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Week in Review

By Michael Smith

U.S. House Of Representatives Encourages International Olympic Committee Anti-Doping Efforts

The House Committee on Energy and Commerce sent a letter to the International Olympic Committee (IOC) on Tuesday expressing support for the IOC's anti-doping actions, including investigations into the recent accusations of cheating by Russia at the Sochi Olympics.

http://www.nytimes.com/2016/07/14/sports/olympics/us-lawmakers-express-doping-concerns-in-letter-to-ioc.html?_r=0

Gretchen Carlson's Arbitration Clause Includes Virtual Gag Order

Gretchen Carlson is suing Roger Ailes, chairman and CEO of Fox News, for sexual harassment. Carlson brought the lawsuit in New Jersey District Court, but Ailes is moving to transfer the case to the Southern District of New York, and to compel arbitration under Carlson's employment contract. Of note is the confidentiality provision in the arbitration clause: "... all filings, evidence and testimony connected with the arbitration, and all relevant allegations and events leading up to the arbitration, shall be held in strict confidence." Should the Southern District enforce this provision, a very public lawsuit may suddenly become very private.

http://www.nytimes.com/2016/07/14/business/media/gretchen-carlsons-contract-could-shroud-her-case-in-secrecy.html

Will Brady Take It All the Way?

Last year, New England Patriots quarterback Tom Brady was suspended for four games due to his alleged involvement in Deflategate (the Patriots were accused of underinflating footballs during the AFC championship game against the Indianapolis Colts). Brady tossed the ruling to National Football League (NFL) Commissioner Roger Goodell, who upheld the suspension. Brady ran an end around to the Southern District of New York, where Judge Berman vacated the suspension based on procedural irregularities in the investigation. The Second Circuit intercepted and reinstated the suspension. Brady threw a red flag and sought a rehearing or en banc review. On Wednesday, that challenge was denied. On Friday, Brady announced on his Facebook page that he would not throw a Hail Mary to the Supreme Court.

https://www.washingtonpost.com/news/early-lead/wp/2016/07/13/tom-bradys-appeal-request-denied-by-federal-court-so-his-suspension-stands/

http://www.nfl.com/news/story/0ap3000000674937/article/tom-brady-wont-further-pursue-suspension-appeal

Paterno May Have Known About Sandusky Years Earlier

Court documents unsealed by a Pennsylvania court on Tuesday reveal that, in 2014, a man testified that Penn State football coach Joe Paterno was made aware that assistant coach Jerry Sandusky had sexually assaulted a 14-year-old boy in 1976. Paterno's family questioned that witness's veracity.

https://www.washingtonpost.com/sports/colleges/new-court-documents-suggest-others-at-penn-state-knew-of-jerry-sandusky-abuse/2016/07/12/9752f5a6-4853-11e6-90a8-fb84201e0645_story.html

Harrison Swears That He Didn't Get Drugs from Pharmacist

James Harrison, a Pittsburgh Steelers linebacker named by pharmacist Charles Sly in an Al Jazeera America report on performance-enhancing drugs, submitted a sworn affidavit to the NFL denying Sly's allegations. Sly later recanted his statements. The NFL intends to interview Harrison as part of its investigation into those allegations, while the NFL Player's Association contends that there is no "credible evidence" to warrant such an interview.

http://www.nfl.com/news/story/0ap3000000674111/article/james-harrison-denies-ped-allegations-in-sworn-affidavit

Will Folk Songs Join Happy Birthday in the Public Domain?

Music publisher The Richmond Organization owns the copyrights to "We Shall Overcome" and "This Land Is Your Land". Mark Rifkin, "the lawyer who successfully challenged the copyright to 'Happy Birthday'", filed two lawsuits challenging those copyrights. Rifkin alleges that "We Shall Overcome" cannot be copyrighted, because it is an adaptation of an African-American spiritual, and that Woody Guthrie and his publisher lost the rights to "This Land Is Your Land" by failing to file for renewal and publishing lyrics without appropriate notice (Guthrie apparently first published the song in a "handmade songbook").

http://www.nytimes.com/2016/07/13/business/media/happy-birthday-is-free-at-last-how-about-we-shall-overcome.html

Sharapova Won't Go to Rio

Tennis player Maria Sharapova agreed to defer the decision of the Court of Arbitration for Sport in connection with her appeal of a two-year doping ban until September. Both Sharapova and the International Tennis Federation, the latter of which had initially asked for an expedited ruling, said they wanted more time to prepare their cases. Had the Court of Arbitration for Sport ruled in Sharapova's favor next week, as originally anticipated, she would have been eligible for the Olympics in Rio and the United States Open this August. This extension of time rules out both possibilities.

http://www.nytimes.com/2016/07/12/sports/maria-sharapovas-appeal-is-delayed-ruling-out-a-trip-to-rio.html

Like Embezzling Candy from a Baby

The New York Times reports that youth sports clubs regularly fall victim to skimming. Most of these clubs have no oversight, and their organizers -- often unpaid volunteers whose community service would seem to put them beyond reproach -- sometimes use them as an ATM, sometimes to the tune of hundreds of thousands of dollars. According to the Center for Fraud Prevention, an organization whose charter is to eliminate such embezzlement, there have been hundreds of arrests and convictions in the last five years.

http://www.nytimes.com/2016/07/10/sports/youth-sports-embezzlement-by-adults.html

What's in a Name? A Doig by any Other Name Would Sell for Less

Peter Doig is a well-known Canadian artist whose paintings have sold for millions of dollars. Robert Fletcher is a retired corrections officer who says he owns one of Doig's early works. Doig says that, although he was doing LSD at the time the painting was allegedly made, he knows it's not one of his. Fletcher says he bought the painting for $100 from a man named Pete (no r) Doige (with an e), who was an inmate at the prison farm in Thunder Bay where Fletcher worked. Fletcher says Doig is Doige. Doig says Doig is not Doige. Doig says he's never been to Thunder Bay (or to prison); Doige's sister says Doige served time in Thunder Bay, and is certain that Doige painted the work in question. Doige is dead. District Court Judge Gary Feinerman says the facts are messy enough that they need to be decided at trial. "Much confusing; so identity; wow; do try," said Doge.

http://www.nytimes.com/2016/07/10/arts/design/peter-doig-painting-lawsuit.html

World Anti-Doping Agency Says That It Lacked Authority to Investigate Russian Cheating Earlier

The Senate Commerce Committee says that it independently confirmed that the World Anti-Doping Agency (WADA) knew about government-sanctioned doping among Russian athletes in 2010. WADA began its investigation into claims of such cheating in December 2014. WADA's president, Sir Craig Reedie, told the committee that until January 2015, WADA was authorized only to assist in others' investigations, not institute its own.

http://www.nytimes.com/aponline/2016/07/08/us/politics/ap-us-russian-doping.html

Sixth Circuit Upholds Mugshot Privacy

On Thursday, the Sixth Circuit Court of Appeals, sitting en banc, ruled that federal authorities can withhold mugshots from the public on a case-by-case basis. The majority cited the ease of access to and persistence of images on the Internet and overturning its 1996 decision holding that federal mugshots could not be exempted from the freedom of information act.

http://www.rcfp.org/browse-media-law-resources/news/sixth-circuit-limits-access-federal-mug-shots

Kardashians Trade Lawsuits with Cosmetics Distributor

Kim, Khloe and Kourtney Kardashian sued their former licensee for trademark infringement, alleging that the company, Haven Beauty, is continuing to use their names, trademark, and image after termination of a license agreement. The Kardashians allege that they terminated the license for failure to make royalty payments, and that in any event, the license does not permit Haven Beauty to use their names or images without approval. Haven Beauty, which is the successor in interest to original licensee Boldface cosmetics, has for its part filed a breach of contract case against the sisters, alleging that as soon as the license was transferred to Haven Beauty, they stopped promoting the cosmetics line.

http://www.ocregister.com/articles/haven-722587-kardashian-line.html

Southern District Dismisses Trademark Claims against Kanye West

"Loisaidas" is the name of a music duo from the lower East side of Manhattan who plays Dominican bachata music. It is also the name of a series of web videos produced by Kanye West and Damon Dash. The music duo sued West and Dash for trademark infringement, claiming that West and Dash's use of the word created confusion between the bachata duo and the hip-hop duo. Southern District Judge Catherine Forrest dismissed the case on Thursday, finding that "Loisaidas" is "an established demonym for residents of a particular Manhattan neighborhood," and thus West and Dash's use of it is protected by the First Amendment.

http://www.nydailynews.com/new-york/judge-tosses-les-duo-trademark-case-kanye-west-article-1.2712026

Dr. Phil Sues Tabloids for Defamation

TV psychologist Phil McGraw (Dr. Phil) and his wife Robin have sued the National Enquirer's parent company, American Media Inc., for defamation. The McGraws allege that American Media continuously attacked them in the tabloids as a way of capturing readership. The complaint seeks $250 million in damages and focuses on allegations made in American Media's magazines that Dr. Phil abused his wife.

https://www.washingtonpost.com/news/morning-mix/wp/2016/07/14/dr-phil-and-wife-robin-sue-the-national-enquirer-for-250000-million-citing-defamation/

Ninth Circuit Hands Facebook CFAA Win, Cans CAN-SPAM Claims

Back in 2012, a startup called Power Ventures tried to attract members to its new social network by promising $100 to the first 100 people who could bring 100 new friends to its website. People who click the link gave Power access to their Facebook accounts and specifically allowed Power to send emails and Facebook messages to their friends, inviting them to sign up. Facebook sent a cease-and-desist letter, but Power did neither. The appellate court ruled that Power's actions, specifically continuing to send the messages after Facebook told it to stop, was a violation of the Computer Fraud and Abuse Act. However, the court found no violation of the CAN-SPAM Act.

http://fortune.com/2016/07/12/facebook-cfaa/

TMZ Tells Delaware Court That the Statute of Limitations Bars Defamation Claims Arising Out Of An Erroneous Report That Wu-Tang Clan Rapper Cut off His Own Penis and Jumped Out Of a Window

So, that happened.

http://www.hollywoodreporter.com/thr-esq/tmz-moves-cut-down-rappers-910074

Copyright Claim against Cruz Campaign Will Go Forward in Seattle

District Court Judge Ricardo S. Martinez denied a motion to dismiss a lawsuit filed against former presidential candidate Ted Cruz's campaign and Madison McQueen, its ad agency, for unauthorized use of two songs in campaign commercials. The plaintiff alleges that its licensing agreement with Madison McQueen expressly prohibited such use.

http://www.billboard.com/articles/business/7438177/suit-ted-cruz-song-use-audiosocket-going-forward

No New Competency Trial for Sumner Redstone

On Monday, a Los Angeles probate court judge tentatively denied the request of Sumner Redstone's former girlfriend, Manuela Herzer, for a new trial to determine Redstone's competency. The judge previously ruled that a competency hearing was not necessary, given clear evidence that Redstone wanted nothing to do with Herzer.

http://www.bloomberg.com/news/articles/2016-07-11/sumner-redstone-ex-girlfriend-won-t-get-new-competency-trial-iqi7zno2


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