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May 13, 2013

Week in Review

By Martha Nimmer

Not So Special

In this case, not being special is actually a good thing. Spaniards can breath a sigh of relief: their country has managed to escape the U.S. Trade Representative's "Special 301" report, released in April. The list highlights which nations have troubling intellectual property practices, from lax enforcement to non-existent IP rights. Spain, along with Bulgaria, is no longer on the "Watch List." Additionally, our neighbor to the north, Canada, has moved from the "Priority Watch List" to the less severe "Watch List." This change, the report explains, is due to Canada's recent passage of the Copyright Modernization Act, which is "designed to implement Canada's obligations under the WIPO Internet Treaties and to address the challenges of copyright piracy in the digital age." Additionally, Canada also introduced legislation in March 2013 aimed at stemming the flow of counterfeit products into the country. This Act would allow Canadian customs officials to seize pirated and counterfeit goods at the borders.

The news was not so positive for Ukraine, however: the nation now finds itself designated a "Priority Foreign Country" (again, not a good thing) in lights of its "severe deterioration of enforcement" in pirated software and online piracy. The U.S. Trade Representative also pointed out the "nontransparent administration of royalty collecting societies" in the troubled Eastern European nation. Other countries on the "Priority Watch List" are Algeria, Argentina, Chile, China (no surprises there), India, Indonesia, Pakistan, Russian, Thailand and Venezuela.


Read the report here: http://www.ustr.gov/webfm_send/2841

To Kill a Copyright Assignment

Famed literary work To Kill a Mockingbird is at the center of a real-life court room drama. Author Harper Lee, who published the classic novel in 1960, filed suit last week in New York federal court against her literary agent, Samuel Pinkus. The suit seeks an unspecified amount of damages.

Lee accuses her agent of improperly collecting royalties from her book since 2007. According to the complaint, Pinkus "'engaged in a scheme to dupe Harper Lee, then 80 years old with declining hearing and eyesight,' into assigning the book's copyright to his company." Lee, who is now 87 years old and suffered a stroke in June 2007, does not recall signing the document or discussing it with her agent, according to the complaint.

To Kill a Mockingbird, Lee's only published book, received the Pulitzer Prize for fiction and is widely read in schools across the nation. The film version of the book, starring Gregory Peck, won three Academy Awards.



Return to Cambodia

Citing concerns over the origins of two ancient Khmer statues, the Metropolitan Museum of Art announced last week that the it planned to return two life-size sandstone pieces to the Cambodian government. The works, known as the Kneeling Attendants, have stood at the doorway of the Met's Southeast Asian galleries since 1994. The "Attendants" date from the 10th-century and were donated to the Met in four pieces between 1987 and 1992. Now, Met officials say that the statues were, in fact, smuggled out of a "remote jungle area" during the 1970s, when Cambodia found itself embroiled in a violent civil war.

The decision to return the Kneeling Attendants to Cambodia came after two top executives from the Met traveled to Cambodia in March to investigate the origins of the pieces. Cambodian officials provided evidence that the statues had been stolen from the Hoh Ker temple complex outside the Cambodian capital Phnom Penh. Included in this evidence were photos of the statues' rough, broken-off bases that were left at the site. According to The New York Times, witnesses stated that the pieces were intact as recently as 1970. Cambodian officials also visited the Met in March to document other Khmer items in the museum's collection. Following the visit, a "government official said that Cambodia would like the museum to review the provenance of another two dozen objects."

This decision to return the statues is part of the growing trend of American museums to investigate and respond to the claims of other countries that pieces in American museums may not belong here. Many works of art that have become fixtures in museums lack detailed paperwork that show exactly how the pieces left their home countries. "In recent years," writes The New York Times, "at the urging of the Association of Art Museum Directors and scholars, many museums have applied more rigorous standards to their acquisitions." This awareness has turned out well for the Met: the museum "has developed a collaborative relationship with [Cambodia] and is now exhibiting 10 sculptural works" by a contemporary Cambodian artist.


Michael Jackson Wrongful Death Trial Begins

Last week, opening statements in the Michael Jackson wrongful death trial began in Los Angeles. During the trial, which "promises dramatic revelations and legal fireworks," jurors will consider whether entertainment company AEG Live should pay Jackson's mother and three children billions of dollars for the company's alleged liability in the star's death. Jurors will hear weeks of testimony from the pop star's family, as well as expert testimony from medical and financial professional regarding Jackson's health, addiction history and career. Given the celebrity of Jackson and his family, media outlets petitioned the presiding judge Yvette Palazuelos to permit them to televise the trial. Judge Palazuelos, likely fearing a media circus, denied the request.

The central issue in the wrongful death action is this: did AEG Live, which promoted Jackson's comeback concerts in 2009, hire or supervise Dr. Conrad Murray, the physician convicted of involuntary manslaughter in Michael Jackson's death? Jackson died on June 25, 2009, two weeks before his "This Is It" tour was scheduled to debut in London. The medical examiner ruled that the singer died from a "fatal combination of sedatives and propofol, a surgical anesthetic that Murray told investigators he used to put Jackson to sleep almost every night in the month before his death." Attorneys for the Jackson family will argue that AEG and its executive knew, or should have known, about Jackson's fragile health and his previous use of drugs, but nonetheless, pressured Jackson and his doctor to fulfill a rigorous schedule in preparation for the London concerts. AEG, in turn, will argue that the pop star bears ultimately responsible for his death, that he "doctor-shopped" for prescriptions, and that Jackson chose Dr. Murray to serve as his personal physician.

The Jackson family seeks damages from AEG Live equal to the amount of money that Jackson would have earned over the course of his remaining lifetime if he had not passed away in 2009. Given the popularity of the singer and the estimates of his income potential, that judgment could amount to several billion dollars. One of the Jackson experts stated that the singer could have earned $1.4 billion by taking his comeback concert series "This Is It" on a world tour. AEG's attorneys have called that amount "very speculative," however, in light of Jackson's failing health.


Tackling the Copyright Act

Can one copyright a football play? Video game company Electronic Arts (EA) certainly hopes not, but that decision will be left to the jury in a case that is likely to produce significant repercussions across the copyright law and video game industries. The lawsuit that poses this question comes from Robin Antonick, who developed a prototype for a football game on the Apple II operating system and was later hired by EA in 1984 to write the source code for a video game simply titled "Football." A year later, famed football coach and broadcast announcer John Madden contracted with EA to permit the company to use his name in their football video. Antonick alleges that he worked on this video game in exchange for a cut of the royalties, but was eventually shut out of the franchise. To date, the franchise had sold over 100 million copies and earned over $4 billion.

Unhappy that he has been cut out of a billion dollar-business, Antonick filed suit in federal court in California, alleging that the games produced today use elements that he created, and that he deserves to share in the profits. At first blush, this case would appear to be a simple foray into the world of copyright infringement and the "substantial similarity" analysis. Not so fast. Video games, as The Hollywood Reporter points out, present a "unique challenge." When examining the substantial similarity of expression used in a work, should one look at the source code that is used to create a video game, or should a judge (or jury, in this case) focus on what that code "expresses," i.e. what shows up on the television screen when you play the videogame? EA believes that the judge should focus on the code, adding that the more recent Madden video games were independently created by a game developer who never saw, let alone used, Antonick's source code. Antonick, however, argues that the trier of fact should look at what the code expresses, for instance, the size of the football field and the appearance of the stadium and the football plays.

In response to Antonick's theory that one could copyright a football play, EA has raised two arguments. Football plays, according to EA, are not subject to copyright protection because they do not fall under any of the eight subject matter categories laid out in the Copyright Act. Only one of those categories--specifically, pantomimes and choreographic works" could even remotely encompass football plays and formations, says EA. "[T]he Copyright Office has clarified that 'a selection, coordination, or arrangement of functional physical movements such as sports movements, exercises, and other ordinary motor activities alone do not represent the type of authorship intended to be protected under the copyright law as a choreographic work." In other words, football plays cannot be choreographed because they are not like dance moves or dance routines. Sorry, NFL players. The second argument raised by EA is that Antonick's creations were not original, but rather, based on the Oakland Raiders' playbook provided to EA by John Madden. In other words, Antonick did not create the plays for which he seeks payment; he merely translated the Raiders' playbook into source code.

Last week, U.S. District Judge Charles Breyer narrowed the scope of Antonick's claims, limiting Antonick's contract claim for unpaid royalties to derivative works. The court, however, did permit "field width" and "plays and formations" substantial similarity claims to go forward, meaning that a jury may, in fact, be asked whether one can copyright football plays.


Athletes Fined Over Tweets in the U.S. and in Europe

By Marie-Andree Weiss

A British soccer player playing for the French Olympique de Marseille team, Joey Barton, was suspended last week over tweets directed at Thiago Silva, a Brazilian player from rival team Paris Saint Germain. The sentence was handed down by the National Ethics Committee of the French Soccer League which found, rather surprisingly, that calling a player an "overweight ladyboy" and asking whether he was "Pre-Op or Post-Op" were inappropriate but not homophobic. Barton also called Thiago Silva a "pussy" and a "FatBoy". Inappropriate indeed, and completely devoid of any sportsmanship.

Joey Barton has often voiced negative comments about fellow players on Twitter, using the micro-blogging site as a platform to broadcast his opinions to his two-million plus followers, making him one of the most successful athletes on social media.

Many Athletes Have Twitter Accounts

It is now common for athletes to have a Twitter account, but not all of them are as prolific as Barton, nor, fortunately, as rude. In the U.S., many NFL, MLB, and NBA athletes have Twitter accounts, and social media use is even encouraged by their professional associations. Several baseball teams are organizing social media nights, inviting fans to live tweet from the stadium and showcasing their tweets on big screens. Following the Twitter account of a favorite player allows fans to gain some understanding of his or her personality or to learn more about his or her involvement in charities, which in turn, benefit the overall public image of the team.

However, Twitter is not a placid media, and firing a 140-character message while angry is easy.

Fast Pitched Tweets

The Cy Young winner and star pitcher of the Tampa Bay Rays, David Price, two of his teammates, and one MLB empire were all fined $1,000 after an incident that happened on April 28th during a game against the Chicago White Sox. According to David Price, MLB umpire Tom Hallion told him, after calling one of his pitches a ball, "Throw the ball over the [expletive] plate." The Rays dugout reacted to whatever was said and Rays pitcher Jeremy Hellickson was ejected from the bench by Hallion.

Tom Hallion reacted after the game, telling the press that David Price was a liar, and that he had only told him to throw the ball. David Price reacted to that statement on Twitter, tweeting: "Think our entire dugout would ERUPT cause an ump told me to throw the ball over the plate? No, I'm sorry that wouldn't happen #accountability."
David Price is an enthusiastic Twitter user and he regularly posts from his @DAVIDprice14 account to his over 155,000 followers. He also posted on April 28th: "Someone give me the definition of a coward please" and "1. I am not a liar 2. I would not make that stuff up 3. My own dad doesn't speak to me that way 4. Again I am not a liar #accountability" and tweeted that teammate Jeremy Hellickson was ejected because he "[h]ad my back after what everyone in dugout heard what the ump said."

Jeremy Hellickson tweeted the same day from his Twitter account: "There's only one person lying about all this and his name starts with a T and rhymes with pom." Pitcher Matt Moore also tweeted on April 28th his opinion about what happened: "Lies! lies i tell you! RT @TBTimes_Rays: Umpire Hallion said to Price: "I said, "Just throw the ball." That's all I said to him'" and "Unbelievable someone would mis remember so quickly. Stay in your lane. Nobody cares what you have to say. #tom."

Why were the Rays players fined?

Social Media Policies of Sports Organizations

It was because their tweets had breached the MLB social media policy, first published in March 2012. The policy prohibits players from "[d]isplaying or transmitting [c]ontent that questions the impartiality of or otherwise denigrates a Major League umpire." The social media policy is enforced, and a player violating it may be disciplined by his Club or the Commissioner in accordance with Article XII of the Basic Agreement, which recognizes that a player may be subjected to disciplinary action for just cause.

The NFL and the NHL both have social media policies which prohibit players from tweeting during a game. The social media NFL ban starts 90 minutes before a game, and ends once the media interviews are over. The NHL Social Media Policy for League and Club Personnel, first issued in 2011, bans social media posts two hours before the start of a game until the end of all post-game media obligations. Players are advised to exercise good judgments before posting.

Social Media is Just Another Media

Lack of sportsmanship is not illegal, but defamation and invasion of privacy are. In that regard, social media is just another media. This was acknowledged by the International Olympic Committee Social Media, Blogging and Internet Guidelines for participants and other accredited persons at the London 2012 Olympic Games. It stated that social media posts "should at all times conform to the Olympic spirit and fundamental principles of Olympism as contained in the Olympic Charter, be dignified and in good taste, and not contain vulgar or obscene words or images," and noted that social media users can also be personally liable for any defamatory, obscene, or proprietary commentary, or commentary intruding upon the privacy of another. (http://www.olympic.org/Documents/Games_London_2012/IOC_Social_Media_Blogging_and_Internet_Guidelines-London.pdf )

Indeed, posting on Twitter that somebody is a liar or implying that somebody else is a transvestite may have legal consequences, regardless of whether one's employer has a social media policy. In the Joey Barton case, Thiago Silva and his Club had stated that they reserved their right to take legal action. Being called a 'liar' on social media is a cause of action for defamation in the U.S.

If anything, social media policies may play an educational role for all players, but especially for younger ones who may not have the resource of family guidance as they suddenly become famous. Watching their older colleagues be fined or benched over tweets may be the learning experience needed for the next generation (a/k/a next season) of athletes to demure their tweets.

May 14, 2013

Brooklyn Law School Creates the First Accelerated 2-Year J.D. Program in New York Metro Area

Last night the Board of Trustees of Brooklyn Law School (BLS) approved an accelerated 2-year J.D. program beginning in summer 2014. With the creation of the program, BLS will be able to offer a range of flexible 2-, 2.5-, 3-, 3.5- or 4-year options--called "Brooklyn 2-3-4"--to adapt to prospective students' needs. Brooklyn Law School is the first in the New York metropolitan area to enable students to earn a J.D. in 2 years.

The new 2-year offering is designed for select students seeking a rigorous legal education in an abbreviated timeframe. Candidates interested in this type of program might be, for example: 1) mid-life or mid-career professionals, including CPAs, MBA graduates, or those from academia desiring legal credentials and a new start; 2) foreign-trained lawyers with strong English-language proficiency; 3) individuals with established career plans following law school; or, 4) adults who seek to reenter the workforce. Highly qualified students with a demonstrated ability to handle a challenging work load will also be encouraged to apply for this opportunity. The accelerated J.D. involves the same amount of work as the current part-time or full-time program, but in 24 months.

"We have listened to and carefully considered the concerns about the legal education system," said Dean Nick Allard, who assumed leadership at Brooklyn Law School this past July. "The Brooklyn 2-3-4 program is one of several sound and deliberate new measures underway at BLS to make certain that law school education is meaningful and serves our students well. We worked hard to ensure that the 2-year program is fully compliant with the American Bar Association rules and other applicable requirements. I am grateful for the willingness and enthusiasm of our faculty to find a bold alternative that opens new doors for students who might otherwise not consider law school."

"Our institution has always been an agent of change," said Stuart Subotnick, Chair of the Brooklyn Law School Board of Trustees. "We were among the first in the nation to welcome women and minorities, our clinical education program began long before other law schools saw the value in experiential learning, and our Edward V. Sparer Public Interest Law Fellowship Program initiated public interest opportunities more than 25 years ago, before it was fashionable to do so. Innovation is in our law school's lifeblood and the DNA of Brooklyn's exciting, rising community. Brooklyn 2-3-4 is the 21st century academic extension of this pioneering tradition. We have always created genuine advancements, not educational fads. The accelerated J.D. will give ambitious, talented, and hardworking students an edge in entering the marketplace sooner."

The decision follows a careful, year-long planning and review process about how best to address the changing legal education landscape. In Dean Allard's first meeting with the BLS Board, he was charged with finding ways to provide a first-rate education that better met the needs of students, including determining whether a 2-year alternative was feasible, desirable, and advisable.

A task force of faculty and deans was immediately established, including Dean of Admissions & Financial Aid Henry W. Haverstick III, a leader at BLS for 40 years. Following the plan's consideration and approval by the Faculty Curriculum Committee, the full faculty voted unanimously in April to approve an accelerated J.D. program. The Board's subsequent and unanimous approval allows the 2-year program to begin in summer 2014, and students who enroll in the existing full-time or part-time programs in the fall of 2013 will be able to take advantage of the Law School's flexible options after completing their first year.

"Creating and designing our new accelerated program was not an easy process," said Dean Allard, whose career in private practice and government spanned 30 years. "It has benefited every step of the way by the input of faculty and other constituencies. The accelerated J.D. follows many recent innovations at BLS: our Washington, D.C. semester immersion program, Business Boot Camp over intersession break, and the upcoming 2-year fellowship in practice program for third-year students. Because the accelerated J.D. is among the first of its kind and the very first in New York, we expect to draw a new cross-section of students that complements the traditional demographics of our full- and part-time student body." Dean Allard noted that the program will be extremely demanding and not for every student, but for certain applicants, it presents an extraordinary new option.

For more information about the program, visit https://www.brooklaw.edu/newsandevents/news/2013/~/media/41D2208C5ED941009C3DBC16BFC5C946.ashx

In the Arena - EASL's Newest Handbook

In the Arena reflects the issues facing the sports lawyer today. Whether the reader is a novice to the sports industry or a seasoned veteran, he or she will find this book to be a valuable resource.


For a list of contributors and Table of Contents, visit http://www.nysba.org/AM/Template.cfm?Section=Shop&ContentID=235488&Template=/CM/ContentDisplay.cfm

May 17, 2013

Week in Review

By Martha Nimmer

When Wresting is Real

Wrestling is often dismissed by critics as "staged" or "faked," but what happens when it's not? For Andrew Green, wrestling became all too real, he claims, when wrestler Big Show (also known as Paul D. Wight, Jr.) exited the stage after a defeat and attacked Green while he was trying to interview the man. According to the complaint against World Wrestling Entertainment, Inc. (WWE), Green, a former employee of WWE, suffered severe "physical and mental injuries" when Big Show "grabbed Green by the collar and throat, striking Green in the face and backing him up against a trunk while declaring, 'You son of a bitch... Are you having fun right now ... Don't ever come up to me again. I don't give a sh-- who you are.'"

Green is suing Big Show for negligence, assault, battery and infliction of emotional distress. The plaintiff is also suing the WWE for negligence, invasion of privacy, infliction of emotional distress, commercial appropriation of his likeness, unjust enrichment, as well as negligent hiring and retention and supervision. WWE successfully removed the lawsuit last week to a federal court in Arizona. Once the question of venue is decided, onlookers can likely look forward to a look into the ring.


A World of "Hurt"

The Hurt Locker, the 2010 Academy Award winner for Best Picture, finds itself at the center of a lawsuit in California over misappropriation of likeness claims. The screenplay for the film, which tells the story of a bomb disposal unit operating in Iraq, was written by journalist Mark Boal following his time embedded with the Army's explosive ordinance unit in Iraq. The plaintiff in the suit, Sgt. Jeffrey Sarver, claims that the movie is based on his life and drawn from interviews that he gave to Boal while he was in Iraq and later when Sarver returned to the U.S. Sgt. Sarver claims that he never consented to the use of his name or life experiences in either the article written by Boal for Playboy or for the film. The plaintiff, who is supposedly a "dead ringer" for the film's antihero, Jeremy Renner, also claims that the wide acclaim received by the film endangered him during military operations. Disagreeing with Sarver's arguments, U.S. District Judge Jacqueline Nguyen ruled in October 2011 that The Hurt Locker's creators enjoyed a First Amendment right to free expression, adding that "even assuming that plaintiff and Will James share similar physical characteristics and idiosyncrasies, a significant amount of original expressive content was inserted in the work through the writing of the screenplay, and the production and direction of the movie." Sgt. Sarver appealed after Judge Nguyen granted the filmmakers' motion to strike under California's Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.

Last week, Sarver's attorney argued before a three-judge panel of the Ninth Circuit that Judge Nguyen should not have struck an appropriation of likeness claim from the suit. Counsel also averred that the case should not have been transferred from New Jersey to California, arguing that the defendants had delayed for over a year before filing an anti-SLAPP motion in California. Attorneys for the filmmakers, in turn, stressed the historical significance of the story and the creators' rights under the First Amendment. The defendants' counsel added that even if the film had, in fact, "portrayed Sgt. Sarver identically," it would have made no difference under the transformative-use analysis of the film.

Journalist Mark Boal won an Academy Award in 2010 for best original screenplay for the film. The movie's director, Kathryn Bigelow, took home the Oscar for Best Director.


The Art of Money Laundering

The art business is getting pretty shady these days. Just ask Edemar Cid Ferreira, a disgraced former Brazilian banker who converted some of his ill-gotten gains into a 12,000 piece art collection. Ferreira was sentenced in "December 2006 by the 6th Federal Criminal Court Specialized in Crimes Against the National Financial System and Money Laundering of Sao Paulo/SP to 21 years' imprisonment for crimes against the national financial system and money laundering." Hoping to avoid complete forfeiture of his wealth, Ferreira used some of his fortune to purchase an $8 million painting by American artist Jean-Michael Basquiat. The painting--"Hannibal"--was mailed from London to JFK Airport in 2007 and, according to The New York Times, was stamped with an air bill that listed the painting as worth $100. The work of art was eventually seized by federal officials from a Manhattan warehouse, and is being prepared for return to Brazil.

Law enforcement officials around the world say that buying priceless works of art as a way to launder or conceal money is a growing trend among the world's criminals. In the past, money was laundered by buying expensive apartments or combining profits earned from a legitimate business. Now, as those methods have come under closer scrutiny around the world, criminals have turned to the "famously opaque art market" as a way to launder cash. It is surprising, actually, that this method of laundering did not take off sooner: with art, the purchase and sale are conducted in private, with no oversight. According to Sharon Cohen Levin, chief of the asset forfeiture unit of the U.S. Attorney's office in Manhattan, "you can have a transaction where the seller is listed as 'private collection' and the buyer is listed as 'private collection. In any other business, no one would be able to get away with this." Real estate titles and deeds, for example, require a name. "Mortgage brokers, stockbrokers, casinos, banks and Western Union must report suspicious financial activity to the federal Financial Crimes Enforcement network," writes The New York Times. Banks must report all transactions of $10,000 or more. The art market, however, lacks these safeguards and reporting mechanism. Fearing a rise in money laundering schemes involving art, the European Commission passed rules requiring galleries to report anyone who pays for a work with more than 7,500 euros in cash (about $9,825), and to file "suspicious transaction" reports with the authorities. Similarly, the United States requires that all cash transactions worth $10,000 or more be reported. Laundering involving art, however, still "tends to be handled case by case" by federal officials.

Secrecy, according to many art dealers, is vital to the art market's continued "mystique." The Art Dealers Association of America even went so far as to say that the sale of art to launder money was not a problem. In response, law enforcement officials say that dealers try to downplay the role of art in money laundering, instead of confronting the problem head-on. This problem, whether art dealers choose to admit it, is real. In Newark, federal prosecutors recently went public with news that the U.S. had seized close to $16 million in fine art photography as part of a fraud and money laundering scheme allegedly put in the works by Texas businessman Philip Rivkin. The 2,200 photographs by artists Alfred Stieglitz, Edward Weston, Edward Steichen and others were allegedly purchased with part of the $78 million that Rivkin allegedly obtained from defrauding oil companies, including Shell, Exxon and Mobil. Meanwhile, "Hannibal" and dozens of pieces of art purchased by disbarred attorney Marc Dreier sit in storage, awaiting their fate.


It Don't Mean a Thing If It Ain't Got That--Royalty Payment?

An appeals court has ruled that EMI Music should be allowed to pay itself for the foreign exploitation of Duke Ellington music. This is bad news for the jazz great's grandson, Paul Ellington, who claimed that EMI violated a 1961 songwriter royalty agreement with Ellington when it "deduct[ed] fees for foreign affiliates before accounting to Ellington's 50% share of net revenue. Paul Ellington sued EMI for "hundreds of thousands of dollars," but it seems as if he will not be collecting that money any time soon.

Duke Ellington is famous for composing dozens of famous tunes, such as "It Don't Mean a Thing (If It Ain't Got That Swing)" and "Mood Indigo."


Read the decision here: http://www.scribd.com/doc/139799485/Ellington

May 24, 2013

Week in Review

By Martha Nimmer

Good Curtains Make Good Neighbors

Before you take that nap or read the paper in your bathrobe, you may want to draw the curtains, especially if you happen to live across the street from artist Arne Svenson. Last week, Svenson's show--"The Neighbors"--debuted at the Julie Saul Gallery in Chelsea. "The Neighbors" showcases a collection of photos taken by Svenson from his second-floor apartment in New York City. The photos are of various residents of the glass-walled luxury Zinc Building engaged in mundane, everyday activities: "in one photo, a woman is on all fours, presumably picking something up, her posterior pressed against a glass window. Another photo shows a couple in bathrobes, their feet touching beneath a table. And there is one of a man, in jeans and a T-shirt, lying on his side as he takes a nap." The faces of the subjects are obscured. The largest photos are being sold for $7,500. Svenson stated that the idea for the photo array came from a friend, an avid birdwatcher who recently died and left his telephoto lens to the artist.

Not surprisingly, Svenson's neighbors are not pleased with the show. "I don't feel it's a violation in a legal sense but in a New York, personal sense there was a line crossed," said Michelle Sylvester, who lives in the Zinc Building. "I think there's an understanding that when you live here with glass windows, there will be straying eyes but it feels different with someone who has a camera," she said. Svenson, when asked about the privacy concerns echoed by many building residents, responded, "for my subjects there is no question of privacy; they are performing behind a transparent scrim on a stage of their own creation with the curtain raised high." Civil rights attorney Norman Siegel said that Svenson's subjects may have legal recourse against the artist, although the prospect remains doubtful: "the question for the person who's suing is, if you're not identifiable, then where's the loss of privacy?" he said. "These issues are a sign of the times. How do you balance the right of privacy vis-à-vis the right of artistic expression?"

In the meantime: say cheese!



Slim Sorta Shady

Mark Zuckerberg, who reportedly used to call himself "Slim Shady" in his younger days, is now facing a lawsuit from the real Slim Shady. On Monday, Eight Mile Style, LLC, the company that oversees the rights to Eminem's music, filed a lawsuit against Facebook in Michigan federal court. The complaint accuses Facebook of copyright infringement based on misappropriation of Eminem's musical composition "Under the Influence." Specifically, Eight Mile Style alleges that a television commercial for Facebook Home incorporates music that was "substantially similar" to "Under the Influence". The commercial, referred to in the complaint as the "Airplane advertisement" aired around the world last month. The song in question was allegedly chosen by ad firm Widen + Kennedy (W + K), which created the advertisement. The complaint goes on to "tell[] the story of how Facebook's advertising company attempted to use Eminem to attract the liking of Mark Zuckerberg . . . ." Specifically, the lawsuit states "W+K incorporated said music into the Airplane advertisement in an effort to curry favor with Facebook by catering to Zuckerberg's personal likes and interests."

The complaint also recounts that attorneys for the plaintiff sent a cease-and-desist letter to the defendants in April shortly after the Facebook Home commercial aired. The letter was met with a reply from defense counsel "brimming with bellicose language and replete with gross factual inaccuracies," according to the complaint. Included in these inaccuracies was the "bizarre allegation" that Dr. Dre "ripped off" a Michael Jackson song when composing "Under the Influence". The plaintiffs pointed out, however, that a simple Internet search would reveal that Dr. Dre did not even create the song. So much for that strategy, Facebook...

The plaintiff is seeking statutory damages (up to $150,000 per infringement) for the defendants' allegedly willful misappropriation of Eminem's song.


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

Dungeons and Dragons and Reversion Rights, Oh My

Hasbro and its subsidiary Wizards of the Coast, makers of the popular role-playing fantasy game Dungeons & Dragons, have sued a Hollywood production company in California federal court for allegedly creating an unauthorized film adaptation of the game. Defendants Sweetpea Entertainment and Sweetpea B.V.I. [British Virgin Islands] Ltd. are allegedly "working with Warner Bros. to make a movie, Chainmail, using many elements of Dungeons & Dragons." Warner Brothers is not a party to the complaint.

At the heart of the dispute is a 1998 settlement between Sweetpea and TSR, the original owner of Dungeons & Dragons. TSR was acquired in 1997 by Wizards of the Coast. In 1998, TSR sued Sweetpea for breach of a license agreement granted in 1994 that allowed Sweetpea to create Dungeons & Dragons movies, sequels, prequels, remakes, live action television series and television movies. TSR and Sweetpea eventually settled. As part of the settlement, the parties formed an agreement that included reversion rights if "Sweetpea failed to make another theatrical movie based on the role-playing game within five years of the initial movie's release." Sweetpea, according to the complaint, produced box office "flop," Dungeons & Dragons, more than a decade ago, and later used its license to create two television movies that aired on the SyFy channel: "2005's "Wrath of the Dragon," and 2012's "The Book of Vile Darkness." Thus, the complaint states, "the first television movie represented an exercise of the television rights and did not reset the sequel rights' five-year reversion clock." In other words, "The Book of Vile Darkness" release on SyFy was an exercise of television, not sequel, rights. Consequently, Hasbro argues, "the sequel rights reverted to Hasbro as early as December 8, 2005, but in no event later than October 8, 2010, five years after the initial broadcast of the first TV Movie." This reversion would thus deprive Sweetpea of its license to create a new film adaption of the Dungeons & Dragons game, thereby putting "Chainmail" and any other film produced by the defendant in violation of Hasbro's copyrights in the game.
Hasbro is seeking statutory and actual damages, in addition to a permanent injunction against the defendant, and a declaratory judgment that the plaintiff owns the film and television rights to the game.


No More Fashion Victims

Facing mounting pressure to improve working conditions for garment workers abroad, "fast fashion" retailer H&M has signed an agreement that would contractually compel Western retailers to invest in improving worker safety in Bangladesh and other developing countries engaged in apparel manufacturing. This decision came just two weeks after a building collapse in Bangladesh left over 1,000 workers dead or severely injured. According to The New York Times, no clothes produced by H&M had been found in the collapsed facility.

Even before the April 24th tragedy in Bangladesh, which is being called one of the worst industrial accidents in history, the Swiss retailer had already been working to convince other "cheap chic" retailers to join it in improving the safety of factories used by its suppliers. These efforts, however, did not prevent hundreds of customers from taking to H&M's Facebook page and "littering it" with complaints following the April 24th disaster. H&M is, after all, known "as a purveyor of 'cheap chic' and a leader in the so-called fast-fashion business, which relies on rapid turnarounds from order to delivery" and thus frequently utilizes facilities like the one in Bangladesh to produce the company's apparel. Following H&M's signing off on the agreement, other major European retailers, such as Marks & Spencer and Inditex, parent company of Zara, announced last week that they, too, would sign the accord. This announcement appears to be "setting the stage for an industrywide collaboration to improve factory safety." The Bangladeshi government has also promised to improve safety practices at factories and revise labor laws to allow unions to form; this announcement comes, writes The New York Times, after numerous earlier pledges went largely unfilled.

The main goal of the agreement signed by H&M is to raise fire safety awareness among manufacturing facilities in Bangladesh and other developing countries, while also making structural improvements to the buildings that house countless workers and heavy machinery. Under the accord, all signatories have 45 days to "work out the details of the program." No party, however, has yet to work out the estimated overall cost of implementation, but there will be caps on what companies have to spend: "for the biggest companies, like H&M, the annual contribution for the first five years will be capped at 500,000 Euros ($640,000)."

Citing legal concerns, American retailers such as Gap, J.C Penney and Wal-Mart have declined to sign on to the accord, but have promised to continue pursuing worker safety initiatives. PVH, the American parent company of Calvin Klein and Tommy Hilfiger, and Tchibo, a German retailer, endorsed a plan last year for Western companies to finance fire safety efforts and structural upgrades to Bangladeshi factories. That agreement, however, was not to take effect until more companies signed on. Although these agreements are a welcomed and overdue effort aimed at improving worker safety abroad, much more has to be done to make a serious impact on the often frightening, unsafe conditions faced by apparel workers around the globe. Just last week, for example, a factory in Cambodia that produced shoes for Asics collapsed, killing three employees.


May 30, 2013

Entertainment Law: The Law Student's Guide to Pursuing a Career in Entertainment Law

New Book:

Entertainment Law: The Law Student's Guide to Pursuing a Career in Entertainment Law is the ultimate resource for any law student seeking to penetrate the entertainment industry and thrive. Written by Jaia Thomas, Esq., the book shares key tips for law students and features in-depth interviews with practicing entertainment attorneys across the country. The book consists of four primary components. The first chapter outlines which law school courses are essential for every aspiring entertainment attorney. The second chapter highlights the importance of extracurricular activities. The third chapter focuses on networking from both a traditional and progressive perspective. And the fourth and closing chapter focuses on the job search, detailing what resources are essential for obtaining a job or internship in entertainment law. The book also includes a detailed list of entertainment law organizations as well as entertainment law conferences throughout the United States.

An electronic version of the book is currently available directly through The Law Office of Jaia Thomas website (www.jathomaslaw.com) as well as Amazon and Barnes and Noble.

About May 2013

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

April 2013 is the previous archive.

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