions, concessions, information technology, media production, product development and distribution, and other matters within the core mission and ancillary businesses of the organization. Conduct and/or provide advice and assistance in contract negotiations.

• Serve as resource for non-legal staff on legal matters including contracts, labor and employment matters, company procedures, liability, intellectual property, and other matters.

• Coordinate with Associate General Counsel, the department's Paralegal/Executive Assistant, and a rotating staff of 1-2 in-house legal interns, and help manage a large and highly valued group of outside pro bono counsel, to ensure consistency of information flow, workload and work product.

• Sensitivity and responsiveness within time constraints, practicalities and realistic risks and assessments of issues that are presented and solutions offered.

REQUIRED QUALIFICATIONS:
• JD
• Member of NY State Bar.
• 7+ years of experience directly related to the duties and responsibilities specified.
• Excellent writing skills.
• Ability to communicate and relate legal issues to non-legal staff.
• Experience with non-profits and/or in-house.
• Appreciation for the arts a plus.

TO APPLY: Please send cover letter, resume and salary requirements to: humanresources@lincolncenter.org.

Lincoln Center is an equal opportunity employer.

March 3, 2013

Week in Review

Martha Nimmer

Embracing the Evil

According to a panel of trademark judges in the nation's capital, "there is only one Evil Empire in baseball and it is the New York Yankees." Now, this may sound like bad news for the Bronx Bombers, but actually, it is quite the opposite: the statement came from the court in response to a request earlier this month from a private entrepreneur, known as Evil Enterprises, Inc., to register the trademark for the phrase "Baseballs [sic] Evil Empire." The Yankees objected to the registration, arguing that the team possessed the exclusive rights to the phrase in connection with baseball. The court agreed, stating "allowing anyone else to use the phrase exclusively would likely cause confusion."

Evil Enterprises initially applied for trademark registration of the "evil empire" phrase in 2008. According to The Wall Street Journal, the term was "coined in regard to the Yankees by Larry Lucchino, the president and chief executive of the Boston Red Sox, back in 2002." Lucchino referred to the Yankees as the "evil empire" upon learning that the team had acquired sought-after Cuban pitcher Jose Contreras. Unfazed by the
Red Sox, the Yankees embraced the evil empire label, even playing music from "Star Wars" during their home games.

Lawyers for Evil Enterprises are unsure if they will appeal the panel's ruling.

http://online.wsj.com/article/SB20001424127887323549204578320531185286140.html?mod=e2fb

The Great Intern Revolt of 2013

In what is sure to send chills throughout the boardrooms of corporate America, summer 2013 may be the last hurrah for unpaid intern labor. As it turns out, people -- yes, even students -- like to be paid for their work, which is what led two former interns for Fox Entertainment Group to sue Fox Searchlight in September 2011. The former interns, who worked on the hit movie "Black Swan", claim that the company's unpaid production internship program runs afoul of minimum wage and overtime laws. Broadly, the plaintiffs argue that the interns performed work for the film company that displaced paid employees; that Fox financed, closely monitored and set employment conditions on productions like Black Swan; and that the internship program didn't qualify as a bona fide training program under the Labor Department's "Six Factor Test." The suit against Fox Searchlight was later expanded to cover Fox's entire internship program. An amended complaint in the suit lists damages of at least $5 million.

Fearing an unfavorable ruling, Fox has filed numerous court papers, the latest one being a motion for summary judgment. Fox has also filed a motion to strike the class claims, in essence arguing that the typicality requirement for class action certification is not satisfied: "[f]our named Plaintiffs seek to certify five different classes of student interns, some of whom may have interned on any one of 27 movie productions (putative Production Interns) or may have interned at any of over 500 corporate offices nationwide (putative Corporate Interns). Plaintiffs make dozens of wage and hour claims under a host of state and federal laws against Defendants Fox Searchlight Pictures, Inc. and its parent company Fox Entertainment Group, Inc., neither of whom employed much of the putative class." To prevail in its motion to strike, Fox must convince the court that Fox was not a "joint employer," that the company's role was limited in organizing production internships, and that it is not feasible, or desirable, to adjudicate the array of claims made by individuals with unique and varied internship experiences with Fox.

http://www.scribd.com/doc/126599952/Interns-Dismissal

Read the plaintiffs' motion for summary judgment here: http://www.scribd.com/doc/126600276/Interns-Summary

Read Fox's motion for summary judgment here: http://www.scribd.com/doc/126599952/Interns-Dismissal

Six Strikes, You're Out

After years of planning, five major Internet Service Providers (ISPs) have finally launched the much anticipated and debated "Copyright Alert System." The goal of the program is to educate Internet users about content theft and decrease incidents of copyright infringement. The five ISPs are Verizon, AT&T, Comcast, Cablevision and Time Warner.

Under the Copyright Alert System, also dubbed the "Six Strike Policy" because of its graduated penalty system, content owners monitor P2P sites and look for material that has been uploaded without permission. Notices detailing the illicit uploads are then sent to the ISPs, which in turn send warnings to their users. The first warning, or "alert," sent to a user is used to notify an ISP subscriber that a customer has "made content available illegally through their connection." Subsequent alerts become more serious, and the consequences riskier.

Each ISP participating in the Copyright Alert System has its own mitigation measures, writes The Hollywood Reporter. AT&T, for example, plans to require repeatedly-targeted customers to complete an "online education tutorial on copyright." AT&T also reserves the right to cut off access to certain websites, and, after the fifth alert, share the offending customer's personal information with the content owner if it wishes to pursue legal action.

Unsurprisingly, the new system has its critics. Privacy advocates have denounced ISPs' plans to share user information with content owners. Small business owners who provide open WiFi access to customers, such as cafes and bookstores, also worry about the impact of the Copyright Alert System on the businesses' ability to use and provider Internet access. Even more concerned are the ISP customers, who want to know how they will be able to appeal an alert or a strike lodged against them. According to The Hollywood Reporter, The Center for Copyright Information, in collaboration with ISPs, suggests a review process handled by the American Arbitration Association as a way to allow customers to appeal strikes. Users who contest strikes will have to pay $35 for a review, although the fee is waived if financial hardship can be shown; refunds are given when appeals are successful.

Whether this program has any notable effect on clamping down on Internet piracy remains to be seen.

http://www.hollywoodreporter.com/thr-esq/internet-providers-launch-copyright-alert-424231

Fox and Dish

Fox just won't quit: last week, Fox Television filed an amended lawsuit and a new injunction in a California federal court, targeting Dish's Hopper with Sling, also known as "Dish Anywhere." Last July, a federal judge denied Fox's first motion for a preliminary injunction, ruling that that "copies made within Dish's system as an "intermediate" step to a user's time-shifting" qualified as fair use, and did not pose the threat of irreparable harm.

Dish's Hopper service was introduced in January, and received "widespread attention when CBS prohibited its CNET subsidiary from awarding a Best of Show prize." The Consumer Electronics Association eventually overruled CBS' decision, and awarded the product the prize. Fox, however, remains unimpressed. "Paying Dish for a satellite television subscription does not buy anyone the right to receive Fox's live broadcast signal over the Internet or to make copies of Fox programs to watch 'on the go,' because Dish does not have the right to offer these services to its subscribers in the first place," writes Fox in a memorandum in support of its preliminary injunction motion.

A Dish spokesperson responded to the lawsuit, saying, "[w]ith its latest motion, Fox continues its war against how Americans watch TV. Dish has long argued consumers have the right to privately watch shows anywhere, anytime, and it looks forward to continuing its fight on behalf of customer choice and control."

So, in the meantime, it looks like TV watchers are stuck with the tyranny of commercials...

http://www.hollywoodreporter.com/thr-esq/fox-asks-judge-stop-dishs-423295

Read Fox's preliminary injunction memo here: http://www.scribd.com/doc/126786202/Fox-Injunction-Motion

March 8, 2013

Week in Review

By Martha Nimmer

A Losing Bet

Siding with the NCAA and the NFL, a New Jersey federal judge has struck down a law that was set to legalize sports betting in the state. Both the NCAA and the NFL sued to prevent the law from going into effect, which was signed into law by New Jersey Governor Chris Christie in January 2012. The law permits betting on professional and college sports at racetracks and Atlantic City casinos.

The petitioners, which include the NCAA, the NFL, the NBA, the NHL and MLB, argued that the law, if permitted to go into effect, would undermine the integrity of professional sports. The petitioners also relied on a federal law from 1992 that required states to restrict sports betting. Specifically, the U.S. Professional and Amateur Sports Protection Act of 1992 bans sports betting in all but four states: Nevada, Delaware, Montana and Oregon.

New Jersey, in turn, argued that the 1992 law was unconstitutional. Unfortunately for New Jersey, the court did not agree: "[a]fter careful consideration, the Court has determined that Congress acted within its powers and the statute in question does not violate the United States Constitution," wrote U.S. District Judge Michael Shipp. To make matters worse for the Garden State, the judge also issued an injunction prohibiting the state from "sponsoring, operating, advertising, promoting, licensing, or authorizing a lottery, sweepstakes or other betting, gambling, or wagering scheme" based on college or professional sports.

The case is National Collegiate Athletic Association v. Christie, 12-4947, U.S. District Court, District of New Jersey (Trenton).

http://about.bloomberglaw.com/legal-news/new-jersey-sports-gambling-law-blocked-in-win-for-leagues/

Mad Model

Even though the photo in question was taken more than half-a-century ago, former fashion model Gita Hall May is not pleased that her image is being used in the Emmy winning television show, "Mad Men".

May rose to fame as a fashion model and actress in the 1950's and 1960's. The photo in question, taken by acclaimed photographer Richard Avedon, was used in a Revlon advertisement in the early 1960s. Fast forward more than fifty years, and the photo, according to the complaint, is the centerpiece of the hit show's opening credits. According to May, she only gave permission to Revlon to use the photo in connection with the promotion of cosmetics, and did not "agree to allow, forty years later, her image to be cropped from the photo [. . .] and inserted as a key element in the title sequence of a cable television series, without her consent and for commercial purposes." The former model seeks compensation for "the value her image contributed to their property or the revenues that her image contributed to their profit." According to the complaint, "Mad Men" has earned over $1 billion to date.

Although the series has been on the air since 2007, the suit explains that May only learned about the alleged unauthorized use of her image in 2012, when the show became available on home video. Apparently, May did not know that the show was on cable TV...

http://www.hollywoodreporter.com/thr-esq/model-79-sues-appearance-mad-425671

"Born This Way"...Except in Indonesia

As it turns out, Lady Gaga cannot count conservative Islamic groups among her fans, but she probably will not lose sleep over that. Her tour promoter, however, is pretty upset. The Mother Monster was scheduled to perform in Jakarta on June 2, 2012 as part of her Born This Way tour, but backed out following protests and threats from various Islamic groups. Specifically, the Jakarta Globe reported on May 17, 2012 that the "hardline Islamic Defenders Front (FPI) said it would dispatch 30,000 of its members to prevent Gaga from entering Jakarta." Now, Live Nation LGTours is trying to collect on part of the tour's insurance policy.

Citing millions of dollars in losses, Live Nation has sued a Lloyds of London syndicate in California federal court for not living up to the terms of a "Terrorism Policy," calling the defendant's conduct "despicable." The plaintiff states that this conduct subjected it "to cruel and unjust hardship in conscious disregard of the Plaintiff's rights... with the intent to vex, injure or annoy the Plaintiff, such as to constitute oppression, fraud or malice..." According to the lawsuit, the concert was canceled in order "to prevent bodily injury and property damage and to protect the lives and safety of Lady Gaga, all members of the Born This Way Tour, and the public." Following the cancellation, Live Nation tried to collect on its "Terrorism Insurance" policy. The language of the policy, according to The Hollywood Reporter, stated indemnification for the "ascertained net loss" for cancellations due to "the sole and direct result of Terrorism and/or Sabotage or Threat."

The plaintiff is seeking punitive damages and damages of at least $75,000 of "Ascertained Net Loss" for breach of contract and breach of the implied covenant of good faith and fair dealing.

http://www.hollywoodreporter.com/thr-esq/lady-gaga-concert-promoters-sue-426047

Read the complaint here: http://www.scribd.com/doc/128664504/Gov-uscourts-cacd-555670-1-0

Dotcom Defeat

The walls may finally be closing in on Megaupload founder Kim Dotcom. Last Friday, a New Zealand appeals court overturned a lower court decision, ruling that the United States government does not have to turn over documents as part of its claim that Dotcom participated in a "mega conspiracy." The appeals court also "offered key guidance" that will likely make it easier for the U.S. government to secure Dotcom's extradition to a Virginia for prosecution on racketeering and copyright infringement charges. An extradition hearing is set for August.

The documents originally ordered to be handed over by American officials were "copyright ownership records, records obtained from covert operations by agents to identify infringements on Megaupload's network, communications between copyright holders and Megaupload and more." The documents were sought by Dotcom's legal counsel to bolster their argument that the company, shut down in January 2012, cannot be held liable for copyright infringement because of the absence of intent. The attorneys also cite protections for Internet Service Providers under the Digital Millennium Copyright Act.

If the U.S. is to secure Dotcom's extradition, the government will have to convince a New Zealand judge that there is a "prima facie case that justifies extradition in the same manner that would persuade a judge to allow a trial in New Zealand." The hearing, according to the appeals court, involves only a "limited weighing of evidence," and the U.S. is presumed to be a reliable party. The defendant is permitted, however, to challenge that assumption.

Enjoy your freedom for now, Dotcom, and see you in August.

http://www.hollywoodreporter.com/thr-esq/kim-dotcom-extradition-case-us-425521

Read the decision here: http://www.scribd.com/doc/127949910/Usa-v-Dotcom-1

March 12, 2013

SOFA Entertainment, Inc. v. Dodger Productions, Inc.

By Barry Werbin

The Ninth Circuit issued a March 11, 2013 decision in SOFA Entertainment, Inc. v. Dodger Productions, Inc. The Court affirmed the district court's grant of summary judgment and attorneys' fees in a copyright infringement suit regarding use in Jersey Boys of a seven-second clip of Ed Sullivan's introduction of the Four Seasons on "The Ed Sullivan Show".

Per the Court staff's case summary: "[T]he panel held that the defendants were entitled to prevail on their fair use defense as a matter of law. The defendants used the clip in Jersey Boys, their musical about the Four Seasons, to mark a historical point in the band's career. The panel held that this was a fair use because by using the clip for its historical significance, the defendants had imbued it with new meaning and had done so without usurping whatever demand there was for the original clip."

To the chagrin perhaps of the "transformative use" study group, the substantive part of the decision on the Section 107 fair use factors begins: "The central inquiry under the first factor is whether the new work is 'transformative.' Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 1994). Transformative works 'add[] something new' to an existing work, endowing the first with 'new expression, meaning, or message,' rather than merely supersed[ing] the objects of the original creation.' Id. By using [the clip] as a biographical anchor, Dodger put the clip to its own transformative ends...."

The Court also "doubted" whether the clip even qualified for copyright protection.

The discussion on awarding attorneys' fees to the defendant also bears note. Citing the prior case of Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 629 (9th Cir. 2003), also involving use of a clip, the court harshly stated that SOFA should have received an "education" and "should have known from the outset that its chances of success in this case were slim to none." The Court also agreed with the district court's assessment that suits of this type have a "chilling effect on creativity insofar as they discourage the fair use of existing works in the creation of new ones."

To read the decision, click here: SOFA.pdf

March 14, 2013

Week in Review

By Martha Nimmer

Legal Louboutins

The Second Circuit Court of Appeals has told shoe designer Christian Louboutin to back off. Late last week, the three judge panel ruled that the footwear demigod cannot interfere with the decision of the U.S. Patent and Trademark Office (USPTO) to limit the trademark protection for his coveted red-soled pumps.

The Louboutin legal drama began in 2011 after the shoe designer sued French fashion house Yves Saint Laurent (YSL) following his release of monochrome women's shoes, which included a red pair with red soles. Louboutin had been painting the soles of his shoes red since 1992, and trademarked the red sole in 2008. A federal judge in Manhattan ruled for YSL, holding that a single color cannot serve as a trademark in the fashion industry. Happily for Louboutin, the Second Circuit later concluded in September of last year that Louboutin's red sole "acquired limited 'secondary meaning' as a distinctive symbol that identifies the Louboutin brand." The clerk of the court then issued a mandate to the USPTO to "make appropriate entry upon that Office's records to reflect that U.S. Trademark Registration No. 3,361,597, held by Christian Louboutin and dated January 1, 2008, is limited to a red lacquered outsole on footwear that contrasts with the color of the adjoining ('upper') portion of the shoe." Unhappy with that directive, Louboutin filed a letter with the clerk of the court, requesting a modification of that mandate. Unswayed, the Second Circuit ruled last week to deny the motion for modification.

In denying Louboutin's motion, the court cited four factors underlying its decision not to recall the mandate: "[w]e have previously identified four factors to consider in determining whether to recall a mandate: (1) whether the governing law is unquestionably inconsistent with the earlier decision; (2) whether the movant brought to the Court's attention that a dispositive decision was pending in another court; (3) whether there was a substantial lapse in time between the issuing of the mandate and the motion to recall the mandate; and (4) whether the equities 'strongly favor' relief." The designer, according to the court, "made no showing that any of the factors favor recall and modification of the mandate. In short, this matter does not present the 'exceptional circumstances' required to grant such a request."

Read the decision here: http://www.entlawdigest.com/2013/03/13/ysl.pdf

http://www.entlawdigest.com/2013/03/13/2220.htm

Stopping Sexual Orientation Bias in the NFL

New York Attorney General Eric Schneiderman has asked the National Football League (NFL) to take steps to ensure that its teams do not discriminate against players or recruits based on their sexual orientation. Schneiderman stated that he sent a letter to NFL Commissioner Roger Goodell about the issue after three prospective players said that they had been asked questions relating to their sexual orientation. University of Colorado tight end Nick Kasa stated in a radio interview last month that several teams at an NFL scouting session asked him personal questions possibly aimed at determining his sexual orientation. University of Michigan quarterback Denard Robinson and Michigan State University running back Le'Veon Bell have alleged similar actions, writes ESPN.

The NFL, headquartered in midtown Manhattan, said in a statement last month that it planned to investigate one recruit's claims of sexual orientation bias, adding that teams are "expected to follow applicable federal, state and local employment laws." According to the Attorney General's letter, least 20 of the league's 32 teams are in jurisdictions that prohibit discrimination in hiring and employment based on sexual orientation. This, however, does not go far enough, according to Schneiderman, who wants the NFL "to issue a public statement and leaguewide [sic] policy that any form of discrimination or harassment on the basis of sexual orientation by teams against recruits or players 'constitutes a violation of state, local and, in some cases, contractual law, and will not be tolerated.'" Schneiderman has asked for a meeting with NFL officials to discuss the issue.

http://about.bloomberglaw.com/legal-news/nfl-must-block-sexual-orientation-bias-n-y-says/

The Metropolitan Museum of Deceptive Practices?

Meanwhile, on the Upper East Side, the Metropolitan Museum of Art (the Met) has found itself in the middle of a legal battle over admission fees. A class action filed earlier this month in New York County Supreme Court alleges that the Met tricks visitors into paying admission fees to visit the museum, despite a 19th-century agreement with New York City that the museum would follow a no-fee policy, in exchange for a perpetual, rent-free lease of the building situated on Fifth Avenue. The agreement contained no mention of rent, according to the complaint, but required that the museum be open free of charge at least four days a week. Those terms were later expanded, but after the museum expressed concerns about costs, lawmakers set the free-admission schedule at five days a week, including Sunday afternoons, plus two evenings a week. According to the complaint, this agreement was meant to provide access to the arts for citizens "without regard to financial means."

Now, lead plaintiff Filip Saska claims that the museum has become "an expensive, fee-for-viewing, elite tourist attraction, where only those of financial means can afford to enter this publicly subsidized institution situated on prime city-owned land." The plaintiffs claim that the "unlawful and deceptive" fees paid by the class number in the tens of millions of dollars annually. The complaint also states that the museum violates state consumer protection law with signs and cashier stations that lead visitors to believe they must pay to enter.

Specifically, the complaint points to a $25 admission fee posted in a large, bold font at the main entrance of the Met, while the word "recommended" is in "tiny, unbold print." Cashiers, the plaintiffs allege, are trained "to pressure and embarrass" visitors into paying the stated admission fee. "Nowhere in the building is any visitor advised that admission to the museum exhibition halls is free for most days of each week," the complaint states. The class also claims the Met uses deceptive practices online, specifically on its website and websites of third-party vendors, where advance-purchase admission and package deals are advertised.

The class seeks an injunction, costs and actual damages, and an end to admission fees on free days and any activities that "insinuate that payment of any sum is required" on those days, such as signs, brochures and promotions." The plaintiffs also want the museum to promote its free days in New York's economically disadvantaged communities.

http://www.entlawdigest.com/2013/03/08/2208.htm

Read about an earlier suit here: http://artsbeat.blogs.nytimes.com/2012/11/15/met-museum-being-sued-over-admission-fees/

"Argo F Yourself"

Sorry, Ben Affleck, but it turns out that Iran isn't so keen on Argo. The film, which won the Oscar for Best Picture just a few weeks ago, depicts the harrowing escape of six American embassy staffers from Iran following the 1979 attack on the U.S. Embassy in Tehran. The six staffers were hidden by the Canadian ambassador to Iran, and escaped from the country by pretending to be part of a Canadian film crew scouting movie locations for a sci-fi flick. Unsurprisingly, Iranian officials have dismissed Argo as pro-CIA, anti-Iran propaganda.

The decision to file suit came after a group of Iranian cultural officials and film critics viewed the film in a private Tehran theater late Monday. Cultural officials dismissed the movie as a "violation of international cultural norms," although the statement did not specify which cultural norms. A statement issued after the screening also said that "awarding an anti-Iran movie is a propaganda attack against our nation and entire humanity." The press release did not specify how the movie was allegedly unrealistic, but Iranian officials have stated that the film depicts Iranians as "too violent." Luckily for fans of sanity and free speech, it remains unclear what specific claims Iran could raise against Argo's producers, and what court the country could turn to for relief. According to several media outlets, French lawyer Isabelle Coutant-Peyre is in Iran for talks with officials over how and where to file the lawsuit.

http://news.yahoo.com/reports-iran-mulls-suing-hollywood-over-argo-082542562.html


March 20, 2013

UMG Recordings, Inc v. Veoh Networks, Inc. et al

By Barry Werbin

On March 14, the 9th Circuit came down with a lengthy superseding opinion in UMG Recordings, Inc v. Veoh Networks, Inc. et al [prior withdrawn opinion is at 667 F.3d 1022 (9th Cir. 2011)], holding that Veoh, the video sharing site and service, is entitled to a defense under the DMCA's "safe harbor" in 17 U.S.C. § 512(c), which limits a service provider's liability for "infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider."

In affirming a Cal. District Court's grant of summary judgment in favor of Veoh, the Court agreed with the Second Circuit's opinion in Viacom Int'l v. YouTube, Inc., 676 F.3d 19, 31 (2d Cir. 2012), in rejecting UMG's arguments that that the DMCA safe harbor did not apply because: "(1) the alleged infringing activities did not fall within the plain meaning of 'infringement of copyright by reason of the storage [of material]at the direction of a user;' (2) genuine issues of fact remained about whether Veoh had actual knowledge of infringement, or was 'aware of facts or circumstances from which infringing activity [wa]s apparent;' and(3) Veoh 'receive[d] a financial benefit directly attributable to . . . infringing activity' that it had the right and ability to control." [from Court's Summary]

In particular, the court rejected UMG's arguments that Section 512(c) of the DMCA only applied to web hosting services as opposed to a much broader class of "service providers," such as Veoh, and that the statute limited the safe harbor only to "storage" but not "facilitation of access." As the Court stated: "To carry out their function of making websites available to Internet users, web hosting services thus routinely copy content and transmit it to Internet users....We cannot see how these access-facilitating processes are meaningfully distinguishable from Veoh's for § 512(c)(1)purposes." (at p. 25)

With respect to "actual knowledge" and "red flag" awareness, the Court held that the district court was correct in finding that UMG "failed to rebut Veoh's showing 'that when it did acquire knowledge of allegedly infringing material - whether from DMCA notices, informal notices, or other means - it expeditiously removed such material.'" (at p. 28) "We therefore hold that merely hosting a category of copyrightable content, such as music videos, with the general knowledge that one's services could be used to share infringing material, is insufficient to meet the actual knowledge requirement under §512(c)(1)(A)(i)." (at p. 33)

With respect to "red flag" knowledge --whether a provider is "aware of facts or circumstances from which infringing activity is apparent" -- the Court held that "Veoh's general knowledge that it hosted copyrightable material and that its services could be used for infringement is insufficient to constitute a red flag." (at p. 34) Consistent with the Second Circuit's opinion in Viacom v. YouTube, the Court observed that while a service provider can't "bury its head in the sand to avoid obtaining such specific knowledge," after "viewing the evidence in the light most favorable to UMG as we must here, however, we agree with the district court there is no evidence that Veoh acted in such a manner. Rather, the evidence demonstrates that Veoh promptly removed infringing material when it became aware of specific instances of infringement. Although the parties agree, in retrospect, that at times there was infringing material available on Veoh's services, the DMCA recognizes that service providers who do not locate and remove infringing materials they do not specifically know of should not suffer the loss of safe harbor protection." (at p. 34)

The Court also affirmed the District Court's finding that "Veoh did not have the necessary right and ability to control infringing activity and thus remained eligible for safe harbor protection." (at p. 40) In part, the Court rejected UMG's view that "control" under Section 512(c) should be equated with common law vicarious liability (which was applied in Napster), an interpretation also rejected by the Second Circuit in Viacom. The Ninth Circuit held:

"We agree with the Second Circuit and hold that, in order to have the 'right and ability to control,' the service provider must 'exert[] substantial influence on the activities of users." Id. 'Substantial influence' may include, as the Second Circuit suggested, high levels of control over activities of users... Or it may include purposeful conduct, as in Grokster. In this case, Veoh's interactions with and conduct toward its users did not rise to such a level."

There's a lot more discussion and interesting reading about additional facts relating to "knowledge," such as emails sent to Michael Eisner, one of Veoh's investors, by Disney's CEO citing specific infringing content. But the Court viewed this as a "deficient" DMCA notice coming from a copyright owner, and that the cited content was thereafter promptly removed anyway.

A copy of the decision is available at: umg_veoh_Decision.pdf

March 22, 2013

Week in Review

By Martha Nimmer

Fifty Shades of Gray Goods

The U.S. Supreme Court has ruled that copyrighted materials manufactured abroad can be resold in the United States. The 6-3 decision, issued on Tuesday, affects a multibillion dollar "gray goods market," in which parties import copyrighted or trademarked goods into the U.S. In some cases, these "gray goods" are then resold online or at discount retailers across the country. The goal behind this practice is to acquire goods made and sold abroad at lower prices, and then sell them at a profit in the U.S. Companies such as eBay and Costco have engaged in this practice for years, despite arguments that this practice violates American law.

The case, Kirtsaeng v. John Wiley & Sons, Inc., decided on Tuesday, involved a mathematics student from Thailand who helped pay his tuition at Cornell and the University of Southern California by selling textbooks that friends and relatives had purchased in his home country and then sent to him. The student, Supap Kirtsaeng,then resold the books on eBay. He is said to have made about $100,000 profit. Unsurprisingly, one publisher, John Wiley & Sons (Wiley), was not pleased, and sued Kirtsaeng for copyright infringement. Wiley won $600,000, with the lower court ruling that Kirtsaeng had violated U.S. copyright law by importing books without the permission of the copyright owner. Kirtsaeng appealed to the U.S. Supreme Court, arguing that his actions were permissible under the first sale doctrine. Under that doctrine, "buyers of books and other copyrighted goods may lend or sell them as they wish." Fearing the extension of the first sale doctrine to goods purchased abroad and then resold on the American market, a bevy of companies in publishing, software, and other industries warned the Court that a decision in favor of Kirtsaeng would harm their ability to sell products at lower prices in developing nations, and could possibly result in higher prices overall.

The high Court, however, was unmoved. Writing for the majority, Justice Stephen Breyer noted that Congress did not intend to limit the first-sale doctrine with a "geographical interpretation," which "would threaten ordinary scholarly, artistic,commercial and consumer activities." Consequently, the goods, once sold lawfully abroad, can now be resold in the U.S. without the copyright holder's permission. Justices Ruth Bader Ginsburg, Antonin Scalia and Anthony Kennedy were in the dissent. Calling the majority's opinion a "bold departure from Congressʼ design," Justice Ginsburg wrote that the majority was casting aside an explicit goal of American copyright law -- "to protect copyright owners against the unauthorized importation of low-priced, foreign-made copies of their copyrighted works." Justices Elena Kagan wrote a concurring opinion, in which Justice Samuel Alito joined. Acknowledging the dissent's concerns, Kaganʼs opinion noted that Congress is free to modify the law if it feels that copyright owners need more protection.

http://www.npr.org/blogs/thetwo-way/2013/03/19/174757355/supreme-court-oksdiscounted-resale-of-gray-market-goods

Read the opinion here: http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf

Shape Up

With names like "Spanx" and "Yummie Tummie," you know youʼre in for an interesting legal battle. Things get even juicier when you add a "Real Housewife" to the mix. Enter the case of Spanx, Inc. v. Times Three Clothier, LLC. Filed in Atlanta federal court by billionaire (yes, with a B) shapewear creator Sara Blakley against The Real Housewives of New York City member Heather Thomson, the Spanx suit seeks a declaratory judgment that Spanx has not infringed Yummie Tummieʼs design patents. This suit comes shortly after Thomson publicly "accused Blakely of copying several of her camisoles . . . She specifically demanded that Blakely stop selling items called Spanx Total Taming Tank and Top This Cami," according to Business Week. A Spanx spokesperson responded that Spanx "was making shaping camisoles long before Yummie Tummie." Blakely started Spanx in 2000, while Thomson created her line in 2008. The earliest of Thomsonʼs camisole patents is from 2009.

What makes this case particularly notable is that it involves a dispute about design patents, not trademark or copyright law, which are the more frequently looked to fields in the realm of fashion design protection. In fact, some observers believe that this emphasis on patents signals a new trend in design protection: yoga clothier Lululemonʼs fight with Calvin Klein late last year, as well as Apple Samsung Electronics legal drama, have also been over design patents.

Given the barbs that the parties have traded, it looks like this case is "shaping up" to be a dramatic legal battle.

http://www.businessweek.com/articles/2013-03-13/spanx-v-dot-yummie-tummie-in-court

Read the complaint here: http://www.businessweek.com/pdfs/Spanx_v._Times_Three_Clothier.pdf

Have You Seen This Priceless Work of Art?

Twenty-three years ago, two thieves pulled off a $500 million dollar art heist at the famed Isabella Stewart Gardner Museum in Boston. The thieves, who posed as police officers, overpowered the museumʼs night security guard, tied him up and made off with 13 priceless works of art, including pieces by Vermeer, Rembrandt, Manet and Degas. The crime remains unsolved, but investigators are getting closer to cracking the case.

On Monday, federal officials went public with news that they had learned the identities of the thieves, who allegedly belong to a criminal organization based in New England and the Mid-Atlantic states. Although officials did not reveal the exact names of the alleged thieves, the FBI did say that the paintings had been traced to Connecticut and the Philadelphia area 10 years ago. A special agent in charge of the FBIʼs Boston office added that the bureau planned to launch a publicity campaign aimed at gathering leads from the public, "and possibly from acquaintances of the thieves, [or] anyone who may have glimpsed one of the paintings over a mantel, say, or in an attic," writes The New York Times. The FBI plans to put up billboards in Connecticut and Philadelphia that feature images of the pilfered art work. Following the FBIʼs announcement, museum representatives reiterated the museumʼs earlier promise of a $5 million reward for information leading to the recovery of the works, with the understanding that they be in good condition.

Perhaps seeking to counter fears of criminal prosecution, attorney Carmen Ortiz added that the statute of limitations had expired for the crime of art theft. Anyone in possession of the art could, however, still face charges for the possession of stolen property. The FBI agent in charge of the Gardner heist also said it was possible that the people in possession of the works may not even be aware of their significance, or that they were stolen.

So, if youʼre in Connecticut or Philadelphia and you come across one of the missing paintings and it looks too good to be a reproduction, itʼs probably not.

http://www.nytimes.com/2013/03/19/us/fbi-says-it-has-clues-in-1990-isabella-stewart-gardner-museum-art-heist.html?adxnnl=1&hpw=&adxnnlx=1363960957-6KjyeMQMbMV9Qh76nXdAtA

Masks, Swords, and Smoke & Mirrors

Zorro is in the public domain and belongs to the masses, at least according to a lawsuit filed last week in Washington State federal court. The suit, brought by playwright Robert Cabell, asserts that defendants have "built a licensing empire out of smoke and mirrors" even though the copyright interests in the Zorro works expired years ago. Cabell claims that a 1919 story by Johnston McCulley, "The Curse of Capistrano", was "the first Zorro story." Cabell published a musical--"Z--The Musical of Zorro"--in 1996, and was threatened with litigation by Zorro Productions, Inc. owner John Gertz after licensing the musical last year to a performance company in Germany. The plaintiff claims that his work is based on author Johnston McCulleyʼs first Zorro story from 1919 and the 1920 Douglas Fairbanks film. Fearing legal action, Cabell has gone to court in the hopes of having it declare Zorro to be in the public domain. Specifically, the plaintiff avers that the "Defendants have fraudulently obtained federal trademark registrations for various Zorro marks and falsely assert those registrations to impermissibly extend intellectual property protection over material for which all copyrights have expired. Defendants also fraudulently assert that copyrights for later-published material provide defendants with exclusive rights in the elements of the 1919 story and the 1920 film." The complaint continues: "[n]early one hundred years later, the character is well-known as the masked outlaw who defends the public against tyrannical officials and other villains . . . Although Mr. Cabell's rights to use these public domain works is clear, the defendants have engaged in a campaign of intimidation and coercion aimed at preventing Mr. Cabell (and any other third party) from the legitimate use of this public domain material."

In support of the claim, Cabell points to a lawsuit filed by Sony Pictures over a decade ago against Paramount Studios over the television series Queen of Swords. (Sony, as readers will recall, made the 1998 Zorro film starring Antonio Banderas.) The plaintiff also relies on a footnote from a 2001 federal court decision, wherein the judge said, "[i]t is undisputed that Zorro appears in works whose copyrights have already expired, such as McCulley's story The Curse of Capistrano and Fairbanks's movie, The Mark of Zorro."

Cabell seeks a declaratory judgment that his musical does not violate any intellectual property rights held by defendants, and a preliminary and a permanent injunction against defendants prohibiting them from making claims that the musical infringes any of their intellectual property rights. Cabell also demands the cancellation of defendants' federal trademark registrations for the mark Zorro.

http://www.entlawdigest.com/2013/03/14/2224.htm

http://www.hollywoodreporter.com/thr-esq/zorro-rights-challenged-as-invalid-428561

A Tool for Lawyers in Transition: LinkedIn

BY JESSICA THALER

LinkedIn can be one of the most powerful tools in your arsenal during a time of career transition. It not only allows you to research people and companies who may ultimately serve as future employers, colleagues, collaborators or clients, but also introduces you to an expanded group of mentors, advisors and sources of relevant information. No matter your current position, having an extensive network is important, and LinkedIn is a great instrument for the maintenance and growth of that invaluable network.

When I speak to people in transition, or those who are thinking about exploring the possibilities, after ensuring they have an up-to-date resume, I inquire if they are on LinkedIn. Too often, the answer is that they are not. People often express concerns about their employer finding out about their LinkedIn profile - thus fearing that they are putting their job at risk - or will make the excuse that there just has not been enough time to set up a profile. "Is it really that helpful?", they will ask. Without hesitation or qualification, my answer is "yes." And although the task might seem daunting, LinkedIn makes the profile-creation process easy.

Head Shots

In setting up a profile, it is important to keep in mind that this is a professional venue. I have seen friends post the fun-loving profile shot that they use on Facebook; I have also seen head shots taken with cell phones while the subject was looking into a bathroom mirror. (This makes me shake my head like a disapproving mother.) Make sure your profile picture is of the type you would expect to see on a firm's webpage. Don't have the financial resources to hire a professional photographer? When I was developing my profile, I put on a suit, grabbed my camera and a friend, went to a library, and had her photograph me in front of a wall of books. I (we) felt silly but it was better than the bathroom-mirror shot. Eventually, through alumni and bar association involvement, I participated in professional photo shoots so that those organizations could have photographs of me that they could use in their materials. I asked permission to use several of these photos to update my LinkedIn profile picture, as well as my professional biography.

Work History and Educational Experience

Once your profile picture is chosen and uploaded, complete your work history and educational experience. Some people list only the names of what they think are the relevant entities and the titles of the positions they have held. Others, like me, more or less populate these fields with the extensive information contained in their resumes, and everything in between. In my opinion, the more information the better, so long as that information is germane, as it allows people a complete picture of your qualifications and experience. There is a caveat, however. There is such a thing as "too much" information, especially if the information is irrelevant or can become overwhelming to the reader. Where to draw the line depends on both your preferences and those of the intended consumer of the information. The rule I use is if I cannot read it through two or three times without getting distracted or losing interest, it is too long. Also, when I first put my profile up and whenever I make any significant changes, I ask a few trusted friends (a former supervisor and other career professionals I have worked with) to read my profile. As it so often happens, of course, if you ask six people, you will get six opinions. Ultimately, you have to decide what you are comfortable with. You can control how you present yourself and not how you are perceived. Accept the risk that someone may not like your profile and hope that is the exception and not the rule.

Making Connections

When your profile is up, it is time to start making connections. In my first attempt, I made a rookie mistake. LinkedIn will prompt you to allow it to tap into your email address book, wherever it is stored, and retrieve contact information. Once retrieved, it is very easy to click, click, click and send a mass invitation to connect. This sounded like a fantastic, easy and efficient way to get a LinkedIn network together. What I did not realize at the time was that not everyone is on or wants to be on LinkedIn and, once the request goes out, the system will continue to "remind" possibly to the point of annoyance invitees of the outstanding and yet-to-be-accepted invitation. Then I realized that when LinkedIn pulled my contacts into the system, it marked those who were also on LinkedIn with a little blue box containing the word "in" next to their names. So I focused on pursuing those contacts to be my LinkedIn connections, understanding that they would likely be more likely to accept because they too are using LinkedIn to expand their network.

Once your initial connections are established, LinkedIn will provide you with a list of "people you may know." LinkedIn surprised me with its accuracy. I suspect that the LinkedIn system uses a matrix to compare common connections, common learning institutions, common employers and the like in compiling these suggestions. I continue to look at LinkedIn's suggestions for potential connections. As I meet people through the more traditional methods of networking, I add them to my network, and LinkedIn's suggestions continue to grow.

Another option for enhancing a profile and, therefore, LinkedIn presence, is to join groups. I looked at professional groups, those based on my past employers, school affiliations and associations I was a part of, as well as other affinity groups. There really isn't a downfall to joining many groups outside of the fact that each group may send multiple notices to its members and your inbox may get flooded. (You can change your settings to manage how often emails are received.) Groups often use listserves to share information on trends, current issues, job opportunities and otherwise. Joining a group demonstrates to the LinkedIn community your interest in a particular subject, industry or other issue.

Recommendations

A great feature of LinkedIn is the ability to receive and post recommendations from former clients, employers or colleagues. As wonderful as it may be to have nice things published about you, it is still important that the recommendations are relevant and realistic. If the recommendations are "just too much" or if they appear contrived (i.e., a friend's recommendation is on a personal rather than a professional level), they are probably more detrimental than beneficial. I have sought, and continue to seek, recommendations from people in each stage of my personal and professional career but only after I have had the opportunity to work and collaborate in some real and significant capacity with them. This allows each person to honestly and knowledgably speak to my skills, strengths and otherwise. I provide recommendations to others utilizing a similar "rule." I only offer recommendations for people, focusing on the skills and strengths of those people, with whom I am very familiar.

Research

LinkedIn can also be utilized to obtain relevant information about people and companies. When trying to connect with a company, whether in anticipation of an interview for employment or business development purposes, search for the company on LinkedIn. If the company has a profile, it provides a source of information that can supplement the information available in periodicals or on the company's proprietary website. LinkedIn will also show who you know, directly or indirectly, at that company. The direct connection is easy to identify and understand - someone part of your LinkedIn community is currently, or was previously, at that company. Where I find such a connection, I immediately reach out to that person, ask about the company, the person(s) I am scheduled or trying to meet, the position or project and possibly get the assistance of that person in getting ahead in the process. Even an indirect connection can be just as useful. The indirect connection shows someone in your network who has someone in his or her network who is at or was at that company. When I have this "second degree" connection, I will request that my "first degree" connection make an introduction to that "second degree" connection who can then provide me with the information or "in" I am seeking.

Similarly, before a scheduled meeting, check to see if the person with whom you are meeting is on LinkedIn. If he or she is, you can get information about that person, his or her interests, background and network; that knowledge can aid in your trying to connect. For example, it has allowed me to mention people known-in-common (granted, only after confirming that relationship is a current and amicable one), recognize and reminisce about a common university experience and so on. LinkedIn also allows you to look up someone you do not know and want to connect with but do not yet have a meeting with. You can see if there is someone in your network who might be willing to make an introduction. Just like with anything else, however, you need to consider how often you ask someone, respect what, if anything, the person is willing to do and the manner in which he or she is willing to do it. And be willing to reciprocate.

I personally have not made great use of the LinkedIn groups feature, although I know many who have, and I have only rarely posted into discussion groups. A danger with becoming too involved with posting is that, in attempting to get your name out, it can be easy to become an annoyance. Every time there is a post into a group's discussion page, the site sends out a notice of a new post to the group's members; so, if a member (who may be just the person someone is trying to impress) has not altered the default email settings, his or her inbox may be loaded with notices about the "serial" poster's latest musing. I have actually heard some colleagues commenting that they have unsubscribed from a group because of serial posts, and their impression of that poster is irreversibly marred.

Should You Get a Subscription?

Finally, do you need to get a paid subscription to get true benefit from using LinkedIn? My opinion is that it is not necessary. I like that the subscription service provides the ability to email people directly even if they are not a connection through the "in-mail" feature, that I can see who has viewed my profile as well as statistics regarding the number of views my profile receives and, when I submit for a job requisition, I am provided with greater information about the position, such as salary information, and can check a box to make my resume a "featured" application. Whether you need or want those or the other additional features that a paid subscription may provide depends on your personal goals and intended usage of the site.

Conclusion

Maintaining a network and a LinkedIn profile needs to be an ongoing endeavor. LinkedIn should be used, in whatever manner and however extensively a person is comfortable with, as a tool for professional networking and development. Most great opportunities come from whom you know, and LinkedIn provides a way to know more people. LinkedIn is also a great marketing tool. It is a personal website, demonstrating experiences and expertise and providing forums in which to share and from which to gather information. Like any other tool, however, you need to use it properly and appropriately not to be injured rather than assisted by it.

JESSICA THALER (jthaleresq@gmail.com), Law Offices of Jessica Thaler Esq., chairs the Committee on Lawyers in Transition of the New York State Bar Association. She received her undergraduate degree, cum laude, from UCLA and her law degree from Fordham University.

March 23, 2013

Penguin v. American Buddha

By Barry Werbin

Attached is a "post-script" opinion of the SDNY, dismissing Penguin's long-standing suit vs. American Buddha based on lack of personal jurisdiction, following the Second Circuit's remand after the New York Court of Appeals, on a certified question, ruled in 2011 that the "situs" of a copyright injury for purposes of New York's long arm statute was where the copyright owner was located, not where the infringing activity took place. The defendant is an Oregon non-profit corporation that operates in Arizona. Its website had hosted unauthorized copies of the plaintiff's copyrighted books as an online library, which was not primarily involved in sales of the works.

The court now finds there is no jurisdiction under CPLR 302(a)(3)(ii) because the evidence showed that the defendant's revenues from the infringing activity amounted to only about $2,000, and this was not sufficient to be deemed revenues derived from "substantial" interstate commerce.

For litigators, the case has interesting language on modern Internet-based jurisdiction.

Here is the decision: Order3-7-13-PenguinvAmericanBuddha.pdf

March 28, 2013

Week in Review

By Martha Nimmer

Secret Strikes

A federal judge for the U.S. District Court for the District of Columbia has handed a legal victory to the Office of Management and Budget (OMB), ruling that the OMB and other government entities do not have to turn over additional documents relating to the recent adoption of the Copyright Alert System. The system, implemented by major Internet Service Providers (ISPs) in February, following years of discussion and negotiations with entertainment representatives and government officials, is more commonly known as the "Six Strike Policy." It is based on the graduated penalties imposed on Internet users who make infringing material available online.

This demand for additional documents related to the adoption of the system arose after ACLU policy analyst Chris Soghoian "pushed to uncover more information about the program and the government's role in fostering cooperation that led to the adoption of the Copyright Alert System." Soghoian, however, met with limited success: he was able to file a Freedom of Information Act (FOIA) request to obtain limited information on the Obama Administration's involvement in the negotiations between entertainment industry leaders and ISPs. The U.S. government refused, however, to comply with Soghoian's full request for documents, declining to turn over material related to discussions about the "Memorandum of Understanding" between the MPAA, RIAA and ISPs; the potential costs and risks associated with the Copyright Alert System; and other opinions and recommendations that did not end up in the final agreement, among other documents.

Unfortunately for Soghoian and other advocates of government transparency, the court was not convinced. Judge Royce Lamberth ultimately ruled that some of the information provided by entertainment and ISP representatives during Copyright Alert System talks qualified as "trade secrets and commercial or financial information," thereby falling under one of the exemptions provided in the Freedom of Information FOIA. As for communications from the Obama Administration and other information that did not qualify for the trade secrets exception, Judge Lamberth wrote: "[p]rotecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision."

http://www.hollywoodreporter.com/thr-esq/government-anti-piracy-six-strike-431549

Read the decision here: http://www.scribd.com/doc/132841735/Foi-a-Denial

Yoko No No

Brooklyn fashion designer Haleh Nematzadeh has sued Yoko Ono and posh retailer Opening Ceremony in Brooklyn federal court, alleging copyright infringement of her design sketches for her clothing collection "Gonna Walk the Night." Nematzadeh claims that Ono and Opening Ceremony "stole the designs of [Nematzadeh], an up and coming designer, and pawned them off as their own" after meeting with her last summer.

According to the complaint, the plaintiff "was introduced to photographers working for OC [Opening Ceremony] to do a photo shoot of the collection in July 2012 ... so that it may be featured for sale in OC's catalog and stores worldwide." During the shoot, Nematzadeh claims that she showed sketches and pictures of her designs to Opening Ceremony photographers, who are alleged to have abruptly cancelled the shoot after viewing the plaintiff's sketches and designs. The plaintiff claims that she later published her designs with the help of a different photographer, although the complaint fails to detail when or where the designs were published. The complaint continues: "[s]oon after the plaintiff launched the collection, within which her designs were published, the defendants published an identical collection ('Offending Collection') . . . The offending collection copied exact designs as well as imitated the designs and concepts from plaintiff's collection." "To conceal their thievery," the complaint continues, the defendants renamed the collection and called it a collection for men, even though one of the designs that Ono allegedly copied from Nematzadeh's collection included a bra-like top.

Nematzadeh seeks $10 million for copyright infringement, disgorgement of unjust profits and delivery or destruction of the infringing products.

http://www.courthousenews.com/2013/03/25/56019.htm

True Crime

Lifetime viewers can breathe a sigh of relief: Lifetime Television will be able to air Romeo Killer: The Christopher Porco Story this Saturday, despite an injunction issued earlier this week by a New York Supreme Court judge. According to The Hollywood Reporter, the network made a successful emergency appeal after the injunction was issued on Tuesday. The New York Supreme Court's appellate division has given Porco until April 10th to show cause as to why the injunction order should not be lifted.

The legal dispute arose when the movie's namesake, Chris Porco, brought suit, arguing that the film violated "his rights to his name and image." According to Fox News, Lifetime prevailed in its appeal by arguing that the judge's "unprecedented ruling would have 'devastating financial' impacts on Lifetime and cost the network 'millions of dollars in investment, lost revenue and untold harm to its brand.'" The appeal stated that the network had spent more than $2 million to obtain the rights to the film, and an additional $1 million promoting it. "It's a sad day when a convicted murderer who has exhausted all of his appeals can convince any court to stop people from exercising their First Amendment right to talk about his crime," a representative from Lifetime commented.

The Lifetime movie at the heart of the case "tells the true story of University of Rochester student Christopher Porco, who was convicted of brutally murdering his father and attempting to kill his mother." Porco is currently serving a minimum 50 year prison sentence.

So, fellow readers, be sure to sets your DVRs to record what Lifetime has called "the movie that Chris Porco doesn't want you to see."

http://www.foxnews.com/entertainment/2013/03/21/lifetime-movie-about-christopher-porco-wont-air-judge-rules/

About March 2013

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in March 2013. They are listed from oldest to newest.

February 2013 is the previous archive.

April 2013 is the next archive.

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