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April 2013 Archives

April 1, 2013

Rountree v. Boise Baseball, LLC, et al.

By Steven A. Adelman

Although I am a lousy baseball player, I have always been a baseball fan. As a kid, I loved listening to the radio broadcasters wax eloquent on warm summer nights. Now I enjoy that baseball cases validate what I teach at Facility Management Law School and in my other risk management presentations. Recently, the Idaho Supreme Court issued an important ruling not only for the future of the "Baseball Rule," but also for the enforceability of disclaimer language on the back of event tickets. To add a little law to your Opening Day festivities, here is the story.

FACTS: In Rountree v. Boise Baseball, LLC, et al., a man sued a baseball stadium operator and 16 other defendants when he was struck by a foul ball and lost an eye while he sat in one of the few parts of the ballpark not protected by vertical netting.


LEGAL ISSUES: The Idaho Court held that the Baseball Rule, which limits stadium owners and operators' legal duty to fans hit by foul balls so long as screened seats are available for as many spectators as may be reasonably expected to request them on any ordinary occasion, does not bar Mr. Rountree from arguing that the venue failed to behave reasonably in his particular case. The idea behind the Rule is that it is common knowledge that baseballs are hard, move fast, and travel beyond the playing field, so venues completely extinguish their legal liability so long as they provide fans who choose not to pay attention enough screened areas to sit in the grandstand.

Here, however, the Court wrote that the litigants had presented evidence of so few instances of similar injuries that it could not draw a bright line where the stadium's duty begins or where netting should be placed. So the Court left it to a jury to decide the reasonableness of each party based on the facts to be presented at trial.

Regarding the ticket disclaimer language, the Court refused to enforce it as a contract against Mr. Rountree, even though it does have all three elements of a valid contract: offer, acceptance, and consideration. Instead, consistent with courts' general disfavor of "contracts of adhesion," the Idaho Court decided that the jury should consider the ticket language when deciding what percentage of Mr. Rountree's injuries are his own fault.

CONCLUSIONS: This case illustrates the legal trend away from bright line tests in favor of allowing juries to weigh all of the evidence in order to assign percentages of comparative fault. This is why I emphasize the importance of acting like a "reasonable person under the same or similar circumstances." When something goes wrong, your salvation will come from doing the right thing and documenting it clearly, not in old time laws that place all the blame on some other guy.

The decision is available at: http://library.constantcontact.com/download/get/file/1104263796310-93/2013-02-22+Rountree+v.+Boise+Baseball+decision+-+no+highlights.pdf

Steven A. Adelman is the head of Adelman Law Group, PLLC in Scottsdale, Arizona. His practice focuses on safety and security issues at live entertainment venues throughout North America. http://www.adelmanlawgroup.com/

WNET v. Aereo

By Barry Werbin

The Second Circuit's decision in WNET v. Aereo, affirming the denial of a PI, found that the District Court "correctly concluded that Aereo's system is not materially distinguishable from the system upheld in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008)." Judge Chin dissented.

The Court focused on whether Aereo's service infringes the plaintiffs' public performance right under the Copyright Act. The plaintiffs argued that the "Aereo's transmissions of broadcast television programs while the programs are airing on broadcast television fall within the plain language of the Transmit Clause and are analogous to the retransmissions of network programming made by cable systems, which the drafters of the 1976 Copyright Act viewed as public performances."

Looking at its Cablevision decision and a reading of the Transmit Clause, the Court noted that "the Cablevision court concluded that Cablevision's transmission of a recorded program to an individual subscriber was not a public performance....Each transmission of a program could be received by only one Cablevision customer, namely the customer who requested that the copy be created. No other Cablevision customer could receive a transmission generated from that particular copy."

The Court found that the two key features of the Cablevision system are also present in the Aereo system: (1) the creation of "unique copies of every program a Cablevision customer wished to record," and (2) the "transmission of the recorded program to a particular customer was generated from that unique copy; no other customer could view a transmission created by that copy." As described by the Court, in Aereo's system: "when a ... customer elects to watch or record a program using either the "Watch" or "Record" features, Aereo's system creates a unique copy of that program on a portion of a hard drive assigned only to that Aereo user. And when an Aereo user chooses to watch the recorded program, whether (nearly) live or days after the program has aired, the transmission sent by Aereo and received by that user is generated from that unique copy. No other Aereo user can ever receive a transmission from that copy. Thus, just as in Cablevision, the potential audience of each Aereo transmission is the single user who requested that a program be recorded."

The plaintiffs' argument that Cablevision had a license as opposed to Aereo was rejected, because the Court found there was no public performance and, therefore, no license was needed. The Court also rejected plaintiffs' argument that discrete transmissions should be aggregated to determine whether they are "public performances," noting that this interpretation of the Transmit Clause had been rejected by Cablevision. The Court emphasized that the interpretation adopted by Cablevision "focuses on the potential audience of the performance or work being transmitted, not the potential audience of the particular transmission."

The Court also rejected the plaintiffs' argument that the two cases also should be distinguished because "Cablevision was decided based on an analogy to a typical VCR, with the RS-DVR simply an upstream version, but Aereo's system is more analogous to a cable television provider." The Court explained that its interpretation of the public performance right in Cablevision was not "influenced by any analogy to the stand-alone VCR."

Further, the Court rejected the plaintiffs' analogy of the Aereo system to Internet streaming as a public performance. The Court found that an Aereo' user's "volitional control over how the copy is played makes Aereo's copies unlike the temporary buffer copies generated incident to internet streaming."

The Court found nothing wrong with Aereo designing its system to avoid copyright liability. In this respect, the Court further analogized Aereo to "many cloud computing services, such as internet music lockers..." Despite the plaintiffs' concern, shared by Judge Chin, that complex technological workarounds should not excuse functionality that would otherwise constitute a public performance, the Court observed: "Perhaps the application of the Transmit Clause should focus less on the technical details of a particular system and more on its functionality, but this Court's decisions in Cablevision and NFL, 211 F.3d 10, held that technical architecture matters." In interpreting the public performance provisions of the Copyright Act, the Court noted that "[i]n the technological environment of 1976, distinguishing between public and private transmissions was simpler than today" and new devices such as RS-DVRs and Slingboxes complicate the analysis. Nevertheless, while "Aereo's service may resemble a cable system, it also generates transmissions that closely resemble the private transmissions from these devices."

Lastly, the Court made the interesting observation that "[o]ne panel of this Court...'cannot overrule a prior decision of another panel'....We are 'bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court.'" [Emphasis added] This assuredly is not the end of this issue.

Notable is Judge Chin's strong 27-page dissent, which starts out by characterizing Aereo's system as "a sham. The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law." Judge Chin concludes that Aereo's transmission of live public broadcasts over the
Internet to paying subscribers are unlicensed transmissions 'to the public.'"

The decision is available at: WNET v Aereo Opinion-2d Cir 12-2786.pdf

April 8, 2013

Week in Review

By Martha Nimmer

First Sale Fallacy

Last week, a federal judge in New York ruled that the first sale doctrine does not apply to digital music. On Monday, U.S. District Judge Richard Sullivan held "the first-sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce." This comes as bad news for ReDigi, a company started in October 2011 that sought to apply the first sale doctrine to the resale of "used" digital music purchased from iTunes. According to The Hollywood Reporter, ReDigi's system permitted "song files to be stored in a cloud. The company assured that it had technical measures in place to delete those files from a user's hard drive after the files were resold." Google, a supporter of this novel approach to selling digital music, tried to file an amicus brief in support of ReDigi. Judge Sullivan, however, declined to rule in the defense's favor.

In holding that the first sale doctrine does not permit the re-sale of used digital music, Judge Sulllivan first addressed a copyright owner's reproduction rights; these, the judge wrote, are "the exclusive right to embody, and to prevent others from embodying, the copyrighted work (or sound recording) in a new material object (or phonorecord)." The judge also pointed to previous P2P infringement cases that distinguished between the copyrighted work and the material--digital--object: "when a user downloads a digital music file or 'digital sequence' to his 'hard disk,' the file is 'reproduce[d]' on a new phonorecord within the meaning of the Copyright Act." Judge Sullivan did not stop with the Copyright Act, however, turning later to the "law of physics": "[t]his understanding is, of course, confirmed by the laws of physics," the judge said. "It is simply impossible that the same 'material object' can be transferred over the Internet. ... Because the reproduction right is necessarily implicated when a copyrighted work is embodied in a new material object, and because digital music files must be embodied in a new material object following their transfer over the Internet, the Court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act."

So, at least for now, it seems unlikely that used digital music "stores" will be popping up across the Internet.


Read the decision here: http://www.scribd.com/doc/133478866/redigi

Mendelssohn Heirs Seek Return of Picasso

Descendants of the Mendelssohn family--the same family that produced famed Romantic composer Felix Mendelssohn--have sued the Bavarian government, seeking return of the famed 1903 Picasso work "Madame Soler." The plaintiffs claim that their ancestor, Berlin banker and art collector Paul von Mendelssohn-Bartholdy, was forced to sell the painting in question in 1934 to Berlin art dealer Justin K. Thannhauser, following threats and pressure from the Nazis.

These "paradigmatic forced transfers" of art and other valuable goods arose as a result of "Nazi policies to eradicate Jewish-owned banks and bankers." Mendelssohn-Bartholdy, facing "escalating Nazi predation directed at his real estate property - and with no reasonable expectation of receiving any sustainable future income" from his other corporate holdings, began "liquidating his art collection to protect his residual estate from Nazi seizure and to offset his precipitate deficit," the complaint states. The government in Bavaria eventually acquired the painting from Justine Thannhauser in 1964, ignoring the "conspicuous possibility that Nazi policies had deprived Mendelssohn-Bartholdy" of the work of art, and the fact that the initiator of the purchase for Bavaria, Halldor Soehner, was himself an ex-Nazi. Furthermore, the complaint avers, at the time of the Madame Soler acquisition, the Bavarian government was planning a secret sale of some 113 paintings that former Nazi officials had acquired prior to and during the Second World War. The complaint continues: with the help of ex-Nazi Halldor Soehner, Bavaria successfully auctioned 106 of these works in 1966-67 by concealing the provenance of these paintings, leaving prospective buyers unaware that notorious Nazi leaders once owned these priceless pieces of art that likely were acquired from persecuted Jewish families.

Hoping to recover the Picasso work, Mendelssohn-Bartholdy submitted a claim to recover the piece, "which included an 86-page memorandum and scores of exhibits proving that Nazi duress had compelled Mendelssohn-Bartholdy to relinquish the painting." The Bavarian government declined to return Madame Soler, stating "there is no connection between the sale of the artwork and the persecution of Paul von Mendelssohn-Bartholdy by the National Socialist regime." According to the complaint, Bavaria later refused to submit the claim to a special commission in Germany, charged with resolving Holocaust-era art recovery claims.

At its peak, the "Mendelssohn-Bartholdy's private art collection comprised approximately 60 master works by luminaries such as Picasso, van Gogh, Braque, Monet, Renoir and others. When he died of a heart attack at age 59 in 1935, Mendelssohn-Bartholdy had sold or consigned some 16 of these artworks in a period of less than 1.5 years of Nazi rule (September 1933 through February 1935) - having never sold a single major work in the more than 25 years that he had collected art before the Nazis took power in 1933." The heirs demand return of the painting or $100 million. They claim that by withholding the Picasso, "Bavaria in effect has ratified the wrongdoing of the Nazi government that purposefully compelled Mendelssohn-Bartholdy to forfeit the painting."


Fox Sports Sued for Race Discrimination

Last week, a former executive at Fox Sports sued Fox Cable Network Services, alleging he was denied a promotion and eventually fired because of his race. The suit, filed last Friday in Los Angeles Superior Court by Jerry Davis, states that he worked at Fox for over fifteen years as a director in the music department. Davis, who is African American, says that when the job above his became available on four different occasions, he was passed over "because, as a black man, he did not fit neatly in the company's corporate culture." Davis states that during his fifteen years at Fox, he did not receive a single promotion. According to the complaint, the defendant eventually "eliminated [Davis'] position when he was on disability leave 'without providing any interactive process or attempts at accommodation.'"

A lack of diversity plagues broadcast programming at Fox, at least according to Davis. "In the division that runs broadcast / 'over the air' sports programming for Fox, there are currently approximately 34 individuals employed at or above the vice president level. None are [sic] black," the lawsuit states. The complaint goes on to state that, "to the best of Mr. Davis' knowledge, no black person has ever held any position at or above vice president in that division's 19 year existence."

The suit alleges causes of action for unlawful discrimination based on race and disability, as well as retaliation and a failure to accommodate disability, wrongful termination and intentional infliction of emotional distress.


Read the complaint here: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/bc504990.pdf

Close Call for Netflix

Netflix CEO Reed Hastings can breathe a sigh of relief: the U.S. Securities and Exchange Commission (SEC) has declined to bring regulatory sanctions against Hastings for announcing monthly viewing results on his Facebook page. In July of last year, Hastings made the mistake of posting on his Facebook page that viewing on Netflix's service had "exceeded 1 billon hours for the first time."

Under SEC Regulations, publicly-held companies are obligated to report findings and other information in a public filing before releasing the information via other media. The SEC's decision not to sanction Hastings arises, in part, from uncertainty surrounding whether SEC disclosure requirements apply to social media, such as Facebook. Following Hastings' announcement, onlookers called for the SEC to allow social media platforms to be used to communicate with investors. Last week, the SEC responded with an investigation that states that companies may utilize social media to announce key information, provided that investors have been told where this information can be found online.

Don't forget to "Like" Reed Hastings on Facebook...


Read the SEC investigation here: http://www.sec.gov/litigation/investreport/34-69279.pdf

April 9, 2013

EASL's 25th Anniversary Celebration

Monday, May 6, 2013 - Location - Warwick Hotel 65 West 54th Street New York City

REGISTER NOW http://www.nysba.org/AM/Template.cfm?Section=Events1&ContentID=165605&Template=/CM/ContentDisplay.cfm

Celebrate EASL's 25th Anniversary by joining us for day filled with education, an evening of entertainment and time to catch up with section members. Our 25th Anniversary Celebration will include an evening of lively entertainment at the newly renovated 54 Below, Broadway's Night Club, featuring the fabulously funny Jackie Hoffman following a continuing legal education program on hot topics and a luncheon with keynote speaker, Jeff Gewirtz of the Brooklyn Nets and Barclays Center.

10:15 - 10:50a.m. Registration

10:50 - 11:00a.m. Welcoming Remarks

11:00am -12:00p.m. What is Art Law? An Hour-Long Teaser

This hour-long program in 3 segments presents a buffet of issues addressing the law and business of visual art. The first segment presents an interactive scenario -- with audience participation -- ranging over a variety of legal disciplines dealt with by the art law practitioner including tort law, tax law, auction law, and the like. The second segment addresses some of the legal challenges involved in representing the visual artist, including issues of copyright and moral rights. The third segment focuses on representing the collector -- and the business of buying and selling art, through private treaty and at auction.

Judith A. Bresler, Esq., Withers Bergman LLP, New York City
Carol J. Steinberg, Esq., Law Office of Carol Steinberg

12:00 - 2:00p.m. The Story Behind the Nets and the Barclays Center: One-on-One with Jeff Gewirtz

Jeff Gewirtz, Executive Vice President of Business Affairs and Chief Legal Officer for the Brooklyn Nets and Barclays Center, will be engaged by Jessica Thaler, Solo Practitioner and Co-Chair of Membership for EASL, through a series of questions and answers focused on legal and business issues relating to the development, financing, operating, programming and marketing of Barclays Center, as well as issues relating to the relocation of the Brooklyn Nets from New Jersey to Barclays Center.

Lunch Speaker:
Jeffrey B. Gewirtz, Esq., Executive Vice President of Business Affairs & Chief Legal Officer, Brooklyn Nets and Barclays Center
Jessica Thaler, Esq., The Law Offices of Jessica Thaler

2:00 - 3:15p.m. Ethical Issues Implicated By Social Networking, Cloud Computing & Other New Technologies

As the legal profession becomes more digitally-driven, lawyers are facing challenging questions concerning when, where and how the "practice" and the "business" of law are interconnected. Some of these more novel questions will need to be considered within the context of the ever-blurring lines that result from lawyers assuming an online presence. Using real world examples and interactive hypotheticals, this program will explore practical issues relating to and including:

How competence and diligence have been redefined in the digital age;
Avoiding computer malpractice and inadvertent disclosure;
Spoliation of digital evidence and the ramifications of leaving a digital paper trail.

Pery Krinsky, Esq., Krinsky, PLLC, Chair, EASL Ethics Committee

Douglas Wood, Esq., Reed Smith LLP
Michael Graif, Esq., Curtis Mallet-prevost Colt & Mosle LLP

3:15 - 3:25p.m. Break

3:25 - 4:15p.m. Social Media and Advertising:What Every Lawyer Should Know When Counseling Clients

Legal issues and best practices for brands using popular social media platforms e.g. Facebook, Twitter, Pinterest, etc.

Kathryn Farrara, Esq., Unilever and New York Law School's Institute for Information Law & Policy.

4:15p.m. - 4:45p.m Social Media 2013: What is "Trending" Key challenges for lawyers and marketers in the year ahead

Jason W. Gordon, Esq., Winston & Strawn LLP

5:30p.m. An Evening of Entertainment at 54 Below
Performance by Broadway Great and Comedian Jackie Hoffman

54 Below offers an only-in-New York nightlife experience featuring Broadway's best entertainers, with cocktails and classic American cuisine in the ambience of a 1920s supper club. Newsday calls it "a hip hangout for Broadway babies and the fans who love them, with food that is sophisticated and understated." Located in the heart of the theatre district, 54 Below is Broadway's Nightclub (254 W. 54th Street).

EASL Section Member CLE Registration: $150.00
NYSBA Member (non-EASL) CLE Registration: $200.00
Non-NYSBA Member CLE Registration: $225.00
54 Below Show with Jackie Hoffman: $25.00 (plus a $25.00 food/drink minimum*)

*As an added member benefit, EASL Section Members and their guests will be given a voucher to cover the food/drink minimum

To register for the MCLE meetings and social events, download meeting registration form and return to Beth Gould with your payment. http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/CM/ContentDisplay.cfm&ContentID=165605

For More Information: Beth Gould bgould@nysba.org or 518-487-5674

This Program has been approved for 4.0 MCLE Credit Hours (1.5 in Ethics and 2.5 in Professional Practice) This program has been approved for Newly Admitted Attorneys

Sponsorship Opportunities Available: Click Here for more information
Or contact Beth Gould: bgould@nysba.org

For more information, contact: bgould@nysba.org

Accommodations for Persons with Disabilities:
NYSBA welcomes participation by individuals with disabilities. NYSBA is committed to complying with all applicable laws that prohibit discrimination against individuals on the basis of disability in the full and equal enjoyment of its goods, services, programs, activities, facilities, privileges, advantages, or accommodations. To request auxiliary aids or services or if you have any questions regarding accessibility, please contact Kathy Heider at 800-582-2452 or kheider@nysba.org.

April 19, 2013

Week in Review

By Martha Nimmer

"Spider Man: Turn Off the [Lawsuits]"

The Broadway production of "Spider-man Turn Off the Dark" ("Spider-man") has been plagued by problems, whether they be legal or safety related. Last week, however, the show received some welcomed good news: after more than a year of legal brinksmanship, former "Spider-man" director Julie Taymor announced a settlement among the feuding parties. The agreement will avoid a messy and high-profile trial that was set to commence on May 28th in a federal courtroom in Manhattan. The settlement terms were not made public, but likely concerned everything from copyright claims to artistic credit to profit sharing.

Taymor originally filed suit back in 2011 after being terminated by the show's producers. Sources close to Taymor say that she will receive a hefty financial settlement if the show receives wide acclaim. In return, the show's producers will no longer need to obtain the former director's approval for future tour dates or changes to the show's staging or script, which Taymor helped create. The effect of this "artistic divorce" is to allow the producers to "have a free hand to transform 'Spiderman' from its current form--a traditionally structured Broadway musical--into an arena-style special-effects extravaganza . . . ." that could be performed in Las Vegas or other, larger venues abroad.

Another notable aspect of the settlement, according to The New York Times, involves the "unusually high weekly operating expenses of the current New York production, running at the Foxwoods Theater." The Times writes that the show currently costs between $1.1 million and $1.2 million a week, the highest on Broadway. This hefty price tag can be attributed to the show's many aerial stunts and technical complexity. The problem with those expenses is that ticket sales as of late are only reaching between $1 million and $1.5 million during most weeks. With those expenses and box-office grosses, the musical is struggling to recover its $75 million capitalization. No longer needing Taymor's approval to alter the show script or staging can allow the producers to cut down on some of the revenue draining aerial stunts, while making it easier for the show to turn a profit. In essence, "the settlement basically removes a number of impediments toward having a long and commercially healthy run on Broadway and having future productions of the show around the world that will benefit everyone involved," according to an individual close to the show's producers.


Raging Retailers

Bad news for retail giant Macy's: the judge presiding over the company's lawsuit against Martha Stewart and J.C. Penney ruled last week to permit the sale of Martha Stewart merchandise in J.C. Penney stores, despite objections by Macy's that it has the exclusive right to sell Martha Stewart sheets, towels and cookware. According to ABC News, "the items covered by [last week's] ruling do not carry Stewart's name, but were designed for J.C. Penney by her company." Macy's had hoped that the judge would prevent retail rival J.C. Penney from selling anything connected to Martha Stewart. Last week's ruling, writes ABC, will "free[] up about $100 million worth of merchandise J.C. Penney had sitting in storage." Macy's is filing an appeal.

Readers will recall that Macy's sued Martha Stewart Living earlier this year for breach of contract, stating that "an agreement to sell products at J.C. Penney in 2011 ran counter to Stewart's deal with Macy's in 2006." Macy's later sued J.C. Penney, arguing that the latter had interfered with the former's Martha Stewart contract. The retailers were ordered by presiding Judge Jeffrey Oing to enter mediation, but failed to reach an out of court agreement by an April 8th deadline.

A spokesman for J.C. Penney stated that the company was "pleased with the court's ruling to allow the sale of 'JCP everyday merchandise' in our stores."


Hopi Artifacts Controversy

Despite protests and public outcry, a sale of Hopi Indian artifacts went forward last week at a Paris auction house. The auction of these items brought in an estimated $1 million in sales, despite the presence of protesters who urged auction patrons not to bid on the sacred pieces. One of the items at auction was an 1880s headdress called "Crow Mother." According to The New York Times, bidding on this piece "soared" from the estimated $80,000 value to over $200,000. When the piece was eventually sold, a woman in the sales room shouted "Don't purchase that. It is a sacred being."

The auction of the Hopi artifacts was at the center of international scrutiny and diplomatic talks between the United States and French officials last week. A few hours before the auction, a municipal court judge in Paris ruled that the sale could go forward, finding that the objects, "despite their divine status among the Hopis, could not be likened to dead or alive beings." An attorney for the Hopis had argued that the tribe believes that the works embody living spirits, making it "immoral" to sell them under French law. According to the Hopi tribe lodge, the artifacts, known as Katsinam, or "friends," were stolen from tribal lands in Arizona. The auction house responded to these allegations by stating that the pieces were legally obtained from a French collector decades ago.

Five of the 70 Hopi artifacts did not sell, with many pieces selling below the low estimate. On a brighter note, a foundation that purchased one of the pieces plans to return it to the Hopi tribe.


Their Day in Court

Last week, lawyers for the National Football League (NFL) appeared before U.S. District Court Judge Anita B. Brody to argue that a lawsuit for fraud and negligence, brought against them by over 4,000 former NFL players, should be dismissed. The NFL's lawyers argued that the case "should be dismissed because the players had agreed to a collective bargaining agreement and therefore an arbitrator, not a judge, should hear their cases." On the other side, lawyers for the retired players and their families stated that their clients' cases should be heard in court because of the fraud accusation, adding that "fraud would supersede any labor agreement." Judge Brody may either dismiss the entire lawsuit, or permit parts of the case to proceed. This decision, coupled with appeals and lengthy discovery, could take years.

Following the hearing, spokespersons for both sides made statements about the events that day. Lawyers for the NFL repeated that any injuries to former players were governed by a collective bargaining agreement and hence, could not form the basis of a lawsuit against the NFL. Attorneys for the players and their families again accused the NFL of negligence and indifference to players' injuries, some of them life-threatening and even life-ending. "What they were doing there when they brought us so much pleasure, they were also suffering insidious injuries," said one of the lawyers. He also accused the NFL of willful blindness towards signs that players had sustained serious injury that risked causing long-term, irreversible damage: "the league knew or should have known that these repeated blows to the head caused significant neurological injury."

It is unclear when the judge will rule.


"Operation BearLove Good, Cancer Bad": Tales from the Internet

The Internet, and much of the litigation that surrounds it, are gifts that keep on giving. Since we could all do with some comedy, get comfortable as I tell you the tale of "Operation BearLove Good, Cancer Bad."

Like many online controversies, "Operation BearLove Good, Cancer Bad" began with some alleged copyright infringement, with a side of hurt feelings and sarcasm. After Matthew Inman, creator of popular comic website The Oatmeal, complained online in 2010 that content aggregator website FunnyJunk.com was using some of his work without his permission, Charles Carreon, an attorney for Funny Junk, sent Inman a demand letter, seeking $20,000 in damages. The letter also demanded that Inman remove all references on his blog and website to Funny Junk and the alleged misuse of his works. Laughing off the demands, Inman launched a fundraiser called "Operation BearLove Good, Cancer Bad," which sought to raise $20,000, with the proceeds donated to charity instead of to FunnyJunk.com. The fundraising campaign featured a cartoon, drawn by Inman, of an obese woman in her underwear, trying to seduce a bear.

Operation BearLove ultimately raised $200,000, which Inman gave to the National Wildlife Federation and the American Cancer Society. Charles Carreon, however, was not too pleased, eventually filing a defamation lawsuit over the cartoon and the statements made by Inman in his fundraising campaign. Carreon also claimed that Inman did not actually intend to raise money for charities, but sought to "revile Inman's legal adversaries," and to "initiate a campaign of trolling and cyber vandalism against them . . . ." Carreon kept going, adding the American Cancer Society and the National Wildlife Federation to his suit, stating that neither charity had "disavowed their association with the Bear Love campaign, thus lending their tacit approval to the use of their names to the Bear Love campaign." (Yes, an attorney actually wrote that and filed it in court.) Carreon later dropped his suit against Inman, the online fundraising platform Indiegogo, and the two charities. This, however, is not where our story ends.

While Carreon was crusading against an Internet comic, other Internet bloggers took notice. One of these people was blogger Christopher Recouvreur. Recognizing comedic gold, Recouvreur set up a website, charles-carreon.com, where he used "exaggerated language to parody the tone of Carreon's demand letters and other communications." After coming across this website, Carreon threatened Recouvreur with legal action. In response, Recouvreur filed an anonymous declaratory judgment complaint wherein he alleged that Carreon had "threatened to sue him for trademark infringement." Additionally, Recouvreur argued that he should be permitted to use the charles-carreon.com domain name for his satirical website, adding "the website was designed to make clear that it was a parody, with the phrase "censorious douchebag" appearing in the title tag on each page of the site."

After several unsuccessful attempts to serve Carreon with the suit, service of which Carreon refused to waive, Recouvreur's attorney was finally able to serve Carreon in person, outside a courtroom. Later, Recouvreur moved for expenses and attorneys' fees, leading Carreon to offer a judgment of $725 pursuant to Rule 68 of the Federal Rules of Civil Procedure. The offer stated that Carreon would "deem Recouvreur's use of the domain name and current use of the website as not violating his rights and as protected under the First Amendment. It specified that $725 would cover the filing fee and service costs." Recouvreur accepted this offer, but filed a second motion for $77,765.25 in fees pertaining to the work that his attorney, Paul Levy, prepared on the two motions.

Hopefully putting this weird tale from the Internet to rest, U.S. District Judge Richard Seeborg ruled last Friday that these attorney's fees are available to Recouvreur under the Lanham Act, finding that Recouvreur's "acceptance of the $725 judgment offer did not moot the fees request since that judgment 'specifically referred to the 'filing fee' and 'costs of service.'" Judge Seeborg calculated the fee award to be $37,650.25. He also cast aside Carreon's claims that his litigation threats are protected by the litigation privilege of California's Anti-SLAPP (Strategic Lawsuit Against Public Participation) law.

Thus, dear readers, it appears that the tale of Operation BearLove Good, Cancer Bad has come to a close.


Read the decision here: http://www.courthousenews.com/2013/04/16/carreonruling.pdf

April 25, 2013

UMG Recordings Inc. v Escape Media Group Inc.

By Barry Werbin

Attached is a copy of the First Department's unanimous reversal of Justice Kapnick's prior decision in UMG Recordings, Inc. v. Escape Media Group, Inc., which held that pre-1972 sound recordings were covered by the DMCA despite such works not being covered by the Copyright Act. UMG Recordings Inc v Escape Media Group Inc.pdf The First Department noted that Justice Kapnick's decision had relied "heavily on Capitol Records, Inc. v MP3tunes, LLC (821 F Supp 2d 627 [SD NY 2011]), in which the United States district court tackled precisely the same issue and found that the DMCA embraced sound recordings fixed before February 15, 1972."

The Court held that to adopt defendant's view "would directly violate section 301(c) of the Copyright Act." Instead, it adopted UMG's view that "Section 301(c) forbids the Act from 'annull[ing]' or 'limit[ing]' the common-law rights and remedies of owners of such works, and the DMCA, if it were to bar infringement actions against Internet companies that otherwise comply with the DMCA, would do just that." The Court observed that in the absence of the DMCA, "there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark [defendant's Internet music streaming service]." Thus, any "material limitation" on a copyright owner's New York common law rights, "especially the elimination of the right to assert a common-law infringement claim, is violative of section 301(c) of the Copyright Act."

Further, in reading the Act as a whole, the Court emphasized that the DMCA's textual references to "copyright" or "copyright infringers" pertains "only to those works covered by the DMCA. The DMCA expressly identifies the rights conferred by the Copyright Act in stating who a 'copyright infringer' is for purposes of the DMCA. Had Congress intended to extend the DMCA's reach to holders of common-law rights it would have not have provided so narrow a definition."

Lastly, the Court reconciled two underling policies: "The statutory language at issue involves two equally clear and compelling Congressional priorities: to promote the existence of intellectual property on the Internet, and to insulate pre-1972 sound recordings from federal regulation. As stated above, it is not unreasonable, based on the statutory language and the context in which the DMCA was enacted, to reconcile the two by concluding that Congress intended for the DMCA only to apply to post-1972 works."

In conclusion, the Court suggested that "it would be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this Court to do so by fiat."

Week in Review

By Martha Nimmer

Prince Prevails

In what is being called a decision that could influence the future of art and "the nature of art," artist Richard Prince has prevailed against photographer Patrick Cariou. Two years ago, Prince was found by a federal court to have violated U.S. copyright law when he used Cariou's photographs of Rastafarians in Jamaica to create a series of collages and paintings. These photos appeared in Cariou's book, Yes Rasta, which featured a series of portraits from Cariou's travels in Jamaica. The book was published in 2000. Prince admitted using the photos, incorporating them into a series of works called Canal Zone, which he exhibited in 2007 and 2008. The works have generated over $10 million in sales.

Surprisingly, when questioned during depositions, Prince did not rely on the fair use exception to the Copyright Act, an argument that "probably could have defended his appropriation better. . . ." Instead, Prince merely said that his art "doesn't really have a message." This somewhat nonchalant approach to copyright law and fair use likely led the lower court to rule against Prince in 2011. Last week, however, the Second Circuit found that 25 of Prince's 30 works actually did qualify as protected fair use because "they "have a different character" from Mr. Cariou's work, give it a "new expression" and employ "new aesthetics with creative and communicative results distinct" from the work that Mr. Prince utilized. In that regard, Judge Barrington Parker, Jr. wrote, "[w]hat is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince's work could be transformative even without commenting on Cariou's work or on culture, and even without Prince's stated intention to do so."



Read the decision here: http://www.ca2.uscourts.gov/decisions/isysquery/5da8dc66-179e-4dc0-94cc-09e213bfffe3/1/doc/11-1197_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5da8dc66-179e-4dc0-94cc-09e213bfffe3/1/hilite/


Devin Ebanks is better known for being a forward on the Los Angeles Lakers, but found himself at the center of a rape investigation in September 2011. Three months later, Ebanks was cleared of the charges. As to be expected, TMZ published a story on the matter, including "some crazy details" about the alleged incident. That, however, is not where the story ends. After learning that he was cleared of the charges, Ebanks went straight to the World Wide Web and "took some delight" in the TMZ story on Twitter. Later, a Twitter followed named Junior, who, according to The Hollywood Reporter, introduced Ebanks to his female accuser, tweeted at Ebanks, "glad you got cleared...." To this, Ebanks responded, "thanks bro next time u wanna hook me up, dnt lol."

Ebanks' accuser later anonymously sued Ebanks for sexual assault. What set this case apart from other actions involving sports starts, however, is that the plaintiff "included a claim for defamation for what was said by [Ebanks] on Twitter." The Laker responded with an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion to strike the defamation claim, stating that Ebanks' tweet was protected free speech. That argument opened the door to a strange and unexpected argument by the plaintiff's attorneys:

"When Defendant responded to the Twitter message, 'I'm glad you got cleared on that incident,' Defendant Ebanks adopted the false statements included in the TMZ article, thus defaming Plaintiff Jane Doe. While the issue of rape and violence against women are very well issues of public interest, the TMZ article was nothing more than a salacious article to spread gossip and intrigue. More to the point, the Twitter messages [were] not about rape, or even about a Laker member being cleared, but about Defendant Ebanks' personal, private desire not to be 'hooked up' with women who would actually dare to report a rape to law enforcement. His hook-ups and personal, private preferences serve no issue of public interest. His comments served only to 'gather ammunition' for his private and self-serving interests."

Essentially, what the plaintiff's attorneys claimed was that a Twitter user who refers, even indirectly, to a possibly untrue news account "attaches" himself to the "inaccuracies inherent." As The Hollywood Reporter further stated, "because the tweet happened on the same day as the TMZ article, the woman's lawyers say that he [Ebanks] 'adopted' the inaccuracies" -- and that readers "reasonably interpreted the Twitter messages as referring to the TMZ article."

Last week, Los Angeles Superior Court judge Samantha Jessner moved to strike the defamation claim. Applying the two-prong analysis under which a special motion to strike is considered, Judge Jessner ruled that the first prong weighed in the defendant's favor. The first prong requires the defendant to show that the "act or acts of which the plaintiff complains were taken 'in furtherance of the defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue.'" Referring to that burden, Judge Jessner wrote that a public issue existed here because of the defendant's celebrity and the "gravity of the rape charge." Additionally, Ebanks' actions on Twitter were in furtherance of his right to free speech. Weighing the second prong--the likelihood of the plaintiff's prevailing on the claim--Judge Jessner wrote "[t]he use of the words 'clear' or 'cleared' by Junior does not amount to an adoption of the content of the TMZ article, as plaintiff argues, because these words are quite common when speaking of the dropping of criminal charges. It is reasonable to infer that Junior saw the TMZ article, but it is not reasonable to then conclude that defendant adopted the contents..." As it was not reasonable to conclude that Ebanks adopted the contents of the article, the plaintiff could not demonstrate a likely possibility of prevailing on her claim.


Read the ruling here: http://www.scribd.com/doc/137766448/EBANKS-Jane-Doe-Ruling

Suing Hungary

A minor victory for the heirs of a deceased Hungarian art collector: the nation of Hungary is amenable to a lawsuit brought by the heirs of a deceased art collector for Hungary's alleged collaboration with Nazi Germany for the plunder of Baron Mor Lipot Herzog's art collection. Baron Herzog was a Budapest banker and a passionate art collector who collected over 2,000 paintings, sculptures and other works of art. Some of the pieces in the collection included works by El Greco, Velazquez, Renoir and Monet. Herzog passed away in 1934, shortly before Nazi Germany and the Hungarian government began stealing Jewish-owned property and assets. Fearing the confiscation of their father's priceless art collection, the Herzog children tried to hide the pieces in one of the family's factories. Eventually, however, the artworks were discovered and taken to Adolf Eichmann's headquarters in Budapest. Eichmann picked out many of the pieces for display near Gestapo headquarters. The works that were not chosen became part of the Hungarian National Gallery and the Budapest Museum of Fine Arts.

According to the heirs' complaint, the Herzog descendants tried on numerous occasions to secure the return of the pieces, stating that the family had agreed to let the government of Hungary display the art after the war, while still retaining the right to demand their return. An appellate court in Hungary dismissed the family's claim in 2008, citing the Peace Treaty between Hungary and the Allied Powers and a later agreement between the U.S, and Hungary concerning the settlement of war-related claims. The Herzog descendants then sought relief from the American courts.

Last week, a three-judge panel of the D.C. Circuit Court affirmed a 2011 ruling of a U.S. District Court Judge, and revived claims that she had previously dismissed. According to the D.C. Circuit, "Hungary's argument falters for the simple reason that the Herzog family's claims fall outside the treaty's scope," Judge David Tatel wrote. "Article 27 concerns property discriminatorily expropriated during World War II. As we have explained, however, the family's claims rest not on war-time expropriation, but rather, on breaches of bailment agreements formed and repudiated after the war's end. Accordingly, the Peace Treaty presents no conflict with Hungary's amenability to suit under the FSIA [Foreign Sovereign Immunities Act]."

So, at least for now, it appears that the Herzog family will get their day in court.


Read the decision here: http://www.courthousenews.com/2013/04/23/herzog.pdf

Read the FSIA here: http://uscode.house.gov/download/pls/28C97.txt

About April 2013

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

March 2013 is the previous archive.

May 2013 is the next archive.

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