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May 1, 2014

Week in Review

By Martha Nimmer

Silver's Sterling Problem

Following last week's revelations of racist comments by Los Angeles Clippers' owner, Donald Sterling, National Basketball Association (NBA) Commissioner Adam Silver has decided to ban Sterling from the NBA for life. As part of the ban, the Clippers' owner "may not attend any NBA games or practices, be present at any Clippers office or facility, or participate in any business or player personnel decisions involving the team. He will also be barred from attending NBA Board of Governors meetings and participating in any other league activity." In addition, Sterling must pay a $2.5 million fine to the league. That money will be donated to organizations, chosen by the NBA and Players' Association, that support anti-discrimination efforts. The $2.5 million figure is the maximum amount allowed under the NBA Constitution.

In yesterday's announcement, Silver also stated that he will "urge the league's Board of Governors to exercise its authority to force a sale of the team." The commissioner said that he expected the owners to support his efforts to remove Sterling as the owner of the team. Many NBA teams and owners have come out in support of the ban and Sterling's removal from team ownership. Magic Johnson, who was the subject of some of Sterling's racist remarks, tweeted his approval of the NBA's decision: "Commissioner Silver showed great leadership in banning LA Clippers owner Donald Sterling for life."

The NBA's decision to ban Sterling for life came after a three-day investigation into comments that he made to his former mistress, V. Stiviano. During the leaked recording, Sterling tells Stiviano, among other racist remarks, that he does not want her to "bring black people" to Clippers games. Following the release of the tape, more than 10 corporate team sponsors, including Adidas, Kia and Red Bull, ended or suspended sponsorship deals with the team. Doc Rivers, the Clippers coach, also announced that if Sterling remained team owner, Rivers would not return to coach the team for the 2014-15 season.

http://www.buzzfeed.com/mikehayes/nba-bans-donald-sterling-for-life

Give Me an S, Give Me a P, Give Me an O, Given Me an R...

In an effort to improve cheerleader safety, New York state education officials have voted to recognize competitive cheerleading an as interscholastic sport. According to CBS New York, "the state Board of Regents voted unanimously in favor of the measure a day after it was approved by one of its committees." The Board of Regents came out in strong support of the classification, saying that it will ensure that schools abide by a common set of standards focused on limiting the length of seasons or the number of required practice days. Currently, there are no such state-mandated rules.

The state of New York has been trying to decide since 2009 whether to recognize cheerleading as an interscholastic sport. Critics of the move say that students' practice time will be reduced if state authorities get involved: "[s]ince it's not a sport, we can practice as much as we want," said Mount Sinai cheerleader Amanda Rose, adding that her team practices together about 10 months out of the year. According to state officials, 34 states and the District of Columbia classify the activity as a sport.

The increased fear surrounding juvenile head injuries may account partially for the move to categorize cheerleading as an interscholastic sport, a classification that would bring with it new safety and training standards. The American Academy of Pediatrics, testifying before the Board of Regents, said that although the overall injury rate in the sport is low, "cheerleading injuries are increasing in number and severity nationwide, account[ing] for two-thirds of all catastrophic injuries among high school female athletes." The New York State Public High School Athletic Association has already drafted proposed rules and regulations aimed at curbing the rise in injuries to cheerleaders. These rules and regulations will take effect beginning in the 2014-15 season.

http://newyork.cbslocal.com/2014/04/29/new-york-state-board-of-regents-deems-cheerleading-a-sport/

Battle for Bukowski

Cyril Humphris, the owner of the rights to Charles Bukowski's semi-autobiographical work, Ham on Rye, claims that actor James Franco took elements from the work, without permission, to make a film about the deceased writer. Humphris says that Franco "optioned the rights to the book . . . in 2009 to adapt it into a screenplay," but that those rights ended in November 2010. Later, Humphris maintains, Franco produced and directed a film, titled "Bukowski", an adaptation of the author's 1982 work about his abusive father and troubled childhood in 1930s Los Angeles. Humphris' complaint, filed in Los Angeles federal court, goes on to allege that Franco's film lifted "the novel's themes of childhood loneliness; adolescent self-consciousness; the failures, hypocrisy, and cruelty of adults; and, in an unflinching depiction, the crude interest teenage boys take in sex." According to the complaint, "the mood in both works is dark but humorous, through successive scenes in which the boy is attacked by his father, belittled by other adults, or humiliated in front of his peers."

After learning about the "Bukowski" film, Humphris says that he confronted Franco, who replied, "I'm doing a little project with some of my NYU colleagues based on one of Bukowski's biographies." According to The Hollywood Reporter, Humphris tried to see a copy of the script, but Franco failed to respond to the requests. Franco, who is an admitted fan of the author, maintains, however, that his film is not an adaptation of the Bukowski novel.

The plaintiff is seeking an injunction and monetary damages.

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

http://www.hollywoodreporter.com/thr-esq/james-franco-sued-violating-film-699013

http://www.entlawdigest.com/2014/04/28/3098.htm

An "Unconstitutional Prior Restraint"

The Third Department of the New York Appellate Division ruled earlier this month that a trial judge's decision to bar Lifetime Entertainment from releasing a television movie based on the murder of a "beloved" Appellate Division clerk was an "unconstitutional prior restraint on speech." The case, Porco v. Lifetime Entertainment Services, originates in a family tragedy: the action was brought by Christopher Porco, who was convicted of murdering his father and attempting to murder his mother in November 2004. Porco's father, Peter, worked for a Third Department presiding justice and was a popular and respected member of the community.

Before Lifetime's made-for-television movie, "Romeo Killer: The Chris Porco Story" was set to air last year, Porco initiated a pro se action under state civil rights law to stop the broadcast. Supreme Court Justice Robert Muller, in turn, issued a temporary restraining order just days before the movie was scheduled to air. Lifetime then obtained an emergency stay from Third Department Justice Elizabeth Garry, and "Romeo Killer" aired as planned.

Citing First Amendment concerns, Presiding Justice Karen Peters found that while the "general prohibition against prior restraint" is in no way "absolute," the broadcast of the Lifetime program in question would not "create the type of imminent and irreversible injury to the public" to warrant such an "extraordinary remedy."

http://m.newyorklawjournal.com/module/alm/app/ny.do#!/article/1574348404

From Venice Beach to Federal Court

The removal of a public mural in Venice Beach has set off a legal battle in California. The mural, known as the "Brooks Avenue Painting," was allegedly "improperly expunged" last summer, according to a complaint filed last week by the Los Angeles Fine Arts Squad, which created the mural in 1969. The work, which served as the backdrop of an iconic photo of The Doors, was water blasted, according to artist and Los Angeles Fine Arts Squad co-founder, Victor Henderson.

The lawsuit alleges that Ralph Ziman, who owned the building where the mural was located, failed to give Henderson and the Fine Arts Squad a "90-day advance notice" of the work's removal, as required by California law. The lawsuit maintains that, had Henderson and his group been given the opportunity to discuss saving the mural, the work could have been removed from the facade of the building "without substantial physical defacement, mutilation, alteration or destruction." Instead, Henderson laments, "Brooks Avenue Painting" is "gone forever."

The plaintiff is seeking damages and "increased awareness about mural conservation."

http://www.latimes.com/entertainment/arts/culture/la-et-cm-lawsuit-la-fine-arts-squad-mural-venice-20140422,0,3063106.story#ixzz30PXanIsf

Forced Sale for Sterling?

Yes, there is more to say about the Donald Sterling controversy. Reuters has reported that the NBA's 29 team owners are expected to force the embattled Clippers owner to sell his team. Although the owners did not specify a date for the vote, "early indications were that owners would overwhelmingly support the unprecedented move." The NBA's bylaws allow the league's owners to determine whether to force the sale of the Clippers, but at least 75% of the owners would have to approve the measure. Some observers have commented, however, that other team owners may be hesitant to vote in favor of the sale, fearing that the move could adversely affect their ownership rights in the future. Per the NBA bylaws, "[NBA Commissioner] Silver must provide a written copy of any charges within three days to Sterling, who has five days to answer. A special hearing of the Board of Governors then will be held on a date no more than 10 days after Sterling's reply." A spokesman for the NBA said that the Board of Governors' advisory finance committee scheduled a meeting for next week to discuss the steps necessary for removing Sterling as Clippers owner.

Now that it appears that the sale of the Clippers is a fait accompli, possible buyers have been emerging. Media mogul Oprah Winfrey has been discussed as a potential buyer; in fact, she said, "she was in discussions with producer and film studio executive David Geffen and Oracle Corp computer technology Chief Executive Officer Larry Ellison to bid for the team if it becomes available." Other potential buyers for the franchise include Earvin "Magic" Johnson, the former basketball star who is part owner of the Los Angeles Dodgers baseball team and who once owned part of the Los Angeles Lakers basketball team.

Sterling acquired the Clippers franchise 33 years ago for just $12.7 million. According to the Washington Post, the Clippers' estimated value is at least $700 million. Considering that the team plays in the second-biggest media market and has popular players like Blake Griffin and Chris Paul, it is likely that the team may be worth closer to $1 billion.

http://www.newsweek.com/sterling-will-likely-be-forced-sell-clippers-249232

May 9, 2014

Is Your Worker an Independent Contractor or Employee?

By Kristine Sova
www.sovalaw.com

Last week, I spoke to a group of arts administrators at a professional development session hosted by ArtsWestchester (https://artswestchester.org/?utm_source=Sova+Law+Blog+Newsletter&utm_campaign=8a5694904e-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_eff3a758ca-8a5694904e-62893717) and the EASL Section (http://www.nysba.org/Sections/Entertainment_Arts_Sports/Entertainment_Arts___Sports_Law_Section.html?utm_source=Sova+Law+Blog+Newsletter&utm_campaign=8a5694904e-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_eff3a758ca-8a5694904e-62893717) on the distinction between employees and independent contractors. We covered a lot of information during the session, including:

• the hefty financial consequences of misclassification,
• the need to conduct preventative internal audits to make sure you're not misclassifying your workers, and
• the independent contractor tests utilized by various administrative agencies like the Internal Revenue Service and the New York Department of Labor's Unemployment Insurance Division.

Knowing those tests, though, is only so helpful to an organization or business that wants to know if a particular worker is an employee or an independent contractor. This is because how a particular worker should be classified requires a comprehensive fact-and-circumstances inquiry unique to the organization.

How comprehensive, you might ask? Click here for the kinds of questions I would ask and you'll see: http://sovalaw.com/blog/wp-content/uploads/2014/05/Independent-Contractor-Questionnaire.pdf?utm_source=Sova+Law+Blog+Newsletter&utm_campaign=8a5694904e-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_eff3a758ca-8a5694904e-62893717.

The questions are based on factors that the IRS and NY DOL would consider if either or both of them were to audit your workforce. Use the questions as a starting point for your own internal audit, and consult with an employment attorney once you have gathered your answers for an opinion on whether the worker in question is really an independent contractor.

Post-Postscript to "Nazis, Monuments Men, Hidden Treasures, and the Restitution of Looted Art"

By Leila Amineddoleh

In the April 18th postscript to the article I authored in the Spring issue of the EASL Journal entitled "Nazis, Monuments Men, Hidden Treasures, and the Restitution of Looted Art", I examined new legal issues related to the Munich Art Trove (the collection of artwork that was seized from Cornelius Gurlitt in 2012). In that blog post, I stated, "Some of the biggest questions will occur after Gurlitt's death." Now less than three weeks after the posting of that blog entry, it was announced that the octogenarian passed away on May 6th. Before his death, Gurlitt's attorney informed the public that his client did set provisions for the works in his will. It was revealed this week that Gurlitt bequeathed his entire collection to a Swiss museum, Kunstmuseum Bern.

The museum announced that it is "surprised and delighted" to have the paintings left to its collection. However the museum recognizes that this gift brings "a considerable burden of responsibility and a wealth of questions of the most difficult and sensitive kind, and questions in particular of a legal and ethical nature." The museum has also indicated that it will abide by the Washington Principles in resolving restitution claims, if the institution moves forward and accepts the gift.

The Swiss museum was surprised to learn of this gift because it previously had no relationship with Gurlitt. In bequeathing the entire collection to Kunstmuseum Bern, the deceased left nothing to Germany; perhaps this is due to Gurlitt's outrage of the German government's seizure of the works.

Week in Review

By Martha Nimmer

Infringing Ice Cream

The arrival of warm weather signals the return of ice cream trucks, and this spring, the rising temperatures have brought with it a trademark lawsuit between popular ice cream truck company Mister Softee and newcomer Master Softee. The New Jersey-based company Mister Softee claims that Master Softee, based in Long Island City, is attempting to sell a "knock-off version" of the Mister Softee brand, which has been in business since 1956 and operates across 18 states. The suit also states that Master Softee owner Dimitrios Tsirkos used to oversee operations of Mister Softee trucks in Queens, and even owned 16 of the Mister Softee vehicles. Tsirkos ended up founding his own ice cream truck fleet in February, prompting Mister Softee company owner Jim Conway to file the instant trademark action. Employees of Master Softee contend, however, that the name of the company is not important, and that customers are attracted to the new company because of the employees: "Mister Softee does not make this business. It is the people -- and the people work hard," said one Master Softee driver.

The similarities between the two companies extend beyond just their names. Mister Softee's slogan, painted across the hoods of their trucks, is "The Very Best," and Master Softee's slogan, also painted across the truck hoods, is "The World's Best." Both companies' trucks also sport the same white paneling and blue trim, and both display photos of the ice cream treats for sale. It becomes even more confusing when you look at the companies' mascots: Mister Softee's is a scoop of vanilla ice cream served in a grinning cake (or plain) cone, dressed in a blue jacket and red bow tie. Master Softee's mascot is also a smiling vanilla ice cream cone wearing a blue jacket and red bow tie, but this scoop of ice cream has rainbow sprinkles on its head and is served in a waffle cone.

Judge Laura Swain is expected to decide this month whether the Master Softee trucks infringe the Mister Softee trademarks. The plaintiff is also seeking, according to New York Daily News, "a six-figure payout to cover unpaid licensing and marketing fees Tsirkos still owes."

Read more: http://www.nydailynews.com/new-york/queens/mister-softee-master-softee-article-1.1774733#ixzz319RtWv8f

Finding a New CEO for the Clippers

Following the announcement last week that LA Clippers owner Donald Sterling will be banned from the National Basketball Association (NBA) for life, the NBA said last week that it would appoint a new CEO to run the team. Mike Bass, the Executive Vice President of Communications for the NBA, remarked, "[t[he best way to ensure the stability of the team during this difficult situation is to move quickly and install a CEO to oversee the Clippers organization. The process of identifying that individual is underway." Shelly Sterling, co-owner of the team and the estranged wife of Donald Sterling, released a statement on Saturday before Game 7 of the Clippers' first-round playoff series against the Golden State Warriors. In the statement, Shelly Sterling voiced her support for the NBA's decision to appoint a new team CEO. "I spoke with Commissioner Adam Silver this week to tell him that I fully supported his recent swift and decisive action. We also agreed at that time that, as a next step, both the league and the team should work together to find some fresh, accomplished executive leadership for the Clippers. I welcome his active involvement in the search for a person of the utmost character, proven excellence and a commitment to promoting equality and inclusiveness." However, Shelly Sterling's statement did not mention the likely sale of the basketball team.

http://www.msnbc.com/msnbc/nba-appoint-new-clippers-ceo

http://touch.latimes.com/#section/-1/article/p2p-80095540/

Killing the Cliffhanger

Gossip blog Gawker, no stranger to the courtroom, has settled a federal copyright lawsuit alleging that the website "spoiled ratings for Dr. Phil's program on the Manti Te'o hoax by posting unaired footage" of the television show. Last May, producer Peteski Productions sued Gakwer Media for copyright infringement, claiming that the website's unauthorized online postings "spoiled the cliffhanger to its two-part interview with admitted hoaxer Ronaiah Tuiasosopo." In the first episode of the interview, Phil McGraw--"Dr. Phil"--challenged Tuiasosopo to recreate the voice he used during the numerous phone calls to Te'o that convinced Te'o that he had a long-distance girlfriend. Tuiasosopo refused, but viewers were encouraged to "tune in" for the next day's episode because the hoaxer "might do the voice" the following day. The production company alleges, however, that Gawker subsidiary Deadspin posted the video of the second show to the Deadspin blog "not later than 9:30 a.m. Eastern Standard Time, hours before the Dr. Phil Show aired to over 98 percent of its viewers." Gawker and Deadspin also encouraged readers to "tune in!" to the second episode, which Peteski Productions avers, "apparently meant for viewers interested in the Tuiasosopo interview to 'tune in' to Deadspin instead of Dr. Phil." The plaintiff said that Gawker's "theft of the core of episode 2 caused the ratings to decline substantially because the result of the 'cliffhanger' was no longer in doubt."

Late last month, however, Gawker and Peteski Productions stipulated to dismissal of the case with prejudice. U.S. District Judge Michael Schneider approved the deal on Monday. Terms of the settlement have not been disclosed.

http://www.entlawdigest.com/2014/05/07/3115.htm

Withdrawn

More good news for Gawker. On Wednesday, famed director Quentin Tarantino withdrew his copyright infringement lawsuit against the gossip blog, just one week after refiling the suit against the company for leaking his script for "The Hateful Eight". In a filing in U.S. District Court in Los Angeles, the director's attorneys said that Tarantino "voluntarily dismisses the above-captioned action, in its entirety, without prejudice." Tarantino is free, however, to sue Gawker again: "[t]his dismissal is made without prejudice, whereby Plaintiff may later advance an action and refile a complaint after further investigations to ascertain and plead the identities of additional infringers resulting from Gawker Media's contributory copyright infringement, by its promotion, aiding and abetting and materially contributing to the dissemination to third-parties of unauthorized copies of Plaintiff's copyrighted work," the filing read.

Tarantino's fight with Gawker began in January when the director sued the website over posting a story on its Defamer site, titled "Here Is the Leaked Quentin Tarantino Hateful Eight Script," with a link to a third-party website that displayed the 146-page script. U.S. District Court Judge John F. Walter dismissed Tarantino's suit against Gawker on April 22nd, ruling that attorneys for Tarantino had failed to plead facts "establishing direct infringement by a third party" or facts that showed that Gawker had either "caused, induced or materially contributed" to the alleged direct infringement. Judge Walter said that Tarantino could refile the suit by May 1st, however. Tarantino took up the judge's offer, and sued Gawker Media on May 1st for direct copyright infringement. Now, however, it appears that the "Kill Bill" and "Pulp Fiction" director is taking a break from the courtroom.

http://variety.com/2014/film/news/quentin-tarantino-withdraws-hateful-eight-suit-against-gawker-1201175383/

Snapchat Settles

The Federal Trade Commission (FTC) announced on Thursday that popular photo messaging app Snapchat had agreed to settle charges that the company had deceived users about its service. The commission says that the photo messages were, in the words of The New York Times, "significantly less private than the company had said."

In the age of selfies and disappearing digital privacy, the need for a photo messaging service that quickly deleted photos only seconds after a user received them was evident. Enter Snapchat, an app developed by two Stanford University students and first released in September 2011. With the app, users can take photos, record videos, add text and drawings, and then send their creations to a list of chosen contacts. The users designate a time limit for how long recipients can view the "snaps;" the current limit is 1 to 10 seconds. After that period, the snaps will be hidden from the recipient's device, deleted from Snapchat's servers, and thus "disappear forever," in the words of Snapchat.

The ephemeral nature of the snaps is what made Snapchat popular among users who wanted to share photos and videos freely, but without fear of the content coming back to haunt them later. According to the FTC complaint, however, Snapchat snaps may not, in fact, "disappear forever." The complaint states that snaps can actually be saved in several ways: "[t]he commission said that users can save a message by using a third-party app, for example, or employ simple workarounds that allow users to take a screenshot of messages without detection." The complaint also accused Snapchat of deceiving customers about the app's security measures. Despite Snapchat's earlier insistence that it did not collect user information, the FTC complaint revealed that the company transmitted user location information and saved users' address book contacts.

As part of the settlement, Snapchat may not misrepresent how it protects user information and privacy. The app must also implement a "wide-ranging privacy program that will be independently monitored for 20 years." Noncompliance with the settlement agreement could result in the imposition of fines against the company.

Remember: think before you snap.

Read the FTC press release here: http://www.nytimes.com/interactive/2014/03/14/technology/snapchat-ftc-settlement.html?_r=0

http://www.nytimes.com/2014/05/09/technology/snapchat-reaches-settlement-with-federal-trade-commission.html?hp&_r=0

May 11, 2014

Fair Use Considerations in DMCA Misrepresentation Claims: First Circuit "Cases of Interest" No Longer Very Interesting

By Amanda Schreyer
http://fierstkane.com/amanda-schreyer

In my recent article, "Misrepresentation Under the DMCA: The State of the Law", NYSBA Entertainment, Arts, and Sports Law Journal (Spring 2014, Vol. 25, No. 1), I discussed two recent, interesting cases out of the First Circuit: Tuteur v. Crosley-Corcoran (Tuteur v. Crosley-Corcoran, 1:13-cv- 12028 (D. Mass. filed January 25, 2013))(the "Blogger-Giving-the-Finger Photo Case"), and Lessig v. Liberation Music Pty Ltd. (Lessig v. Liberation Music Pty Ltd., 1:13-cv-10159 (D. Mass filed May 20, 2013))(the "Lessig Lisztomania Case"). In those cases, an issue before the District Court of Massachusetts was whether the defendant knowingly made a material misrepresentation in its Digital Millennium Copyright Act (DMCA) takedown notice in claiming that the plaintiff's use of the defendant's copyrighted work was infringing. Between the writing of the article and its publication, both cases were dismissed. Tuteur had survived Crossley-Corcoran's motion to dismiss, but Lessig only got as far as an amended complaint before settling. (According to the Electronic Frontier Foundation, Lessig's counsel in the case, the settlement contained the following statement: "Liberation Music agrees that Professor Lessig's use of the Phoenix song 'Lisztomania' was both fair use under US law and fair dealing under Australian law." According to Tuteur (via her blog): "We've settled the lawsuit. The parties have entered into a settlement agreement which has resolved all claims and controversies to their mutual satisfaction.")

In both Tuteur and Lessig, the plaintiffs claimed that the defendants were liable under §512(f) of the DMCA because they knowinglyv and materially misrepresented that the plaintiffs' use of the defendants' copyrighted works was infringing when they sent takedown notices to the plaintiffs' service providers. Under §512, within a copyright owner's takedown notice, the copyright owner must state that "the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." (§512(c)(3)(A)(v)). While the statute does not provide per se liability for a violation of §512(c)(3)(A)(v), Congress did impose liability on a copyright owner who "knowingly materially misrepresents" that the material it is requesting to be taken down is infringing. Section 512(f) provides:

Any person who knowingly materially misrepresents under this section . . .that material or activity is infringing, ... shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing...

Therefore, a copyright owner should be held liable under §512(f) if he or she "knowingly misrepresents" that he or she has a "good faith belief" that the work is infringing.

Fortunately, the well-known case, Lenz v. Universal (the "Toddler-Dancing-to-the-Prince-Song YouTube Video Case") - a case in which the plaintiff claimed that her use of the defendant's copyrighted work was fair use under the Copyright Act and thus "authorized under the law" - persists in the Ninth Circuit after seven years. In Lenz v. Universal, 572 F. Supp. 2d 1150 (N.D. Cal. 2008)("Lenz II") the district court held that a copyright owner must evaluate whether the use of the copyrighted work is a fair use prior to sending a takedown notice in order to demonstrate the "good faith belief" that the work is infringing under §512(3)(c)(A)(v), and denied both parties' summary judgment motions. Both parties have appealed to the Ninth Circuit. (Lenz v. Universal, 13-16106 (9th Cir. filed May 31, 2013)).

Tuteur and Lessig were important for DMCA case law because the plaintiffs in both cases also claimed their use of the defendants' copyrighted works was fair use. The Tuteur court, in its order denying the defendant's motion to dismiss, rejected Lenz II, holding that in order for a copyright owner to make a "good faith belief" that the use of the work is not "authorized by the law," the owner must consider whether the use of the material is fair use. In addition, that court held that the standard to be applied to the copyright owner sending the takedown notice is the subjective test (See Rossi v. Motion Picture Ass'n of Am., Inc., 391 F.3d 1000 (9th Cir. 2004)) of whether a plaintiff can provide sufficient evidence that the defendant "had some actual knowledge that its [t]akedown [n]otice contained a material misrepresentation," but did not conclude whether Crossley-Corcoran had such actual knowledge.

The dismissal of these cases is disappointing because a decision on the merits would have added to the body of law interpreting the statutory meaning of misrepresentation under the DMCA. It is still unclear what the terms "good faith belief," "authorized by the law" and "knowingly misrepresent," mean in the context of §512. Therefore, the law remains unsettled across the country as to what level of analysis of the use a copyright owner must have taken, and what facts the copyright owner must have known, before sending a DMCA takedown notice, in order to be held liable for misrepresentation under the DMCA.

May 14, 2014

Center for Art Law Updates

The following case selection first appeared in the Center for Art Law May newsletter:

• Marjorie Maciunas v. George Maciunas Foundation (N.Y., 2014) -- Plaintiff, resident of Virginia, agreed to sell three works by George Maciunas to the Foundation and she is seeking either return of the property or payment owed to her. Founded by Harry Stendhal in 2009, George Maciunas Foundation Inc. has been active since November 2011. George Maciunas was a Lithuanian-born American artist who died in 1978. Complaint does not seem to explain the relationship between the artist and eponymous plaintiff.

• Feritta III and Maclean v. Knoedler Gallery, 14 Civ. 2259 (S.D.N.Y. Apr. 1, 2014) -- Patterson Belknap Webb & Tyler LLP filed yet another complaint against Knoedler Gallery et all alleging selling a forged Rothko to their clients in 2008. The work that is now believed to be a forgery from the Rosales trove was titled Untitled (Orange, Red and Blue).

• Kolodny v. Meyer, Dorfman and Dorfman Projects LLP, 14 Civ. 3354 (S.D.N.Y. May 8, 2014) -- the case brought by Grossman LLP involves sale of multiple Jasper Johns artworks believed to be stolen by the defendant James Meyer, John's studio assistant. Plaintiff purchased some of the stolen art from Defendants having received assurances that the works could be lawfully sold by Defendants.

• Thome v. Calder Foundation, 14 Civ. 3446 (S.D.N.Y. May. 13, 2014) -- Calder Foundation continues making headlines, this time it is being sued for antitrust violations, including conspiracy of monopolization and restraint of trade, having denied authentication and inventory numbers for the stage set created before Calder's death.

The Center for Art Law strives to create a coherent community for all those interested in law and the arts. Positioned as a centralized resource for art and cultural heritage law, it serves as a portal to connect artists and students, academics and legal practitioners, collectors and dealers, government officials and others in the field. In addition to the weekly newsletter (http://cardozo.us2.list-manage.com/subscribe?u=78692bfa901c588ea1fe5e801&id=022731d685), the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog (http://itsartlaw.com/blog/)and calendar of events (http://itsartlaw.com/events/). The Center for Art Law welcomes inquiries and announcements from firms, universities and student organizations about recent publications, pending cases, upcoming events, current research and job and externship opportunities. To contact the Center for Art Law, visit our website at: www.itsartlaw.com or write to itsartlaw@gmail.com.

May 15, 2014

Week in Review

By Martha Nimmer

"Girls" and Boys Settlement

Details have emerged regarding the March 16th settlement between '80s rock group the Beastie Boys and toymaker GoldieBlox. Readers will recall that GoldieBlox used the Beastie Boys' song "Girls" without permission in a YouTube video and then in a Super Bowl commercial that depicted girls building a Rube Goldberg-type machine. The details of the deal between the Beastie Boys and GoldieBlox came to light in an unrelated case between the music group and Monster Energy, which also used a Beastie Boys song without prior authorization.

The particulars of the settlement emerged as the "Beastie Boys' challenge against Monster Energy heads to trial in Manhattan over a video promoting the Ruckus in the Rockies 2012 snowboarding event." Last week, the presiding judge in the Monster Energy case said that the band could not testify about the GoldieBlox settlement. In his decision, U.S. District Judge Paul Engelmayer noted that the settlement "granted GoldieBlox a retroactive license to use the musical composition of 'Girls' between November 18, 2013 and November 28, 2013." Additionally, GolideBlox also agreed to make annual payments of 1% of its gross revenue, until the total payments amount to $1 million, to a charitable organization chosen by the Beastie Boys and approved by GoldieBlox; the settlement stipulated that the charitable organization must support "science, technology, engineering and/or mathematics education for girls." Another facet of the settlement, as noted by Judge Engelmayer, was that the parties "agreed to make certain, specifically worded public statements, and to keep the settlement agreement confidential, with certain exceptions, including its use in litigation."

http://www.entlawdigest.com/2014/05/15/3147.htm

A "Bit" of Good News

The Federal Election Commission (FEC) has just given the go-ahead for political candidates to begin accepting bitcoins as campaign donations. The FEC unanimously approved the measure last Thursday "in response to an advisory opinion request from the Make Your Laws Political Action Committee," a group that encourages voter participation in the lawmaking process. The FEC failed to reach a decision on a similar request made last year. The FEC also approved Make Your Laws' request to purchase bitcoins, on the condition that it "sells the virtual currency and converts it into dollars before depositing and spending it." In reaching its decision, the FEC emphasized the importance of "safeguards to obtain and report the identities of its donors, given the anonymous nature of bitcoin transactions."

Recently, bitcoins have become popular with political action committees and candidates. According to Roll Call, bitcoins have found strong support among Libertarian candidates, "who have forged ahead in collecting them even in the absence of approval or guidance from the FEC." Roll Call reports that Rep. Steve Stockman, a Texas Republican who lost a March primary challenge to current Texas Senator John Cornyn, and the Livingston County Libertarians in Michigan, have been collecting bitcoins.

http://blogs.rollcall.com/beltway-insiders/fec-clears-campaigns-to-solicit-bitcoins/

Battle for the "Ball"

A trademark battle is unfolding between two unlikely foes, the company that manufactures Skee-Ball machines, and a Skee-Ball-themed bar in Brooklyn. In 2011, the maker of the 105 year-old game sued the owners of Full Circle, a bar located in Williamsburg, Brooklyn, claiming trademark infringement. Back in 2005, Full Circle's owners founded a "Brewskee-Ball" league as a way to attract customers and drum up business. Full Circle claims to have "hundreds of regular players in Brooklyn, San Francisco and Austin." The name "Skee-Ball," however, turns out to be a registered trademark, and the manufacturer of Skee-Ball machines maintains that the bar has no right to use the mark. Full Circle, in response, filed a countersuit, claiming that Skee-Ball is a generic term for the game, in which players roll a ball up a tilted lane, trying to make the ball bounce into various holes with different point values.

The manufacturer's lawsuit and the bar's countersuit ended up being consolidated in the Eastern District of New York in 2012. Apparently, the case had not progressed very much, at least not until Full Circle hired the big time IP firm of Fish & Richardson. "They came to us in part to get things moving," said Kristen McCallion, a firm partner. The case definitely appears to be "moving": just last week, McCallion and another Fish & Richardson partner, John Johnson, filed a petition with the Trademark Trial and Appeal Board (TTAB) to cancel Skee-Ball Inc.'s trademark registration. The TTAB review can take over a year, but the board will stay its decision while the case is pending in district court in New York.

The question remains, however, whether the Skee-Ball mark should remain protected or whether it has become generic. The bar's attorney argues that the mark is not protectable because "there's no other word to describe Skee-Ball. Under trademark law, if a noun identifies a common name for something and not a source, then it's not protected." Consequently, if Skee-Ball wants to maintain its trademark, it will need to show why the term has not become generic. Zipper and aspirin are just two examples of trademarks that became "genericized" in the United States, and Skee-Ball may be next.

http://m.corpcounsel.com/module/alm/app/cc.do#!/article/1607278457

Boycotting Basketball

The controversy over LA Clippers owner Donald Sterling continues to grow. In an interview with CNN's Anderson Cooper, Sterling said that he was "baited" into making a series of racist remarks to his now former girlfriend, V. Stiviano. Sterling did not stop there, however; he also inexplicably "doubled down on his criticism" of former NBA star Magic Johnson, calling the former Laker a "bad role model" because he "has AIDS" and has not done enough to help other minorities. (Johnson, it should be noted, has been HIV-positive since 1991, but his disease has not progressed to AIDS. After learning of his diagnosis, Johnson founded the Magic Johnson Foundation to help combat the spread of HIV, and has also started and helped bring businesses to under-served, urban areas).

After Sterling's latest remarks, Roger Mason, vice-president of the National Basketball Players Association (NBAPA), announced that several players were ready to strike next season if Sterling still owned the Clippers. "I was just in the locker room three or four days ago. LeBron and I talked about it," Mason said in an interview scheduled to air this Wednesday night. "He ain't playing if Sterling is still an owner." According to Mason, other NBA stars will also join the boycott if Sterling remains owner: "[w]e have player reps, we've got executive committee members ... Leaders of the teams, they're all saying the same thing, 'If this man is still in place, we ain't playing.'" Mason says that promise holds true even if Sterling's wife, Shelly, is the team owner: "[n]o Sterling deserves to be an owner of that franchise any longer," Mason remarked. "And I've gone down the line from LeBron to the other guys in the league that I've talked to and they all feel the same way. There's no place for that family in the NBA." Shelly Sterling has "vowed," however, to hold on to the team.

Although the ownership of the Clippers remains uncertain, it is clear that the Sterling saga is far from over.

http://mashable.com/2014/05/13/sterling-clippers-lebron/?utm_cid=mash-com-Tw-main-link

With Friends Like These, Who Needs Friends?

An art collector has sued the former assistant and friend of famed American artist Jasper Johns in New York federal court, claiming that the assistant pilfered more than $6.5 million worth of art from Johns and then sold it under false pretenses. Plaintiff Frank Kolodny alleges that he paid Johns' assistant, James A. Meyer, $400,000 for a stolen work. The lawsuit also claims that Meyer took "nearly two dozen artworks by Jasper Johns" from the artist's studio, "and then, together and with the aid and assistance of the Dorfmans," also named as defendants in the suit, "sold to unsuspecting buyers, including plaintiff." According to the complaint, Mayer has already been indicted for these fraudulent sales.

The plaintiff's suit goes on to allege that the conspiracy between the Dorfmans and Mayer went on for over six years, resulting in the sale of over $6.5 million worth of Johns' art. To accomplish such a feat, the defendants allegedly represented to potential buyers that Meyer had received the artwork as a gift from Johns, even providing buyers with an affidavit from Meyer, notarized by Dorfman's wife. "Each affidavit falsely provided, among other things, that: (1) Meyer received the artwork directly from Jasper Johns; (2) Meyer is the rightful owner of the work and he has the right to sell it; (3) the work is recorded in Jasper Johns' archive; and (4) the work is authentic." As of a result of this fraud, Kolodny says that the work for which he paid $400,000 is now "unsaleable." Consequently, he is seeking the return of the purchase price paid for the work as well as damages for RICO fraud, common-law fraud and breach of warranty.

http://www.entlawdigest.com/2014/05/09/3131.htm


May 19, 2014

EASL Spring Meeting - 5/21/14

Date: Wednesday, May 21, 2014
Time: 3:00 PM - 7:00 PM Eastern Daylight Time
Herrick, Feinstein LLP | 2 Park Avenue, New York, NY 10016

Cost to Attend: EASL Members: $60.00 | NYSBA (Non-EASL) Members: $100.00 | Non-NYSBA Members: $125.00 | NYSBA Law Students: $35.00

3.5 MCLE Credit in Professional Practice, this program in not transitional, and therefore does not qualify for newly admitted attorneys

3:00pm - 4:45pm: Cutting-Edge Case Developments in Entertainment Law

~Speaker~
Stan Soocher, Esq., Editor-in-Chief, Entertainment Law & Finance

Topics will include, among others: discovery limits in digital-download royalty litigation, TV series development partnerships, investor rights in film projects, personal jurisdiction in copyright termination suits, termination rights vs. copyright assignment extensions, impact of statute of limitations for copyright ownership claims on that for infringement actions, legal malpractice rulings, work for hire in videogame content creation, author's reserved rights vs. publisher e-book formats, when an artist self-releases an album during artist/label litigation, and attempts by talent to demand edits in films.

5:00pm - 6:15 pm: Protecting and Enforcing Publicity Rights in Social Media

~Moderator~
Barry Werbin Esq., Herrick, Feinstein LLP

~Speakers~
Brian Chase Esq., - General Counsel, FourSquare
Julie Feldman Esq., - Partner at Schreck Rose Dapello & Adams LLP
Brian Murphy Esq., - Partner at Frankfurt Kurnit Klein & Selz

This panel will address the issues and challenges presented by the Right of Publicity within the context of Social Media. The discussion will include an overview of the nature of the right, and how it relates to and differs from other types of privacy rights. Panelists will describe the changing models for online advertising and marketing, including so-called "native advertising," and how this evolution has made it far more difficult to determine what uses are "commercial," as opposed to the conveyance of first amendment protected information when publicity rights are implicated. We will discuss celebrity efforts to enforce their rights of publicity to prevent what they consider to be online commercial uses of their names and personas, social media site usage policies and the risks caused by user contributions to social media, contests and sweepstakes, as well as by brand and other uses of such techniques as Facebook "likes" and Twitter "retweets." We also will cover the related issues raised by FTC Endorsement guidelines and other relevant federal and state regulations."
Reception to Follow

For question about the program: Beth Gould - Bgould@nysba.org
To register over the phone call the State Bar Service Center at 1-800-582-2452

http://www.nysba.org/store/events/registration.aspx?event=EASLSP14

May 20, 2014

Supreme Court Ensures Copyright Suit against MGM "Rages" On

By Barry Werbin and Sharon O'Shaughnessy
Herrick, Feinstein LLP

In Petrella v. Metro-Goldwyn-Mayer, Inc., the Supreme Court delivered a TKO to MGM when it decided, in a 6-3 decision on May 19, 2014, that the equitable defense of laches cannot be invoked as a defense to preclude claims brought within the Copyright Act's three-year statute of limitations for successive acts of copyright infringement. As a result, screenwriter Paula Petrella (Petrella) may continue to pursue more than $1 million in damages for MGM's continued distribution of the classic film Raging Bull. The decision likely sounds the death knell for laches as an affirmative defense in copyright infringement litigation and has the potential to expose Hollywood studios, music labels and media companies to an onslaught of cases brought by copyright holders' heirs and estates seeking a share of profits from classic films, TV shows, music recordings and other creative works that are re-released in various formats.

By way of background, Frank Petrella collaborated with renowned boxer Jake LaMotta on a screenplay about LaMotta's life, which inspired the Oscar-winning film Raging Bull. The screenplay was copyrighted in 1963. In 1976, Frank Petrella and LaMotta assigned their rights and renewal rights, which were later acquired by United Artists, then a subsidiary of MGM. In 1980, MGM released Raging Bull and registered a copyright in the film. MGM continued to market the film, including converting it into DVD and Blu-ray formats, which did not exist in 1980.

Frank Petrella died in 1981, during the initial copyright term, thereby vesting the copyright in the screenplay with his daughter, Paula, who renewed the copyright in 1991, thus becoming its sole owner. For works copyrighted under the 1909 Copyright Act (pre-1978), the Supreme Court had previously confirmed in Stewart v. Abend, 495 U.S. 207, 221 (1990) that when an author who has assigned her rights away "dies before the renewal period, . . . the assignee may continue to use the original work only if the author's successor transfers the renewal rights to the assignee."

In 1998, Petrella's counsel advised MGM that its exploitation of Raging Bull violated her copyright and threatened suit, repeating such threats over the next two years. Petrella, however, did not actually file suit until January 6, 2009, when she filed claims against MGM seeking (i) monetary damages due to acts of infringement resulting from MGM's continuing commercial use of the film (as a derivative work of the screenplay) after January 6, 2006 (including its continual release of the film on DVD and other digital formats); and (ii) injunctive relief prohibiting further distribution of the work without compensation.

Under Section 505(b) of the Copyright Act, copyright plaintiffs have three years to bring suit from the accrual date of a claim. However, if acts of infringement are repeated anew, the statute of limitations operates on a "rolling" basis that allows a plaintiff to collect damages going back three years before the claim accrues. In barring Petrella's action, however, the district court and the Ninth Circuit disregarded the Copyright Act's three-year look-back period for statute of limitations purposes and, instead, held that the equitable defense of laches precluded Petrella from bringing suit because she had unreasonably delayed suit by not filing until 2009. The Ninth Circuit affirmed and agreed with the studio's argument that Petrella's 18-year delay was unreasonable in light of Petrella having been aware of her potential claims many years earlier. The Supreme Court then granted certiorari to resolve a Circuit split concerning the application of laches to infringement claims brought within the three-year statute of limitations under the Act.

MGM argued that delayed copyright lawsuits could impact studios' investments made towards the distribution of works and also pointed to the challenges of trying a case on a delayed basis, such as difficulty in obtaining records and the fact that, as here, key witnesses may be deceased. The Court, however, was unpersuaded. Justice Ruth Bader Ginsburg, writing for the majority, held that the Copyright Act's bar on lawsuits initiated more than three years after a claim accrued did not bar Petrella's lawsuit because, in this instance, there was ongoing copyright infringement and Petrella only sought damages for the three years preceding the filing of her lawsuit. The Court explained that the concept of laches originally served as a guide when no statute of limitations controlled, but could not be invoked as a rule for interpreting a statutory prescription established by Congress. Put simply, laches does not trump the statute of limitations protections that the Copyright Act provides for copyright owners whose works are infringed on an ongoing basis, so long as the owners only seek relief for acts of infringement occurring during the limitations period.

In addressing MGM's claim that an open-ended period to file copyright claims makes it difficult for companies to make future business decisions, Justice Ginsburg emphasized that the "'sue soon or forever hold your peace' approach" advocated by MGM is imprudent because it would force copyright owners to initiate infringement litigation at a time when the value of the copyrighted work was not being undercut or there was no detrimental effect on the original work. Instead, Justice Ginsburg explained that the three-year limitations period "allows a copyright owner to defer suit until she can estimate whether litigation is worth the candle. She will miss out on damages for periods prior to the three-year look-back, but her right to prospective injunctive relief should, in most cases, remain unaltered." The Court observed that allowing Petrella's lawsuit to go forward would put at risk "only a fraction" of the income that MGM earned during that three-year period and would work no unjust hardship on consumers who have purchased copies of Raging Bull. To the extent key witnesses no longer are available, the Court noted that the plaintiffs would be affected equally because they have the burden of proving infringement.

Another equitable "out" was provided, however, by the Court's observation that where a copyright owner intentionally engages in misleading representations concerning his or her abstention from suit, and an alleged infringer detrimentally relies on such deception and would be harmed, reasonable reliance on such copyright owner's past actions could give rise to an estoppel defense. Unlike laches, estoppel does not undermine the Copyright Act's statute of limitations because it rests on misleading acts or omissions. Perhaps anticipating this issue being raised on remand, Justice Ginsburg noted that "Petrella notified MGM of her copyright claims before MGM invested millions of dollars in creating a new edition of Raging Bull" and that "[t]he circumstances here may or may not (we need not decide) warrant limiting relief at the remedial stage."

The decision only addresses the narrow, procedural issue of whether the Copyright Act's statute of limitations for ongoing infringement precludes the assertion of laches. On remand, Petrella must prove her case on the merits. While Petrella is now able to seek damages back to 2006, Justice Ginsburg indicated that laches may come back into play before the district court, where Petrella's delay in commencing action may properly be taken into account at the remedial stage in determining damages and the scope of any appropriate injunctive relief.

Lastly, all is not lost for a company that must defend against a "delayed" claim of continuing copyright infringement. Laches may still play into the remedial stage of an action. and, as the Court pointed out, a defendant may retain any "investment shown to be attributable to its own enterprise, as distinct from the value created by the infringed work."

In a dissenting opinion joined by Chief Justice Roberts and Justice Kennedy, Justice Breyer argued that the majority's opinion undercut basic principles of fairness and could encourage the type of gamesmanship resulting from a claimant sitting back for years until the economics of the exploitation of a copyrighted work make the timing of suit more valuable.

The decision can be accessed here: http://www.supremecourt.gov/opinions/13pdf/12-1315_ook3.pdf

May 22, 2014

Center for Art Law Updates

The following case selection first appeared in this week's Center for Art Law newsletter:

• Marjorie Maciunas v. George Maciunas Foundation (N.Y., 2014) -- Plaintiff, resident of Virginia, agreed to sell three works by George Maciunas to the Foundation and she is seeking either return of the property or payment owed to her. Founded by Harry Stendhal in 2009, George Maciunas Foundation Inc. has been active since November 2011. George Maciunas was a Lithuanian-born American artist who died in 1978. Complaint does not seem to explain the relationship between the artist and eponymous plaintiff.

• Feritta III and Maclean v. Knoedler Gallery, 14 Civ. 2259 (S.D.N.Y. Apr. 1, 2014) -- Patterson Belknap Webb & Tyler LLP filed yet another complaint against Knoedler Gallery et all alleging selling a forged Rothko to their clients in 2008. The work that is now believed to be a forgery from the Rosales trove was titled Untitled (Orange, Red and Blue).

• Kolodny v. Meyer, Dorfman and Dorfman Projects LLP, 14 Civ. 3354 (S.D.N.Y. May 8, 2014) -- the case brought by Grossman LLP involves sale of multiple Jasper Johns artworks believed to be stolen by the defendant James Meyer, John's studio assistant. Plaintiff purchased some of the stolen art from Defendants having received assurances that the works could be lawfully sold by Defendants.

• Thome v. Calder Foundation, 14 Civ. 3446 (S.D.N.Y. May. 13, 2014) -- Calder Foundation continues making headlines, this time it is being sued for antitrust violations, including conspiracy of monopolization and restraint of trade, having denied authentication and inventory numbers for the stage set created before Calder's death.

The Center for Art Law strives to create a coherent community for all those interested in law and the arts. Positioned as a centralized resource for art and cultural heritage law, it serves as a portal to connect artists and students, academics and legal practitioners, collectors and dealers, government officials and others in the field. In addition to the weekly newsletter (http://cardozo.us2.list-manage.com/subscribe?u=78692bfa901c588ea1fe5e801&id=022731d685), the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog (http://itsartlaw.com/blog/)and calendar of events (http://itsartlaw.com/events/). The Center for Art Law welcomes inquiries and announcements from firms, universities and student organizations about recent publications, pending cases, upcoming events, current research and job and externship opportunities. To contact the Center for Art Law, visit our website at: www.itsartlaw.com or write to itsartlaw@gmail.com.

May 23, 2014

A Tough Pill to Swallow: Retired Players' Suit Raises Questions About NFL's Safety Record

By Alexandra Goldstein

Former National Football League (NFL) players filed suit in the U.S. District Court for the Northern District of California on Tuesday, May 20th, alleging that the NFL encouraged rampant painkiller use for players, at the expense of players' long-term health and well being. The suit, Dent et al v. National Football League (Case Number 4:14-cv-02324), comes on the heels of a class action concussion suit from retirees that similarly took aim at the NFL's safety record. Dent names eight plaintiffs and notes that more than 500 additional retirees have signed retention agreements to join the suit against the NFL.

The complaint points to a series of increasing demands on players, including a shorter off-season, the emergence of Thursday night games, and a longer season, all of which they claim have resulted in greater strain on players' bodies and less recovery time. In 1966, each of the NFL's 15 teams and the AFL's nine teams played a 14 game schedule, preceded by four pre-season games; only six teams advanced to the playoffs, making the post-season relatively short by today's standards. The suit contrasts the modest 1966 schedule with the NFL's current scheme, noting that the NFL has "expanded to 32 teams, each of which played a four game pre-season, 16 regular season games . . . and could face up to four post-season games if they played in the Wildcard game before advancing to the Super Bowl." The complaint alleges that the increased scheduling demands have given rise to a surge in injuries, leaving the NFL with the choice of benching players or leveraging their on-field time with the aid of prescription medications.

The players further assert that they were given little to no choice in the administration of various painkillers, and even less information about what they were ingesting. They point to the NFL's bottom line as a motivating factor: "[T]he NFL has illegally and unethically substituted pain medications for proper health care to keep the NFL's tsunami of dollars flowing." Former NFL defensive end and named plaintiff, Richard Dent, reveals a startling pattern of injury and medication throughout his 14-year career. He divulges that he "received hundreds, if not thousands, of injections from doctors and pills from trainers" and that "[n]o one from the NFL ever talked to him about the side effects of the medications he was being given." After breaking a bone in his foot during the 1990 season, team doctors advocated that he forego surgery, opting instead to increase his supply of painkillers, in order to keep him on the field. The complaint alleges that he now suffers from permanent nerve damage in the injured foot.

Former San Francisco 49er Jeremy Newberry, also a named plaintiff of the suit, alleges that the NFL administered a similar cocktail of prescription medication to keep him on the field; as a result, Newberry "has Stage 3 renal failure and suffers from high blood pressure and violent headaches for which he cannot take any medication that might further deteriorate his already-weakened kidneys." The complaint proceeds in detailing the starkly similar circumstances of the six additional named plaintiffs. While their individual claims arise from different time periods over the last 50 years, they allegedly "involve common questions of law and fact that predominate over individual issues."

The suit wades through a list of medications administered to players; while the plaintiffs acknowledge that "the specific medications have changed", the NFL has consistently administered opioids, non-steroidal anti-inflammatory medications (NSAIDs), and local anesthetics, namely Lidocaine. The alleged flagrant uses were done without prescriptions or consideration for any of the players' medical histories, in direct violation of the (1) Comprehensive Drug Abuse Prevention and Control Act, codified as 21 U.S.C §801 et seq., (2) Foods, Drug, and Cosmetic Act which gave rise to prescription-based medications, and (3) ethical obligations governing doctors.

To that end, the nine-count complaint includes counts of fraud, fraudulent concealment, negligent misrepresentation, negligence per se, loss of consortium, and negligent retention. The plaintiffs seek compensatory and punitive damages, as well as a court-supervised and "NFL-funded testing and medical monitoring program to help prevent the occurrence of [m]edication-caused addictions and other injuries."

To overcome the applicable statute of limitations, the plaintiffs point to the NFL's "intentional, reckless and negligent omissions" that concealed the underlying foundation for the suit. As a result, they assert that the statute is tolled.

The case has been assigned to Magistrate Judge, Kandis A. Westmore. The parties are due in court later this summer for a case management conference, scheduled for August 19, 2014 at 1:30PM PDT.

The complaint is available at: http://cbssanfran.files.wordpress.com/2014/05/2014-05-20-nfl-complaint.pdf

May 30, 2014

Week in Review

By Martha Nimmer

Don't Tread On My Trademarks

Claiming trademark infringement, unfair competition, trademark dilution, and breach of contract, footwear maker Keds, LLC (Keds) has sued shoemaker Vans, Inc. (Vans) in U.S. District Court in Massachusetts. The action arises from the defendant's alleged used of blue labels on the back heels of its sneakers.

In its complaint, Keds claims that Vans is selling at "least 21 types shoes bearing labels confusingly similar to Keds' trademarks in an effort to trade on the marks' goodwill." According to Lexology, "Keds owns two trademarks for the blue rectangular labels that it affixes to the heels of its shoes." Keds goes on to accuse Vans of knowingly infringing the Keds' blue label; according to the complaint, Keds has sued Vans for this trademark infringement before. Keds first took legal action against Vans in December 2011, but by August 2012, the two shoe companies had reached a settlement whereby Vans "agreed not to make or sell footwear that had rectangular labels on the heel in certain shades of blue." Specifically, Vans promised not to sell footwear bearing labels in the colors Marazine Blue, Blueprint, or Gentian Violet, or in any color "confusingly similar" to those three shades. Despite this agreement, Keds says, Vans continues to sell shoes with the infringing blue labels -- in fact, the 21 Vans shoes all have blue labels on the back heels, ranging in shades of blue-gray, light blue, neon blue and navy.

Keds has sought a permanent injunction to prevent Vans from using the infringing blue labels; the plaintiff has also asked the court to recall the shoes that sport the infringing labels, and pay Keds all of the profits that Vans made from the sale of these shoes.

http://www.lexology.com/library/detail.aspx?g=d43a10dd-d079-4694-a29e-feec786dd46f

The Show Must Go On

Claiming that a holographic Michael Jackson scheduled to appear at the Billboard Music Awards would violate two hologram patents, hologram technology companies Hologram USA, Musion Das Hologram and Uwe Maass went to federal court in Nevada seeking to enjoin the performance. Despite the companies' efforts, the holographic King of Pop danced and sang a new song, "Slave to the Rhythm" in front of a full audience at the MGM Grand Garden Arena in Las Vegas. The performance was broadcast nationally on ABC.

The plaintiff companies claim that defendant John C. Textor, a former business associate, used their technology to create the popular Michael Jackson hologram. Textor's company, Pulse Entertainment, is the lead defendant in the suit. The plaintiffs allegedly own the technology that was used to create a 3-D Tupac Shakur hologram that appeared during the 2012 Coachella music festival. Without this technology, the plaintiffs argue, the Michael Jackson hologram could not have been created. Unfortunately for the plaintiffs, U.S. District Judge Kent Dawson did not agree, ruling that the plaintiffs did not have sufficient evidence to stop the show. Howard Weitzman, an attorney for the Michael Jackson, said that the technology at issue is in the public domain, and derided the lawsuit as a "publicity stunt." Counsel for Hologram USA intends to continue the legal action. The plaintiffs seek a jury trial and damages for violation of the two patents.

http://www.entlawdigest.com/2014/05/20/3151.htm

Ballmer's $2 Billion Buy

Former Microsoft CEO Steve Ballmer will pay $2 billion for the Los Angeles Clippers basketball team, according to a statement issued by Rochelle Sterling, team co-owner and estranged wife of Donald Sterling. According to The New York Times, Rochelle Sterling has already signed the deal with Ballmer, and the contract will be sent to the NBA for final approval. If the sale of the Clippers goes through, the $2 billion price tag would be the highest paid for a professional basketball team. Ballmer, who is rumored to be worth $20 billion, "was already vetted by the league in 2013 when he was part of an investor group seeking to buy the Sacramento Kings," which means the process of acquiring the Clippers could move quickly.

A few challenges may lie ahead of the sale to the former Microsoft chief executive, however. Firstly, it is unclear how embattled team owner Donald Sterling will react to the sale. Previously, he had vowed to fight the league if it tried to force him to sell the team. It was rumored that he authorized his wife to meet and negotiate with prospective team buyers, but that she needed his power of attorney to finalize a deal. According to Donald Sterling's attorney, however, Rochelle Sterling does not have this authority. Sterling's attorney added that, "as incentive to agree to sell the team, Mr. Sterling wanted the N.B.A. to drop its charges that he had violated the league's constitution."

http://www.nytimes.com/2014/05/31/sports/basketball/steven-ballmer-buys-los-angeles-clippers-from-rochelle-sterling.html?_r=0

Keeping Kids Safe

Earlier this week, the White House announced a new series of initiatives focused on preventing traumatic brain injury and improving its diagnosis and treatment in children. Officials also announced a new commitment of $65 million of private funds to aid clinical and other scientific work.

In late 2013, President Obama remarked on the problem of head injuries in children, adding that if he had a son, he would not let him play pro football. In light of the Obama family's interest in sports and First Lady Michelle Obama's campaign to boost physical fitness among the nation's youth, the president has been eager "to raise awareness and boost research on something that 'really is a topic of conversation across the country.'"

Highlighting the importance of youth safety, President Obama met on Thursday with 200 sports officials, medical experts, parents and young athletes for the first White House summit on sports concussions, called the "Healthy Kids and Safe Sports Concussion Summit." The summit hopes to find "new ways to identify, treat and prevent serious head injuries, particularly in youth sports." Notably, this event comes nearly a century after President Theodore Roosevelt gathered Ivy League coaches and officials to the White House to warn them that they had to make football less deadly.

http://m.washingtonpost.com/politics/obama-to-host-a-white-house-summit-on-growing-conerns-over-sports-head-injuries/2014/05/28/d49e48ae-e5ac-11e3-afc6-a1dd9407abcf_story.html

About May 2014

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

April 2014 is the previous archive.

June 2014 is the next archive.

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