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Week in Review

By Martha Nimmer

Removing A-Rod

Citing federal question jurisdiction, Major League Baseball (MLB) has removed Alex Rodriguez's suit against the MLB to federal court. The case, originally filed on October 3rd in New York state court in Manhattan, has been assigned to U.S. District Judge Lorna G. Schofield.

Rodriguez's suit initially involved state law claims for tortious interference. Specifically, the Yankees' third baseman alleged that MLB "illegally interfered with his player contract and business interests." In August, MLB suspended A-Rod for 211 games following his alleged involvement with Biogenesis, a Florida clinic that is rumored to have provided baseball players with banned performance enhancing drugs (PEDs). Now that A-Rod's suit against MLB and Commissioner Bud Selig has been removed to federal court, the case will "depend on analysis of the league's collective bargaining agreement, drug agreement and standard player's agreement." Specifically at issue is Section 301 of the Labor Management Relations Act of 1976, which the MLB successfully argued preempts Rodriguez's state law claims. Section 301 of the Act provides the basis for an employee's right to sue an employer for violating a collective bargaining agreement. In response, Rodriguez's attorney stated that his client's claims against MLB and the Commissioner "arise from their tortious conduct," and are separate from suspension-related claims currently being arbitrated between the MLB and the player.

The case is Alexander Rodriguez v. Major League Baseball et al., case number 1:13-cv-07097, in the U.S. District Court for the Southern District of New York.

http://www.law360.com/articles/478806/major-league-baseball-bunts-a-rod-lawsuit-to-federal-court

Read the notice of removal here: https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=t_PLUS_mSvVlzfF8lFNKDwkzKpA==&system=prod

Read Section 301 of the Labor Relations Management Act: http://www.law.cornell.edu/uscode/text/29/185

House Arrest for Sculptures?

No one wants to find herself at the center of a copyright infringement dispute, least of all a new artist who is just beginning to 'break' into the art world. That, however, is exactly where sculptor Lauren Clay has found herself.

An exhibition of the young artist's work was slated to open at the "Grounds for Sculpture in Hamilton, NJ, on October 18, but due to allegations of possible copyright infringement by the estate of Abstract Expressionist sculptor David Smith, that show may not go on." Clay's collection, according to Blouin Art Info, was to feature seven sculptures that "reference Smith's Cubi works -- his looming welded-steel assemblages of delicately balanced geometric shapes with brushed gestural surfaces." In contrast to Smith's imposing sculptures, which stand at eight-to-10 feet tall, Clay's works are much smaller, around 18 inches tall, and are made from materials such papier-mâché and faux woodgrain.

Once the estate of the deceased sculptor got wind of Smith's planned exhibition, the estate contacted Clay through its copyright representative, VAGA, a licensing and rights management organization. According to Clay, VAGA "demanded an accounting" of her works and asked her to write a letter seeking permission to copy the Smith works, "as if I need permission," Clay added. Supposedly, Clay contends, VAGA also told her that she could exhibit her works if she promised to destroy them after the October show; more recently, she states, VAGA asked her "merely to promise never to show them again or sell them."

The status of Clay's presence at the October 18th show and the future of the Clay works remain unsettled. VAGA and the Smith estate do not want Clay's exhibit to debut unless the artist agrees to VAGA's stipulations, and just last week, Grounds for Sculpture announced its intention to go ahead with its October 18th show without Clay's pieces. The artist hopes, however, that her pieces will still be included in the show, adding that she is seeking legal counsel to help her respond to the demands of VAGA and the Smith estate. "I feel that I have a right to exhibit and sell this body work," Clay wrote, "even after the Grounds for Sculpture show."

http://www.blouinartinfo.com/news/story/966834/david-smiths-estate-demands-house-arrest-for-a-young-artists

http://itsartlaw.com/2013/10/07/david-smith-estates-recent-allegations-of-copyright-infringement-highlights-ongoing-debate-on-fair-use-and-appropriation-art/#

Repatriating Peruvian Property

The U.S. Attorney's Office for the Southern District of Florida responded last week to a motion to dismiss in a case involving the forfeiture of 29 Peruvian antiquities seized by federal officials at Miami International Airport. In its response to the motion, the prosecution argues that the federal district court -- and not the Court of International Trade, as the claimant urges -- "is the proper venue to litigate a Cultural Property Implementation Act (CPIA) forfeiture; that due process was not denied to the claimant, Jean Combe Fritz; and that the forfeiture complaints are legally sufficient." (The forfeiture case is civil in nature, its goal is to seize and ultimately repatriate cultural material.)

Regarding the issue of venue, prosecutors pointed to 28 U.S.C § 1355(a), which states that a U.S. district court enjoys original jurisdiction over any proceeding involving the enforcement of a forfeiture; consequently, as a forfeiture proceeding is involved in the instant action, the U.S. districts court would have jurisdiction to hear the case. Furthermore, according to the U.S. Attorney's Office, the Court of International Trade (CIT) is not the proper venue to litigate Fritz's claim, because the CIT only has jurisdiction over claims arising under §1582 of Title 28, which involves "civil actions brought by the U.S. to enforce import transaction penalties, bond recoveries, and customs duties." The prosecutors emphasized that "[t]his case is a complaint for civil forfeiture brought by the United States against the Defendant Property, and is therefore clearly not within the CIT's jurisdiction." In the government's response, attorneys for the federal government go on to attack the "Claimant's suggestion that Peru cannot claim pre-national artifacts as cultural property," calling this argument "astonishing."

Although the forfeiture case is civil in nature, elements of a criminal action have also appeared. The government's response claims that the Peruvian artifacts taken to Miami were worth approximately $283,000, not "$500 as originally claimed during importation." The U.S. Attorney's Office also claims that "false statements were made to customs officials about how the objects were possessed, the purpose for importing the items, and to whom the items would be delivered." Additionally, "twenty-two 'turn-around' trips in the last ten years raise the specter of 'courier activity,'" according to the government. Despite the presence of these allegations in the government response to the motion to dismiss, no criminal charges have been filed in the matter.

http://networkedblogs.com/PP8Cm

Read 28 U.S.C § 1355(a) here: http://www.law.cornell.edu/uscode/text/28/1355

New York City Opera's Final Curtain

After 70 years of bringing opera to the masses, the New York City Opera filed last Thursday for Chapter 11 bankruptcy protection. This move comes after a $7 million fundraising appeal fell short in September. George Steel, the opera's general manager, remarked that the bankruptcy filing was a "difficult, but necessary decision." At one point, the endowment of the New York City Opera topped $55 million; now, the it amounts to around $4.5 million. In its filing, City Opera "sought permission to give refunds to people who had bought tickets to the productions that they have canceled for the remainder of the season -- $323,000 worth." In an email to subscribers, the opera company wrote that it was confident that the court would approve its motion.

http://www.nytimes.com/2013/10/04/arts/music/new-york-city-opera-files-for-bankruptcy.html

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This page contains a single entry from the blog posted on October 10, 2013 4:47 PM.

The previous post in this blog was Aereo Decision.

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