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Week In Review

By Chris Helsel

Federal Court Upholds Repeal of Redskins Trademark

Judge Gerald Bruce Lee of the Eastern District of Virginia ruled this week that the U.S. Patent and Trademark Office's appeal board was correct in cancelling six trademarks held by the Washington Redskins (team, club) of the National Football League (NFL).

The appeal board cancelled the trademarks last year after determining that the word "redskin" "may disparage" Native Americans. The team appealed the decision in federal court last August, with team president Bruce Allen insisting that "the facts and the law are on the side of our franchise that has proudly used the name Redskins for more than 80 years."

Judge Lee disagreed, though his decision emphasized that fans of the club would not be precluded from "wearing or displaying the Redskins marks." However, while fans can still sports Redskins gear, federal customs agents are no longer required to confiscate Redskins merchandise that enters the country. As a result, the club is not protected from counterfeit merchandise, which is likely to harm official NFL vendors such as Nike and New Era.

In addition to damaging the club (and league, because all NFL teams except the Dallas Cowboys share merchandise revenue) financially, the decision provides additional ammunition for opponents of the Redskins moniker, who have long called for the NFL to force a name change. These vocal opponents include numerous Congressmen, some of whom have publicly called on NFL commissioner Roger Goodell to prohibit the club from using the name. Following this week's ruling, Senator Maria Cantwell (D-Wash.) said in a statement, "The N.F.L. should stop allowing this name to be used immediately. It remains clear they are on the wrong side of history for continuing to defend the name -- and the profits they make from this slur will be severely impacted by this decision."


ESPN's Publication of Jason-Pierre Paul's Medical Records Raises Legal, Ethical Concerns

Over the 4th of July weekend, New York Giants defensive end Jason Pierre-Paul sustained a serious injury to his right hand in a fireworks accident in Florida. In the days that followed, speculation ran rampant as to the exact extent of Mr. Pierre-Paul's injuries. On July 8th, ESPN's Adam Schefter reported that the player's right index finger had been amputated, and posted an image of a hospital record to prove it.

Unsurprisingly, the public production of a confidential hospital record has drawn significant criticism. Such a disclosure raises substantial questions of both legality and ethics, and many believe that Mr. Pierre-Paul will seek legal recourse against ESPN, Miami's Jackson Memorial Hospital and/or the individual who provided the image.

While the source of the image is currently unknown, the hospital has pledged to open an "aggressive" investigation into the release of Mr. Pierre-Paul's pre-surgery medical chart. In an interview last week, Mr. Schefter insisted that he did not seek the photo out, but rather "the image came to [him]."

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) protects the privacy of a patient's medical records. Under HIPAA, unauthorized release of a patient's medical records is forbidden. As such, if the source of the image were identified, that individual would face steep fines and potential jail time.

However, because HIPAA applies only to a specific list of medical professionals (and therefore not to the media), it appears that ESPN and Mr. Schefter did not act in violation of the federal law in publishing the medical record. ESPN was quick to point that fact out last week, responding to the widespread criticism with a brief statement: "HIPAA does not apply to news organizations."

While a suit against ESPN and Mr. Schefter likely would fail, Mr. Pierre-Paul may also consider bringing suit against hospital for the unauthorized disclosure of medical records.

In addition to the controversy over his medical records, Mr. Pierre-Paul faces a complicated contractual situation in the wake of his self-inflicted injury. At the time of the injury, the defensive star was not officially under contract with the Giants. Rather, he had been designated as the team's "franchise player," a provision by which an NFL club can strategically retain the rights to a free agent player who spent the previous season with the team. In simple terms, under the franchise tag, a player is obligated to remain with his team for one season at a salary equal to the average of the league's top five players at his position.

At the time of his injury, Mr. Pierre-Paul had not yet signed the club's franchise tender, and as such was permitted to continue negotiating a long-term contract with the team. Reports indicate that the Giants had offered him a multi-year contract in the neighborhood of $60 million - an offer that evaporated following the unfortunate fireworks mishap.


Rapper Kendrick Lamar Faces Lawsuit Over Artwork Used to Promote Single

Kendrick Lamar Duckworth, known professionally as Kendrick Lamar, has been sued by a freelance photographer in New York federal court over the use of an image to promote his latest single, "The Blacker the Berry."

According to the suit, which seeks $150,000 for each time the image was used, the rapper used a photograph of a woman breastfeeding two children simultaneously taken by Giordano Cipriani in Africa in 2011 to promote the single - without providing compensation to the photographer. The suit also names Top Dawg Entertainment, Interscope Records, and Aftermath Entertainment as defendants.

Mr. Duckworth has also been sued at least twice before for allegedly using samples of other artists' songs without proper permission or granting writing credits.


Brooklyn Street Artist Sues Starbucks Over Mini Frappuccino Promo Campaign

Brooklyn-based street artist Maya Hayuk has filed suit against Starbucks for copyright infringement. The suit, brought in Manhattan federal court, contends that the coffee company improperly used her artwork to promote its new Mini Frappuccino product without providing compensation.

Ms. Hayuk alleges that Starbucks reached out to her last fall about potentially using her work in its upcoming campaign. "We love your work," said the company, according to the complaint. The artist apparently declined the offer.

According to the suit, following her refusal to cooperate, Starbucks "brazenly created artwork that is substantially similar to one or more of Hayuk's copyrighted works and used the substantially similar art for the Frappuccino campaign. The Frappuccino Campaign is essentially identical to the Starbucks campaign (advertising agency 72andSunny) proposed to Hayuk."

The complaint includes a side-by-side comparison of five of Ms. Hayuk's works to Starbucks promotional materials, which she contends improperly imitate the kaleidoscopic, brightly-colored radiating beams that are the artist's style.

Ms. Hayuk claims that the infringing advertisements appear in "many, if not all, of Starbucks' over 21,000 retail locations in 66 countries" as well as the company's website in the U.S., U.K., Canada, France and Germany.

The suit seeks $150,000 per infringed-upon painting and a share of the Mini Frappuccino profits.

Ms. Hayuk has also recently sued singer-songwriter Sara Bareilles and luxury brand Coach for featuring one of her murals in advertisements without permission.


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This page contains a single entry from the blog posted on July 14, 2015 5:42 PM.

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