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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

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This page contains a single entry from the blog posted on April 19, 2013 9:45 AM.

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