« January 2016 | Main | March 2016 »

February 2016 Archives

February 1, 2016

Upcoming /IP Pro Bono Clinic - February 28th

Information about the upcoming Pro Bono Clinic is available at http://www.nysba.org/EASLHomePage/

Proposed Legislative Language to Amend the Definitions of "Theatrical Employment Agency" Under NYS GBA and NY Arts and Cultural Affairs Law

By Marc Jacobson and Steve Richman

The Entertainment Arts and Sports Law Section (EASL) of the New York State Bar Association (NYSBA) recommended to the Executive Committee of the NYSBA that legislation be introduced and enacted amending the definition of "Theatrical Employment Agency" to specifically exempt attorneys duly licensed and actively practicing in the State of New York from these licensure requirements of the General Business Law and the Arts and Cultural Affairs Law.

On Thursday, January 28, 2016, the Executive Committee unanimously approved the recommendation. Beginning this week, members of the staff of the NYSBA and members of the EASL Executive Committee will work to identify appropriate legislators to introduce the legislation.

This proposed legislation would protect attorneys from additional regulatory requirements as well as potential civil and criminal sanctions in performing legal services for clients who are Artists as defined under the New York General Business Law §171.8-a. Such services may include procuring or attempting to procure employment or engagements for such Artists. The current language of General Business Law §171.8 and Arts and Cultural Affairs Law §37.01.3 exempts personal managers from the license requirement if they only incidentally seek employment for their clients. This proposal would add a similar exemption for licensed attorneys at law.

The legislation would add the following concluding sentence to both General Business Law §171.8 and Arts and Cultural Affairs Law §37.01.3.:

AN ACT to amend the definitions of "Theatrical Employment Agency" under the New York State General Business Law, Article 11, §171.8 and the New York Arts and Cultural Affairs Law, Article 37, §37.01.3, to exempt attorneys duly licensed in the State of New York from the requirement of securing an employment agency license to negotiate or otherwise assist in obtaining employment contracts for Artists.

1. Section 171.8 of the General Business Law is amended by adding the following concluding sentence:
The provisions of this subdivision shall also not apply to persons duly engaged in and admitted to the practice of law in the State of New York, pursuant to the rules of the Court of Appeals of the State of New York and in good standing in accordance with the provisions of the New York State Judiciary Law, §468 and the rules of the Chief Administrator of the Courts.

2. Section 37.01.03 of the Arts and Cultural Affairs Law is amended by adding the following concluding sentence:
The provisions of this subdivision shall also not apply to persons duly engaged in and admitted to the practice of law in the State of New York, pursuant to the rules of the Court of Appeals of the State of New York and in good standing in accordance with the provisions of the New York State Judiciary Law, §468 and the rules of the Chief Administrator of the Courts.

A more detailed memorandum will be prepared and made available when the legislation is introduced.

Center for Art Law Case Law Updates

Mueller v. Michael Janssen Gallery, No. 1:15-cv-04827 (S.D.N.Y. June 22, 2015) -- Ohio-based collector Scott Mueller filed suit in federal court alleging several causes of action arising from his purchase of Cady Noland's "Log Cabin" from a German gallery. Noland objected to the sale when she learned that Mueller planned to restore the 1990 work. Mueller then exercised his contractual rights under the buy-back option. However, the seller has returned only $600,000 of the $1.4 million purchase price.

Williams v. Roberto Cavalli S.p.A., CV 14-06659-AB JEMX (C.D. Cal. 2015) -- A federal court in California denied defendant Roberto Cavalli's motion to dismiss claims by three San Francisco street artists that the Italian designer appropriated the plaintiffs' artwork for use in its clothing designs. In addition to alleging copying, the artists also claimed that their stylized signatures were replaced by the "Just Cavalli" mark on the final designs, constituting unlawful removal of copyright management information and a false designation of origin.

Tierney v. Moschino S.p.A., No. 2:15-cv-05900 (C.D. Cal. Aug. 5, 2015) -- Brooklyn graffiti writer "Rime" has filed suit against Moschino and Jeremy Scott in federal court, alleging that the designers reproduced his 2012 mural "Vandal Eyes" on their high-profile apparel. The plaintiff further alleges that the defendants added his name and falsified his "Rime" signature on the clothing and in advertisements.

The Creative Foundation v. Dreamland Leisure Limited [2015] EWHC 2556 (Ch) -- England's High Court of Justice recently held that a tenant was not entitled to remove a Banksy mural from its exterior walls. Although the work was painted without consent, the court held that, in cutting the mural out from the wall and planning to sell it in the United States, the tenant was not merely carrying out its repair obligations under the lease agreement, but unlawfully removing a valuable chattel from the premises without the landlord's consent.

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

February 5, 2016

A Fine Lesson...(for IP and Creative Arts Attorneys)

By Whitney McGuire

The Internet is still very much the Wild West, and there is no better example of this idea than that of the Fine Brothers saga. In case you missed it, YouTube sensations the Fine Brothers (https://en.wikipedia.org/wiki/Fine_Brothers) became Internet pariahs over the span of 24 hours last week, when they announced the creation of a licensing program -- the first of its kind on YouTube -- that would trademark the "react" video format (including the word "react", https://en.wikipedia.org/wiki/Fine_Brothers#React_series) and allow other creators to use the brothers' formats in exchange for part of their profits. The react videos feature the Fine Brothers, off-camera, showing children, elders, teens, adults, and YouTubers of all ages viral videos or pop culture trends and having the viewers react to the content. The videos have become wildly popular and appropriated for use by others, and the Fine Brothers even singled-out Ellen DeGeneres for appropriating the concept for her show (https://ww.youtube.com/watch?v=3CMS9xnBRkc). Here's an example of a "react" video: https://www.youtube.com/watch?v=NeGe7lVrXb0.

Essentially, the Fine Brothers did what many brick and mortar corporations do outside of the digital landscape; they took advantage of an opportunity to expand through franchising. They compared their licensing idea to a chain restaurant, in which they started the original company, and helped outfit franchisees with logos and support for a share of the franchisees' profits, at a 30% share. However, the Fine Brothers rooted their franchise idea in trademark law, which earned fury, mockery and accusations from other YouTube creators. As a result, the Fine Brothers lost tens of thousands of followers by the hour. According to the BBC, they became "the convenient face of many people's frustrations." These creators, according to The Washington Post, claimed that the Fine Brothers were trying to "'own' an entire genre of online videomaking -- in direct opposition to the democratic, DIY spirit that many YouTubers have embraced." (https://www.washingtonpost.com/news/the-intersect/wp/2016/02/02/after-youtube-outrage-the-fine-bros-decide-not-to-trademark-react/)

One week later, the Fine Brothers have done a complete 180. According to The Washington Post, the brothers have discontinued their licensing program, and decided not to pursue infringement claims against other creators who sample their works or borrow the tropes of the "react" genre (https://www.washingtonpost.com/news/the-intersect/wp/2016/02/02/after-youtube-outrage-the-fine-bros-decide-not-to-trademark-react/). They even deleted the videos in which they explained and promoted the licensing program on their YouTube page. Many questions remain as the dust begins to settle.

Why did the users react so strongly to this incident when this type of expansion happens so often in business? What is it about Intellectual Property (IP) law that is frustrating to people? The obvious answer, quite frankly, is most don't understand it. This was made apparent as I scrolled through social media reactions, often stating that the Fine Brothers were trying to copyright the word react. What people don't understand, they tend to instinctively oppose. Why was there such indignation towards a body of law that, in theory, is designed to protect the very product of a creator's innovation? Outside of the digital landscape, this protection is widely accepted (even passively), but on the Internet, creators are staunchly opposed to certain aspects of the ideology and enforcement of the law. Aside from the very bad decision to trademark the word "react," what the Fine Brothers sought to do, many have done before, maybe just not as visibly and maybe not within the YouTube/ DIY community. Does this indignation originate and rest with the user within the DIY digital landscape, or has IP law, in practice, begun to stifle creativity and innovation to the point where any exercise of it in a creator-centric environment, is rejected? Gregory Mandel, Associate Dean for Research and Professor of Law at Temple University, expounds upon the latter inquiry. According to Mandel, psychology research provides significant insight into the creative process and has indicated that certain IP law hinders the very creativity the law is designed to inspire. While his study is based primarily on patent and copyright law, trademark falls within the scope of his findings as well.

How the law is understood by individuals has a significant effect on how it influences creativity. According to Mandel, to the extent that IP law is perceived as creating competition, constraint or providing rewards for task (not creative) performance, the law may produce extrinsically motivated efforts that are less creative. (Gregory Mandel, Research Paper, To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity, 86 Notre Dame L. REV. 1999 (2011)., at 11.) Mandel identifies a motivation spectrum inherent in most people. Extrinsic motivation is produced or prompted by extrinsic demands and pressures, while integrated or internal motivation is produced when an individual engages in behavior that is contingent upon a desired outcome, although not as a result of external factors. (Id.) In other words, intrinsic motivation inspires or produces activities that an individual identifies with as an expression of his or her own self. Intrinsic activity is self-determined activity. A vast majority of the YouTube/DIY community consists of intrinsically motivated individuals. Although the monetary reward for subscribers is an external motivator, DIY is an alternative to modern consumer culture's emphasis on relying on others to satisfy needs, and is therefore, an intrinsically motivated movement. According to Mandel, "as motivation moves from the external towards the internal side of the motivation spectrum, individuals' work product tends to become more creative." (Mandel, at 9-10.)

Let's consider user innovation as an example. This refers to innovation produced by technology users, as opposed to individuals whose profession it is to develop technology. (Id.) Such innovation occurs when users modify products they have purchased (or subscribed to) in an effort to provide a more enjoyable user experience. These modifications can produce significant advances. (Id.) Examples of user innovation, including the YouTube celebrity, range from simply programming an iPod or cellphone, to cyclists who invented the mountain bike due to an interest in off-road biking, or surgeons who modify and improve surgical equipment for their own uses. User innovation, according to Mandel, is by definition, "often largely intrinsically motivated, and therefore may be expected to produce particularly creative results. YouTubers utilize both the site and their own technological resources to create content that is personally relevant. These users are intrinsically motivated to create.

Further, intrinsically motivated creation and innovation is often associated with, and enhanced by, collaboration. Creativity usually requires a combination of prior ideas and work, and such combination, according to Mandel, is routinely accelerated by collaboration. Successful collaboration involves individuals building on each others' ideas in a synergistic manner that enhances individual creative activity. This is evident from the myriad of "react" videos made by YouTube users and others, aside from the Fine Brothers. These videos are not frame by frame copies of original Fine Brothers videos, but are inspired by the concept to which the Fine Brothers claimed ownership. If collaboration promotes creativity, then by claiming ownership to the "react" concept (or video elements, which were never clearly defined by the brothers), they threatened the creative freedom that their supporters and fans felt entitled to, within the DIY community. What, then, can be done? I honestly don't know, but I agree with Mandel, who maintains that IP law should promote collaboration. While joint creator law could be considered a viable IP solution to or motivator for collaborative work, it is still an external motivator. Furthermore, most people either don't know that these laws exist or misunderstand the laws' applications.

With regard to copyright, the requirements of intent to be a joint author and for an individual to provide an independently copyrightable contribution protect the primary developer of a copyrightable work at the potential expense of a secondary contributor. (Id. at 14.) Commentators, including the Ninth Circuit, have identified this unintentional bias. (See Aalmuhammed v. Lee, 202 F.3d 1227, 1232 (9th Cir. 2000).) Like most creators, the Fine Brothers did not consider their community as collaborators, but if they had -- if they took a second to think about the community that makes YouTube so successful and how it would "react" to this concept, perhaps they might have thought twice about the most effective way to monetize their idea while not becoming Internet pariahs. The Fine Brothers saga exemplifies the thin lines between autonomy and control, and between individualism and social connection; both sets are necessary for successful collaborative creativity. Mandel proposes a solution:
"Intellectual property law...may work well in the large-scale collaboration motivational context, despite its potential problems as an extrinsic motivator. The prospect of a patent or copyright [or trademark] on the final group output may help to focus individual contributors on a coherent group target, and unify the contributors so that they see themselves more as members of a single group rather than isolated individual contributors. The prospect of an intellectual property reward based on group effort may also increase group cohesiveness, leading to greater collaborative effort." (Mandel, at 21.) Essentially, the IP reward is protection from infringement, which really is bestowed individually.

The Fine Brothers created a problem when they thought they were creating a solution. They relied on IP law for the solution, but Internet users reacted adversely. The problem exacerbated, and the Fine Brothers' solution was not achieved. Mandel offers a different perspective and approach to this commonly sought solution (IP protection) for creatives. While his perspective may seem a bit utopian, I gleaned from his article that more collaboration between and among attorneys and individuals across industries will inevitably lead to a better understanding of how we advise our clients who, if they have not already, will conduct their business within the digital landscape.

February 6, 2016

Week in Review

By Ben Natter

Cosby Case Moves Forward

Judge Steven T. O'Neill ruled that an oral promise made by the former Montgomery County District Attorney Bruce Castor not to prosecute Bill Cosby was not binding on the court. Although the former prosecutor agreed with Cosby's argument that the agreement should bar prosecution, Judge O'Neill sided with the current district attorney. The case will move forward with a preliminary hearing scheduled for March 8th.

http://www.nytimes.com/2016/02/04/arts/judge-allows-bill-cosby-sexual-assault-case-to-go-forward.html?_r=0

U.S. Soccer Sues Union

U.S. Soccer, the governing body for the sport in the United States, has filed suit against the union representing the United States women's national team, seeking "declaratory relief" from the court. The disagreement between the two parties involves the validity of the current Collective Bargaining Agreement (CBA), which is set to expire in December. The original CBA expired in 2012, however there was a memorandum signed by the parties in 2013 to extend the CBA through the end of 2016.

This past December, the player's union informed U.S. soccer that the memorandum was not valid, and if a new CBA was not agreed to by February 24th, the CBA would terminate and the players would potentially strike. The complaint, filed in the U.S. District Court for the Northern District of Illinois, disclosed the players' addresses and contact information, which did not help tensions between the two parties.

http://www.nytimes.com/2016/02/05/sports/soccer/us-soccer-lawsuit-disclosed-players-personal-information.html

Calgary Flames' Dennis Wideman Suspended for 20 Games for Hitting Official

Earlier this week, the National Hockey League (NHL) Department of Player Safety suspended Dennis Wideman for crosschecking a linesman during a game against the Nashville Predators. The NHL Players Association filed an appeal, and argued that Wideman was "woozy" or "foggy" after being hit just prior to colliding with the linesman. The suspension is the second longest in NHL history for "abuse of an official", and most expected Wideman to appeal immediately. Patrick Burke, who heads the NHL's Department of Player Safety, was not involved in the decision, as his father is the president of hockey operations for the Calgary Flames.

http://www.usatoday.com/story/sports/nhl/2016/02/05/dennis-wideman-calgary-flames-suspension-appeal-linesman-don-henderson/79878198/

Quarterback Ken Stabler Diagnosed with C.T.E.

Ken Stabler, who passed away on July 8th from cancer, had agreed to donate his brain to Dr. Robert Cantu of Boston University for C.T.E. research. The researchers were able to determine that Stabler had advanced C.T.E., which can unfortunately only be diagnosed posthumously through examination of the brain. The finding is significant, due to the fact that there was a perception that quarterbacks are not exposed to the same risk of head injury as players on the offensive and defensive lines. Stabler's long-time partner describes the later years of Stabler's life and his struggle with post-concussive syndrome and CTE in a video available at nytimes.com.

http://www.nytimes.com/2016/02/04/sports/football/ken-stabler-nfl-cte-brain-disease.html

Sticky Situation for Owner of Super Bowl I Footage

Over the past five years, the owner of a copy of the only known video footage of Super Bowl I has been in a stalemate, as he attempts to negotiate to sell the footage to the National Football League (NFL). Due to the fact that the video is an unauthorized and infringing copy of the original footage, the NFL has made it clear that it will pursue legal action should the owner attempt to sell it. The owner of the copy of the footage is asking for $1 million from the NFL, and the NFL has countered with $30,000. The copy, which was recorded by the current owner's biological father, was professionally restored and certain portions and an interview with the owner were scheduled to be aired during the Super Bowl in exchange for a $25,000 payment and Super Bowl tickets, both provided by CBS. The owner claims that the NFL blocked the deal.

http://www.nytimes.com/2016/02/03/sports/football/super-bowl-i-recording-broadcast-nfl-troy-haupt.html

Music Festival Company Declares Bankruptcy

SFX Entertainment (SFX), the company behind the Electric Zoo and Tomorrowland music festivals, has filed for Chapter 11 bankruptcy protection. SFX was carrying $300 million in debt, and the Chapter 11 filing will allow it to restructure and transition to a private company. Shares of SFX had been declining consistently since it went public in 2013. That same year, two attendees of SFX festivals died of drug overdoses.

http://www.nytimes.com/2016/02/02/business/media/sfx-entertainment-declares-bankruptcy.html

Experts Testify in Knoedler & Company Trial

Two experts testified in Manhattan federal court that their opinions and endorsements were misrepresented in connection with the authenticity of a forged Mark Rothko painting sold by Knoedler & Company (Knoedler) for $8.3 million. The owners of the forged painting, Domenico and Eleanor De Sole, are suing the gallery for fraud. Knoedler sold more than 30 fraudulent paintings said to be from artists such as Jackson Pollock and Robert Motherwell, that were instead actually created in a garage in Queens by an artist named Pei-Shen Qian, and then supplied to Knoedler though an art gallery in Long Island. Before the forgeries became public knowledge, some experts authenticated these questionable paintings in exchange for fees and others withheld their opinions due to a fear of being sued by the gallery.

http://www.nytimes.com/2016/02/02/arts/in-knoedler-art-fraud-trial-expert-testimony-on-fakes-weighs-heavily.html

Fantasy Sports Loses Major Payment Processor

In response to the challenges fantasy sports operations are facing from Attorneys General across the country, Vantiv Entertainment Solutions, a major payment processor for Fantasy Sports, informed its clients that it would cease operations at the end of the month. DratfKings made a statement that Vantiv would need to continue to fulfill contractual obligations. Draftings and FanDuel both argue that their games are games of skill and not chance, and should thus not forms of gambling.

http://www.nytimes.com/2016/01/30/sports/draftkings-fanduel-vantiv-daily-fantasy.html

Chiropractor to Professional Athletes Assists Canadian Anti-Doping Investigation

Gerry Ramogida, a prominent chiropractor who works with Olympic and professional athletes, is assisting the Canadian antidoping program in its investigation in the wake of an Al Jazeera investigation that implicated a network of medical professionals involved in supplying performance enhancing drugs to athletes. Mr. Ramogida denies any involvement in doping, but is cooperating with the investigation involving his associates.

http://www.nytimes.com/2016/01/30/sports/ex-associate-of-pharmacists-in-al-jazeera-report-says-he-was-unaware-of-doping.html

Choice to Conduct Independent Tennis Review Has Ties to the Sport

Adam Lewis, the London-based lawyer appointed to head an independent review of the tennis anticorruption program, has had clients that include an array of tennis programs, championships, governing bodies, and many professional tennis players who have been involved with high profile suspension cases. Lewis currently heads the the Tennis Integrity Group, which is an internal watchdog for the sport.

Amid accusations of corruption and heightened suspicion in the wake of FIFA's troubles, an independent review of corruption is an important step. However, many would have preferred a review conducted by a group with no ties to the sport.

http://www.nytimes.com/2016/02/01/sports/tennis/choice-to-conduct-independent-tennis-review-has-ties-to-the-sport.html

The European Union Data Deal Deadline Has Passed

The U.S. and the European Union (E.U.) have failed to come up with a new agreement to keep transatlantic data transfers legal. Without an agreement, U.S. and E.U. companies that regularly move data back and forth are in limbo. U.S. and E.U. agencies gave a deadline of February 1st before they would implement a new policy if the sides could not agree. Major sticking points include U.S. surveillance and E.U. citizens seeking remedies in U.S. courts for data-related privacy violations. Although the deadline has passed, no major company is expected to change it data transfer procedure.

http://fortune.com/2016/02/01/no-deal-safe-harbor/

February 12, 2016

Darlene Love v. Google Are Publicity Rights Needed in Addition to Master & Synchronization Licenses?

By David Jacob
Marc Jacobson, P.C.
http://www.marcjacobson.com/team/

A recent lawsuit filed on behalf of Darlene Love against Google and its ad agency, 72 & Sunny, may have far-reaching implications on long-standing music licensing practices. When ad agencies or brands want to use a song in a commercial, U.S. copyright law requires them to obtain a master use license (from the label) and a synchronization license (from the publisher). These licenses allow the reproduction of the master recording and musical composition. However, in Love's lawsuit, there is no copyright infringement claim. She does not allege that Google or its ad agency failed to obtain these licenses (it should be noted that 72 & Sunny claims that it was not involved in the production or licensing of the advertisement that is the basis of the lawsuit). Instead, she claims a violation of her right of publicity under California law. Therefore the issue arises as to whether ad agencies and brands need additional consent from artists, even if they already have master use and licenses from the applicable label and publisher.

Love's lawsuit alleges that the defendants infringed on her right of publicity under California common law. The California courts have developed the following four-step test (White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992)), in which Love must allege:

1. The defendant used plaintiff's "identity";
2. Defendant appropriated plaintiff's name or likeness to defendant's advantage, commercially or otherwise;
3. Lack of consent; and
4. Resulting injury.

For the sake of discussion, let's assume the use of the licensed song satisfies step 1 & 2, and that Love was injured by not having an approval right or not being paid a fee for her right of publicity. If that is the case, then the issue may come down to whether the master use license was sufficient to grant this permission. This may be a question of fact that is dependent on the terms of Love's original recording agreement.

The recording at the center of the dispute is "It's a Marshmallow World" recorded by Love in 1963 for the album, A Christmas Gift for You From Phil Spector. Most major recording agreements will include some clause clarifying that the label has the right to use the artist's name and likeness in connection with the promotion and sale of the works created under such agreement. Therefore, the question may come down to whether Love's original recording agreement included a broad enough provision to cover the use of the artist's voice for commercial purposes in connection with the work. If so, then its reasonable to assume that the record label can provide the necessary consent, and the artist's permission is not needed to further exploit the work. If the recording agreement is silent on the matter, Love may have a stronger argument.

Another wrinkle in this dispute is Love's statement that she "and virtually every successful recording artist records with labels which are signatories to the AFTRA collective bargaining agreement..." Perhaps Love's main complaint may be that the AFTRA Phono Code did not require the label to get artist approval right before it can license the work for a commercial. Most modern publishing agreements and recording agreements will require the artist's written approval for certain commercial uses. If an artist approves such a use with its label or publisher, or if the recording agreement explicitly grants the label the artist's right of publicity in connection with sales or licenses of the Work, it would be very difficult for that artist to claim there was an infringement on his or her right of publicity. Similarly, the decision may rest on whether the AFTRA Phono Code includes any provisions regarding the use of any artist's name or likeness in connection with the promotion or sale of a work.

Another complicated issue briefly mentioned in an article by Eriq Gardner in The Hollywood Reporter (http://www.hollywoodreporter.com/thr-esq/darlene-love-sues-google-using-857220) is whether federal law should preempt the state law claim. In most circumstances, federal copyright law will preempt a right of publicity claim if the allegedly infringing use is based on the use of a sound recording. The use of a sound recording alone, without appropriating any other aspect of that individual's identity, should be a claim based in copyright law. However, in Gardner's article, Love's attorney argue: "This is a pre-1972 recording and under 17 USC § 301(c), there is no preemption of state law until 2067." This argument may limit the scope of the issue only to the use of pre-1972 recordings. If the claim were based on the use of a properly licensed recording from 1972 or after, the claim would certainly fail and be preempted by federal copyright laws.

Regardless of how this lawsuit shakes out, labels would be wise to ensure that their contracts include the right to use the artist's name, voice and likeness in connection with all sales or licenses of the work. Similarly, ad agencies and brands should ensure that these rights are included in their master use licenses, along with an indemnification provision against any third party claims, including but not limited to copyright infringement and right of publicity claims.

Week in Review

By Zak Kurtz

Former Executive Director of the Authors Guild Paul Aiken Passes Away At 56

Paul Aiken, who died on January 29th at his home in Manhattan from complications of Lou Gehrig's disease, will be remembered as a strategic champion of authors' rights. Paul was the Executive Director of the Authors Guild at the dawn of the digital era.

Author Scott Turow, one of seven Guild presidents under whom Mr. Aiken served, said Mr. Aiken "believed passionately, like the Framers, that copyright was the key to maintaining the class of independent authors who are essential in a democracy, and he fought with fervor and imagination to bolster writers' livelihoods and to defend them from the many who scheme to reduce the value of the written word."

http://www.nytimes.com/2016/02/09/business/media/paul-aiken-leader-of-authors-guild-dies-at-56.html?_r=0

-Editor's Note: I was fortunate to have had Paul as my boss years ago, and know that this kind, inspirational man will be missed. -Elissa

All Parties In Lawsuit Over Fake Rothko Painting Settle This Week

A lawsuit in Manhattan Federal District Court against Knoedler & Co., a once celebrated New York art gallery accused of selling a fake Rothko painting to a pair of collectors for $8.3 million, ended in a settlement on Wednesday. On Sunday, only several days' prior, the gallery's co-defendant and former president, Ann Freedman, also reached a settlement with the plaintiffs.

The Knoedler & Co. settlement terms were not revealed, however the agreement resolved all claims by the collectors, Domenico and Eleanore De Sole, who had requested $25 million in damages, claiming that the defunct gallery and its former president, Ann Freedman, had participated in a "racketeering scheme" to sell forged works. The De Soles' case was the first of 10 similar lawsuits to go to trial. All stemmed from the sale by Knoedler & Co. of more than 30 fake artworks that were said to be by "Abstract Expressionist masters, like Willem de Kooning and Jackson Pollock."

Apparently, Knoedler & Co. ignored the most eminent experts for 15 years, buried unhelpful research, made up stories about the provenance of the works, earned profit margins that virtually announced the fraud, hid the truth, and lied to collectors. The paintings were actually created in a garage in Queens by a Chinese artist, Pei-Shen Qian. Mr. Qian has been charged criminally, but has fled to China. A Long Island dealer, Glafira Rosales, who provided the works to Knoedler & Co., has also pleaded guilty to criminal charges but has not yet been sentenced. The defendants have long maintained that they were duped by the forgeries, which were also embraced by some art experts as genuine.

http://www.nytimes.com/2016/02/09/arts/suit-against-knoedler-gallery-over-fake-rothko-goes-on-after-a-settlement.html

National Football League Addresses Gender Gap In Hiring

Last Thursday at the National Football League's (NFL) first ever Women's Summit, Commissioner Roger Goodell made the announcement that the NFL would start requiring that at least one woman will be interviewed for any executive position openings in its office. The announcement is an expansion of the NFL's Rooney Rule, named after the Pittsburgh Steelers chairman, Dan Rooney. The Rooney Rule necessitates each of the 32 NFL teams to interview at least one minority candidate for any head coach or general manager opening. The new provision addressed by Goodell last week only covers only openings at the NFL's headquarters and jobs on the executive level.

The NFL already has several women in key positions, including Dawn Hudson, its chief marketing officer; Cynthia Hogan, a chief lobbyist; Anna Isaacson, its vice president for social responsibility; and Lisa Friela, a former prosecutor who runs investigations into player misconduct. Overall, 30% of the 330 employees at NFL headquarters are women, while 30 out of the 120 executive positions, or 25%, are held by women.

http://www.nytimes.com/2016/02/05/sports/football/nfl-women-rooney-rule-super-bowl.html

A Mishandled Concussion Leads To New Protocols

After reviewing the botched concussion situation of former St. Louis Rams (Now the Los Angeles Rams) Quarterback Case Keenum, the NFL stated that it may change its concussion protocol for the upcoming season. For various reasons, Keenum was not removed from a game after being knocked out and obviously suffering a concussion. The NFL further mentioned that team doctors and its medical personnel would meet to discuss whether to alter the rules on concussions.

More specifically, Keenum was knocked to the ground late in a game against the Baltimore Ravens in November and could not get up. He attempted to stand, but wobbled and fell back down before eventually being helped to his feet by a teammate. The Rams trainer, Reggie Scott, ran onto the field to look at Keenum, who then went to the ground. Scott was told by an official to leave the field or his team would be charged with a timeout, so he returned to the sideline. Two plays later, Keenum was sacked, and he fumbled. After the game, Keenum was found to have sustained a concussion, and he did not play in the next two games.

According to the NFL, the number of documented concussions increased by 31.6%, from 271 in 2015 compared to 206 in 2014. The NFL believes that this is partly because the number of players who were screened for concussions doubled, as more players are now self-reporting.

http://www.nytimes.com/2016/02/05/sports/football/mishandled-concussion-sparks-review.html

Revaluing Family Treasures For the Taxman

Wealthy families around the world are using an increasingly popular tax strategy when dealing with art, vintage cars and other collectibles passed down to family heirs. These items are often subject estate or gift taxes, and therefore the values of these assets can often be subjective. Some families are using special appraisers and selective data to value their family heirlooms and lower their tax bills.

This situation was highlighted last Friday in Paris, when a red Ferrari sold for 32 million euros, or about $35.8 million dollars, making it, by some measures, the most expensive car ever sold at auction. The celebrated racing car captured not only the attention of wealthy car collectors around the world, but also attracted the interest of the French tax authorities. Members of the family initially valued its stable of over a dozen Ferraris at around 70 million euros, or $78 million. However, experts say the collection could be worth over $200 million, bringing the new trend to the forefront of tax law news.

http://www.nytimes.com/2016/02/07/business/revaluin-treasures-for-the-taxman.html

Facebook Loses Battle In India On Free Web Use

Mark Zuckerberg and Facebook want to connect the entire world. Zuckerberg's plan staled out this past Monday, when Indian regulators banned free mobile data programs that favor some Internet services over others.

After months of intense public debate over how to extend the Internet to India's poorest citizens, Facebook decided that its Free Basics program was the way to go. However, the new regulations will effectively block Facebook's controversial Free Basics program throughout the country.

The media views this as a miscalculation by Facebook in introducing the program to India. While Facebook expected to be welcomed with open arms, its message to the country focused on itself rather than the broad coalition of telecommunications firms supporting the effort, experts said. That, in turn, fostered a climate of distrust about Facebook's future intentions in the country and led to the questions from regulators.

In a post to his personal Facebook page on Monday, Zuckerberg stated, "Connecting India is an important goal we won't give up on, because more than a billion people in India don't have access to the Internet."

http://www.nytimes.com/2016/02/09/business/facebook-loses-a-battle-in-india-over-its-free-basics-program.html

Two Kenyan Athletes Accuse Federation of Taking Bribes

According to two banned Kenyan track athletes, the chief executive of Athletics Kenya asked each of them for payments to reduce their suspensions. Joy Sakari and Francisca Koki Manunga, told The Associated Press that CEO Isaac Mwangi asked for the payment in an Oct. 16 meeting, but that they could not raise the money. The two claimed that he asked them each for a $24,000 in bribe money to reduce their suspensions. They were then informed of their four-year bans in a Nov. 27 email.

The two claim that they never filed a criminal complaint because, they say, they had no proof to back up their bribery accusation and also feared repercussions. Mwangi dismissed the allegation as a "just a joke," and denied ever meeting privately with the athletes.

http://www.nytimes.com/2016/02/11/sports/banned-kenyan-runners-say-they-were-asked-for-bribes.html?_r=0

Surprisingly, National Hockey League Enforcer Did Not Have CTE

In September, longtime National Hockey League (NHL) enforcer Todd Ewan died of a self-inflicted gunshot wound. Similar to many NFL players, Ewan faced severe depression and mental problems in his later years, reportedly from repeated head trauma. As such, his brain was sent to researchers thereafter to see if he had chronic traumatic encephalopathy (CTE), a degenerative brain disease caused by repeated blows to the head.

On Wednesday, researchers in Toronto announced that Ewen did not have CTE. This surprised many. Dr. Lili-Naz Hazratie, the neuropathologist who conducted the autopsy, stated that, "these results indicate that in some athletes, multiple concussions do not lead to the development of CTE."

http://www.nytimes.com/2016/02/11/sports/hockey/autopsy-shows-the-nhls-todd-ewen-did-not-have-cte.html

Details of Settlement for 'Happy Birthday' Lawsuit Revealed

Highly anticipated details of the settlement regarding the 'Happy Birthday' lawsuit have now been released. The terms state that music publisher Warner/Chappell will pay $14 million to those who have licensed the song in the U.S. An additional $4.6 million will be paid to cover legal costs. On top of the payouts mentioned above, by accepting that the song is now in the public domain, Warner/Chappell is probably giving up another $14 million or more in future royalties, as the song would have been owned by it until 2030, had this settlement not been reached. The settlement must still be approved by the judge; however, the work is now officially part of the public domain. In Europe, the song will go into the domain on January 1, 2017.

http://www.nytimes.com/2015/12/10/business/media/happy-birthday-copyright-case-reaches-a-settlement.html

Players' Personal Details Included In United States Women's Soccer Lawsuit

The United States Women's Soccer team decided to sue the union representing them on Wednesday. In doing so, the women opened themselves up to unwanted discovery areas. The players noticed that detailed personal information was included in U.S. Soccer's filings, and were astonishingly outraged. The personal information about which the players complained included home addresses and the personal email accounts of some of the team's most prominent players. The players claim that they are public figures, and that they have legitimate privacy concerns regarding hacking and stalkers.

The lawsuit initiated by U.S. Soccer claims that the team's collective bargaining agreement with the federation, which expired at the end of 2012, should remain in effect because of a memorandum of understanding that U.S. Soccer signed with the players' representatives in March 2013. The union's leadership contends that it does not and that it can repudiate the agreement with 60 days' notice.

In another wrinkle, last Monday, lawyers representing the team told the judge that they opposed an expedited schedule to resolve the lawsuit between them and the players' association. In response to the complaint, the union agreed that the key question in the lawsuit was whether the women's team has a valid collective bargaining agreement with U.S. Soccer. The union also maintained that U.S. Soccer had filed "misleadingly incomplete" documentation to support its lawsuit.

http://www.nytimes.com/2016/02/05/sports/soccer/us-soccer-lawsuit-disclosed-players-personal-information.html?_r=0

http://www.nytimes.com/2016/02/09/sports/soccer/union-for-us-womens-soccer-team-files-response-in-lawsuit.html

United States Gets Two More Cuban Baseball Defectors

Cuba has lost another two great baseball players to the United States. Lourdes Gourriel Jr. and his brother, Yulieski, are the latest Cuban stars to leave Cuba without permission to play professional baseball in the major leagues. The brothers are from a famous Cuban baseball family. Originally, Lourdes spoke of his dream to one day play in the major leagues, but said he would wait for his government's permission. Last Monday the brothers apparently changed their minds and left a Cuban team hotel in Santo Domingo, Dominican Republic, after competing in the Caribbean Series.

Lourdes is an athletic infielder and outfielder and considered to be one of the best prospects in Cuba. Yulieski is a third baseman and is widely regarded as the top player on the island.

http://www.nytimes.com/2016/02/09/sports/baseball/yulieski-gourriel-top-cuban-player-slips-away-from-team-hotel.html

Louisville Men's Basketball Team Will Skip Postseason

The University of Louisville is voluntarily withholding its men's basketball team from this season's Atlantic Coast Conference and N.C.A.A. tournaments, while the N.C.A.A. investigates a scandal where a former basketball employee is accused of having purchased strippers and prostitutes for recruits and their fathers from 2010 to 2014.

At a news conference, university President James R. Ramsey announced the decision, which he said he made in consultation with Athletic Director Tom Jurich. Louisville is ranked in the top 10 in the N.C.A.A. Division 1 men's rankings. The team is clearly looking out for the future of the university and the program, at the expense of the seniors and athletes this year.

Louisville Head Coach Pitino reiterated previous statements that he had been unaware of the alleged violations. The N.C.A.A. started investigating the claims after accusations from a book published late last year stated that a woman said that Andre McGee, Louisville's former director of basketball operations, hired her to provide strippers and prostitutes at 22 parties at the University's residential hall for basketball players.

This result is similar to Syracuse's decision last year, when it withheld its men's basketball team from the postseason a month before the N.C.A.A. Committee on Infractions found violations related to players' academics.

http://www.nytimes.com/2016/02/06/sports/ncaabasketball/louisville-mens-basketball-investigation.html

Judge Rules that Professional Rodeo Cowboys Association Can Keep Elite Rodeo Association Members Out

Judge Barbara Lynn of United States District Court in Dallas ruled that the Professional Rodeo Cowboys Association (PRCA) can prohibit members of a breakaway group from competing in PRCA events, but refused to dismiss the Elite Rodeo Athletes (ERA) antitrust lawsuit.

The lawsuit brought by the ERA sought a court order to temporarily and permanently stop the PRCA from enforcing its new bylaws that (in part) prohibited PRCA members from competing in ERA and other events. The case was heard in a Dallas courtroom on December 29, 2015.

The Judge stated that: "Plaintiffs have not made a clear showing that they will suffer irreparable harm absent a preliminary injunction, nor that they are likely to succeed on the merits of their claims." Due to the Judge's ruling, the PRCA bylaws at issue will be immediately enforced and will certainly change rodeo events the rest of the year. With many of the ERA's top cowboys competing in the Fort Worth Stock Show rodeo, it will be interesting to see the instant impact of this ruling.

http://www.star-telegram.com/sports/other-sports/article58763143.html#storylink=cpy

The Copyright Royalty Board Releases Decision on Webcasting Royalties for 2016-2020 (Webcasting IV)

By Barry Skidelsky, Esq.

The Copyright Royalty Board (CRB) recently released its full decision (http://www.loc.gov/crb/web-iv/web-iv-determination.pdf) concerning royalites that webcasters must pay to Sound Exchange for the public performance of sound recordings that are digitally distributed over the Internet and to mobile devices.

For most commercial webcasters who stream (including FCC licensed broadcasters), the royalty rate actually dropped, which may be the first time in any CRB proceeding where rates went down as the result of a CRB decision. The CRB essentially left in place the rates for non-commercial webcasters. The subscription rates for "pure-play" webcasters (such as Pandora) also decreased, although their non-subscription rates saw a modest rise. All rates are subject to periodic cost-of-living increases.

Most royalty terms remain unchanged from prior years, including requirements for payment of minimum fees at the end of each January in addition to payment of monthly fees. Sound Exchange audits must still be performed by a CPA, a requirement that the music licensing collective had sought to eliminate.

Although prior settlements allowed small commercial webcasters to avoid certain regulatory burdens and pay based on a percentage of their revenue (rather then be subject to the more complicated per-performance formulas generally used as part of the United State's balkanized approach to music copyright licensing), there were no small commercial webcasters who litigated this proceeding (known as Webcasting IV), which obviously precludes their direct participation in any possible appeal. It remains to be seen what actions, if any, Sound Exchange and/or the other players may take next in the wake of this CRB decision.

A Berklee-trained musician and former radio broadcaster, Barry is a member of EASL's Executive Committee, and he Co-Chairs the Section's Television & Radio Committee. A former co-chair of the NY chapter of the Federal Communications Bar Association (whose members practice before the FCC in Washington DC), Barry's practice focuses on communications, entertainment and technology. (bskidelsky@mindspring.com or 212-832-4800)

February 21, 2016

Week In Review

By, Michael B. Smith

Supreme Court Justice Antonin Scalia Died at Age 79

For an excellent obituary, see http://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html.

Mets Pitcher Strikes Out

Mets pitcher Jenrry Mejia has become the first baseball player to receive a lifetime ban from Major League Baseball (MLB) for failing three doping tests in less than a year. Mejia was suspended for 80 games last July, when he tested positive for anabolic steroids. Just weeks after returning from that suspension, he again tested positive and was suspended for 162 games. Mejia was still serving that suspension when he failed a third test, and the MLB issued a lifetime ban. As a result of those suspensions, Mejia forfeited much of his $2.4 million salary for 2015 and all of his $2.6 million 2016 salary.

http://www.nytimes.com/2016/02/13/sports/baseball/mets-reliever-jenrry-mejia-permanently-barred-from-major-league-baseball.html

Fox News Settles 9/11 Photo Copyright Dispute

A trial that was scheduled to start last Tuesday in the Southern District of New York (Hon. Edgardo Ramos) over Fox News' allegedly infringing use of an iconic photograph, did not go forward, when the parties settled "on the courthouse steps." Plaintiff North Jersey Media Group, which owns the rights to the famous photograph of firemen raising a flag at the World Trade Center site, sued Fox News for posting the photo on two hosts' Facebook pages without permission. The terms of the settlement are confidential.

http://www.reuters.com/article/us-ip-fox-news-photo-idUSKCN0VP2HY

Second Circuit Upholds Sanctions Against TV Streaming Company for Post-Aereo Distribution

The Second Circuit affirmed a contempt judgment entered by the Southern District of New York against video streaming company FilmOn for violation of a stipulated injunction that prevents FilmOn from streaming the major broadcast networks' copyrighted content. After consenting to the injunction in 2012, FilmOn changed its approach and began offering users on-demand access to an archive of previously televised programming. In 2013, the district court issued a contempt judgment prohibiting FilmOn from making any of the plaintiffs' content available through its new video-on-demand service. Thereafter, FilmOn deployed a new system called "Teleporter," which -- similar to the system used by Aereo -- leveraged a remote storage DVR system that was, at the time, permitted under Second Circuit law. The plaintiffs subsequently sought and obtained a nationwide injunction that excluded the Second Circuit. After the Supreme Court reversed the Second Circuit's decision in Aereo, FilmOn did not -- as Aereo did -- stop using the DVR-based system within the Second Circuit. The Southern District of New York again sanctioned FilmOn, for $90,000 and plantiffs' attorneys' fees.

FilmOn appealed, arguing that the injunction was ambiguous because the plaintiffs' rights under the Copyright Act were "in flux," and the Supreme Court's decision in Aereo created confusion as to whether Teleporter qualified for a compulsory license under Section 111 of the Copyright Act as a cable system. The Second Circuit rejected that argument, finding tha Aereo "explicitly slammed shut the possibility that FilmOn could continue deploying the Teleporter System throughout the Second Circuit, absence a license, without violating the Copyright Act." The Court of Appeals noted that (a) under current Second Circuit law "Internet retransmission services do not constitute cable systems under § 111" (quoting WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 284 (2d Cir. 2012)); and (b) FilmOn has never obtained a Section 111 license. If FilmOn wanted to ensure that it remained in compliance with the injunction, the court admonished, it should have sought clarification or modification from the district court, and not relied on its own (erroneous) interpretation of Aereo.

http://www.courthousenews.com/2016/02/16/sanctions-upheld-against-filmon-and-alki-david.htm

http://www.ca2.uscourts.gov/decisions/isysquery/2654cacd-f3f4-4bb6-a039-8be5fd56a28b/1/doc/14-3123_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2654cacd-f3f4-4bb6-a039-8be5fd56a28b/1/hilite/

Soccer Presidents Appeal 8-Year Suspensions

Last December, FIFA President Sepp Blatter and UEFA president Michel Platini were barred from the sport for eight years after FIFA's Ethics Committee found that there was no legal basis for a $2 million payment Blatter approved for Platini in 2011. Earlier this week, Platini and Blatter appeared before a four-man appeals panel to challenge that ruling. It is not known when the panel will make a decision, but FIFA will elect a new president on February 26th.

http://www.nytimes.com/2016/02/17/sports/soccer/sepp-blatter-fifa-appeal-suspension-michel-platini.html?_r=0

Academy Says Swag Bags Hurt Oscar

Last Tuesday, the Academy of Motion Pictures Arts and Sciences (the Academy) sued Distinctive Assets, a "celebrity placement" marketing company that provides gift bags to Academy Award nominees, in the Central District of California. The Academy alleges that Distinctive Assets, with which it has no affiliation, uses the Academy's trademarks to falsely create the impression of "association, affiliation, connection, sponsorship, and/or endorsement." The complaint points to Distinctive Assets' tweets, including "Everyone Wins At The Oscars®! Nominee Gift Bags," and cites reportage in major media outlets that link the bags to the Academy. The Academy also alleges dilution and tarnishment, citing the "less-than-wholesome nature of some of the products contained in the bags, which purportedly include a $250 marijuana vaporizer, a $1,900 'vampire breast lift'...a $250 sex toy, and $275 Swiss-made toilet paper. The lawsuit raises important issues of first impression, such as "what is a vampire breast lift?" and "can I try some of that toilet paper?"

http://fortune.com/2016/02/17/oscars-swag-gifts-lawsuit/

Ninth Circuit SLAPPS Down Sergeant's "Hurt Locker" Suit

Army Sergeant Jeffrey Sarver sued the makers of "The Hurt Locker" for false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and constructive fraud/negligent misrepresentation, alleging that the main character in that movie was based on his life and experiences as an Army explosive ordnance disposal technician in Iraq; that this was done without his consent; and that the film falsely portrayed him in a way that harmed his reputation. The filmmakers filed an anti-SLAPP motion to strike the complaint, which the Central District of California granted. Last Wednesday, the Ninth Circuit affirmed, finding that the film and the narrative of its central character "spoke directly to issues of a public nature," and was speech "fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life and transform them into art...."

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/17/11-56986.pdf

Timberlake Accused of Bringing "New Day" Back

On Wednesday, the sister of deceased musician Perry Kibble sued Justin Timberlake and Will.i.am for copyright infringement in the Southern District of New York (Hon. Vernon S. Broderick). Kibble was best known as a former member of the band "A Taste of Honey," which in turn was best known for their 1978 hit, "Boogie Oogie Oogie." The plaintiff alleged that Timberlake's song "Damn Girl (ft. Will.i.am)" off the 2006 "Futuresex/Lovesounds" album, copied a "substantial part" of the Perry-penned "A New Day Is Here At Last," including "the introduction, rhythm, harmony, melody, and 'hook'."

http://www.hollywoodreporter.com/thr-esq/justin-timberlake-william-facing-copyright-866877

Court Says Kesha Can't Escape Alleged Rapist

On Friday, the New York Supreme Court (Hon. Shirley Kornreich) denied pop star Kesha's request that she be released from her recording contract with Sony Music to avoid having to work with producer Lukasz "Dr. Luke" Gottwald. Kesha sued Gottwald in 2014, claiming that he drugged and raped her when she was 18. Gottwald denied the claim and sued Kesha for extortion. Judge Kornreich determined that the "commercially reasonable thing" would be to not "decimate a contract that was heavily negotiated and typical for the industry." The contract requires Kesha to produce six more albums for Gottwald's label, Kemosabe.

http://nytlive.nytimes.com/womenintheworld/2016/02/19/kesha-ordered-by-high-court-to-fulfill-6-record-obligation-with-her-alleged-rapist/ (in which the Old Grey Lady refers to the New York Supreme Court as the "high court." For shame.)

Whose Loss? Reeves' Loss

David Reeves, aka "Davy DMX," co-authored a number of songs for Run-DMC, including "Run's House". In the late '80s, Reeves transferred all his rights in those compositions to an entity called "Rush Groove" in exchange for a share of the profits. Rush Groove subsequently transferred those rights to another entity, Protoons, Inc. In 2007, Reeves -- who had fallen on very hard times -- purported to transfer a 50% interest in the compositions to Reach Music Publishing, Inc. In 2008, Reach and Reeves sued Protoons in the Southern District of New York, alleging diversity jurisdiction, but voluntarily dismissed the case when ordered to provide facts demonstrating subject matter jurisdiction. They re-filed in state court, but that court dismissed for lack of subject matter jurisdiction under the Copyright Act.

In 2009, they went back to the Southern District (Hon. Katherine Forrest), this time alleging federal question jurisdiction. Protoons filed counterclaims, asserting Reeves' transfer of his rights to Rush Groove 20 years earlier. Reeves and Reach's claims were dismissed with prejudice in 2010. Protoons ultimately prevailed on its counterclaims, and thereafter sought punitive damages and roughly $2.25 million in costs and attorneys' fees. On Friday, the court found that punitive damages were not appropriate, despite the fact that the plaintiffs pursued claims they knew were contractually prohibited, in part because the award of attorneys' fees ($1.4 million) was sufficiently high.

http://www.courthousenews.com/2016/02/19/run-dmcs-ex-lyricist-hit-with-1-4m-legal-bill.htm

Ninth Circuit Awards "Grand Theft Auto" Suit Extra Life

On Friday, the Ninth Circuit reversed the Central District's dismissal with prejudice of a putative class action against Take-Two Interactive. Plaintiffs Brian McMahon and Christopher Bengston had filed a class action complaint on behalf of "all persons who purchased the GTA V videogame in the State of California," alleging that Take-Two violated California's unfair competition (Cal. Bus. & Prof. Code § 17200 et seq.) and false advertising (Cal. Bus. & Prof. Code § 17500 et seq.). McMahon and Bengston allege that that Take-Two knew the online game would not be available at release, but failed to give consumers notice that the heavily-promoted online component would not be available right away. The district court found that the plaintiffs' allegation that they would not have purchased GTA V at a "premium price" if Take-Two had not misrepresented the availability of GTA Online was sufficient to establish the economic injury requirement for standing under the California statutes and to state a claim for restitution, but that plaintiffs' allegations that they read all the disclosures and statements on the packaging, which led them to believe that GTA Online would be available immediately, were insufficient to state a claim. The Ninth Circuit disagreed, finding that the district court erred in failing to construe the allegations in the light most favorable to plaintiffs, and abused its discretion by denying leave to amend.

http://cdn.ca9.uscourts.gov/datastore/memoranda/2016/02/19/14-55296.pdf

Ninth Circuit Grants Gibson Encore in Spongebob Uke Suit

On Friday, the Ninth Circuit partially reversed the dismissal of a trademark infringement action brought by Gibson Brands against Viacom International, Inc. and John Hornby Skewes & Co., Ltd. (JHS). Gibson alleges that JHS infringed its "Flying V" trademarks by producing and distributing a V-shaped ukelele bearing Viacom's Spongebob Squarepants and Nickelodeon trademarks. Gibson accused Viacom of contributory and vicarious infringement. The Central District dismissed Gibson's direct claims against JHS for lack of subject matter jurisdiction, finding that Gibson had failed to satisfy the Lanham Act's "use in commerce" requirement. The Ninth Circuit reversed, citing its decision in La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., which was decided after the dismissal of Gibson's complaint, that the "use in commerce" requirement is an element of a cause of action, not a jurisdictional prerequisite. The Court of Appeals affirmed the district court's findings that Gibson failed to allege that Viacom exercised sufficient control over JHS's production and sale of the ukelele to be liable for secondary infringement. The court remanded the case for the district court to re-evaluate the 12(b)(6) motion in light of the La Quinta decision.

http://cdn.ca9.uscourts.gov/datastore/memoranda/2016/02/19/13-57050.pdf

Center for Art Law Case Updates

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

Robert Rauschenberg Foundation v. Grutman et al., 2D14-3794 (Fla. Dist. Ct. App. Jan. 6, 2016). -- Florida's Second District Court of Appeals upheld the trial court's decision to award $24,600,000 to be split evenly among the three trustees of the Robert Rauschenberg Revocable Trust. The Florida statute addressing trustee fees provides only that the award be "reasonable under the circumstances" without providing any criteria or methodology. § 736.0708(1), Fla. Stat. (2007). Looking at the legislative history, the court determined that the legislature intended to apply the criteria set forth in West Coast Hospital Ass'n v. Florida Nat'l Bank of Jacksonville, 100 So. 2d 807 (Fla. 1958). Thus, the court properly followed West Coast Hospital Ass'n, the methodology proposed by the trustees.

Kosse v. Kiesza, no. 1:16-cv-00160 (E.D.N.Y. Jan. 12, 2016) -- Jamie Mitchel Kosse filed claims for copyright infringement and false endorsement against singer Kiesza (whose real name is Kiesa Rae Ellestad) and Universal Music Group. Kosse's grafitti in Williamsburg was featured without permission as the background in Kiesza's music video for "Hideaway". Previously, Kosse's work was used by NBC, CBS, Paramount Pictures, and Universal Studios, always with a license.

Heiden v. Main Field Projects, No. 650202/2016 (NY Sup. Jan. 15, 2016) - Main Field Projects failed to ship two works of art by Ibrahim Mahama to the residence of Miety Heiden.

Gagosian Gallery, Inc. v. Pelham Europe, Ltd., No. 1:16-cv-00214 (S.D.N.Y. Jan 12, 2016) -- Action to quiet title to a Picasso bust currently on loan to MoMA. Gagosian alleges ownership over the work and has contracted with a third party to sell the work. Pelham is attempting to enforce a prior agreement to purchase the work.

Heriveaux et al v. The Retrospect Group, Inc. et al, No. 1:15-cv-05536 (S.D.N.Y. Jul. 16, 2015) -- Defendants were using copyrighted Basquiat works in stationary. The case was dismissed with prejudice.

Certain Underwriters at Lloyd's London Subscribing to Policy No. B1161A143678 a/s/o Marc Selwyn Fine Art, Inc., v. Elite Systematic Arts, Inc. et al, No. 1:16-cv-734 (E.D.N.Y. Feb. 11, 2016) -- American Airlines and seven art handling companies are being sued by Lloyd's of London, the insurer of a sculpture that was allegedly damaged while it was shipped from Paris to New York for the Armory Show last year. Lloyd's insured the sculpture for Marc Selwyn Fine Art, a gallery in Beverly Hills, and is claiming breach of contract and negligence.

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

February 29, 2016

Week in Review

Week of February 22, 2016
By Michael B. Smith

Rauschenberg Foundation Embraces Fair Use

The Robert Rauschenberg Foundation has instituted a new copyright policy that permits free reproduction of Rauschenberg's artwork for "noncommercial, scholarly, and/or transformative purposes." The Foundation acknowledges that its permission is not required where the reproduction is "fair use," but encourages publishers to obtain free authorized reproductions and citations from it to ensure accuracy.

http://www.artfixdaily.com/artwire/release/4300-the-robert-rauschenberg-foundation-announces-pioneering-new-fair-

http://www.rauschenbergfoundation.org/foundation/fair-use

Eight Circuit Affirms Dismissal of National Football League Right of Publicity Case

The Eighth Circuit found that the District of Minnesota properly granted summary judgment to the National Football League (NFL) in a putative class action lawsuit brought by former players claiming that the NFL's use of their names and likenesses in NFL-produced historical documentaries violated their rights under the right-of-publicity laws of various states. The district court found the claims were pre-empted by the Copyright Act; that the films were "expressive, non-commercial speech" protected by the First Amendment; and that the films would in any event fall under the newsworthiness or public interest safe harbors of the applicable laws. The Eighth Circuit also affirmed dismissal of the players' Lanham Act claims, finding that the the films were non-commercial, and that there was no likelihood of confusion.

http://www.rightofpublicityroadmap.com/sites/rightofpublicityroadmap.com/files/pdfs/dryer_cta8.pdf

University Agrees to Return Looted Painting

Last Tuesday, the University of Oklahoma announced that it would return a 130-year-old painting looted by Nazis. Léone Meyer, 76, whose father owned the painting ("La Bergère" by Camille Pissaro), agreed to allow the painting to continue to be publicly displayed, alternately in France and in Oklahoma.

http://artsbeat.blogs.nytimes.com/2016/02/23/university-of-oklahoma-agrees-to-return-pissarro-painting-looted-by-nazis/

Parliament Questions Efficacy, Independence of Tennis Anti-Corruption Efforts

Several of tennis' top administrators came before the Culture, Media and Sport Committee of the British House of Commons to answer questions about match fixing. Nigel Willerton, head of the Tennis Integrity Unit (TIU), told the Committee there had been 246 reports of suspicious betting on professional tennis matches in 2015, up from 91 in 2014, 46 in 2013, and 14 in 2012. Most of these alerts came from the low-level Futures circuit, whose oversight body recently signed a data-sharing agreement with a company that makes live sports data available to online gambling sites. Chris Kermode, chairman of the Association of Tennis Professionals (ATP), acknowledged that the ATP's anti-corruption efforts are underfunded. Willerton said that he would be recommending greater independence of the TIU, which is funded by and reports to the ATP and tennis' other governing bodies.

http://www.nytimes.com/2016/02/25/sports/tennis/head-of-tennis-integrity-unit-pushes-for-greater-independence.html

FIFA Shortens Former Presidents' Bans Ahead of Reforms

After hearing from former FIFA president Sepp Blatter and former UEFA president Michel Platini last week, the appeals panel of FIFA's Ethics Committee decided on Thursday to shorten their eight-year suspensions to six years. Blatter and Platini were banned for violations of the FIFA Code of Ethics in connection with a $2 million payment Blatter made to Platini. On Friday, FIFA elected Gianni Infantino to succeed Blatter as president, and approved a package of reforms that aim to separate commercial and political decision-making, increase oversight of senior officials, and promote the involvement of women at higher levels of the organization.

http://edition.cnn.com/2016/02/25/football/blatter-platini-bans-reduced/

http://www.fifa.com/about-fifa/news/y=2016/m=2/news=fifa-congress-approves-landmark-reforms-2767108.html

Venezuelan Soccer Chief Agrees to be Extradited

Even as a failed appeal sends FIFA's former president back to his home in Switzerland, the former president of the Venezuelan Football Federation has withdrawn his appeal against extradition from Switzerland to the United States. Rafael Esquivel was arrested in Zurich last May in connection with accusations by U.S. authorities that he accepted millions of dollars in bribes.

http://www.espnfc.com/blog/fifa/243/post/2815868/ex-venezuela-chief-rafael-esquivel-accepts-us-extradition

White House Asks Tech, Entertainment Companies for Help with National Security

Representatives from Facebook, Google, Twitter, Instagram, Snapchat, Tumblr, and Microsoft met with Justice Department officials last week to discuss how to deal with extremists online. This was the latest in a series of meetings at which the Obama administration has reached out to the private sector for help combating terrorism. Earlier this month, Secretary of State John Kerry asked entertainment companies to help create "counternarratives" to those of terrorists on the Internet.

http://www.nytimes.com/2016/02/25/technology/tech-and-media-firms-called-to-white-house-for-terrorism-meeting.html

Violent Retaliation Against Football Player Who Helped Woman Report Rape

The complaint in a Title IX lawsuit against the University of Tennessee was amended to include allegations that Tennessee football players assaulted their teammate, Drae Bowles, after learning that he helped a woman report having been raped by two other players. The amended complaint alleges that when Bowles told the football coach about the assault, the coach told Bowles he had "betrayed the team." The eight plaintiffs allege that Tennessee's policies and practices made students more vulnerable to sexual assault and more likely to be harassed after reporting such assaults, and that the university's disciplinary process favors male athletes. The accused rapists were indicted in February 2015.

http://www.nytimes.com/2016/02/25/sports/ncaafootball/ex-tennessee-player-says-he-helped-woman-report-rape.html

The Metropolitan Museum of Art Accepts Class Plaintiffs' "Suggestion"

The Metropolitan Museum of Art (Met) settled a class action lawsuit filed against it in 2013, by agreeing to revise its signage to make clearer that the posted ticket prices are optional. The signs in question listed different amounts for adults, seniors, and students under the heading "Admissions." The word "Recommended" appeared below the word "Admissions" in a much smaller font. The Met has agreed to refer to the $25 price as "Suggested," rather than "Recommended," and to use the same font size as "Admissions."

http://www.theguardian.com/us-news/2016/feb/27/metropolitan-museum-art-settles-lawsuit-new-york

Cosby Drops Defamation Suit

Bill Cosby voluntarily dismissed the defamation suit he had filed in December against supermodel Beverly Johnson, who accused Cosby of drugging her. The dismissal is without prejudice; Cosby's lawyers say he is temporarily withdrawing the lawsuit because he is busy defending against criminal charges in Pennsylvania.

http://www.thewrap.com/bill-cosby-drops-beverly-johnson-defamation-lawsuit-for-now/

Florida AG Settles with New Jersey Talent Company

Florida's Attorney General announced a $26 million settlement with InterFACE, a New Jersey-based talent company accused of unfair and deceptive business practices. The Attorney General alleged that InterFACE promised modeling and acting jobs in exchange for large up-front fees, but gave clients nothing more than photo shoots and introductions to industry professionals.

http://www.myfloridalegal.com/newsrel.nsf/newsreleases/AC035A6A8940CD5C85257F64006E14AE

Richard Prince Moves to Dismiss Copyright Claims

"Appropriation artist" Richard Prince filed a motion to dismiss a copyright infringement lawsuit filed against him in the Southern District of New York by photographer Donald Graham. Prince contends that the allegedly infringing work (a printout of a photograph of a printout of an Instagram post of a cropped copy of Graham's photograph) is fair use. Prince relies on the Second Circuit's 2013 decision in Cariou v. Prince, which found that Prince's similar use of another photographer's works was transformative.

https://news.artnet.com/art-world/richard-prince-dismiss-copyright-lawsuit-436046

Parent Sues Over Smoking in Kids' Movies

Timothy Forsythe has filed a putative class action against the Motion Picture Association of America (MPAA) and most of the major film studios, alleging that they have known since "at least 2003" that "exposure to tobacco imagery in films rated G, PG and PG-13...is one of the major causes of children becoming addicted to nicotine," and that the representation of smoking in such films is "negligent, false and misleading, and a breach of fiduciary duty." The MPAA has publicly defended its rating system and claims protection under the First Amendment.

http://www.thewrap.com/mpaa-studios-slapped-with-class-action-lawsuit-over-smoking-in-films/

Second Circuit Says Jay-Z Sound Engineer Waited Too Long to Sue

The Second Circuit affirmed the Southern District's dismissal of a copyright infringement lawsuit brought against Jay-Z and Roc Nation by a sound producer who claims co-authorship of sound recordings included on Jay-Z's 1999 album "Vol. 3... Life and Times of S. Carter." The Court of Appeals agreed that the plaintiff's claims were time-barred because he had constructive notice of his injury based on copyright registrations filed by Jay-Z's record label, the albums' packaging, and the fact that no one had sent him royalty checks in the 25 years since the album's release.

http://www.billboard.com/articles/business/6889492/hollywood-docket-jay-z-beats-sound-engineer-nina-simone-settlement

About February 2016

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

January 2016 is the previous archive.

March 2016 is the next archive.

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