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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.


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


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.


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.


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This page contains a single entry from the blog posted on March 7, 2014 12:10 PM.

The previous post in this blog was Garcia v. Google, Inc.: Does An Actor Have A Copyright Interest In His Or Her Performance In A Film?.

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