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Week in Review

By Martha Nimmer

Out of the Furnace and Now, Possibly Out of Court

Earlier this week, producers of the film "Out of the Furnace" asked a New Jersey judge to throw out a defamation lawsuit brought by members of a northeastern Native American tribe, the Ramapough Lunaape Nation. The 17 plaintiffs are unhappy with the film's portrayal of the Lunaape Nation, which is referred to in the movie as the "Jackson Whites" family, a group of violent "inbreds." The lawsuit says that the term "Jackson Whites" is a historical and racial slur, and that the film's setting in northern New Jersey, along with the use of surnames like "DeGroat" and "Van Dunk," are "too specific to the Ramapough plaintiffs to be chance, coincidence or happenstance," and thus, put the plaintiffs in a false light.

The defendants, which include Relativity Media, Scott Free Productions, Red Granite Pictures and Leonardo DiCaprio's Appian Way Productions, do not agree, arguing that the film does not "rise to libel;" in their brief in support of the motion to dismiss, the defense goes on to say that allowing such a lawsuit to go forward would harm free speech: "[p]laintiffs' lawsuit, if permitted to proceed beyond the pleading state, will chill free speech by subjecting creators and distributors of movies and other works of fiction to liability whenever some members of a distinct ethnic, cultural, social or other definable group dislike how their group is presented." The lawsuit should also fail, according to the defendants, because the plaintiffs have failed to demonstrate that the allegedly defamatory statements are "of and concerning" them. Additionally, the defendants also point to the "group libel doctrine," which "prohibits defamation claims that are based on a plaintiff's membership in a group if there's no reason for anyone concluding the statement's particular reference to one of its members."

"Out of the Furnace", released last year, stars Christian Bale as he searches for his younger brother, played by Casey Affleck, whom Bale's character fears has fallen victim to a crime ring led by Harlan De Groat, played by Woody Harrelson.

Read the defendants' brief here: http://www.scribd.com/doc/218274231/Furnace-Brief


Opening Pandora's Music Box

Pandora, the popular online music streaming service, has just been sued by major record labels in New York state court over the company's use of sound recordings made before February 15, 1972. The record companies, which include divisions of Sony, Warner and Universal, claim that artists and their labels have been deprived of "tens of millions of dollars" every year by streaming services, such as Pandora. "Pandora's refusal to pay Plaintiffs for its use of these recordings is fundamentally unfair," decries the lawsuit. Some of the artists whose songs are said to be infringed include Bob Dylan, The Beatles, David Bowie, Elvis Presley, James Brown and Led Zeppelin.

Last year, a similar action was brought against satellite radio company, Sirius XM. According to The Hollywood Reporter, "[t]he subject of the [Sirius] lawsuit has to do with the fact that sound recordings didn't begin falling under federal copyright protection until the above date. As such, the streaming service might not be able to rely upon SoundExchange, the performance rights organization that collects digital and satellite royalties on the behalf of sound recording copyright owners." The record labels are now testing this belief, arguing that songs recorded prior to February 15, 1972 are not, in fact, covered under federal copyright law, but have instead been protected by state common law.

The consequences of this lawsuit, should the plaintiffs prevail, would be significant, to say the least. Pandora risks losing many popular pre-1972 songs because "Capitol Records, Sony Music, Universal Music, Warner Music and ABKCO Music are demanding an injunction in addition to compensatory damages, punitive damages and all proceeds gained as a result of the exploitation of pre-'72 music." Such a substantial hit to Pandora's music catalogue is likely to upset its 250 million users, who may look elsewhere to get their music fixes.



Organized Sports or Organized Crime?

Calling the group a "racketeering enterprise," a Texas attorney has brought a federal lawsuit in the Eastern District of Texas against his son's high school lacrosse team. The 39-page suit filed earlier this month by William Munck claims that the team set up a "pay to play" scheme that limited players' on-field time at Episcopal School of Dallas "because coaches affiliated with that high school team and two other local powerhouses used their influence to reward others who participated in a Dallas Lacrosse Academy, a private for-profit travel team with which the coaches are involved."

The suit goes on to allege that the defendants involved in the operations of the Dallas Lacrosse Academy violated the Racketeer Influenced and Corrupt Organizations (RICO) Act by "tactics that forced others to contribute to the success of the private for-profit DLA team." Munck goes on to state "DLA and the RICO defendants pushed their student athletes to participate in DLA if they wanted to play or succeed in their youth and high school programs." Additionally, the suit continues, "[t]hrough the use of illegal and fraudulent conduct, including threats, intimidation, and even extortion, defendants have tried to ensure that student athletes who want to play lacrosse in North Texas have to pay for play and have to go through defendants' enterprise."

The defendants argue, however, that this is simply the case of an "over-involved" parent unhappy with his child's playing time, not a nefarious racketeering enterprise. According to the defendants' motion to dismiss, Munck "has used his position as a lawyer and owner of the law firm Munck Wilson Mandala ... as a tool directed at various lacrosse coaches in the North Texas community." In reality, the defendants continue, their "only sin is failing to recognize and appreciate the athletic talents of Munck's son."

Munck's wife and son are also plaintiffs in the case. They seek injunctive relief, treble damages and attorney's fees.


Saving Detroit, One Painting At A Time

Plans for the Detroit Institute of Arts to keep its art collection intact have hit another snag. Earlier this month, two groups of creditors served the Detroit Institute of Arts (DIA) with subpoenas for records "covering the past hundred years and documenting the ownership history of every work in its 60,000-piece collection." The first subpoena, issued on March 28th, demands "an exhaustive swathe of documents including the museum's financial, tax and insurance records." Syncora, the bond insurer and the creditor behind the first subpoena, also asked for internal studies performed by the museum "on visitor trends and exhibition performance as well as all documents that address the DIA's complex relationship with the city of Detroit, a history that stretches back to 1919." A committee of retirees served the DIA and auction house Christie's with a second subpoena on April 1st. Last year, Detroit hired Christie's to appraise the museum's city-owned collection, but some creditors chafed at the auction houses' appraisal -- $454 million to $867 million -- calling it too low.

The April 1st subpoena was issued just one day after Detroit's emergency manager, Kevyn Orr, filed an amended plan aimed at lessening some of Detroit's growing debt. The amended plan is said to include "a penalty for retirees if they do not quickly agree to the settlement's terms and wave their rights to the DIA's art collection." The settlement plan also includes a "grand bargain" that would protect the museum's collection, while "shor[ing] up Detroit's ailing pension funds." Michigan governor Rick Snyder, along with the DIA and a group of local and national foundations, have also pledged $816 million to the cause.


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This page contains a single entry from the blog posted on April 18, 2014 10:59 AM.

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