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January 2, 2016

2015 Year In Review (Plus Last Week of 2015 Week In Review)

By Zak Kurtz

Fédération Internationale de Football Association Corruption Scandal Highlights 2015

For years, many have claimed that the Fédération Internationale de Football Association (FIFA) is the most corrupt sports organization in the world, but it took the events of this year to officially prove that. With only a week left in 2015, former FIFA President Sepp Blatter and Union of European Football Associations (UEFA) head Michael Platini each received eight-year bans handed down by FIFA. 2015 also saw the United States Department of Justice announce a large scale investigation focusing on FIFA. This ultimately led to the arrest and indictment on corruption charges of many FIFA officials. While he was being investigated, then-President Sepp Blatter somehow won re-election, but was forced to resign before he was officially banned. The bizarre but not shocking FIFA scandal is uncovering more and more each day, and most of the organization's top officers are no longer there. Additionally, Central American and Caribbean Association Football (CONCACAF) will now be governed by a committee instead of solely by one individual, as its past three presidents have all been indicted.

After Decades of Sexual Misconduct Allegations, Bill Cosby Is Finally Indicted

For decades, Bill Cosby has been followed around by allegations of sexual misconduct. In 2015, prosecutors finally charged him with sexual assault in a criminal court, which was something that many people, including Cosby's victims, never thought would occur. Last Wednesday, a Pennsylvania court charged Cosby with sexual assault, based on the accusations of a woman who stated that he drugged and sexually abused her at his home in a north Philadelphia suburb in 2004.

http://www.nytimes.com/2015/12/31/business/media/bill-cosby-charged-in-sexual-assault-case.html

Daily Fantasy Sports Drama Takes Off in 2015, Setting Up a Fun 2016

Fantasy sports and sports gambling started off with a bang in 2015, as New Jersey was believed to be on the forefront of legalizing sports betting. However, the Third Circuit teased Governor Christie by saying no to legalizing sports betting. Since the original decision in early 2015, there has been some momentum shifting the other way, and the Court will be rehearing the case.

In addition, after hearing a DraftKings add every 30 seconds during the month of September, legislators in many states started taking a closer look at the daily fantasy sports (DFS) industry, mainly targeting top dogs DraftKings and FanDuel. To date, only Massachusetts has taken a sympathetic approach to the DFS industry, while almost all other states refused to allow these sites to continue to do business. Nevada was the first to make DFS sites obtain licenses to conduct business. New York, through Attorney General Eric Schneiderman, has filed lawsuits against DraftKings and FanDuel, and is attempting cease all DFS contests in the state by claiming that they are illegal gambling. The multi-billion dollar industry is sure to see a plethora of future lawsuits and regulations in 2016.

Music Streaming Royalties High, But Not High Enough for Music Industry

Starting January 1, 2016 the music industry will be making a little extra money from streaming services. The Copyright Royalty Board (CRB) set new streaming music rates for 2016, at 17 cents per 100 plays on free, ad-supported services and 22 cents on subscription-based platforms. These rates were set by federal judges last week, and are not as high as the music industry desired. In comparison, the rates are up from the 14 cents per 100 plays on ad-supported streaming; however, they are down from 25 cents on subscription services. The blended rate is now higher, jumping from 15.3 cents per 100 plays to 17.6 cents. This means that the music industry will get millions of dollars more in revenue. However, that was not enough for SoundExchange, the organization that advocates on behalf of recording artists and record labels. SoundExchange claimed that the ruling will ultimately hurt artists and the music industry. In addition, music publishers and songwriters are seeking greater amounts as well.

http://fortune.com/2015/12/17/music-industry-streaming-royalties/

Jury Awards $25 Million in BMG Rights Management v. Cox Communications

Internet Service Provider (ISP) Cox Communications must pay music publisher BMG Rights Management $25 million to end a lawsuit stemming from the ISP turning a blind eye to illegal music downloads. A Virginia federal jury decided that the defendant was guilty of willful contributory copyright infringement.

Baseball Announcing New Net Policy, Sort Of

Last week, after the Major League Baseball owners' meeting, Commissioner Rob Manfred's office issued a press release outlining a new netting policy. Under the policy, teams are "encouraged", but not "required", to extend the netting behind home plate an additional 70 feet or so down the foul lines, to the "near ends of both dugouts." It also called on teams to "explore ways to educate their fans" on the inherent dangers of sitting close to the action and the importance of paying attention.

The commissioner's policy also wants teams and ticket vendors to explain to the fans which seats are protected, and which are not, when tickets are purchased. This decision comes on the heels of several serious fan injuries last season from foul balls and broken bats. Many critics view the new policy as comical and with no teeth or incentive for MLB clubs to change anything. Several lawsuits on this matter were filed in 2015, and the outcome of those might cause the commissioner's office to pay more attention to this matter.

http://www.nytimes.com/2015/12/19/sports/baseball/baseball-has-a-new-policy-on-netting-but-theres-a-catch.html?_r=0

Congress Approves Broadway Tax Benefit

Congress approved a tax law change in live theater, providing theatrical productions the same tax incentives and opportunities from which film and TV industries benefit. Broadway producers say that it will encourage investment in commercial theater. The tax law change would provide an incentive for investors in live theatrical productions, by accelerating deductions and by ending the practice of requiring the payment of income tax on what producers call 'phantom profits', which is "money returned to investors that is less than the amount they had initially invested," according to Michael Paulson of the New York Times. Paulson stated that investment in theater is highly risky, and that most Broadway shows fail financially. (See Marc Jacobson's in-depth analysis of this topic at http://nysbar.com/blogs/EASL/2015/12/congress_gave_certain_entertai.html)

http://www.nytimes.com/2015/12/19/theater/broadway-tax-benefit-approved-by-congress.html

Redskins Trademark Drama

The Washington Redskins have faced criticism over the 'Redskins' name. However, it was not until 2015 that the United States Patent and Trademark Office cancelled the six registered trademarks in that name. The team is now in a high-profile case with the government. Redskins officials, including owner Daniel Snyder, have rejected calls by Native American groups and President Obama to change the name.

Two weeks ago, the United States Court of Appeals for the Federal Circuit in Washington made a ruling in a case with very similar legal arguments as the Redskins case. In this case, the Federal Appeals Court ruled that the First Amendment "forbids government regulators to deny registration because they find the speech likely to offend others." The Court struck down part of the law that let the government reject trademarks it deemed offensive or disparaging to others.

Writing for the majority, Kimberly A. Moore said: "It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys." The ruling overturned a previous decision by a three-judge panel of the Court that had upheld the United States Patent and Trademark Office's rejection of a band's application.

The most recent decision allowed an Asian-American dance-rock band to register a trademark for its provocative name, the Slants. The ruling could bolster the Washington Redskins' legal case to keep the registered trademarks to it name. Lisa Blatt, a partner at Arnold & Porter who is part of the Redskins' legal team, stated that the team has been following this case very closely, and that it views the recent decision as a something of a victory for the Redskins.

http://www.nytimes.com/2015/12/23/sports/football/washington-redskins-trademark-nickname-offensive-court-ruling.html?_r=0

'Happy Birthday to You' Case Settled

One of the most closely followed cases of 2015 was eventually settled. Warner/Chappell Music settled the greatly anticipated class action 'Happy Birthday to You' copyright case in order to avoid further litigation as to how much it must repay to those who licensed the rights to use the song.

Pistorius Found Guilty of Murder by Appeals Court

On December 3, 2015, Oscar Pistorius was convicted of murder by a South African appeals court. The Supreme Court of Appeal overturned a lower court's conviction on the less serious charge of manslaughter. The decision added another layer to the terrible tragedy that followed the celebrity athlete's plunge from greatness.

http://espn.go.com/olympics/trackandfield/story/_/id/14278674/oscar-pistorius-found-guilty-murder-appeal-manslaughter-conviction-overturned?ex_cid=sportscenterFB&sf16335063=1

CBS Sued Over Lullaby Used in The Big Bang Theory

Edith Newlin's daughters, the heirs to a New Hampshire teacher who wrote a poem about a "soft kitty" in the 1930's, filed a copyright lawsuit against CBS and other media-related companies over the use of a song that has been repeatedly used on "The Big Bang Theory" television show without their permission. The lawsuit claims that characters from "The Big Bang Theory" have periodically sung a lullaby called "Soft Kitty" to comfort the character physicist Sheldon Cooper. The lawsuit claims that the song has been sung a total of eight times on the show throughout the years when the sitcom has aired.

http://www.nytimes.com/2015/12/30/arts/television/big-bang-theory-is-accused-of-stealing-soft-kitty-lyrics.html

January 7, 2016

Class Action Filed Against Spotify for Copyright Infringement

By Joel L. Hecker

David Lowery, individually and on behalf of others similarly situated, has filed a class action against Spotify USA, Inc.(Spotify), alleging that Spotify has, and continues to, unlawfully reproduce and/or distribute copyrighted musical compositions to more than 75 million users via its interactive commercial music streaming service, as well as its offline listening service.

The complaint was filed on December 28, 2015 in the United States District Court for the Central District of California, Civil Action Case Number 15-cv-09929 (BRO) (RAO), and seeks injunctive relief to enjoin Spotify from continuing such alleged copyright violations, to have a third party auditor appointed to identify the owners of the works reproduced and/or distributed by Spotify without Spotify's first obtaining a mechanical license prior to such reproduction and/or distribution, and to require Spotify to remove all such works from its services until it obtains proper licenses for them. The plaintiff also seeks restitution of Spotify's alleged unlawful proceeds, including Spotify's gross profits, compensatory damages in an amount to be ascertained at trial, statutory damages as authorized by the Copyright Act, as well as attorney fees and costs and pre- and post-judgement interest.

Statutory damages may be awarded in the court's discretion up to $30,000 for each infringed work and, if willful, up to $150,000 per infringed work, plus attorney's fees. Therefore, given the scope and breadth of the purported class, the potential damages may well exceed $100 million (of course, these are all just allegations subject to proof of liability and of damages, assuming that class action status is granted).

The plaintiff, David Lowery, alleges he has been a fixture of the music industry for decades, is a prolific songwriter and producer as well as the author or co-author of more than 150 songs for his popular groups Cracker and Camper Van Beethoven.

Spotify, the defendant, is an interactive commercial music streaming service (among other services) that operates an Internet website (www.spotify.com), which permits users to customize listening choices for recorded music and to create Internet "radio stations." It is alleged in the complaint that Spotify claims to have played over 25 billion listening hours of music since its launch seven years ago. Attached to the complaint to substantiate this claim is an announcement by Spotify to the public boasting of such broad reach.

The complaint further alleges that Spotify offers its services to the public via both free non-subscription and premium paid subscription bases. Paid subscribers enjoy numerous specified benefits and users of its premium service pay a monthly fee of $9.99. Specifics of these services can be found at Spotify's website.

The complaint also alleges that Spotify claimed in writing in an exhibit attached to the complaint that as of June 10, 2015, it has 75 million active users and 20 million paid subscribers, and that it has paid more than $3 billion in royalties. In addition, the complaint alleges that Spotify sells the right to advertise to users on its website and mobile applications to earn revenue above and beyond paid subscriptions.

Spotify's alleged "egregious and willful violations" of the plaintiff's and the class members' rights as contained in the complaint refer particularly to Spotify's recent admissions regarding its failure to obtain licenses for the musical works it distributes and reproduces, as well as its failure to compensate copyright owners for its use of their works. In support of these allegations, the plaintiff attaches as an exhibit to the complaint Spotify's May 23, 2014 Comments to the United States Copyright Office's Notice of Inquiry made in connection with the Copyright Office's Music Licensing Study. In those comments, Spotify admits, it is alleged, that in some instances, "Spotify may not be able to identify the copyright owners from the sound recordings provided to Spotify". In addition, it is alleged that Spotify failed to pay songwriter royalties to a publishing company approximately 21% of the time.

One of the major issues raised by this complaint is the system in the U.S. for licensing music, which predates the Internet and all that it entails concerning distribution of music in mobile, streaming and other formats. The inability or difficulty to obtain consents from many of the varied owners of music rights has brought to the fore the tension between the presumed right of the public to gain access to the music, and the copyright owners' right to control the reproduction and distribution of their copyrighted works. A final solution probably should involve federal legislation, but given the mood of Congress these days, that seems highly unlikely, to say the least.


January 8, 2016

Week in Review

By Michael B. Smith

Spotify Sued over Royalties

Songwriter David Lowery, of Cracker and Camper van Beethoven, has filed a class action complaint against music streaming giant Spotify in the Central District of California. Lowery alleges that Spotify failed to pay royalties to "[a]ll owners of mechanical distribution and reproduction rights in musical compositions...reproduced or distributed by Spotify without license or authorization...." In addition to statutory damages under the Copyright Act, the complaint asks the court to order Spotify to engage a third party auditor to identify the allegedly aggrieved copyright holders and to restrain Spotify from using the works at issue until it obtains licenses.

The complaint was filed just days after Spotify announced that it would build a "comprehensive publishing administration system" to solve the problem of "missing, wrong, or incomplete" data necessary to identify rightsholders.

http://www.billboard.com/articles/business/6836005/spotify-150-million-lawsuit-explained

http://nysbar.com/blogs/EASL/2016/01/class_action_filed_against_spo.html

Artist Sued over Instagram Printout

Richard Prince, an "appropriation artist" whose works include photographs of others' photographs, has been sued (again) for copyright infringement. Donald Graham, a photographer, filed a copyright infringement complaint against Prince and his gallery in the Southern District of New York. Graham owns the copyright to what is described in his complaint as "a somber black and white portrait capturing a Rastafarian man in the act of lighting a marijuana cigarette." The allegedly infringing work is a photograph of a piece of paper on which is printed an Instagram post, including a comment by Prince, of a cropped copy of Graham's photograph. According to the allegations in the complaint, Prince featured the allegedly infringing work on, among other things, a billboard over the West Side Highway at 50th Street.

In 2013, the Second Circuit partially reversed a judgment of infringement against Prince, finding that his incorporation of another artist's photographs into most of the allegedly infringing works was transformative, and therefore fair use. (See Cariou v. Prince, 714 F.3d 694 (2d. Cir. 2013).) More recently, when Prince sold printouts of another Instagram post for $90,000, the poster responded by selling virtually identical works for $90.00.

http://www.theguardian.com/artanddesign/2016/jan/04/richard-prince-sued-copyright-infringement-rastafarian-instagram

Monkey Can't Own Copyright

The latest chapter of the ongoing "Monkey Selfie" saga has just been written by the Northern District of California. In a tentative opinion on the defendants' motion to dismiss, Judge William Orrick wrote, "while Congress and the President can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act." The Copyright Office agrees. Last year, in a nod to the macaque's cause célèbre, the Office updated the Compendium of U.S. Copyright Office Practices to include a "photograph taken by a monkey" as an example of works the Office will not register.

http://www.theguardian.com/world/2016/jan/06/monkey-selfie-case-animal-photo-copyright

First Basemen Accuse Al Jazeera of Defamation

Ryan Zimmerman of the Washington Nationals and Ryan Howard of the Philadelphia Phillies have sued Al Jazeera America in the District of Columbia for libel and false light invasion of privacy, alleging that the network falsely reported that they had taken the performance-enhancing drug "Delta-2". A documentary called "The Dark Side: Secrets of the Sports Dopers," featured statements by a pharmacist, Charles Sly, who claimed to have given both men performance-enhancing drugs. The players accuse Al Jazeera of "reckless disregard" for the facts, alleging that Al Jazeera knew that Sly had recanted those statements.

http://espn.go.com/mlb/story/_/id/14511191/ryan-zimmerman-ryan-howard-file-defamation-suits-vs-al-jazeera

New York Attorney General Doubles Down on Fantasy Sports Suit

New York Attorney General Eric Schneiderman, who sued Boston-based daily fantasy sports companies DraftKings and FanDuel late last year alleging that they are actually running "casino-style gambling operations," has amended the complaint to seek the return of all funds wagered by New York customers, as well as punitive damages of up to $5,000 per player. It is estimated that the defendants took in over $200 million in 2015 from over 600,000 customers in New York. Both companies continue to operate in New York under a stay granted by the Appellate Division. The defendants have asked the Appellate Division to continue the initial stay, which expired January 4, 2016.

http://espn.go.com/chalk/story/_/id/14458955/new-york-attorney-general-wants-draftkings-fanduel-return-profits

Art Dealer Fraud Trial Suspended

The trial of New York art dealer Art Wildenstein has been suspended after Wildenstein's lawyers argued that the combined tax and criminal charges against him constitute an unfair double prosecution not permitted under French law. Wildenstein, 70, is accused of hiding over $600 million from French authorities in an effort to avoid paying taxes.

http://www.nytimes.com/aponline/2016/01/06/world/europe/ap-eu-france-us-tax-fraud.html?_r=0

January 12, 2016

EASL Journal Policy for Law Student Submissions

A law student wishing to submit an article to be considered for publication in the EASL Journal must be a member of EASL and must first obtain a commitment from a practicing attorney (admitted five years or more, and preferably an EASL member) familiar with the topic to sponsor, supervise, or co-author the article. The role of sponsor, supervisor, or co-author shall be determined between the law student and practicing attorney, and must be acknowledged in the author's notes for the article. In the event the law student is unable to obtain such a commitment, he or she may reach out to Elissa D. Hecker (eheckeresq@eheckeresq.com), who will consider circulating the opportunity to the members of the EASL Executive Committee.

January 15, 2016

Week in Review

By Ben Natter

EL CHAPO's IP Protection

Multiple trademark and service mark applications were filed with the Mexico Intellectual Property Office (IMPI) for EL CHAPO, EL CHAPO GUZMAN, and JOAQUIN EL CHAPO GUZMAN in 2011.

The Applicant was Joaquin "El Chapo" Guzman's daughter, and it was widely reported that all of the applications were refused due to the fact that Mr. Guzman was a fugitive at the time when the applications were filed. Upon further review, it appears that registrations were obtained for the mark EL CHAPO in connection with toys, business management, advertising, leather goods, jewelry and watches. There are also third-party registrations for the mark EL CHAPO in classes 9 and 41.

Chapo is a common nickname in Mexico, refering to a little person, and the applications for registration likely were not refused for this reason. It has been reported that Mr. Guzman was looking to have a film made about his life and he recently met with the actor Sean Penn while in hiding in the Mexican jungle.

IMPI Search:
http://marcanet.impi.gob.mx/marcanet/controler/TitularExpedienteLista/_titular/ezcgHDE40yszXnY896+GFQ

LVMH Moët Hennessy Louis Vuitton SE Sues Chinese Counterfeiters

LVMH Moët Hennessy Louis Vuitton SE (LVMH) filed a trademark infringement claim in Beijing's district court against three Chinese retailers who were selling counterfeit goods via the Alibaba owned website, Taobao (which targets Chinese consumers). The defendants were convicted of selling counterfeit goods in 2014; however they have not yet been punished by the Beijing district court.

Taobao and Alibaba are arguably the most notorious online marketplaces for counterfeits, and Alibaba makes it very difficult for brand owners to police their intellectual property on Taobao. At any given time, a search for a well-known brand on Taobao or Tmall, Taobao's consumer focused website, will reveal hundreds of counterfeits.

http://www.ibtimes.co.uk/louis-vuitton-sues-chinese-counterfeit-online-sellers-1537129

Tmall search for "Vuitton":
https://list.tmall.com/search_product.htm?q=vuitton&type=p&vmarket=&spm=875.7789098.a2227oh.d100&from=mallfp..pc_1_searchbutton

Taobao search for "Vuitton":
http://world.taobao.com/search/search.htm?_ksTS=1452808647908_325&spm=a21bp.7806943.20151106.1&_input_charset=utf-8&navigator=all&json=on&q=vuitton&callback=__jsonp_cb&cna=rgcfDz0O1BYCAUhFJ3Z%20Bhp0&abtest=_AB-LR517-LR854-LR895-PR854-PV517_2374-PV895_2351

Trademark Attorney Sues U.S. Patent and Trademark Office

An attorney behind the mass trademark filing Website "The Trademark Company" has filed a complaint in the U.S. District Court for the Eastern District of Virginia against the U.S. Patent and Trademark Office (USPTO) that alleges, among other claims, that the USPTO has violated his Fifth Amendment right to due process. He claims that the USPTO's Office of Enrollment and Discipline (OED) initiated an investigation into his mass filing practice, and allegedly contacted the attorney's clients without his knowledge. The OED is investigating 15,000 applications filed by the attorney, and the plaintiff claims that the USPTO has seemingly made it very difficult for his website to conduct business.

U.S. District Court Complaint:
http://www.oppedahl.com/efsweb/swyersvptocomplaint.pdf

Cosby's Attorneys Argue That Binding 2005 Promise Should Bar Prosecution

Attorneys for Bill Cosby argued that a 2005 promise by then-Montgomery County, PA. District Attorney Bruce Castor that Mr. Cosby would not be prosecuted criminally for the alleged sexual assault of Andrea Constand should bar prosecution of the current criminal case. According to the filing submitted by Cosby's attorneys on January 11th, Cosby agreed to a 2005 deposition in a related civil matter based on a verbal promise by Mr. Castor that the testimony from the deposition would not be used in any future criminal matters. Cosby's attorneys stated that Castor had reminded the current District Attorney's Office of the verbal promise in 2015 before criminal charges were filed.

Cosby's attorneys also seek to have the criminal charges dismissed on the basis of the current prosecutor's political motives and his past history with Castor.

http://www.nytimes.com/2016/01/13/arts/bill-cosbys-lawyers-say-binding-promise-in-2005-should-prevent-prosecution.html?_r=0

New York City Opera to Return

The New York City Opera will return on January 20th, with a presentation of Puccini's "Tosca", as part of a court approved settlement to revive the opera from bankruptcy. "Tosca" will be a production of the new owner of the New York City Opera, NYCO Renaissance. The group hopes to bill the opera as a co-production with the New York City Opera.

NYCO Renaissance is led by Roy G. Niederhoffer, a former member of the New York City Opera Board. NYCO Renaissance had to overcome a number of hurdles to revive the New York City Opera from bankruptcy, including objections from the Attorney General's Office and settlement of debts owed by the New York City Opera.

http://www.newyorker.com/magazine/2016/01/25/leap-of-faith-classical-music-russell-platt

http://www.nytimes.com/2016/01/13/arts/music/new-york-city-opera-will-return-and-soon-under-reorganization-plan.html?_r=0CBS

CBS and Paramount File Suit for Infringement of Stark Trek IP

CBS and Paramount filed a complaint in the Central District of California against the crowdfunded Axanar project for copyright infringement. Axanar aims to be the first independent Star Trek film, and has already received more than $1 million in crowdfunding. The producers of the film expect it to be the first "professional" independent Star Trek film. CBS and Paramount have historically not pursued intellectual property infringement claims against independent Star Trek related productions, however this one garnered closer attention, due to its fund raising success and the release of a closely watched trailer.

Complaint:
https://www.documentcloud.org/documents/2660454-Startreklawsuit.html

http://www.hollywoodreporter.com/thr-esq/crowdfunded-star-trek-movie-draws-851474

Here is a listing of Star Trek fan productions:
https://en.wikipedia.org/wiki/Star_Trek_fan_productions

ISIS Profiting From Looted Antiquities

Last March, Bulgarian police recovered artifacts dating back 5,000 years, originating from an ancient city in what is now known as Iraq. Few countries have shown interest in enacting regulations to combat the illegal trading of artifacts, and experts feel that ISIS has been able to exploit vulnerabilities in international law. It is widely known that ISIS has allowed plundering of antiquities in the territory controlled by the group as a way to raise revenue (through taxing excavations).

While it is difficult to trace looted antiquities directly to ISIS, a recent surge in the quantity of antiquities originating from ISIS controlled territory, evidence that the antiquities were recently excavated, and ISIS endorsement of illegal excavations, suggest that the artifacts are coming from regions currently under ISIS control.

http://www.nytimes.com/2016/01/10/world/europe/iraq-syria-antiquities-islamic-state.html

See article on ISIS taxation:
http://www.nytimes.com/2015/11/30/world/middleeast/predatory-islamic-state-wrings-money-from-those-it-rules.html

FIFA Bans Real Madrid and Atletico Madrid From Signing Players

This week, FIFA imposed a punishment on both Real Madrid and Atletico Madrid, related to both clubs' actions involving their youth team players. FIFA has strict regulations with respect to transfers of players under the age of 18 in youth programs associated with professional clubs. The punishment will exclude both clubs from participating in the transfer market for one year (the next two transfer windows). There is a 90 day window for appeals.

Previously, Barcelona FC was punished for similar actions, and delayed the ban through appeals. Once the punishment was in place, Barcelona circumvented the restrictions on transfers by signing players to contracts beginning after the punishment expired.

http://www.fifa.com/governance/news/y=2016/m=1/news=atletico-de-madrid-and-real-madrid-sanctioned-for-international-transf-2755486.html

Cardinals Scouting Director Pleads Guilty

Chris Correa, former scouting director for the St. Louis Cardinals, last week plead guilty in Federal Court in Houston to 12 charges of unauthorized computer access. Correa used passwords recovered from a former Houston Astros employee to gain access to the Houston Astros database, scouting information, and research belonging to the Astros. Correa's actions were uncovered by a New York Times investigation, and the federal government decided to pursue charges at that time.

http://www.wsj.com/articles/ex-cardinals-scouting-director-to-plead-guilty-to-hacking-houston-astros-1452271222

January 20, 2016

The 11 Contracts Every Artist, Songwriter & Producer Should Know: Video Production

By Steven R. Gordon

Steven R. Gordon (steve@stevegordonlaw.com, www.stevegordonlaw.com) is an entertainment attorney specializing in music, television, film and video. His clients include artists, songwriters, producers, managers, indie labels and music publishers as well as TV and film producers and digital music entrepreneurs. He also provides music and sample clearance services for producers of any kind of project involving music. Mr. Gordon is the author of The Future of the Music Business [www.futureofthemusicbusiness.com/] (Hal Leonard 4th ed. 2015).

The author gratefully acknowledges the assistance of Ryanne Perio, Esq. in the preparation of this article. Ryanne is a litigation associate at the WilmerHale law firm. He would also like to thank his intern Jena Terlip, 2L at Benjamin N. Cardozo School of Law, for her research and editing assistance.

DISCLAIMER
This series of articles and the forms included in them have been created for informational purposes only and do not constitute legal advice. This article and other articles in this series should be used as a guide to understanding the law, not as a substitute for the advice of qualified counsel. You should consult an attorney before making any significant legal decisions.

The eighth installment of this 11-part series on basic music industry agreements focuses on the business of producing music videos. This article contains a form agreement that can be used to hire a video producer, as well as releases for people and locations appearing in videos. Although MTV does not play many anymore, music videos have become more important in breaking new artists than ever before. Before making your own video, though, it's important to know the legal ins and outs of producing them.

INTRODUCTION

In the first part of this Introduction, I give a brief history of music video followed by a survey of how successful artists have used and continue to use them to launch their careers. The second part of the Introduction offers a summary of business considerations in producing videos.

PART I: HISTORY & CONTINUING IMPORTANCE OF MUSIC VIDEOS

1. Before Music Videos
Audiovisual presentations of music have existed since the first motion pictures containing sound. In fact, the first Hollywood "talkie," released in 1927, was a musical featuring Al Jolson called "The Jazz Singer." Before the invention of the video cameras, there were many musical short films featuring the performance of single songs, such as Frank Sinatra's patriotic "The House I Live In (That's America To Me.)" (https://www.youtube.com/watch?v=EWxW2Z5znWQ) These films were sometimes shown before main features at movie theatres. In the 1960s, artists like the Rolling Stones and the Beatles started to make short form films of individual songs to promote their albums. The dawn of what we think of as music videos began in the 1970s. For example, in 1975, Queen commissioned the production of a video for its new single, "Bohemian Rhapsody," to show on Top of the Pops, a popular British TV show showcasing the week's top hit songs. In the U.S., Video Concert Hall was launched on November 1, 1979 as the first nationwide video music program on American television, predating MTV by almost three years.

2. MTV and the Birth of the Era of Music Videos on Television
In 1981, MTV launched by airing "Video Killed the Radio Star," and began an era of 24-hour-a-day music videos on television.

The founders of MTV, including Robert Pitman (current chairman and CEO of iHeartMedia, Inc. (formerly Clear Channel)), convinced record labels to produce more videos and give them to MTV for free, just as they gave free records to radio stations. The pitch was that the videos would promote the labels' records and increase sales. The only money MTV paid to the labels was a relatively small fee to secure exclusive rights to play select videos for a limited period of time. For instance, MTV paid Sony Music $4 million a year for such rights.

By the mid-1980s, MTV grew to play a central role in marketing pop and rock music. Many important acts of this period-- most notably Madonna, Aerosmith, The Who, Phil Collins, John Mellencamp, Phil Collins and Billy Idol-- owe a great deal of their successes to the seductive appeal of their videos. After years of controversy regarding the lack of diversity among artists on the network, MTV aired Michael Jackson's "Billie Jean," "Thriller" and other videos, which helped Jackson become the best-selling pop artist of all time.

However, by the late 1990s, MTV sharply decreased the number of videos it showed on its airways. Former MTV president Van Toeffler explained: "Clearly, the novelty of just showing music videos has worn off. It's required us to reinvent ourselves to a contemporary audience." A decade later, MTV was playing an average of just three hours of music videos per day, preferring cartoons such Beavis and Butt-Head and, later, unscripted reality shows, such as Jersey Shore. MTV continued to play some music videos instead of relegating them exclusively to its sister channels (such as MTV Hits), but around this time, the channel began to air music videos only in the early morning hours and in Total Request Live , which aired the 10 most requested music videos of the day. As a result of these programming changes, Justin Timberlake implored MTV to "play more damn videos!" while giving an acceptance speech at the 2007 Video Music Awards. Despite the challenge from Timberlake, MTV continued to decrease its total rotation time for music videos in 2007 and shut down TRL in 2008.

3. YouTube and the Rise of Cover Videos
YouTube was created by three former PayPal employees in February 2005. In November 2006, it was bought by Google for $1.65 billion. The online video sharing site is this generation's MTV. Artists like Beyoncé and Taylor Swift regularly have hundreds of millions of views for new videos, and their record companies and music publishers monetize them by allowing ads. YouTube keeps approximately 40% of the ad income, although the details of its formulas for arriving at the exact amount is not public record, and the balance is paid to the copyright owners.

YouTube allows you to share your videos with a worldwide audience. However, the thing that makes YouTube great for new artists--that it's so easy to upload and reach a huge audience--also makes it incredibly competitive. YouTube reports that hundreds of hours of video content are uploaded to its servers each minute. Unfortunately, therefore, although you have a potential audience of millions who you can directly reach with your video, standing out in the sea of other content is a huge challenge.

One way new artists have used YouTube to attract attention is to "cover," that is, re-record hit songs. A good example of an artist who was discovered from making covers is Justin Bieber. Before he was the erratic "bad boy" that many love to hate, Justin Bieber was just a kid from Stratford, Ontario. At age 12 Bieber began to regularly post covers of hit R&B songs on his YouTube channel under the username "kidrauhl."

As his videos got more and more views, he was eventually discovered by talent manager Scooter Braun. After tracking Bieber down, Braun flew the then-13 year old to Atlanta to record some demo tapes. Braun introduced Bieber to Usher, who reportedly beat out Justin Timberlake in a bidding war to sign the young YouTube star. After being signed by Usher, Bieber recorded his first album, released the single "One Time," and proceeded to have his face put up on tween bedroom walls everywhere. He's had three multi-platinum albums that have all reached number one on the charts, and continues to play to sold-out arenas all across the world.

Another example of how cover videos have launched careers is Vazquez Sound, a musical trio known for its covers of hits, including Adele's "Rolling in the Deep," which has garnered over 172 million views. In September 2014, Vazquez Sounds released its first original album, which was an instant hit that earned a nomination at the 2015 Latin GRAMMYs for "Best New Artist." Another example is the pop duo, Karmin. Karmin broke a couple of years ago with a string of clever, sassy covers of hits by acts such as Lil Wayne, Nicki Minaj, and Katy Perry. Alessia Cara, a 19 year old Canadian singer and songwriter, is another example. She is currently signed to Def Jam and is best known for hit single "Here," which reached the Top 20 in the United States. Before her original album was released, though, Cara was known for her acoustic song covers on YouTube.

4. YouTube Musical Celebrities
Other artists have made careers by producing original content for their YouTube channels. A prime example is Lindsey Stirling. She plays the violin, dances and then does them both at the same time. Stirling began posting videos of herself performing in 2007 after failing to be signed by a major record label. Now, she claims they are begging to sign her, but it's too late--she doesn't need them anymore. Explains Stirling: "It's a very loyal fan base that wants you to succeed because they found you. It wasn't some big radio station or record label that shoved art down someone's throat." Coming in fourth in Forbes' round-up of the most financially successful YouTube personalities, Stirling raked in $6 million in earnings last year. She has also released two albums, "Shatter Me" and "Lindsey Stirling", scored a book deal, and developed a lucrative touring career.

5. YouTube's New Subscription Service
YouTube recently unveiled its long-discussed paid subscription service, "YouTube Red." The new service offers ad-free versions of all current YouTube videos and additional exclusive content from some of the site's top creators, including PewDiePie and Lilly Singh, both of whom perform music as well as comedy. It launched on October 28, 2015 and costs $9.99 per month. YouTube Red will have a big emphasis on music, providing access to music streaming service Google Play Music and a new app called YouTube Music, which offers a Pandora-like personalized playlist based on a selected song or artist. Both music apps also have ad-supported versions that non-Red users can access.

6. Self-Made Indie Videos Launching Careers On Social Media Such As Vine & Instagram
Over the past several years, with the advent of smart phones with video capability, as well as greater connectivity across social platforms, an entirely new phenomenon has occurred with singer songwriters as well as rappers catapulting themselves to recognition and commercial success. They use self-contained performances on social media in addition to, or other than, YouTube. One example is Shawn Mendes. In 2013, when he was 15, Shawn Mendes began posting cover videos on Vine and picked up millions of views. The next year he was signed to Island Records and became the youngest artist to debut in the Top 25 with a song on the Billboard Hot 100.

PART II: LEGAL AND BUSINESS ISSUES

1. Cover Videos
It is legally necessary to get a license from the owner of the song before making a cover video. However, YouTube has developed a system Content ID that deals with this issue. The system recognizes the identity of the cover song and then notifies the publisher. The publisher can then choose to order YouTube to take down the video, or let the video continue to play and "monetize" it. If the latter is chosen, YouTube splits the advertising revenue with the publisher. It is important to note that if the publisher chooses the second option, the artist performing the cover will not receive any of the fees generated by advertising. This, however, is to be weighed against the possibility of worldwide recognition discussed above.

Although Vine and Instagram do not employ Content ID, the music publishers have not, so far, cracked down on covers on these social networks. An argument could be made that the snippets played in these services are "de minimis," i.e., too trivial to amount to copyright infringement. It can also be argued in a litigation defense that these brief videos are "fair use." The argument would be that, under the doctrine of fair use, a person can use a brief excerpt of a copyrighted work if the new work is "transformative" of the original.

2. Work For Hire Production Contract
I was the Director of Business Affairs for TV & Video at Sony Music from 1991 to 2001. We produced over 250 videos each year that I worked there, and every video that Sony commissioned was a "work for hire." Under the copyright law, a work for hire is defined as follows:

(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

In the case of works made for hire, "the employer or other person for whom the work was prepared is considered the author ...[and] owns all of the rights comprised in the copyright."

Recently I worked with a small book publishing company that wished to produce a series of music videos to promote the new edition on one of its religious text books. The videos will feature songs by 12 different Christian rock acts. The agreement that we used to commission the videos was basically the same as Sony's work for hire agreement. I recommend to my artist clients the same business format for the production of their music videos. Re-published below is sample work for hire contract for producing a music video.

3. Releases
If you are either a new artist or a small label, and you wish to create a music video, in addition to using a work for hire agreement, you should also make sure that you will not have legal problems associated later on with any person or location depicted in your video. Although you should always have every side artist, model, dancer or actor in your video sign a release, some judgment is required when determining whether to secure a location release.

Personal Releases: If a label is commissioning a video, the artist's appearance in the video will generally be covered by the recording agreement between the artist and the label, which usually includes a provision specifically addressing music videos and giving the label the right to use the video for any promotional or commercial purpose. If an indie artist is appearing in a video, obviously he or she will not need a release for his or her own performance. Regardless of whether the commissioning party is a label or an artist, it will want to have any other person appearing or performing in the video sign a personal release giving the label or the artist, as the case may be, the right to use the video, including that person's appearance and/or performance in any and all media. Usually, the production company will handle this responsibility.

An example of a personal release is included below. Personal releases do not vary very much, although some contain more legalese than others. The basic point of any personal release, however, is that the person signing the release grants the artist or label all rights to use his or her appearance and/or performance in the video.

Note that the person signing such a release may have recorded the audio performance as a background vocalist or musician. A separate contract usually covers that audio recording, but the release contained below would cover that audio performance as well. Please also note that the release usually does not include financial remuneration; but if a musician, dancer or actor contributed a performance in the underlying audio track, there may be a separate agreement in which that person is compensated.

A cautionary tale about failing to secure proper releases: The producer of a video for an artist at a major record label used a picture of an old girlfriend from her Facebook profile in a spilt second of a still titled "Missing Persons" in a video featuring the artist singing about a romantic break-up. The ex-girlfriend noticed and was not pleased. She retained a lawyer who was able to negotiate a significant settlement.

Crowds and Audiences: If you are shooting in a public place, releases should be given to anyone wandering into the scene if anyone is are recognizable. If a person doesn't want to sign the release, you should avoid using that footage. If you are shooting in front of a live audience, you can use one or more signs at the entrance to the performance area informing the audience members that, by entering, they consent to appearing in the video. The sign (or signs) should be large enough and displayed in a place prominent enough that anyone entering will notice. However, if a person from the audience is featured, or especially if he or she appears on stage, a personal release should be signed.

Location Release: The location release at the end of this article is for a venue that agrees to let you shoot your video at the location without a fee. It is particularly useful if there is a sign or logo that people would recognize. The release will make it clear that no consideration was expected for the use of the location. Of course, sometimes a location, such as a restaurant or bar, will require a fee. In that case, the amount to be paid can be inserted in the release.

Public Places: Generally, if public venues and landmarks, such as the Empire State Building appear in the video, you do not need a release if the location is incidental to the action in the video. If, however, you are shooting in front of a well-known place, such as Nathan's hotdog restaurant in Coney Island, and its name appears prominently in the video, it would be wise to have the manager sign a location release.

4. Trademarks
The use of a trademark in a music video is generally protected by the First Amendment, but not always.

Likelihood of Confusion Test: The limited purpose of trademark protection set forth in the Lanham Trademark Act (15 U.S.C. § 1051 et. seq.) is to avoid confusion in the marketplace by allowing a trademark owner to prevent others from duping consumers into buying a product or using a service they mistakenly believe is sponsored by the trademark owner. Trademark law aims to protect trademark owners from a false perception that they are associated with or endorse a product or service. Generally, to assess whether a defendant has infringed upon a plaintiff's trademark, the courts apply a "likelihood of confusion" test that asks whether use of the plaintiff's trademark by the defendant is likely to cause confusion or mistake, or to deceive as to the affiliation, connection, or association of plaintiff's brand with defendant's product or service.

Applying these principles to music videos, the bottom line is that if a trademark is used in such a way that it is not likely to confuse a viewer into thinking that the brand sponsored the video, the producer may have a First Amendment right to use the mark (notwithstanding any licensing issues). The classic example is a rapper wearing a baseball cap or t-shirt. Just because the singer may be wearing a Yankees cap or Baltimore Orioles t-shirt doesn't mean that a reasonable person would think that the Yankees or Orioles sponsored or produced the video.

On the other hand, where a trademark is prominently featured, it may be reasonable to think that a brand is sponsoring the video. For instance, a number of brands are featured in the video for "Telephone" featuring Beyoncé and Lady Gaga. Yet in that case, the brands were actually sponsoring the video by paying for product placement. In fact, these days, many indie artists use brands to help pay for or at least defray the costs of their videos. However, if you have not received approval or received a sponsorship from a brand, it is important not to lead your viewers to believe that you have by drawing too much attention to the brand in your video.

Product Disparagement: This is also called product defamation, trade libel, or slander of goods; product disparagement is any statement about a brand that is false and likely to adversely affect its profits. Product disparagement includes negative statements about a product or service, false comparisons of competing consumer products or services, and statements harming the reputation of an artist.

When applying these principals to a music video, it is important to note that showing a brand's name or logo in a negative context could prompt a demand that the video be changed or not shown at all. Consider this real world example: A record label made a video in the early 1990s, when MTV was still playing videos, of a toy train running off the track and smashing into small models of people made of clay. During the video, close-ups of the artist as the conductor of the wayward train would appear. The video was lighthearted, and no one would think that the artist/conductor was actually running over real people. However, the name of the well-known U.S. railroad appeared on the toy train, and its representatives were less than amused. In fact, they sent a letter to MTV demanding that it stop playing the video. The label agreed to take the name off the toy train by blurring it, but the railroad still insisted that the video be banned because the color of the toy train--a particular shade of yellow--was the same color as its actual trains. The label reacted by changing the entire color of the video to sepia, which made the toy trains a different shade of yellow. Yet the railroad still had a problem because the cars were still yellow. The label defiantly re-released the video. However, the railroad company initiated a lawsuit against the label and was able to persuade a federal judge to permanently enjoin the further exhibition of the video on MTV and any other outlet. Later, the label settled the suit by paying damages to the railroad, in addition to agreeing to never use the video for any purpose again.

5. Artwork and Other Copyrighted Works
A best practice is to avoid using material protected by copyright. This will save you a lot of headaches, and possibly money. The case of Ringgold v. Black Entertainment Television is an important case in this regard. In the late 1990s, Faith Ringgold, a successful contemporary artist, sued BET for airing an episode of a television series called ROC in which a poster containing her artwork appeared. In the scene, at least a portion of the poster was shown a total of nine times. In some of those instances, the poster was at the center of the screen, although nothing in the dialogue, action, or camera work particularly called the viewer's attention to it. The nine sequences in which a portion of the poster was visible ranged in duration from a little more than one to four seconds. The aggregate duration of all nine sequences was approximately 27 seconds.

The case was decided by a federal appeals court in New York. The court found BET liable, rejecting the de minimis defense. As already noted in the section on "Cover Videos" above, if the amount of a work copied is so trivial as to fall below the quantitative threshold of substantial similarity, the copying is de minimis, and does not constitute copyright infringement. However, the court found that in addition to its appearance in the scene, there was also a qualitative connection between the poster and the show. The poster included a painting depicting a Sunday school picnic held by the Freedom Baptist Church in Atlanta, Georgia in 1909, and was intended to convey "aspects of the African-American experience in the early 1900s." ROC was a television sitcom series about a middle-class African-American family living in Baltimore, and the scene in question was of a gathering in a church hall with a minister.

In contrast to Ringgold, the case of Sandoval vs. New Line Cinema Corp stands for the proposition that use of copyrighted artwork in the background of a scene may be de minimis.

In Sandoval, the same court that decided the Ringgold case, found that the use of the plaintiff's copyrighted photographs in the motion picture "Seven" was de minimis and therefore not actionable. The photographs appeared in the film for a total of 35.6 seconds, but they were always in the background and never in focus. The court found that the "photographs as used in the movie [were] not displayed with sufficient detail for the average lay observer to identify even the subject matter of the photographs, much less the style used in creating them." The court distinguished the facts from Ringgold because there was no substantive connection between the appearance of the photos and the subject matter of the scene.  

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The agreement below contemplates that an artist is hiring a production company to produce a promotional video. The same form of agreement may be used by a record company. An artist may consider forming a corporate entity (i.e., C corporation, Subchapter S or LLC) in order to avoid any personal liability in regard to any agreement including a video production agreement. In addition, an artist would be wise to consult with an accountant or attorney about forming an LLC or S corporation for tax purposes including eligibility to deduct video expenses from his or her personal income.

DISCLAIMER
This form has been created for informational purposes only and does not constitute legal advice. You should consult an attorney before making any such legal agreements.


VIDEO PRODUCTION AGREEMENT


This agreement ("Agreement"), effective as of _____, 2016, is between __________ ("Artist") with an address of __________________, and _____________ ("Producer"), with an address at _____________________________.

WITNESSETH:

WHEREAS, Producer has recognized expertise in video production; and

WHEREAS, Artist wishes to engage Producer to record a music video featuring Artist performing a song titled "_____________" (the "Video").

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:

1. PRODUCTION SERVICES

1.1. Producer shall provide Artist with the video recording and production services (hereinafter "Production Services") described within this Agreement.

1.2. Principal photography shall begin on ____________, 2016. Producer shall make Delivery, as defined herein, of the Video to Artist no later than _________, 2016. "Delivery" shall consist of delivery of (i) a fully edited sound synchronized video master, and (ii) all other recorded elements created during production, including but not limited to all audio tracks, video footage and outtakes. Delivery will not be deemed to have occurred until Artist accepts the Video as suitable for commercial exploitation.

1.3. Producer shall provide the Production Services to Artist promptly with the degree of skill, attention and due care that is standard practice within the professional Production Services industry.

1.4. Producer and Artist agree that the budget attached in Schedule A shall represent 100% of the funds required to produce the Video (hereinafter "Budget"). This amount represents the Producer's total anticipated costs and profit.

The Budget should include all costs for producing the video including producer and director fees as well as post production editing costs. For examples of music video budgets ranging from "shoestring" to "commercial/studio" budgets, see http://garrettgibbons.com/music-video-budgets.


1.5. If the Producer hires a director (hereinafter "Director"), the Director shall be an employee of the Producer for purposes of the production and Delivery of the Video.

1.6. All employees and representatives of Producer providing the Production Services hereunder to Artist during the Term of this Agreement shall be deemed for all purposes (including all compensation, taxes and employee benefits) to be employees or representatives solely of Producer, and not to be employees or representatives of Artist or to be independent contractors of Artist.

1.7. The Video shall depict content to be included in a treatment or script to be approved by Artist prior to principal photography.

2. GRANT OF RIGHT: WORK MADE FOR HIRE

This clause transfers all rights to the person (or company as the case may be) commissioning the Video.


2.1. Production Services provided by the Producer and any other person providing such Services shall be deemed to be provided on a "work made for hire" basis as that term is defined under the U.S. copyright law. The Video and all other materials created or contributed by the Producer including all footage, outtakes and audio tracks (the "Materials"), shall be the sole property of Artist throughout the universe, free from any claims whatsoever by Producer; and Artist shall have the exclusive right to register the copyright(s) in such Materials in her name as the owner and author thereof and to secure any and all renewals and extensions of such copyright(s).

2.2. Without limiting the generality of the foregoing, Artist and any person authorized by Artist shall have the unlimited exclusive right, throughout the universe, to manufacture or create copies of the Video or any other Materials by any method now or hereafter known, or any work derived from the Video or the Materials and to sell, market, transfer or otherwise deal in same under any trademarks, trade names and labels, or to refrain from such manufacture, sale and dealing.

2.3 Artist or any Person authorized by Artist shall have the right throughout the universe, and may grant to others the right, to reproduce, print, publish, or disseminate in any medium the name, portraits, pictures, likenesses and biographical material concerning Producer and Director any other person providing Production Services, as news or information, or for the purposes of trade, or for advertising purposes, in connection with promotion marketing and sale of the Video. As used in this Agreement, "name" shall include, without limitation, any professional names.

3. COMPENSATION

3.1. The Parties agree that the Effective Date of this Agreement shall be as set forth at the beginning of this Agreement (hereinafter "Effective Date"). The parties acknowledge that the total amount of the attached Budget is___________ Dollars ($_____). Within five (5) days of the Effective Date, Artist shall pay Producer 50% of the Budget, that is, _________ Dollars ($_____). The second payment of 25%, that is, _________ Dollars ($_____), shall be due upon completion of principal photography. The third and last 25% payment of ________ Dollars ($_____) shall be due upon Delivery of the Video and other Materials to Artist.

3.2. Overages. In regard to overages to the Budget, Producer shall not charge Artist any monies in addition to the approved Budget without Artist's prior written approval.

4. NOTICES

Notices, reports, accountings or other communication which Producer or Artist may require or desire to send to the other must be delivered either by:

Certified mail, return receipt requested to the parties at the addresses first written above or other address to be designated by Producer or Artist as the case may be; or

Electronic mail at the following addresses:

(i) for Artist: _________@___.com
(ii) for Producer: ___________@___.com

5. ASSIGNMENT

Producer may not assign this Agreement or any right or obligations under this Agreement. Artist may assign this Agreement or any of her rights or obligations hereunder to any person, firm, or corporation including a corporation in which Artist is a principal, provided that (i) Artist shall remain responsible for any payments required to be made under this Agreement, and (ii) the assignee has the necessary cash on hand to make any payments required under this Agreement.

6. WARRANTIES AND INDEMNIFICATION

6.1. Producer warrants and represents that he has the legal right to enter into this Agreement including the legal right to sign on behalf of the Director. Producer further warrants and represents that (a) all content contributed by the Producer shall be original and not interfere with or violate any rights of any third party; and (b) no content appearing in the Video, including artwork or photography, will interfere with or violate any rights of any third party.

6.2 Producer warrants and represents that he shall provide valid signed releases from any third party performing or appearing in the video, and that he shall, if legally required, secure valid signed location releases from any location appearing in the video. Acceptable forms of release are attached hereto as Schedule "A" and "B" respectively.

The attached releases may be used as Schedules A and B. Note that the releases allow the Producer to assign the rights secured in the releases to the Artist.

6.3. Producer and each of his representatives, employees, contractors, agents and representatives hereby release, indemnify and agree to hold harmless Artist and her agents and representatives from and against any and all losses and/or damages which arise out of the Production Services.

7. TERMINATION

Artist may terminate this Agreement upon written notice in the event of a material breach by Producer, including late delivery of the Video, if such breach is not cured within __ days of notice thereof. If such breach is not cured within that time, Producer shall not be entitled to any additional payments and, upon notice by Artist, Producer shall refund to Artist any monies previously paid.

8. MISCELLANEOUS

8.1. Governing Law. This Agreement shall be interpreted under the laws of the state of ________ without regard to its choice-of-law rules, and the parties shall submit to the exclusive jurisdiction of the courts of that state.

Since the Artist is the party paying money in this Agreement, the Artist should have the right to decide in which state any dispute arising from the Agreement should be litigated.

8.2. Relationship of Parties. Producer and Artist shall have the relationship of independent contractors. Nothing herein shall be construed to place Producer and Artist in the relationship of principal and agent, employer and employee, master and servant, partners, or joint venturers, and neither party shall, either expressly or by implication, have represented themselves as having any authority to make contracts in the name of, or binding on, each other, or to obligate the other in any manner.

8.3. Complete Agreement. Producer and Artist acknowledge that this Agreement represents the complete and exclusive statement of the agreement between the Producer and Artist with regard to the subject matter herein, and that it supersedes any proposal or prior agreement, whether oral or written, and any other communications between the Parties relating to the subject matter of this agreement.

8.4. Enforcement. If any provision of this Agreement shall be found invalid or unenforceable, then such provision shall not invalidate or in any way affect the enforceability of the remainder of this Agreement.

UNDERSTOOD AND AGREED:

[ARTIST's NAME]

_______________________________


[NAME OF PRODUCER]

_______________________________

SS #____________________________


If the Producer is a production company or LLC ("Production Company"), the president or managing partner should sign the personal guarantee below:


In order to induce Artist to enter into this Agreement, I hereby agree and acknowledge that (a) I have read all of the terms and conditions set forth in this Agreement; and (b) I shall be personally bound by all the terms and conditions in this Agreement applying to the Production Company, and that I shall be personally liable for any breach of this Agreement by Production Company.

PRESIDENT OR MANAGING PARTNER

_______________________________
Print Name: _____________________
Position: ________________________

PERSONAL RELEASE

To ______________ ("Producer")
Address

I understand that Producer is producing a video containing the performance of a song titled "_____________" (the "Video").

For good and valuable consideration, including my desire to appear in the Video, I irrevocably grant to Producer, his licensees and assigns the right to film, videotape, portray and photograph me, my likeness and my performance, and to record my voice and other sound effects, and the right to use them or any portion thereof, and my name and any biographical facts which may have been provided to Producer, in connection with the production of the Video and the advertising, promotion and publicity therefor, and all rights of every nature whatsoever in and to all films, video, portrayals, photographs, performances and recordings produced hereunder ("Material"), including without limitation all copyrights therein and renewals and extensions thereof, and the exclusive right to reproduce, exhibit, distribute and otherwise exploit the Material in whole or in part in perpetuity throughout the universe in all languages, in any and all versions (including digitized versions) and forms, and in any and all media now known or hereafter devised. Independently and apart from any consideration accruing to me hereunder, I hereby release Producer and Producer's authorized designees from, and covenant not to sue Producer and Producer's authorized designees for any claim or cause of action, whether known or unknown, for libel, slander, invasion of right of privacy, publicity or personality, or any other claim or cause of action, based upon or relating to the exercise of any of the rights referred to herein. I understand that nothing herein will require Producer or Producer's designees actually to produce or utilize any Material hereunder.

This grant is irrevocable so that Producer may proceed in reliance thereon. This instrument contains the entire understanding of the parties, may not be changed or terminated except by an instrument by Producer and me and will be construed in accordance with the laws of the State of ______, provided that the courts of the state of __________ shall have exclusive jurisdiction to resolve any disputes arising from this Release.


Dated:______________________

Authorized Signature

______________________________
[Print name]


LOCATION RELEASE

Property Owner: [Name]
Address: ___________________________ _
Phone: ____________________________ Fax: _______________________________
Email: _____________________________ Contact: ____________________________

Producer: [Name]
Address: _____________________________
Phone: _____________________________ Fax: ______________________________
Email: ______________________________ Contact: _____________________________

Your signature in the space provided below as owner or agent, will confirm the following agreement ("Agreement") between you as the Property Owner ("Owner") and Producer regarding filming of your property (the "Premises") described below in connection with a video containing the performance of a song titled "_____________" (the "Video").

1. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Owner hereby grants to Producer the right during the Term (as defined below) hereof to photograph and record at, the Premises (including, without limitation, the right to photograph and record both the real and personal property, all of the signs, displays, exteriors, and the like appearing therein, if any) for the period specified below.

2. As used herein, the term "Premises" refers to the premises located at: __________________________________________________________________

3. The term hereof (the "Term") shall commence from __________am/pm to ____________ am/pm on or about ____________________________ and shall continue until _________________________, unless modified by the parties. The Term shall be subject to modification due to changes in production schedules. Owner agrees to consult closely with Producer's representatives to ensure scheduling is arranged which will allow for completion of the scenes planned to be included in the Video using the Premises. Owner acknowledges that Producer is incurring significant expenses in reliance on Owner's cooperation and participation in connection with this Agreement and that Owner may be held responsible for the actual and/or consequential damages incurred by any breach of this agreement.

4. Owner represents and warrants that: (a) Owner has the right and authority to make and enter into this Agreement and to grant Producer the rights set forth herein, without obtaining any consents or permissions from any third party; and (b) Owner shall take no action, nor allow or authorize any third party to take any action which might interfere with Producer's authorized use of the Premises. Owner hereby waives all rights of privacy or other rights of a similar nature with respect to Producer's use of the Premises. Owner shall indemnify Producer, his licensees and assigns, and their parent, affiliate, and related entities, shareholders, directors, officers and employees from and against any breach or claim of breach by Owner of any representation, warranty, agreement or obligation herein.

5. Producer shall leave the Property in as good condition as when received, reasonable wear and tear to be expected. Producer shall remove all of his material, equipment and personnel from the Property.

6. Producer agrees to indemnify and hold Owner harmless from damage to the Premises and property located thereon and for personal injury occurring on the Premises during the Term and from any liability and loss which Owner may incur by reason of any accidents, injuries, death or other damage to the Premises directly caused by Producer's negligence in connection with his use of the Premises. In connection therewith Owner must submit to Producer, within three (3) days after Producer vacates the Premises, a detailed list of any property damage or personal injuries which Owner feels Producer is responsible, failing which Owner will be deemed to have acknowledged that there is no property damage or personal injuries for which Producer is responsible. Owner shall permit Producer's representatives to inspect any damaged property and to verify any claims for damages by Owner.

7. Nothing shall obligate Producer to photograph, to use such photography, or to otherwise use the Premises. Producer shall have the right to photograph, record and depict the Premises and/or any part or parts thereof, accurately or otherwise, as Producer may choose, using and/or reproducing the actual name, signs, logos, trademarks and other identifying features thereof and/or without regard to the actual appearance or name of the Premises or any part or parts thereof, in connection with the Video.

8. a. Owner acknowledges that, as between Owner and Producer, Producer is the copyright owner of the photography and/or recordings of the Premises, and that Producer, his successors and assigns have the irrevocable and perpetual right, throughout the universe, in any matter and in any media to use and exploit the films, photographs, and recordings made of or on the Premises in such manner and to such extent as Producer desires in his sole discretion without payment of additional compensation to Owner. Producer and his licensees, assigns and successors shall be the sole and exclusive owner of all rights of whatever nature, including all copyrights, in and to all films, programs, products (including interactive and multimedia products), photographs, and recordings made on or of the Premises, and in the advertising and publicity thereof, in perpetuity throughout the universe.

b. The Owner hereby gives to Producer, his assigns, agents, licensees, affiliates, clients, principals, and representatives the absolute right to use any names associated with the Property in the Video, or to promote the Video, all without inspection or further consent or approval by the Owner.

9. Producer may assign or transfer this Agreement or all or any part of his rights hereunder to any person, film or corporation; Owner agrees that Owner shall not have the right to assign or transfer this Agreement.

10. From the date of execution of this Agreement, through and including the date this Agreement may be terminated, Producer shall keep or cause to be kept in force the following insurance:
Commercial General Liability Insurance, including public liability, contractual liability, bodily injury, and property damage insurance, each policy with a combined single limit of bodily injury and property damage liability of $1,000,000.00 per accident or occurrence. Owner shall be an additional insured. The policies shall provide that they cannot be canceled or reduced without thirty (30) days prior written notice to Owner.

All insurance policies required hereunder shall be with companies having at least a Best A+10 rating as of the date of issuance of the policy, and shall contain language to the extent obtainable, to the effect that (i) any loss shall be payable notwithstanding any act or negligence of Owner that might otherwise result in a forfeiture of the insurance, (ii) that the insurer waives the right to subrogation against Owner and against Owner's agents and representatives, including Owner's insurers, (iii) that the policies are primary and non-contributing with any insurance that may be carried by Owner. Producer shall furnish Owner with certificates evidencing the insurance on or before ______________________. All certificates of insurance required herein, and exclusions from coverage in all policies, and the actual liability policies are subject to the approval of Owner's counsel.

Insurance should be obtained if shooting is to occur inside a location such as a store or someone's house. The cost of the insurance should be included in the Budget for the Video.

11. This Agreement constitutes a binding agreement and is the entire agreement among Producer and Owner and supersedes all prior negotiations and communications, whether written or oral; representations and warranties, whether written or oral; and documents and writings, whether signed or unsigned, with respect to the subject matter hereof.

APPROVED AND ACCEPTED:

Owner or Owner Representative
Signature: _________________________
Print Name: _________________________

Producer or Producer Representative
Signature: _________________________
Print Name: _________________________

January 21, 2016

Center for Art Law Events

1. Special guided tour: "The Missing: Rebuilding the Past"

Center for Art Law is proud to present a special private tour of the art exhibition: "The Missing: Rebuilding the Past" and a lecture on the topic of the destruction of cultural heritage, given by the co-organizer of the exhibit, Dr. Erin Thompson (John Jay College).

The event will take place on January 27th at 6:30pm, at the Anya and Andrew Shiva Gallery at John Jay College of Criminal Justice (gallery entrance is located on 11th Avenue between 58-59th Streets).

Here is a detailed description of the program:

ISIS is engaging in a systematic campaign to destroy the past. It smashes, bombs, and bulldozes irreplaceable cultural heritage to send the message that it will not tolerate any opposing views, no matter how ancient, to its bleak and monolithic vision of the world. The Missing: Rebuilding the Past is the first exhibit to showcase the efforts of artists and scholars to resist the destruction of the past through creative and innovative reactions, protests, and reconstructions. The curator, Professor Thompson, will talk about its works, in a variety of media - photography, drawing, video, 3D printing - which explore the destruction of art at many historical moments, from ancient Greece to World War II to the present. ISIS' destruction of cultural property is meant to show its power through convincing its audience of the West's helpless impotence to protect the artworks Westerners love. But the artists and scholars of The Missing show that this is a false message - that there are many ways, from the creative to the technical, in which they and we can help fight ISIS' message by making the destroyed past live again. Professor Thompson will also offer an accompanying private tour of the exhibit.

More details about the exhibition can be found here:
http://www.themissingexhibit.com/

Cost: $20. A limited number of student tickets available for $10.
Current student ID must be presented at the door for admission.
Please reserve your tickets ASAP:
https://www.eventbrite.com/e/special-guided-tour-of-the-missing-rebuilding-the-past-led-by-dr-erin-thompson-tickets-20708716328

2. You've Been Served: "Gerhard Richter Painting" (2012)

On February 3rd, Center for Art Law will resume the "You've Been Served" series by screening "Gerhard Richter Painting." One of the leading contemporary artists, Gerhard was one of the vocal opponents of the revisions in the German Cultural Heritage Law last year. He was even quoted as threatening to withdraw his art from German museums if the law would impose restrictions on exporting artworks older than 50 years from Germany.

After the film, Nicolas O'Donnell, a partner in the Litigation Department of Sullivan & Worcester LLP , will discuss the controversy and the revisions ultimately adopted in the 2015-2016 German cultural law on patrimony. Mr. O'Donnell is the editor of the Art Law Report, a widely acclaimed art law blog, and in his practice he frequently represents clients with art related needs.

Details about the film screening and how to register are available here:

https://www.eventbrite.com/e/youve-been-served-gerhard-richter-painting-2011-tickets-20764650629

January 23, 2016

Week In Review

By Zak Kurtz

Officials Accused of Extortion to Clear Athletes Who Doped

All the cheating and corruption by FIFA now seems like nothing, after the latest accusations on the track and field front. On Thursday, the World Anti- Doping Agency (WADA) released an 89-page report that accused international officials of blackmailing athletes who failed drug tests. According to the report, the leaders of the international governing body, known as the International Association of Athletics Federations, were allowing athletes who had used banned substances to continue competing in major events. Some leaders were even taking bribes for not punishing these athletes. Despite the obvious wrongdoing by leaders at the highest level of the sport, many critics are saying that this is worse than the FIFA scandal, because this actually impacts the outcome on the field of play, as it allows athletes to compete when they should not be.

http://www.nytimes.com/2016/01/15/sports/report-alleges-possible-criminal-behavior-by-top-track-officials.html?_r=0

The U.S. Supreme Court Will Not Help With the California Royalty Act

On January 11th, the Supreme Court denied a petition for certiorari of last year's 9th Circuit decision holding the California Resale Royalty Act unconstitutional as applied out of state. As a result, the law can now only apply to art sales made within California. The Supreme Court's decision ends class actions by Christie's, Sotheby's, and eBay, who claim that they are owed royalties, and makes many out of state auction houses very unhappy.

http://www.law360.com/articles/744916/supreme-court-won-t-look-at-trimming-of-calif-royalty-act

Cosby Defamation Lawsuit in Pennsylvania Dropped

A federal judge officially ended a Pennsylvania lawsuit against Bill Cosby for defamation. Renita Hill, one of the more than 50 women who have publicly accused Cosby of assault, filed a civil suit in October alleging that the actor and his lawyer defamed her in the media. Judge Arthur J. Schwab dismissed the lawsuits by Hill, along with two other claims against Cosby, on Thursday. The Judge ruled that the statements "do not support a claim for defamation as defined by Pennsylvania law."

http://www.cnn.com/2016/01/21/us/bill-cosby-defamation-lawsuit-dismissed/index.html

Daily Fantasy Sports Encounters Another Setback in Texas

On Tuesday, Texas Attorney General Ken Paxton declared daily fantasy sports illegal gambling under the state's laws. This decision by Texas adds another state to the list of those at war with the daily fantasy sports industry. These include New York and Las Vegas, Nevada. Texas prohibits bets that hinge on the partial or final result of a game or contest or on the performance of a participant in a game. Paxton's opinion directly stated that FanDuel and DraftKings, the two largest daily fantasy sports companies, were clearly taking illegal bets under state law.

http://www.nytimes.com/2016/01/20/sports/texas-attorney-general-deems-daily-fantasy-sports-illegal.html

Yankees New Closer Avoids Charges But May Face Major League Baseball Discipline

Aroldis Chapman, the New York Yankees' highly touted new acquisition from the Cincinnati Reds last month, will not face criminal charges that were brought against him by the state attorney in Broward County, Florida. Chapman was accused of choking his girlfriend, pushing her against a wall, and firing gunshots into a wall and window in the garage of his South Florida house in October. The state attorney dropped the case because of conflicting accounts of the story, and a lack of evidence.

Although Chapman escaped criminal action in Florida, Major League Baseball's (MLB) new domestic abuse policy could still come into play and cause Chapman to be suspended for some games. This past Thursday at the owners meeting in Coral Gables, Florida, MLB Commissioner Rob Manfred made it clear that he was aware of the situation with Chapman, and that he planned to look into this and two other cases under the new policy.

http://www.nytimes.com/2016/01/22/sports/baseball/aroldis-chapman-the-yankees-new-closer-avoids-charges-but-may-face-discipline.html

Lawsuit Claims That Lawyer Fraudulently Took Over Estate of Dick Tracy Creator

According to a lawsuit filed in Surrogate's Court in Manhattan, attorney Richard L. Kay purportedly duped Himan Brown into giving the bulk of Brown's estate to a trust the longtime attorney controlled. Brown is the creator of the radio drama "Dick Tracy" and "Inner Sanctum Mysteries," and had an estate worth over $100 million. The lawsuit alleges that Kay tricked Brown into signing a will that gave much of his estate to the newly created Himan Brown Charitable Trust, which was controlled by Kay, instead of leaving his radio fortune to the Radio Drama Network, another charity that he created and led for many years with his grandchildren.

The lawsuit states that Kay changed the will while Brown was 94 years old, six years before he passed away. The court papers also claim that Kay exploited his position overseeing the trust for his own benefit. In addition, the board members of Radio Drama Network are asking a judge to remove Kay as the estate's executor and to transfer the money to their charity. Kay denied that he ever misled Brown, and stated that the radio producer was mentally sharp in October 2004 when he decided to divert his money to the newly created trust.

http://www.nytimes.com/2016/01/20/nyregion/charitys-suit-contests-will-of-creator-of-dick-tracy-and-other-radio-shows.html

January 27, 2016

Hip Hop Artist's Copyright Ownership Claim Time Barred

By Barry Werbin

Hip hop artist Tyrone Simmons could not rap his way out of his delay in pursuing a claim of ownership of exclusive copyright licensing rights against hip hop producer William C. Stanberry, Jr., rapper 50 Cent, and several entities that had been involved with producing and distributing a song called "I Get Money" that was released in 2007. On January 15, 2016, the Second Circuit held (per curium) in Simmons v. Stanberry, that Simmons' claim was time-barred under the Copyright Act's three year statute of limitations because he became aware of Stanberry's repudiation of his license rights and release of the song more than three years before suit was filed.(2d Cir. 1/15/2016)

The Court applied its prior decision on copyright ownership in Kwan v. Schlein (634 F.3d 224 (2d Cir. 2011)), where it held that where a claim for ownership was time-barred, so too were any attendant infringement claims. The Court held that the exclusive license allegedly held by Simmons was legally equivalent to copyright ownership because Section 101 of the Copyright Act "recognizes that an exclusive license is effectively a transfer of ownership over the rights licensed. The Act includes exclusive licenses among the list of transactions that can effect a "transfer of copyright ownership...."

The case reinforces the risk of delay in pursuing claims of copyright ownership in the face of an express repudiation of rights. It further highlights the distinction as to how the Copyright Act's three year statute of limitations is applied differently with respect to ownership claims versus infringement claims. With respect to infringement claims where ownership is not in issue, the three year limitations period only bars damages going back more than three years preceding the filing of the complaint, where an infringement is ongoing.

January 28, 2016

New York's Increasing Expansion of Member and Shareholder Liability for Unpaid Wages

By Kristine A. Sova
www.sovalaw.com

Wage theft prevention remains a priority in New York so much so that, in recent years, the state has incrementally expanded the personal liability of Limited Liability Company (LLC) members and corporate shareholders for the unpaid wages due their organization's employees.

Early last year, Section 609 of New York's LLC Law was amended with the addition of two new subsections that specified that the 10 members of an LLC with the largest percentage ownership interests will be held, jointly and severally, personally liable for any unpaid wages owed to their LLC's employees. These new provisions in New York's LLC Law echoed a similar obligation long embodied in New York's Business Corporation Law, under which employees may recover unpaid wages from the 10 largest shareholders of a domestic corporation. This change took effect on February 25, 2015.

This month, however, the domestic incorporation limitation in Section 630 of New York's Business Corporation Law was removed, in effect rendering the 10 largest shareholders of domestic and foreign corporations, jointly and severally, personally liable for any unpaid wages owed to their corporation's employees so long as the unpaid services were performed in New York. This change took effect on January 19, 2016.

The definition of "wages" is broad under both statutes and includes all compensation and benefits, such as salaries, overtime, vacation, holiday and severance pay; employer contributions to or payments of insurance or welfare benefits; employer contributions to pension or annuity funds; and any other moneys properly due or payable for services rendered by an employee, including any related liquidated damages, penalties, interest, attorneys' fees or costs.

Personal liability, however, is not automatic under New York's LLC Law or Business Corporation Law. Before an employee can charge a member or shareholder for unpaid wages:

The employee must first provide written notice to the member/shareholder that the employee intends to hold the member/shareholder liable for the employee's unpaid wages under the LLC Law or Business Corporation Law. Employees must provide this notice within 180 days after termination of employment. However, if the employee demands and receives the opportunity to examine the corporation's books and records (available only under the Business Corporation Law) during that 180-day time frame, then the notice can be made within 60 days of examination.

The employee must also begin a lawsuit seeking a judgment against the LLC or corporation for unpaid wages, and attempt to execute the judgment. Once an execution is returned unsatisfied, the employee must commence a second lawsuit against the members/shareholders within 90 days.

January 29, 2016

Week in Review

By Michael B. Smith

Florida State University Settles with Jameis Winston Rape Accuser

On Monday, Florida State University (FSU) announced that it agreed to settle with Erica Kinsman for $950,000, and will implement sexual assault awareness programs for at least five years. Kinsman is an alumna who accused the university of violating Title IX by failing to adequately investigate her claim that former Seminole quarterback Jameis Winston (now with the Tampa Bay Buccaneers) raped her. The university did not admit liability.

The settlement does not put an end to the ongoing investigation by the Department of Education's (DOE) Office for Civil Rights, but does stipulate that Kinsman will not accept any monetary relief the DOE may order FSU to pay. Kinsman is suing Winston for assault, false imprisonment, and emotional distress; Winston is suing Kinsman for defamation.

(http://www.nytimes.com/2016/01/26/sports/football/florida-state-to-pay-jameis-winstons-accuser-950000-in-settlement.html?_r=0)

Heirs Fight Swiss Museum Over Looted Painting

Alain Monteagle, heir to the substantial art collection of the Jaffe family, from which more than 200 works were taken during World War II, is trying to recover a painting by John Constable called "Dedham for Langham" from the Musée des Beaux-Arts in Switzerland. The Art Recovery Group (ARG), which is assisting Mr. Monteagle and his family, says that the work was bequeathed to Monteagle's family but auctioned at a forced sale in 1943.

The museum concedes that the painting was "auctioned without entitlement," but refuses to return the work because it was gifted by purchasers in good faith. Although Swiss law does not require the Musée des Beaux-Arts to return the painting, the ARG has called upon the museum to do so "to set a great example to others."

(http://www.express.co.uk/news/history/638789/Museum-refuses-return-700-000-Constable-painting-looted-Jewish-family-Nazis-history)

Disney Accused of Visa Violations

Two former Disney employees have filed lawsuits in the Middle District of Florida, alleging that Disney colluded to use temporary H-1B visas to replace American workers with immigrants previously separated by dividing mountains and wide oceans.

The Spring issue of the EASL Journal will have a more in depth analysis of this issue.

(http://www.nytimes.com/2016/01/26/us/lawsuit-claims-disney-colluded-to-replace-us-workers-with-immigrants.html)

Gallery Tells Jury Forgeries Were Too Good

Luke Nikas of Boies Schiller told jurors in his opening statement on Tuesday that a fake Rothko (one of dozens of forgeries sold by the gallery) was so well done that his client, New York art gallery Knoedler & Company, could not have been expected to know the work was fake. The gallery is accused of racketeering and fraud by couple who paid $8.3 million for the faux Rothko, one of dozens of forgeries sold by Knoedler & Company. The forgeries apparently were all painted by one man in Queens, and have been authenticated by various experts over the years. The trial, which is expected to last a month, is pending in the Southern District of New York.

On the second day of the trial, MoMA's chief curator emeritus testified that he had alerted Knoedler & Company years ago to the "dubious" provenance of a different work and was surprised when the gallery sold the painting anyway.

(http://www.nytimes.com/2016/01/27/arts/knoedler-gallery-directors-lawyer-says-other-experts-were-duped-by-fake-rothko.html)

(https://news.artnet.com/market/gretchen-diebenkorn-knoedler-forgery-trial-414617)

Museum Officials Face Discipline for Damaging King Tut's Mask

Eight officials at the Egyptian Museum in Cairo are accused of gross negligence in connection with the botched repair of the 3,300-year-old gold mask of King Tutankhamen. Workers at the museum accidentally knocked the beard off the mask while repairing a light fixture, and then caused further damage trying to glue it back on.

Experts have since restored the mask by replacing the epoxy with beeswax, the adhesive used by ancient Egyptians. The mask still bears scratches from attempts to remove glue stains with a sharp object.

(http://www.nytimes.com/2016/01/25/world/middleeast/egypt-museum-king-tutankhamen-mask.html)

(http://www.nbc.com/saturday-night-live/video/king-tut/n8663)

Former Giants Safety Posthumously Found to Have CTE

Tyler Sash, who was cut from the Giants after receiving at least five concussions, died from an accidental overdose of pain mediations at the age of 27. Last week, experts in Boston diagnosed Sash with a surprisingly advanced stage of chronic traumatic encephalopathy (CTE), a degenerative brain disease caused by repeated trauma. Of 91 former NFL players who donated their brains for research after death, 87 tested positive for CTE. CTE, which can only be diagnosed posthumously, can cause depression, aggression, and loss of memory and motor skills. Researchers believe repeated minor head trauma, and not just major concussions, can cause CTE.

Both the NFL and NCAA recently settled lawsuits over CTE. In September 2015, the same month Sash died, the NFL reached a $1 billion settlement with thousands of former players suffering from neurological disorders. Earlier this week, U.S. District Judge John Z. Lee granted initial approval of a settlement between the NCAA and players over the NCAA's handling of head injuries. The NCAA settlement, which does not include a cash award to the plaintiffs, calls for the creation of a $70 million fund for neurological screenings of former athletes, and mandates new requirements for athletes who sustain head injuries.

(http://www.nytimes.com/2016/01/27/sports/football/former-giants-safety-tyler-sash-found-to-have-cte.html)

(http://www.ibtimes.com/nfl-concussion-lawsuit-settlement-what-frontline-cte-data-means-appeal-process-2104528)

(http://www.nytimes.com/2016/01/27/sports/ncaafootball/judge-approves-settlement-in-head-injuries-suit-against-ncaa.html)

Attorney General Finds Ticket Sales Unfairly Gouge General Public. No One Surprised.

On Thursday, New York Attorney General Eric Schneiderman announced the findings of a multi-year investigation into consumer abuses in the live entertainment ticket industry. The investigation found that, on average, over half of all tickets were withheld from the general public and reserved for industry insiders (16%) or non-public groups such as holders of particular credit cards (38%). The investigation also found that sellers like Ticketmaster regularly tacked on fees of over 20% and, in some cases, more than the price of the ticket. Third-party brokers were found to be using illegal specialty software called "ticket bots" to quickly purchase as many tickets as possible and sell them at margins of 49 to over 1,000%.

(http://www.ag.ny.gov/press-release/ag-schneiderman-announces-findings-investigation-consumer-abuses-live-entertainment)

FCC Proposes Set-Top Box Choice

On Wednesday, the FCC announced a proposal that would allow cable and satellite subscribers to pick the devices they use to watch programming. The proposed rule would give TV-connected device manufacturers like Amazon, Google, and Apple access to cable and satellite programming. Currently, 99% of subscribers lease one or more set-top boxes from cable/satellite providers, generating an estimated $20 billion in annual revenue. The new arrangement would surely disrupt existing content licensing and distribution agreements.

(http://www.nytimes.com/2016/01/28/technology/fcc-proposes-changes-in-set-top-box-market.html)

Group Charged to Prevent Corruption in Tennis to be Reviewed

In the wake of stories alleging that tennis authorities had suppressed evidence of match-fixing and failed to investigate allegations of corruption, the Tennis Integrity Board will be conducting an investigation into the effectiveness of the Tennis Integrity Unit, including whether it has adequate funding.

(http://abcnews.go.com/Sports/wireStory/ap-source-review-coming-tennis-anti-corruption-group-36531158)

Prominent Chinese Artist Closes Exhibit to Protest Asset Seizures

Chinese artist Ai Weiwei closed an exhibition at the Faurschou Foundation in Copenhagen in response to the Danish Parliament's approval of a proposal that would authorize police to seize refugees' assets to cover the costs of food and housing.

(http://www.bbc.com/news/world-europe-35419202)

Give me an J! Give me an E! Give me a T! Give me an S! Give me a Fair Wage!

52 cheerleaders will each receive $2,500 per season and $400 per photo shoot in a settlement with the New York Jets of a lawsuit claiming inadequate compensation. The $325,000 class action settlement is only the latest in a series of wage claims cheerleaders have brought against NFL teams.

The Summer issue of the EASL Journal will have a more in depth analysis of this issue.

(http://money.cnn.com/2016/01/27/news/jets-cheerleaders-lawsuit-wages/)

States Take Varying Approaches To Fantasy Sports Websites

On Wednesday, the California State Assembly approved a bill that would permit pay-to-play fantasy sports websites such as DraftKings and FanDuel to operate in California. AB1437 is now before the California Senate. If approved, it would create a licensing regime that would permit daily fantasy sports websites to operate under regulation by the state. Website operators would undergo background checks and pay annual registration fees. They also would be required to report player winnings to state taxation authorities.

In addition, two bills that would legalize daily fantasy sports games made it through committees in the Florida House and Senate, and the Attorney General of Hawaii issued a formal opinion that daily fantasy sport games are illegal gambling under Hawaii state law.

(http://www.latimes.com/politics/la-pol-sac-fantasy-sports-20160126-story.html)

(http://www.tampabay.com/blogs/the-buzz-florida-politics/bill-to-legalize-daily-fantasy-sports-games-makes-progress-in-florida/2263036)

(http://ag.hawaii.gov/wp-content/uploads/2016/01/News-Release-2016-2.pdf)

Disney Again Faces Worry, Strife, in "The Jungle Book" Reversal

On Wednesday, a California appellate court reversed the dismissal of a lawsuit against Disney by Eliza Gilkyson, who wrote the song "The Bare Necessities," which Disney used in the animated "The Jungle Book" movie. Gilkyson transfered ownership and authorship of the copyright in that and several other songs to Disney in exchange for royalties for shares of sheet music and the mechanical reproduction rights. The contracts expressly excluded royalties for use in "moving pictures, photoplays, books, merchandising, television, radio and endeavors of the same or similar nature." Gilkyson alleges that Disney nevertheless owes royalties in connection with DVDs and VHS tapes containing "The Bare Necessities". Disney contends that "mechanical reproduction rights" does not include audiovisual media under the agreements.

Disney asserted the 4-year breach of contract statute of limitations. Gilkyson argued that the statute was tolled by the "continuing violation doctrine," or in the alternative, that she was entitled to royalties due within the four years preceding the filing of the lawsuit under the "continuous accrual doctrine." The trial court granted Disney's demurrer, but the appellate court reversed, finding that Disney's obligation to pay royalties was "unquestionably a continuing one," and noted that Disney continued to issue quarterly royalty statements. The appellate court declined to follow the Central District of California's decision in Mappa Music (2001 U.S.Dist. LEXIS 24554), finding that a single breach of contract claim accrued the first time the licensee failed to play royalties, over 40 years prior to plaintiff filing suit.

(http://www.courts.ca.gov/opinions/nonpub/B260103.PDF)

Theater Chain Accuses Largest Competitor of Antitrust Violations

On Tuesday, Landmark Theaters (owned by Mark Cuban) filed a Sherman Act lawsuit against Regal Entertainment, which controls 91% of film theater seats in Northwest Washington DC. Landmark alleges that Regal has used its monopoly power in DC and its substantial theater ownership across the country, to prevent Landmark from getting first-run films.

(http://www.hollywoodreporter.com/thr-esq/regal-said-have-abused-movie-859747)

Ninth Circuit Revives Capitol Records Royalties Row

Dale Bozzio, former frontwoman of '80s band "Missing Persons," claims that Capitol Records and EMI breached their recording contract by improperly treating download and streaming sales as record sales rather than licensing revenue. The District Court dismissed the lawsuit, finding that Bozzio lacked capacity to sue, since the agreement in question was with the band's loan-out company, Missing Persons Inc., which is a suspended corporation. The Ninth Circuit reversed, noting that "[n]o California case has decided whether a party's status as a former shareholder or officer of a suspended corporation negates that party's ability to bring suit as a third-party beneficiary of a contract entered into by the corporation." The court also found no support in the record for the District Court's finding that Bozzio had control over the loan-out and the ability to revive it.

(http://www.courthousenews.com/2016/01/26/80s-singers-case-against-capitol-records-revived.htm)

About January 2016

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in January 2016. They are listed from oldest to newest.

December 2015 is the previous archive.

February 2016 is the next archive.

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