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March 2, 2014

Garcia v. Google, Inc.: Does An Actor Have A Copyright Interest In His Or Her Performance In A Film?

By, Ning Yu Wu

On February 26th, the United States Court of Appeals for the Ninth Circuit rendered the decision on Garcia v. Google, Inc., known as "the Innocence of Muslims "case. The opinion appears to surprise many legal experts and copyright lawyers because it innovatively concludes that in the absence of work made for hire, an actor could have an independent copyright interest in his or her performance in a film. (http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/26/12-57302.pdf)

The plaintiff-appellant Cindy Lee Garcia, who was cast in a low budget independent film with the working title "Desert Warrior" at the time, subsequently learned that her recorded performance was altered and used in another film titled "Innocence of Muslims." Garcia's voice in the film was partially dubbed. The final version of the film, which seemed to be extremely controversial and offensive, was uploaded to YouTube by the filmmaker Mark Youssef. Garcia, who appeared in the 13-minute film for approximately five seconds, among other individuals involved in making of the film, allegedly received threats because of such participation. Garcia had repeatedly requested YouTube, LLC. (YouTube), a subsidiary owned by Google, Inc. (Google), to remove the film. YouTube, however, denied her requests. Accordingly, Garcia filed a lawsuit against YouTube and Google, and claimed that the controversial film on YouTube had infringed the copyright in her performance. The district court denied the relief, and Garcia appealed.

Garcia could have pursued a case against the filmmaker in the state court to resolve the issues involving any privacy and tort related claims, and compel the filmmaker to direct YouTube to remove the videos. Perhaps for strategic reasons, Garcia decided to commence the case in the district court pursuing a copyright infringement claim against YouTube and Google directly. The Ninth Circuit addressed Garcia's independent copyright interest claim, the work for hire doctrine, and whether there was an implied license granted by the plaintiff to distribute the film via YouTube. Chief Judge Kozinski ruled that Garcia had an independent copyright interest in her performance in the film, in the absence of finding the work was made for hire.

Section 102(a) of the 1976 Copyright Act protects "original works of authorship fixed in a tangible medium of expression." Accordingly, the two essential elements for a valid copyright are (1) originality and (2) fixation in a tangible medium. Judge Kozinski noted that because an actor's performance embodied "body language, facial expression and reactions to other actors and elements of a scene," it equips at least some minimal degree of creativity. Accordingly, even the creative contribution is minor, it is still copyrightable when the performance is fixed in a tangible medium. Many legal experts are troubled by this novel position. As noted in the dissent written by Judge Smith, Garcia herself admitted that she had no creative control over the script of her performance. Since a script is written by a playwright, and directions are given by a director, an actor's creative endeavor is to perform or act on the materials given. It is unclear that whether such portrayal of a character falls into the purview of the protectable subject matter, especially as Section 102(b) of the 1976 Act specifies that: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Assuming that an actor's portrayal of a character provides at least a modicum of creativity under the 1976 Act, a more significant issue is the fixation requirement. In the opinion, Judge Kozinski provides that when an actor's performance is fixed, his or her performance can be deemed a derivative work of the original. Accordingly, the actor may claim the copyright in his or her own contribution to the extent not exceeding the "preexisting material." Pursuant to Section 101 of the Act: "A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."

Accordingly, the opinion acknowledges that a derivative work produced based on the result of infringing the original work would not be copyrightable. Here, the court ruled that because the filmmaker Youssef hired Garcia, gave her the script to act, and filmed her performance on camera, Youssef implicitly granted her a license to perform the screenplay. Therefore, the video recording of Garcia's performance was sufficiently fixed.

The ruling appears to surprise many practitioners. When publicly performing a copyrightable musical composition, for example, a license from the copyright owner/publisher or one of the performing rights organizations is required. Having secured a license for public performance does not automatically imply that a mechanical license is also attached to allow the music to be recorded during the performance for phonorecords. To record a musical composition, a separate mechanical license (namely, via The Harry Fox Agency, Inc., or directly from the publisher) must be sought. Here, even though Garcia was given an implied license to perform the screenplay; the scope of the implied license (if any) was limited to the performance of the script. She was never granted a license, express or implied, by the filmmaker Youssef to prepare a derivative work, even the performance was incidentally fixed in a recording. Without the authority of the author granting such license beyond the performance on camera, saying that Garcia has a copyright interest immediately attached to her performance perhaps is immaterial.

Garcia's position is certainly sympathetic. The court acknowledges that the case is troubling. Nevertheless, the ruling has created a precedent, at least in the Ninth Circuit and below, that under limited circumstances, an actor may have a copyright interest in his or her performance in a film. Google announced that it was going to appeal the decision. In the meantime, for filmmakers, it is always a good idea to have a comprehensive agreement and other evidence to support that the performance on camera was a work was made for hire.

March 7, 2014

Week in Review

By Martha Nimmer

The Sisters Basquiat Take on Christie's

The sisters of deceased artist Jean-Michael Basquiat have sued Christie's in Manhattan federal court, claiming that the auction house lied about the sisters' endorsement of "50 purported Basquiat works 'of questionable authenticity' to increase bids and boost sales." Jeanine Basquiat Heriveaux and Lisane Basquiat's complaint also accuses the defendant of false advertising, violations of New York's General Business Law and unfair competition.

The sisters' claims center on the auction company's 148-page catalog, Jean-Michel Basquiat: Works From The Collection of Alexis Adler, created to publicize the March 2014 sales of approximately 50 items said to have been painted by Basquiat. According to the lawsuit, Adler stated that she lived with the artist from 1979 to 1980, and that Basquiat left the works in their shared apartment when he moved out. The artists' sisters claim, however, that Adler "submitted seven of the catalog items for authentication in 2007, but only six of them checked out as genuine." "The remainder of the catalog items were not only not authenticated by the authentication committee or the estate, but also were never submitted to them for review," the complaint states.

Basquiat entered the art scene in the 1970s, spray-painting sayings and poems around Manhattan under the fictional name SAMO (short for "same old shit"). His work became popular in the early 1980s, leading to collaborations with Andy Warhol and David Bowie. Jeanine Basquiat Heriveaux and Lisane Basquiat demand $2 million in actual damages and $1 million in punitive damages.

http://www.entlawdigest.com/2014/03/05/2987.htm

Blacking Out

For four decades, the Federal Communications Commission (FCC) has had a policy in place that dictated that if a "home professional football team had not sold out tickets at least 72 hours prior to kickoff," the game would be "subject to a broadcast blackout." The rationale behind the policy was to ensure greater attendance at the games. Last year, according to The Hollywood Reporter, the FCC announced its intention to issue new rules that would revamp the blackout policy; as part of agency practice, the FCC asked the public for comments on the proposed rules. Last week, the National Football League (NFL) made its thoughts known, essentially telling the FCC that it is not going to let the blackout rule go without a fight, adding "[i]f ever there was a case of 'if it ain't broke, don't fix it,' that applies here."

The NFL maintains that the blackout rule does not hurt fans, pointing to data from the last season that shows only two of the 256 regular season games were blacked out. In its comments to the FCC, the NFL also referenced the Sports Broadcasting Act of 1961, arguing that when the law was passed in 1961, Congress "adopted the blackout provision not for the sake of protecting the gate in its own right, but instead for the purpose of promoting sports on broadcast television." The NFL also makes the unexpected and somewhat novel argument that the broadcast blackouts "are leading to more football games on television. "Proponents of repeal rely on the entirely unsupported assumption that the commission's sports blackout rule reduces the availability of professional sports on television," the NFL averred. "To the contrary, over the long run the blackout rule actually increases the availability of sports games on television by encouraging broadcasters and professional sports leagues to reach deals for exclusive broadcast rights."

In addition to insisting, somewhat unconvincingly, that the blackout rule ensures the televising of more football games, the NFL hints in its comment that if the blackout rule is lifted, the FCC can expect a lawsuit. "Even if the commission were to determine that repealing the rule is in the public interest, it would not have the statutory authority to repeal the rule for satellite- and telephone-based video distributors, and such action would run counter to congressional recognition of blackouts in the SBA. In the past two decades, Congress has twice expressly required the commission to adopt sports blackout rules; in the absence of a congressional repeal of these statutes, the commission lacks authority to eliminate its sports blackout rules."

Read the NFL's comments here: http://www.scribd.com/doc/210655488/National-Football-League-blackouts

http://www.hollywoodreporter.com/thr-esq/nfl-claims-blackout-policy-ensures-686070

Friends in High Places

Although the U.S. Supreme Court will not hear arguments in American Broadcasting Companies, Inc. v. Aereo, Inc. until April 22nd, heavy hitters across the legal community have begun to weigh in on the case, flooding the high court with amicus briefs. The amicus brief receiving the most attention, unsurprisingly, is from the United States, which has come out behind the broadcasters.

The question before the court is whether Aereo's services infringe the broadcasters' "exclusive right" within the Copyright Act to perform their copyrighted works publicly; as part of that analysis, the Supreme Court will have to determine whether Aereo is making a "public" or "private" performance of the petitioners' content when "capturing over-the-air TV signals via antennas and distributing programming to subscribers' digital devices." For the United States, that question is easily disposed of: "[t]he proper resolution of this dispute is straightforward," declares the government. "Unlike a purveyor of home antennas, or the lessor of hilltop space on which individual consumers may erect their own antennas, respondent does not simply provide access to equipment or other property that facilitates customers' reception of broadcast signals. Rather, respondent operates an integrated system -- i.e., a 'device or process' -- whose functioning depends on its customers' shared use of common facilities." Aereo maintains, however, that what it does is private because each customer "is assigned a single unique copy and that only that individual subscriber can receive a transmission." That argument prevailed last summer before the Second Circuit Court of Appeals in affirming the denial of an injunction; the broadcasters are appealing.

http://www.hollywoodreporter.com/thr-esq/aereo-fight-at-supreme-court-685656

Tweeter Without a Cause

The estate of James Dean, deceased star of the iconic 1950s film Rebel Without a Cause, has sued Twitter. The star's estate claims that the Twitter user account "@JamesDean" violates the estate's trademarks and the actor's right of publicity.

In its suit, the Dean estate claims that Twitter allowed a user to utilize the @JamesDean name, despite numerous requests to stop the unauthorized use of the actor's name. As of February 14th, the @JamesDean account boasted over 8,000 followers; the user's Twitter "About Me" section also calls itself "The King of Cool (Not associated with James Dean, Inc.)" and posts numerous photos of the movie star, who passed away in 1955.

Last month, San Francisco-based Twitter had the suit moved from an Indiana state court to federal court in Indianapolis, where James Dean, Inc. is based.

http://about.bloomberglaw.com/legal-news/james-dean-google-john-wiley-intellectual-property/

March 20, 2014

2-4-6-8 Varsity Cannot Copyright

By Barry Werbin and Bryan Meltzer
Herrick, Feinstein LLP

Whether colors and designs placed on useful or functional objects are protected under the Copyright Act is one of the more troublesome issues in copyright law. Tackling this legal fine line, the Western District of Tennessee recently found that cheerleading uniforms featuring geometric, color and other design elements are not copyrightable. Varsity Brands, Inc. (Varsity) is one of the largest designers and manufacturers of cheerleading and dance uniforms. In Varsity Brands, Inc., et al. v. Star Athletica, LLC, 10 Civ. 2508 (W.D. Tenn. March 1, 2014), Judge Cleland found that the designs and colors placed on cheerleading uniforms produced and designed by Varsity, which Varsity alleged were infringed by Star Athletica, LLC (Star), could not be conceptually or physically separated from the cheerleading uniforms themselves because such designs and colors were at the core of "cheerleading-uniform-ness." As a result, Judge Cleland held that even though Varsity held copyright registrations for the designs at issue, it could not maintain its claims against Star for copyright infringement.

As Judge Cleland recognized, "[c]lothing possesses both utilitarian and aesthetic value." If a design "'can be identified separately from, and is capable of existing independently of, the utilitarian aspects'" of the clothing, the design may be copyrightable. But when the design is not separable from its utilitarian function, it will not be copyrightable. Noting that there is "considerable disagreement regarding the proper standard to apply when considering whether the elements of protectable [pictorial, graphic and sculptural works] are separable from their utilitarian function," Judge Cleland based his analysis on two key clauses found in 17 U.S.C. ยง101: first, "whether the court can conceive of the allegedly copyrightable features as separate from the utilitarian article" (i.e., conceptual separability), and second, whether the design can "exist independently of the utilitarian article" (i.e., physical separability).

With respect to conceptual separability, Judge Cleland found that the uniform designs, which included combinations of braids, chevrons and stripes, did not "invoke any concept other than that of clothing," especially since the copyrighted design sketches depicted the designs on the uniforms worn by cheerleaders. In other words, "a cheerleading uniform is 'a garment specifically meant to cover the body in an attractive way for a special occasion" and "[t]he artistic judgment that is exercised applying stripes, patters, and chevrons, 'does not invoke in the viewer a concept other than that of clothing.'" Id. The court noted in particular that without the colors and designs, a cheerleading uniform ceases to be recognized as a cheerleading uniform, and that the designs actually made the garments into utilitarian uniforms. Accordingly, Judge Cleland found that the designs of the cheerleading uniforms merged with their utilitarian function.

Turning to physical separability, Judge Cleland similarly found that "removing the lines, patterns, and chevrons from the [cheerleading uniforms] and placing them on a different canvas [did] not remove their association as cheerleading uniforms" since the "fabric evokes the image and concept of a cheerleading uniform." In other words, the designs could not exist independently of the uniforms.

Since he found that the designs were not conceptually or physically separable from the utilitarian aspect of the uniforms, Judge Cleland held that the designs were not copyrightable and granted Star's motion for summary judgment, dismissing Varsity's claims.

Judge Cleland's decision is significant because it shows that even copyrighted designs will not be protected if the designs are not "separable" from their functions. Yet how to assess such "separability" remains a challenge for courts. For example, if school logos and other designs were used not only on cheerleader uniforms, but also on school signage, pennants and the like, those designs could be viewed as "separable" as they would not be limited to use on cheerleader uniforms to define such garments as utilitarian uniforms.

The decision will surely upset fashion designers and the entire uniform industry, which may be left with scant copyright protections, and may be troublesome to some copyright practitioners as well.

The decision:Varsity cheerleader decision.pdf

March 24, 2014

Prince Settles with Cariou

After more than five years and a decision from the Second Circuit favoring appropriation artist Richard Prince, the parties settled last week. Cariou agreed to withdraw any claim he had to the works in Prince's "Canal Zone" series, which appropriated images from Cariou's Rastafarian photographs. It appears that each party will pay its own legal fees.

According to theartnewspaper.com:

Cariou's lawyer Dan Brooks confirmed the case had been settled but said he could not discuss the specifics or his client's feelings about the outcome. Prince's lawyer Josh Schiller said that the artist "is pleased to have this settlement and be able to focus on his work without further distraction". He added: "It is important that artists know they need not justify their new expressive work without first ensuring compliance with legally constructed statements of purposes of intent." A spokeswoman for Gagosian Gallery says, "Gagosian Gallery is very pleased by the Second Circuit's decision and that the matter has now been finally resolved."

March 25, 2014

Three Things to Consider Before Using a Timecard App

By Kristine Sova
sovalaw.com

There are steps employers can take to reduce the risk that non-exempt employees will assert unpaid wage claims for the time they spend checking and responding to e-mail (and other communications) during what would normally be the employee's personal time (http://sovalaw.com/blog/2013/08/21/yes-you-do-have-to-pay-employees-for-checking-e-mail-outside-of-work/). This post discusses whether a mobile timecard (or timesheet) application is a good way to track the amount of time employees spend on off-site and/or after-hours work communications.

The answer? They can be. Here we highlight three practical and legal considerations for employers thinking about rolling out a timecard app at work.

1. Not All Timecard Apps are Wage-Hour Law Compliant - Federal, state and local laws have different requirements when it comes to hours worked by employees and the recording of those hours of work.

For example, New York Labor Law requires employers to provide certain employees with an uninterrupted meal period at a certain point during their shifts (http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$LAB162$$@TXLAB0162+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=19117366+&TARGET=VIEW), and a second meal period to another group of employees. While nothing in the New York Labor Law's general recordkeeping requirements (http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$LAB195$$@TXLAB0195+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=19117366+&TARGET=VIEW) states that employers must record the actual time that an employee takes a required meal break, the New York State Department of Labor's opinion (http://labor.ny.gov/legal/counsel/pdf/Meal%20Periods%20%28Sec.%20162%29/RO-10-0132%20Meal%20Periods.pdf) is that "a contemporaneous record of the meal period would go a long way towards providing that one was given."

If you're a New York employer, then, you'll want to make sure a timecard app records the start and stop of multiple meal periods if you're required to give them. What you're likely to find, though, is that most timecard apps only record the start and stop time of a single meal period.

2. Not All Timecard Apps are Available on Both Android and iPhone - When you're considering an app's features (and whether those features comply with applicable wage-and-hour laws), also keep in mind that many applications are available only for Android, or iPhone, but not both. If you're looking for an app available on both platforms, this means a smaller pool of apps to select from. If you'd be satisfied with different apps for each platform, this means making sure both applications comply with applicable wage-and-hour laws.

3. A Timecard App Isn't a Substitute for Best Practices - Even if you require your employees to record their time with a timecard app, it doesn't mean that they'll do so. Sometimes employees forget. Therefore, even with a timecard app, you'll want to make sure that you follow best practices to minimize the possibility employees are performing off-the-clock work, such as those outlined here (http://sovalaw.com/blog/2013/08/21/yes-you-do-have-to-pay-employees-for-checking-e-mail-outside-of-work/).

Links:

Yes, You Do Have to Pay Employees for Checking E-Mail Outside of Work:
http://sovalaw.com/blog/2013/08/21/yes-you-do-have-to-pay-employees-for-checking-e-mail-outside-of-work/

Meal period:
http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$LAB162$$@TXLAB0162+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=19117366+&TARGET=VIEW

General recordkeeping requirements:
http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$LAB195$$@TXLAB0195+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=19117366+&TARGET=VIEW

Opinion:
http://labor.ny.gov/legal/counsel/pdf/Meal%20Periods%20%28Sec.%20162%29/RO-10-0132%20Meal%20Periods.pdf

March 28, 2014

Week in Review

By Martha Nimmer

"Girls" and 'Boys'

"Girls to build a spaceship / Girls to code the new app / Girls to grow up knowing / That they can engineer that", sing three young actresses in toy maker GoldieBlox's advertisement promoting its engineering and construction toys aimed at girls. The video, which has received millions of views online since appearing late last year, parodies the Beastie Boys' song "Girls," whose lyrics are decidedly less politically-correct, to say the least: "Girls to do the dishes / Girls to clean up my room / Girls to do the laundry / Girls and in the bathroom." GoldieBlox says that they chose the 1986 hit song to poke fun at it, but also to "break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math."

The Beastie Boys, however, were not so impressed by the toy maker's music choice, and claimed copyright infringement. GoldieBlox, in turn, filed suit in November, seeking a declaratory judgement that the promotional video was a parody and thus fell within fair use. Beastie Boys responded to the suit, voicing their support for the GoldieBlox product, but airing their dismay at the company's handling of the copyright infringement controversy: "[m]ake no mistake, your video is an advertisement that is designed to sell a product and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads. When we tried to simply ask how and why our song 'Girls' had been used in your ad without our permission, you sued us." GoldieBlox ended up removing the viral video, but the Beastie Boys chose to go forward a counter-suit in December, calling out the toy company for not creating its own advertising campaign "to inspire its customers to create and innovate," instead using one that "condones and encourages stealing from others."

Now, according to a spokesperson for Goldieblox, that suit has been settled. That settlement will include an apology by GoldieBlox, to be posted on the toy maker's website, and a payment by the company to one or more charities selected by Beastie Boys that support science, technology, engineering and mathematics education for girls. So, lawsuits aside, this looks like a "win" for both "Boys" and "Girls."

http://www.rollingstone.com/music/news/beastie-boys-settle-lawsuit-over-girls-toy-commercial-20140318

http://time.com/29983/beastie-boys-copyright-goldieblox/

Of E-Books and Children's Books

A children's book published in 1973 is at the center of a major ruling regarding backlist e-book rights. Earlier this month, a federal judge in New York ruled that e-book publisher Open Road infringed publishing company HarperCollins' copyright in Jean Craighead George's bestselling children's book, Julie of the Wolves, when Open Road released an e-book version of the work.

Much of the legal dispute between the two publishers focuses on contract language from the 1970s. In 1971, HarperCollins signed George's book for a $2,000 advance and standard royalties. In the publishing contract with George, HarperCollins agreed that it "shall grant no license without the prior written consent of the Author... including uses in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented..." This provision, referred to as paragraph 20, formed the basis of HarperCollins' lawsuit 40 years later against Open Road, after George had agreed to publish an e-book edition of her award-winning book with the e-book company. HarperCollins argued that two contract clauses, including the aforementioned provision, gave it "the exclusive right to license an electronic edition--albeit, only to be executed with the permission of George." Open Road, however, maintained that the language in paragraph 20 had "nothing" to do with e-books, arguing that the clause applied "solely to storage and retrieval systems," and was not a publishing grant.

Unable to question George or her agent, both of whom had passed away, Judge Buchwald was left with only the 1971 contract language to consult for guidance in reaching her decision, which relies heavily on paragraph 20. "This language, encompassing as it does the forward-looking reference to technologies 'now known or hereafter invented,' is sufficiently broad to draw within its ambit e-book publication," Buchwald ruled. "Although no commercial market for e-books existed at the time of its drafting, e-book technology comprises a later-invented version of the very computer, computer-stored, mechanical or other electronic means provided by Paragraph 20."

Unhappy with the outcome, Open Road officials said in a written statement that the company was exploring its options.

http://www.publishersweekly.com/pw/by-topic/digital/content-and-e-books/article/61471-judge-rules-for-harpercollins-in-open-road-e-book-dispute.html

A "Landmark" Settlement

After seven years of legal wrangling, Google and Viacom have settled what legal observes call a "landmark" lawsuit over Google's online video service, YouTube. Viacom, Inc., which owns Comedy Central, MTV, Nickelodeon and the Paramount movie studio, filed its original lawsuit against the search engine in 2007, accusing Google of posting Viacom's programs on YouTube. The media company sought $1 billion in damages, and would eventually claim that Google illegally posted 79,000 Viacom videos on YouTube between 2005 and 2008. Google acquired YouTube in 2006.

Now, that dispute looks to be over, reflecting "the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together," Google and Viacom said in a joint statement. Terms of the settlement have not been disclosed, however. According to Reuters, "no money changed hands, a person close to the matter said." That individual was not authorized, however, to discuss the settlement's terms.

This settlement comes almost a year after a federal judge in Manhattan ruled against Viacom's damages claims over Viacom-copyrighted material that YouTube users had uploaded without permission. U.S. District Court Jude Louis Stanton ruled that YouTube was not required to search its website repeatedly for infringing content, provided that the online video service remove such videos after receiving take-down notices from copyright owners. Viacom was appealing that decision to the Second U.S. Circuit Court of Appeals in New York, and oral arguments had been scheduled for March 24th.

http://news.yahoo.com/google-viacom-settle-youtube-copyright-lawsuit-130221022--sector.html

Union!

In writing that "[it] cannot be said the employer's scholarship players are 'primarily students,'" the Chicago district of the National Labor Relations Board (NLRB) ruled on Wednesday that Northwestern University football players qualify as employees of the university, and can unionize. As support for that decision, NLRB regional director Peter Sung Ohr touched on the fact that the university's football players regularly work more hours than other full-time employees, and are, as BuzzFeed Politics writes, "subject to control and regulations of their day-to-day activities that the rest of the student population is not." Consequently, Ohr ruled, the members of the Northwestern University football team "fall squarely within the [National Labor Relations] Act's broad definition of 'employee' when one considers the common law definition of 'employee.'"

The NLRB regional director's ruling means that members of the Northwestern football team may now vote on whether they want to be represented by the College Athletes Players Association (CAPA). CAPA brought the case to the NLRB, along with former Northwestern quarterback Kain Colter, and the United Steelworkers union, which has provided the financing for legal counsel. Disappointed by the NLRB ruling, Northwestern has indicated that it will appeal the ruling to the NLRB headquarters in Washington, D.C.; a final decision could take months. "While we respect the NLRB process and the regional director's opinion, we disagree with it," said Alan Cubbage, vice president for university relations, in a written statement. Cubbage added that the university "believes strongly that our student-athletes are not employees, but students. Unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes." The NCAA was similarly displeased with the NLRB ruling, stating, "[w]e strongly disagree with the notion that student-athletes are employees. "We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid."

Supporters of CAPA, however, were quick to celebrate the ruling. On Wednesday, Colter tweeted: "This is a HUGE win for ALL college athletes!" During an interview with ESPN that evening, Colter also said he was "pleased with how strong the ruling was. The regional director did not budge one bit, he backed us up on all of our points. I believe it's going to be hard to overrule his decision, given how strong it is." He added that he was "confident" the Northwestern players would vote to unionize.

Read the NLRB decision here: http://www.scribd.com/doc/214711605/NLRB-Regional-Northwestern-Decision

http://espn.go.com/college-football/story/_/id/10677763/northwestern-wildcats-football-players-win-bid-unionize

http://www.buzzfeed.com/jacobfischler/nlrb-northwesterns-football-players-can-unionize

About March 2014

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in March 2014. They are listed from oldest to newest.

February 2014 is the previous archive.

April 2014 is the next archive.

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