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Week In Review

By Chris Helsel

National Football League Successfully Sues For Right to View Photos of Relevant Evidence Before Determining Greg Hardy Punishment

It appears the National Football League (NFL, league) does not intend to make the same mistake twice. After receiving heavy criticism for its failure to fully investigate the circumstances of former Baltimore Ravens running back Ray Rice's domestic assault arrest prior to levying (and then drastically altering) punishment under the league's personal conduct policy, the NFL has now adopted a new approach: legal action to ensure full disclosure before making any disciplinary decisions.

In July of last year, star defensive end Greg Hardy, then of the Carolina Panthers, was found guilty by a Mecklenburg County (N.C.) judge of assaulting and threatening to kill his former girlfriend, Nicole Holder. The victim's account of the details of the case are quite disturbing. According to Ms. Holder, on May 13, 2014 at Mr. Hardy's apartment, Mr. Hardy picked her up and threw her into his bathtub. He then allegedly dragged her from the tub into his bedroom and choked her both hands while threatening to kill her. She claimed that Mr. Hardy then picked her up over his head and threw her onto the bed, which was covered with assault rifles and shotguns that he bragged were loaded. Ms. Holder was eventually allowed to escape and went immediately to the police.

Mr. Hardy immediately appealed his conviction. After playing in one game, he was deactivated by the Panthers for the remainder of the season and placed on the Commissioner's Exempt List. During this time, despite being ineligible to practice or play, he collected his annual salary of $13.1 million.

The July verdict was set aside under North Carolina law when Mr. Hardy requested a jury trial. However, all charges against the player were subsequently dropped when Ms. Holder refused to cooperate in the investigation after receiving a financial settlement from Mr. Hardy.

According to Mr. Hardy, he should now be eligible to play immediately, due to his "exoneration" in the case involving his assault of Ms. Holder. Under NFL rules, however, conduct policy violations do not require a criminal conviction. For instance, Pittsburgh Steelers quarterback Ben Roethlisberger was suspended for six games (the maximum allowed under the policy) in 2010 over an alleged sexual assault, despite the prosecutor's decision not to bring charges.

Clearly, the NFL does not wish to allow Mr. Hardy to escape discipline for his actions. Following the dismissal of charges, the league filed suit against the state of North Carolina seeking access to seven photographs of the victim's injuries, guns in Mr. Hardy's apartment and other evidence from the July 2014 bench trial in which he was found guilty. According to the complaint, the seven photographs were introduced at trial but the league could not access them because they were not included in the police investigative file.

On Wednesday of this week, a Mecklenburg County judge signed a protective order that will allow the NFL, the NFLPA (players union), Mr. Hardy and his attorney to view the photographs in question without the district attorney's office relinquishing custody of them. This access will allow the league to further build its case in support of suspending Mr. Hardy under the conduct policy. Mr. Hardy faces a maximum suspension of six games (of a 16-game season).

Last month, Mr. Hardy signed a one-year contract with the Dallas Cowboys. The contract includes a base salary of $11.3 million ($13.1 million including incentives) and a stipulation that the club will withhold $578,125 for each game he misses due to suspension.


Singer Judith Hill Sues Producer in New York; Producer Responds By Suing Prince in Los Angeles

Music icon Prince has been sued by a producer for the singer Judith Hill after he sent a free download link to Ms. Hill's debut album to his mailing list. Ms. Hill, however, does not support her producer's lawsuit and has sided with Prince in the dispute.

The underlying issue arose when Ms. Hill, who is a former backup singer for Michael Jackson and has appeared on the television show "The Voice," began collaborating musically with Prince, despite allegedly still being under contract with producer Jolene Cherry. Ms. Cherry alleges that in doing so, Ms. Hill violated her exclusive contract.

According to the Ms. Cherry, Ms. Hill sought permission to record with Prince, which was denied. She then allegedly brought music on which she and Ms. Cherry had been working to Prince, who collaborated with the up-and-coming singer and released the music for free online.

Ms. Cherry has now brought suit against Prince in Los Angeles County Superior Court (Ms. Hill is not named as a defendant). In the complaint, Ms. Cherry alleges that "the people who paid hundreds of thousands of dollars to develop her career and album and worked to position Hill for her first release (as well as those who co-wrote many of the songs) are sitting dumbfounded on the sidelines while Prince gives away their investment for free."

The suit accuses Prince of tortuously interfering with the contract between Ms. Hill and Ms. Cherry and seeks unspecified compensation and punitive damages. The suit contends that Prince's free release of the album online made it economically unfeasible for Ms. Cherry to ever release the album.

While Ms. Hill is not named in Ms. Cherry's Los Angeles suit, she herself has also brought an action seeking to confirm that she had the right to collaborate with the "Purple Rain" singer. On March 25th (prior to Ms. Cherry's action), Ms. Hill brought suit against Ms. Cherry in New York Supreme Court.

Ms. Hill's attorney, Peter Haviland, said in a statement: "This (Los Angeles) lawsuit is crazy. Prince has done absolutely nothing wrong. Judith Hill was and is absolutely free to perform her music as she has done. She sued in New York on March 25 to confirm that she was free and to stop Cherry from continuing to bother her. Now in response Cherry counter-sues, in Los Angeles - improperly - even though a case is already pending against Cherry in New York."

Ms. Hill's suit alleges that Sony Music cut ties with Ms. Cherry's company, The Cherry Party, several months ago and that Ms. Cherry soon thereafter severed her contract with Ms. Hill. At that point, says the complaint, Ms. Hill became "an independent artist, not bound by contract to anyone."

Curiously, the New York suit also alleges that (presumably because she was upset over Ms. Hill's collaboration with Prince, and/or Sony's decision to end their relationship) Ms. Cherry purposefully conspired against Ms. Hill by planting a story to the gossip-news site TMZ that she had recorded a love song dedicated to North Korean Supreme Leader Kim Jong-Un.

In a statement, Mr. Haviland declared that Ms. Cherry's Los Angeles suit was "nothing but a publicity stunt." He continued, "It is a shame that Prince has been dragged into this insanity. But Judith Hill will not be deterred from performing her music by the likes of some Jolene Cherry."


"Three's Company"-Inspired Off Broadway Play Wins Suit

On Tuesday, Judge Loretta A. Preska of the Southern District ruled that "3C," an Off Broadway reimagined version of the sitcom "Three's Company," did not infringe the show's copyright. The play, which ran for two months at Rattlestick Playwrights Theater in 2012, featured a similar plot to the hit TV show but included some darker elements, including profane language and sexual situations.

On the play's opening night, its writer received a cease and desist letter from DLT Entertainment, which holds the copyright to "Three's Company." The writer, David Adjmi, says that he continued to run the show but was unable to license it for other publications or publish the script due to the threat of litigation. Negotiations were unsuccessful and Mr. Adjmi ultimately sued DLT in federal court seeking to resolve the issue.

In her decision, Judge Preska concluded that while "3C" did borrow heavily from "Three's Company," the play represented a "drastic departure" from the TV show. She determined that the play was "a highly transformative parody of the television series", which posed "little risk to the market for the original."

Following the ruling, DLT president Donald Taffner Jr. said in a statement that the company was "surprised and disappointed" by the ruling and would be "reviewing our options." He also complained that the decision was made prior to discovery and without the court having a chance to actually view the play, either live or on tape.


Dutch Royal Family To Return Nazi-Stolen Painting to Rightful Owners

In November 2013, Queen Maxima of the Netherlands commissioned a review of thousands of paintings acquired by the Dutch royal family since 1933 in order to verify their provenance and identify any works that were improperly seized by Nazi forces prior to and during World War II. This week, it was announced that two paintings raised suspicions, one of which was verified to have been obtained improperly and will be returned to its rightful owners.

The painting to be returned is a realistic depiction of the Hague forest by the Dutch Golden Age painter Joris van der Haagen from the 17th century. Records uncovered by investigators revealed that the painting had been stored in the Lippman, Rosenthal & Company bank in Amsterdam, where Nazi officials forced Dutch Jews to deposit their valuables prior to their deportation to concentration camps during World War II. The painting was subsequently purchased by Queen Juliana from an art dealer in 1960 "without knowledge of the provenance." Since then, it has hung in the royal family's private residence, Noordeinde Palace. Following the review, Queen Maxima announced that it will be returned to its rightful owners, who have chosen to remain anonymous.

Another painting, "Landscape with Saint Hubertus" by the 16th-century artist Paul Bril, also raised suspicions but will not be returned. The painting was purchased in 1948 by Queen Juliana from Hans Fischböck, an Austrian banker who was an SS officer and the Third Reich's finance minister in Holland during the war. Mr. Fischböck, who fled to Argentina after the war, was in charge of seizing property from Dutch Jews during his time in the country.

Investigators believe that the painting belonged to Henri Joseph Gosschalk, a Jewish Dutch painter and concentration camp survivor. However, although Mr. Gosschalk previously recovered other paintings he was forced to deposit at the Lippman bank, he never declared the loss of the Bril painting and investigators were unable to date his ownership of the work. Regarding the Bril painting, the review concluded that "archives are inconclusive about who was the owner of the painting around the end of 1939 and beginning of 1940."


University of Kentucky Claims Exclusive Right to '40-0," Despite Vendor's Trademark

Entering this weekend's National Collegiate Athletic Association (NCAA) Final Four action, the University of Kentucky (university, UK) men's basketball team has played 38 games - and lost none of them. They have already won more games in a row to start a season than any team in college basketball history, and can cap the first Division 1 undefeated season since 1976 with just two more wins.

This fact has not gone unnoticed by those seeking to profit from the mark "40-0" - that is, 40 wins and zero losses. In October 2013, Louisville attorney David Son filed for his company, 40-0 LLC, to be incorporated in Kentucky. That was the same time, he claims, that he sold his first t-shirt with the "40-0" mark on it via his website, 40and0.com. The company was dissolved in August 2014, but Mr. Son applied for and was approved to have the company reinstated on March 9th of this year. He also filed for the "40-0" trademark in February.

Now, as the Wildcats stand on the precipice of becoming the first 40-0 team in NCAA basketball history, the university is seeking to prevent Mr. Son or anyone else from using the "40-0" mark in connection with the school. Last week, it sent a cease-and-desist letter to Mr. Son, who is selling blue-and-white (the school's colors) t-shirts and other apparel with the mark on his website.

The website, which describes its products as "Fan-Made Free Speech Wear," also sells 40-0 clothing in other colors. Notably, however, the first seven (of nine) products currently advertised on the site feature the blue-and-white color scheme.

The site explicitly states that it is "not affiliated with any university or professional organization."

Jim Aronowitz, general counsel of the university's licensing agent, Fermata Partners, told ESPN: "We are well aware of third parties attempting to capitalize on the historic season of the University of Kentucky men's basketball team. As the University's licensing agent, we are working to vigorously protect UK's trademark rights in the marketplace from those that use the institution's indicia without permission."

Mr. Son's attorney, Brian McGraw, on the other hand, believes his client has done nothing wrong. "My client took all the steps he needed to take to establish ownership of 40-0," he said. "There's no evidence that the University of Kentucky owns any rights to 40-0." Mr. McGraw also said that his client would have no problem if "40-0" appeared on official UK merchandise, but "Where we would draw the line is if the school started using '40-0' as a stand-alone brand instead of just the matter-of-fact record of the team."

Interestingly, aside from the cease-and-desist letter the university has made no effort to specifically trademark "40-0." They instead contend that Mr. Son's sale of "40-0" products in Kentucky colors improperly trades upon the university's brand without permission.

As it stands, any legal action is not yet ripe - 38-0 is, after all, not 40-0. If the Wildcats can manage to triumph over Wisconsin on Saturday and either Duke or Michigan State Monday night, however, this dispute may well reach the courts. Stay tuned.


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This page contains a single entry from the blog posted on April 4, 2015 8:12 AM.

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