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Week in Review

By Chris Helsel

Sirius XM Denied Summary Judgment in NY Copyright Dispute

Following a defeat in California federal court, Sirius XM (Sirius) has suffered yet another setback in its copyright dispute with "Happy Together" rockers, The Turtles. Flo & Eddie, Inc. (F&E), a corporation created and owned by two of The Turtles' founding members that owns all rights to the band's master recordings, has brought suits against Sirius in three states for copyright violation. This week, a federal judge in New York denied the satellite radio company's summary judgment motion. In so doing, the Southern District of New York ruled that while the Federal Copyright Act does not protect music recorded prior to 1972, New York state law does. The court concluded that "the New York Court of Appeals would recognize the exclusive right to public performance of a sound recording as one of the rights appurtenant to common law copyright in such a recording." Further, the court declined to distinguish between holders of copyrights in sound recordings and any other industry, holding that "common law copyright in sound recordings comes with the entire bundle of rights that holders of copyright in other works enjoy."

The court also ordered Sirius to show cause by December 5th why summary judgment should not be ordered in favor of F&E.

In addition to California and New York, F&E also has similar litigation pending against Sirius in the Southern District of Florida. A win for F&E in Florida could open the door to a flood of lawsuits brought against both digital and traditional AM/FM music providers for unauthorized use of pre-1972 music recordings.


NBA, NFL Brace for Challenges to Domestic Violence Suspensions

On Tuesday, following a hearing conducted the previous day via conference call, National Football League (NFL) commissioner Roger Goodell announced that Minnesota Vikings running back Adrian Peterson was suspended without pay for the remaining seven games of the 2014 season after his plea of no contest to misdemeanor reckless assault. Peterson was originally indicted on felony child abuse charges for assaulting his four-year-old son with a "switch" (a thin tree branch, essentially). Following his indictment, the league placed Peterson on the Commissioner's Exempt List, which prohibited him from games and team activities but allowed him to continue to be paid. The suspension does not require Peterson to pay back any money earned to this point.

In suspending Peterson, Commissioner Goodell cited three aggravating factors that led to the harsher punishment: the child's age, Peterson's use of a weapon, and his failure to show "meaningful remorse" for his conduct. At the time of his indictment, Peterson stated that he would not "eliminate whooping (his) kids" and defended his conduct in texts to the boy's mother. Goodell's letter to Peterson informing him of the suspension stated: "These comments raise the serious concern that you do not fully appreciate the seriousness of your conduct, or even worse, that you may feel free to engage in similar conduct in the future."

On Wednesday, the NFL Players Association NFLPA (players union) filed an appeal on Peterson's behalf. It is believed that the appeal will focus on the vast discrepancies between punishments handed down to different players for similar infractions, and allege that the NFL has engaged in ex post facto lawmaking by applying its newly-enacted domestic violence policy to Peterson, whose infractions occurred prior to the announcement of the new policy.

Under the 2011 Collective Bargaining Agreement, the commissioner has the sole power to determine discipline under the player conduct policy, as well as to hear any appeal. While this system has come under heavy criticism of late, it is the result of good faith, arms-length bargaining, as the league office has been quick to point out. Nevertheless, Peterson and the union have requested that Goodell recuse himself as the appeal officer and that a neutral arbitrator hear the appeal instead.

Meanwhile, two blocks west of NFL headquarters, National Basketball Association (NBA) brass entered the domestic violence discussion this week as well. Commissioner Adam Silver announced Wednesday that Charlotte Hornets forward Jeff Taylor was suspended without pay for 24 games after Taylor pleaded guilty in October to misdemeanor domestic violence assault and malicious destruction of hotel property. He received probation and must complete a domestic violence intervention program.

NBA bylaws give the commissioner broad power to discipline players for conduct policy violations, but differ from NFL rules in that a suspended player has the right to file an appeal directly to an independent arbitrator. The NBA players' union, the NBPA, has indicated that it is prepared to do exactly that.

Newly elected NBPA executive director Michele Roberts said on Thursday that the suspension is "excessive, without precedent and a violation of the Collective Bargaining Agreement." She noted that the NBA CBA calls for a minimum 10-game suspension in cases involving a violent felony conviction - and that Taylor's case was merely a misdemeanor, which could be dismissed following the 18-month probationary period. Roberts also noted that the decision to appeal has not yet been made, but the union stands behind Taylor in the event he decides to pursue that route.

It should be fascinating to follow these two concurrent cases in the coming months, as they highlight both the increased emphasis professional leagues are placing on the discipline of players involved in domestic disputes and the crucial differences in the disciplinary and appeals processes of the NFL and NBA.


Court Saves Detroit Institute of Arts' Irreplaceable Collection

U.S. Bankruptcy Court Judge Steven Rhodes' recent approval of the beleaguered city's bankruptcy restructuring plan ensures that the Detroit Institute of Arts (DIA) will not be forced to sell off its precious masterpieces to pay creditors. Under the "great bargain" approved by Judge Rhodes, the museum, which attached itself to the city in 1919, will now become a private charitable organization. The plan calls for a coalition of foundations, state government and the DIA to contribute the equivalent of $816 million over 20 years as a proxy for the value of the museum. The DIA itself will contribute $100 million. The funds will be distributed to pensioners in an effort to mitigate against the pension cuts included in the city's restructuring plan.

The judge, who declared that the DIA was "critical" to the future of the city, stopped short of declaring a sale of the museum's art to pay the city's creditors illegal, although he did hint that the DIA would "almost certainly" prevail if it sued to prevent such a sale. Previously, the Michigan attorney general had opined that a forced sale was unlawful because the DIA was held for the public benefit in a charitable trust.

In approving the bankruptcy restructuring plan, Rhodes said in his address from the bench: "The evidence unequivocally establishes that the DIA stands at the center of the city as an invaluable beacon of culture, education for both children and adults, personal journey, creative outlet, family experience, worldwide visitor attraction, civic pride and energy, neighborhood and community cohesion, regional cooperation, social service and economic development."

Thankfully, despite its bleak financial situation, Detroit was able to avoid resorting to the regrettable and irreversible measure of selling its finest museum's precious masterpieces. As George N'Namdi, founder of the N'Namdi Center for Contemporary Art in Detroit, so astutely noted, a forced sale of art would have sunk morale to a new low and "destroyed the image of the city in the eyes of the world...It would represent such a defeatist position to be in, and I don't think the city could have ever recovered from that."


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This page contains a single entry from the blog posted on November 21, 2014 4:07 PM.

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