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August 2016 Archives

August 11, 2016

Writers of Marvin Gaye's "Let's Get It On" Get It On Against Ed Sheeran

By Barry Werbin

Well this time around it's not the Marvin Gaye Estate pursuing a high profile infringement claim, as it did successfully last year against Robin Thicke and Pharrell Williams over Blurred Lines (on appeal in the Ninth Circuit). Now, the heirs of one of the two songwriters (Ed Townsend, the other co-writer being Gaye) of the great R&B classic "Let's Get It On", made famous by Gaye's iconic 1973 recording, has sued UK pop singer/songwriter Ed Sheeran, his co-writer, Sony/ATV and others in the Southern District of New York for copyright infringement over Sheeran's 2014 hit recording "Thinking Out Loud". The Townsend heirs allege that they own 100% of the copyright in the "Let's Get It On" musical composition.

The complaint alleges that Sheeran's song, which rose to the top of the charts in the US and UK and was nominated for a Grammy, copied the core "harmonic, melodic, and rhythmic elements" of "Let's Get It On." In particular, the complaint alleges that the "prominence of the bass line and drum composition throughout Let's [Get It On] make these compositional elements qualitatively important to the musical work as a whole. The combination of these elements is the driving force of this composition."

Sheeran and the other defendants are further alleged to have willfully infringed "Let's Get It On" because they were notified of the infringement claim by email or phone in April 2015 but continued to exploit the song thereafter.

Make your own assessment of substantial similarity and feel free to comment. Compare the two songs at https://www.youtube.com/watch?v=x6QZn9xiuOE and https://www.youtube.com/watch?v=lp-EO5I60KA.

Interestingly, the complaint adds separate claims for false designation of origin and "reverse passing off" under the Lanham Act based on false representations to the public that the defendants created and were the authors of "Thinking Out Loud", causing public confusion. While I try to be objective in these postings, this claim sounds like a real stretch, as Sheeran and his co-author presumably did in fact write "Thinking Out Loud", even if it turns out to be infringing. These claims face a similar challenge as the copied work did in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), where the Court held that the phrase "origin of goods" in the Lanham Act "refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods." Id. at 37. In Dastar, the producer of the copied TV series was the "origin" for Lanham Act purposes, barring a claim by the original creator of the series for false designation of origin. Justice Scalia wrote that Section 43(a) of the Lanham Act "prohibits actions like trademark infringement that deceive consumers and impair a producer's goodwill," but that "[t]he words of the Lanham Act should not be stretched to cover matters that are typically of no consequence to purchasers."

Kathryn Townsend Griffin, et al. v. Edward Sheeran et al., No. 1:16-cv-06309 (S.D.N.Y.), filed August 9, 2016. The plaintiffs are represented by Frank & Rice P.A. based in Florida. A copy of the complaint is here: Sheeran complaint.pdf

EEOC Task Force Identifies Key Components of Effective Harassment Reporting Systems and Investigations

By Kristine Sova

In June 2016, the U.S. Equal Employment Opportunity Commission released an 88-page report on harassment in the workplace. The report (available here) calls for "a reboot of workplace harassment prevention efforts" in light of the fact that one-third of the approximately 90,000 charges of discrimination received by the EEOC in fiscal year 2015 included an allegation of workplace harassment.

The report found that workplace harassment too often goes unreported, with roughly 3 out of 4 individuals who experienced harassment never even talking to a supervisor, manager or union representative about the harassing conduct. Employees who experience harassment fail to report the harassing behavior or file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.

In an effort to holistically reduce the number of harassment claims, the EEOC Task Force called for employers to institute more effective reporting systems for allegations of harassment. Such reporting systems should be ones that include a means by which individuals who experience harassment can report the harassment and file a complaint, as well as a means by which employees who observe harassment can report that to the employer.

The report noted that "[u]ltimately, how an employee who reports harassment (either directly experienced or observed) fares under the employer's process will depend on how management and its representatives act during the process. If the process does not work well, it can make the overall situation in the workplace worse. If one employee reports harassment and has a bad experience using the system, one can presume that the next employee who experiences harassment will think twice before doing the same. Finally, ensuring . . . the process that commences following a report is fair to an individual accused of harassment contributes to all employees' faith in the system."

So what makes a reporting system effective? The report outlined several elements that make reporting systems work well and provide employees with faith in the system. Notably, a number of the elements identify key components of effective harassment investigations. The elements include:

-Employees who receive harassment complaints must take the complaints seriously.
-The reporting system must provide timely responses and investigations.
-The system must provide a supportive environment where employees feel safe to express their views and do not experience retribution.
-The system must ensure that investigators are well-trained, objective, and neutral, especially where investigators are internal company employees.
-The privacy of both the accuser and the accused should be protected to the greatest extent possible, consistent with legal obligations and conducting a thorough, effective investigation.
-Investigators should document all steps taken from the point of first contact, prepare a written report using guidelines to weigh credibility, and communicate the determination to all relevant parties.

In my experience, many reporting systems contemplate and call for the above elements, oftentimes paying lip service to these elements via a written harassment complaint procedure, but the system quickly fails when a harassment complaint is lodged with an employer. The following are all too common:

-The employees who receive harassment complaints do not take the complaints seriously.
-The complaint (and any related investigation and response) is not addressed in a timely manner.
-Investigators are not well-trained in conducting investigations, nor are they objective or neutral.
-The investigation is not documented.
-A determination regarding the allegation of harassment is never communicated to the relevant parties.

The EEOC report provides a good reminder that employers should not overlook the importance of taking complaints seriously and promptly investigating complaints of harassment. All too often what begins as a small workplace indiscretion turns into an expensive harassment claim when the employer does not respond and investigate in a suitable manner. The EEOC report provides employers with an opportunity to re-assess their reporting systems, and make any adjustments necessary - such as training internal investigators or establishing a shortlist of external investigators - to act in a timely and appropriate manner if and when a complaint of harassment is filed in the future.

August 13, 2016

Week(s) in Review

By Ben Natter

Led Zeppelin Denied Legal Fees

Judge Gary Klausner ruled that the defendants in the Led Zeppelin trial are not entitled to recoupment of $793,000 in legal fees and other costs due to the copyright infringement lawsuit being frivolous (the suit was not frivolous). Zeppelin's insurance company had denied the claim based upon the fact that it stemmed from a song written in 1971. The standard of review for attorney's fees in a copyright infringement suit hinges upon the objective reasonableness of the losing party's position.



National Football League Clears Peyton Manning of Doping

The National Football League (NFL) cleared Peyton Manning of accusations made in an Al Jazeera documentary that he had used Human Growth Hormone (HGH). Manning, after winning the Super Bowl this past February with the Broncos, has since retired from the NFL. The report alleged that an anti-aging clinic in Indiana had shipped HGH to Manning's wife. Manning acknowledged being treated at the clinic, but denied taking HGH.

The documentary, which aired last winter, was based upon recorded conversations and accusations by Charles Sly, a pharmacist and former intern at the clinic in Indiana. Sly later recanted his accusations, but some alleged that he was bullied and/or enticed by Manning.

The documentary named many Major League Baseball and NFL players; however the NFL appears reluctant to continue investigations of athletes mentioned in the documentary. Taylor Teagarden, a baseball player, was seen in the documentary admitting to taking banned substances. MLB suspended him for 80 games.

Most of the athletes named in the report are clients of Jason Riley, a fitness trainer based in Florida. Riley and Sly are former business partners.


NFL Adopts New Rules to Back Concussion Protocol

NFL teams will be subject to large fines and potential loss of draft picks if they fail to follow the NFL concussion protocol if it is suspected that a player has sustained a concussion. The new rules were recently announced together by the NFL and the NFL Players Association.

In the past, the NFL was criticized for lack of enforcement of its protocol with respect to concussions. Under the new rule, teams that are found to have violated the protocol can be fined up to $150,000 for a first violation and a minimum of $100,000 for subsequent violations. If the reason for the violation is determined to be competitive, the commissioner can force the team to forfeit draft picks.

A committee was established to review injuries in correlation to playing on artificial turf. Players consistently complain that the artificial surfaces are less forgiving than natural grass.


Inquiry Finds Widespread Disorder at New York Athletic Commission

A report by the New York Inspector General described the New York Athletic Commission, the state agency that regulates boxing and will soon regulate Mixed Martial Arts, as highly disorganized and ripe with corruption. The report comes after the former athletic Commission director, David Berlin, was removed by Governor Cuomo after the former's criticism of the Commission's chairman, Thomas Hoover. The report highlighted the treatment received by Magomed Abdusalamov following a 2013 fight at Madison Square Garden. Abdusalamov was instructed to hail a taxi to get to the hospital and was not provided Russian translation services. He later suffered a stroke and remains paralyzed.

The report also discussed Mr. Hoover attempting to appoint his friends to prominent positions even though they lacked qualifications.


Artist Accused of Disowning a Painting Testifies

Artist Peter Doig took the stand in Chicago to testify in a case involving the provenance of a painting he claims he did not paint. Doig is being sued by the owner of the painting and a Chicago based art dealer. The owner claims That Doig painted the work while incarcerated in Canada in the 1970's, and he purchased the work from Doig to prevent him from going back to selling drugs. Doig's attorneys claim to have located the sister of the true artist behind the work, Peter Doige. Records from the prison system and of the plaintiff Doig's whereabouts are not clear during the 1970s. The painting does resemble Doig's work, and if authentic, can fetch in the neighborhood of $10 million.


National Hockey League Commissioner Gary Bettman Continues to Deny CTE Link

In response to an inquiry from Senator Richard Blumenthal of Connecticut, a ranking member of the Senate's Consumer Protection subcommittee, Gary Bettman answered a number of pointed questions related to concussions and the National Hockey League (NHL). Bettman, aware that the responses could potentially be used as part of the class action concussion suits against the NHL, submitted careful answers in legalese that denied a definitive correlation between CTE and concussions. Email messages between deputy commissioner Bill Daly and Bettman dating back to 2011 show that the NHL was aware of fighting and a correlation with depression and suicide amongst its players.


Brooklyn Rapper, Charged in Shooting, Sues Club and Promoter

Troy Ave, a rapper who is charged with attempted murder following a shooting at Irving Plaza during which his bodyguard was murdered, is suing Irving Plaza and Live Nation, the latter being the company overseeing the club, for failing to provide adequate security in the VIP room. The rapper claims that he picked up the gun in self-defense during the melee and is seen on film firing one shot.


Report Says Big Money College Sports Draw Most Major Infractions

A study of NCAA Division I infractions from 1953 to 2014 showed that basketball and football, the two sports with the most revenue, account for 83% of infractions. The study was conducted by Temple University Sport Industry Research Center for the N.C.A.A. Division I Committee on Infractions.


Federal Court Blocks New Jersey Plan to Legalize Sports Betting

The United States Court of Appeals for the Third Circuit ruled against the New Jersey plan to offer sports gambling inside its casinos. The court struck down a law passed by New Jersey in 2014 that would have provided a boost to the suffering Atlantic City casinos and to the New Jersey economy. Sports betting in Nevada had $4.2 billion in wagers last year. The court found that New Jersey's proposed plan was in violation of the 1992 Professional and Amateur Sports Protection Act. It was anticipated that the law would be shot down, however the proposed law represents a trend towards legalizing sports wagering across the country.


U.S. Court Blocks Federal Communications Commission Bid to Expand Public Broadband

An Ohio appellate court ruled earlier this week that the U.S. Federal Communications Commission (FCC) could not block two states from setting limits on public broadband expansion. This decision was seen as a win for private sector providers of broadband internet and a defeat for the FCC, the latter of which has been seeking to expand public broadband access. The FCC was relying on the Telecommunications Act of 1996 for the authority to preempt state laws to speed broadband deployment. The appellate court found that the FCC still did not have sufficient authority.


Soviet Had State-Backed Doping Plan for '84 Olympics

The New York Times, quoting a document signed by Dr. Sergei Portugalov, former head of the Soviet Era government run sports medicine research center and former chief of the Russian Athletics Federation, reported that the Russian government had a protocol in place for Soviet athletes doping with anabolic steroids prior to the 1984 Olympic games. The document was obtained from a former chief doctor for the Soviet track and field team.


International Paralympic Committee Bars Russian Athletes

The International Paralympic Committee barred Russia from global competition by a unanimous vote which is in line with the Committee's public statements in July. Paralympic officials have taken a stance in contrast from their Olympic counterparts, who refused to ban the country from competing after the discovery of state sponsored doping. "Their unanimous decision goes a long way towards inspiring us all," said Travis Tygart, head of the United States Anti-Doping Agency


August 17, 2016

Center for Art Law Case Updates

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

Highsmith v. Getty Images, Case No. 16 CV-05924-JSR (S.D. N.Y., Jul. 25, 2016) -- The plaintiff, a photographer, filed a $1 billion suit against alleged infringers for the improper use of her images, which she donated to the Library of Congress' open source library. Highsmith discovered the alleged improper use after the defendant sent her a request for payment, for featuring her images on her professional website. The case is pending, and the complaint is available at https://consumermediallc.files.wordpress.com/2016/08/highsmith-v-getty-images.pdf?mc_cid=d28c91d9ee&mc_eid=8a2eda70d8.

U.S. v. "The Wolf of Wall Street" Motion Picture, Including Any Rights to Profits, Royalties and Distribution Proceeds Owed to Red Granite Pictures, Inc. or its Affiliates and/or Assigns, Case No. 16-16-5362, (U.S. District Court, C.D. Cal, Jul. 20, 2016) -- According to the Justice Department, it has filed 16 complaints which would allows the "the government to forfeit the ill-gotten gains of foreign officials and in some cases allows the government to channel recovered funds back to people touched by the corruption." The governments of Singapore, Switzerland and Malaysia are also investigating the fund. (http://www.courthousenews.com/CNSNEWS/Story/Index/92549?mc_cid=d28c91d9ee&mc_eid=8a2eda70d8) According to U.S. Attorney General Loretta Lynch, these assets were used to buy Van Gogh and Monet paintings as well as a stake in "The Wolf of Wall Street" (2013). This specific forfeiture action was started in Los Angeles Federal Court and may become one of the largest civil forfeiture actions ever brought under the 18 U.S. Code ยง 981. (http://www.wsj.com/public/resources/documents/1MDB-Filing-07-20-2016.pdf?mc_cid=d28c91d9ee&mc_eid=8a2eda70d8)

Medina v. Dash Films, Inc., Case No. 15-CV-2551-KBF (S.D. N.Y. Jul. 14, 2016) -- In 2015, Kanye West and Damon Dash released a music video titled "Loisaidas." Subsequently, they were sued by Michael Medina, who has a Latin band also called "Loisaidas" for infringement of a registered trademark. The District Judge Katherina Forrest dismissed the complaint after applying the "Rogers test." Forrest ruled that the title of the music video had artistic relevance, and wrote that: "[t] he complaint is devoid of concrete allegations that defendants attempted to suggest that plaintiff's duo produced the work; to the contrary, as evidenced by Exhibit D to the operative complaint, materials promoting the film prominently informed the reader that it was 'Executive Produced: Dame Dash & Kanye West'." (https://casetext.com/case/medina-v-dash-films-inc?mc_cid=d28c91d9ee&mc_eid=8a2eda70d8)

Boone Associates, L.P., v Vanessa Buia LLC, Case No. 653902/2016 N.Y. Sup. Ct., Jul. 26, 2016; Vanessa Buia, LLC v. Boone Associates, L.P., Case No. 150921-2016 (N.Y. Sup. Ct., Jul. 26, 2016) -- Mary Boone Gallery, which represents graffiti artist KAWS, filed a complaint against art advisory Vanessa Buia and her business alleging that the defendants fraudulently induced the plaintiff to sell KAWS's work. According to the complaint, the defendants provided false information as to the identify of the buyers in order to purchase artworks for themselves and to receive a $60,000 discount. The petitioners allege fraudulent inducement and seek $60,000 plus interest, costs and fees. Vanessa Buia countersued on the same date, alleging Boone's "malice, hatred and jealousy" and seeking monetary relief, damages and fees.

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.

August 20, 2016

Week in Review

By Eric Lanter

Russian Loses Women's Relay Gold From 2008 Olympics in Doping Case

Russian sprinter Yulia Chermoshanskaya tested positive for two drugs on a reanalysis of doping samples from the 2008 Beijing Olympics. Following that result, the International Olympic Committee (IOC)disqualified and stripped her of the gold medal in the women's 4x100-meter relay that she won in Beijing. Chermoshanskaya is the seventh athlete the IOC has disqualified through its Beijing and London (2012 Olympics) retesting program.


Weightlifter Stripped of Rio Gold Medal

Weightlifter Izzat Artykov of Kyrgyzstan was stripped of his gold medal, after it was revealed that he tested positive for strychnine, which is a banned stimulant.

In addition, Moldovan canoeist Serghei Tarnovschi was suspended and is undergoing testing, placing his bronze medal at risk of being stripped as well.


Irish Fighter Accuses Amateur Boxing Body of Being Corrupt

Ireland's Michael Conlan, following a boxing fight in the Rio Olympics with Vladimir Nikitin of Russia, suggested that his loss in that fight was attributable to the judges of the International Boxing Association. Commentators and fans expressed support for Conlan's position, in disbelief with the judges' unanimous decision for Nikitin. There have been similar accusations in previous high-level boxing matches, however, a spokesman for the International Boxing Association said that it was simply "the immediate emotions speaking," when Conlan accused the judges of being bribed to favor the Russian.


Boxing Judges and Refs Removed After Suspicious Results

Further to Michael Conlan's complaint, the International Boxing Association released a statement acknowledging that, after assessing the 239 boxing bouts at the Rio Games, it had "determined that less than a handful of the decisions were not at the level expected." This development came just a day after Conlan accused the judges of corruption in his loss to Russian Vladimir Nikitin in a quarterfinal. The International Boxing Association has asked all individuals who have proof of corruption to step forward.


International Boxing Association Reassigns Official Overseeing Olympics

Two days after Ireland's Michael Conlan raised concerns about corruption, the International Boxing Association removed its executive director, Karim Bouzidi, from the overseeing the Olympics. While the International Boxing Association did not explain his removal, he was supervising referees and judges in that position. The International Boxing Association released a statement Thursday, stating that it would not "shy away from its responsibilities and will continue to ensure a level playing field and a fair and transparent sport."


Sole Russian Track and Field Athlete Cleared for Rio Olympics

Russian long jumper Darya Klishina will compete in the Rio Olympics, after an appeals court overturned a decision of the International Association of Athletics Federation that barred her for using suspicious doping samples. In the sample provided, there was evidence of manipulation as there was DNA in the sample of two individuals. Following the appeals court's decision, the International Olympic Committee's spokesman said, "We have to respect the decision."


Irish Olympic Executive Arrested Over Ticket Scalping Allegations

Europe's top Olympic official, Patrick Hickey of Ireland, was arrested in Rio and is accused of selling tickets to the Rio Olympics on the black market. Allegations emerged last week regarding black market sales of tickets from Ireland's Olympic Committee, with at least six individuals suspected in the scheme. Mario Andrada, spokesman for the Rio organizing committee, has vowed to find a better system for selling tickets, as the revenue is critical for the Games.


American Swimmers Pulled Off Plane in Rio

American swimmers Jack Conger and Gunnar Bentz were taken off their flight to the United States by Brazilian authorities, following the investigation into allegations that four swimmers, including gold medalist Ryan Lochte, were robbed at gunpoint in Rio. With there being a question of whether the reported armed robbery was in fact a fabrication, Brazilian authorities have been eager to find the truth of the matter.


Ryan Lochte Apologizes for Rio Behavior

American swimmer Ryan Lochte apologized for vandalizing and damaging a gas station bathroom with three other American swimmers in Rio. Lochte, who departed Brazil just before police could seize his passport and interrogate him, initially clung to the fabricated story that men acting like police officers stopped the four men and robbed them, holding a gun to Lochte's forehead. The Brazilian authorities' investigation has revealed that no such thing occurred, however. The four swimmers vandalized a bathroom at a Rio gas station, causing the owner of the gas station to call security guards. The security guards had a language barrier with the four swimmers, but with the help of an individual translating, the swimmers gave approximately $50 for the damages and returned to their lodging in the Olympic Village. The fantastical story that Lochte and the swimmers initially concocted has since been disproved, but it nonetheless has cast a pall over the Games, with many accusing the American swimmers of not taking the Brazilian law enforcement authorities seriously.


New York Giants Kicker Suspended for Season Opener

The Giants' place-kicker Josh Brown has been suspended for the season opener against the Dallas Cowboys on September 11th. While the cause was not specified, his suspension came as a result of a violation of the National Football League's (NFL) personal conduct policy. This could include "steroid or alcohol use, gun possession, domestic violence or any unspecified conduct that 'undermines or puts at risk the integrity' of the N.F.L." Head coach Ben McAdoo said that the team will continue to be supportive of Brown.


Darren Sharper Sentenced to 18 Years in Prison

The former NFL star, Darren Sharper, has been sentenced to 18 years in prison following his conviction for drugging and raping as many as 16 women in four states. Prosecutors had suggested a nine year prison term, however, Judge Jane Triche Milazzo rejected it as too lenient, instead opting to sentence him Thursday to 18 years.


Upcoming Film "The Birth of a Nation" Cloaked in Controversy

Writer and director Nate Parker, who also is the lead role in the upcoming film "The Birth of a Nation," has come under fire for new details that have come to light about a nearly 20-year old case. Parker was accused and acquitted of raping a fellow Penn State student. However, this week, Variety revealed that the accuser committed suicide in 2012 at the age of 30. Many have pledged to boycott the upcoming film based on Parker's behavior. Parker posted on social media that he did not know about the suicide and "was filled with sorrow" about the incident.


Alec Baldwin's Painting Purchase Fiasco

In 2010, actor Alec Baldwin purchased a work he had long desired to own: Ross Bleckner's "Sea and Mirror," a painting from 1996. At least, that is what he was told. The owner of the studio where he procured the painting, Mary Boone, assured him that he was buying the original work from 1996, but Baldwin came to find out that it was a more recently finished piece of work from the same series by Bleckner. Boone has assured Baldwin that he was simply mistaken about the painting that he was purchasing. The dispute remains ongoing, with Baldwin adamant that he wants the original painting, which sold at Sotheby's auction house to an undisclosed seller who has not expressed a willingness to resell the painting.


Bill Cosby Drops Lawyer

Monique Pressley, one of Bill Cosby's lawyers in his civil and criminal proceedings, has acknowledged that she is no longer representing the entertainer. Pressley had been prominent in the case, but she is not the first lawyer that has been replaced in Cosby's legal team. Last October, Cosby replaced Martin Singer, a long-time lawyer for the entertainer.


Fight for Viacom has Ended, with Redstones Victorious

The corporate battle for the future of Viacom has come to an end by virtue of settlement. Philippe Dauman has been ousted as the head of Viacom, with Sumner Redstone's daughter, Shari Redstone, taking his place. Dauman will receive a $72 million severance package, but the Redstone family will retain their control of Viacom.


Gawker, the Controversial News Site, to Close

Nick Denton, the founder of Gawker, has been running the website for the past 14 years. That run has come to an end, however, following the bankruptcy of the company that came after a $146 million judgment against Gawker from an action brought by Hulk Hogan for invasion of privacy. Through the bankruptcy, Gawker has been unable to find a buyer, and as such, starting Monday, no new articles will be published on the site. The site will maintain its archives for users to access in the future, and Denton hopes to lead a new project.


August 21, 2016

Friedman v. Live Nation

By Fabien Thayamballi

On August 18th, the Ninth Circuit issued an opinion in which it reversed a summary judgment ruling that dismissed a claim of willful copyright infringement (opinion attached). It explained: "On the current record, a jury could reasonably conclude that Live Nation's approval procedures amounted to recklessness or willful blindness with respect to Friedman's intellectual property rights. Live Nation's Product Approval Forms say nothing whatsoever about establishing or reporting on who holds the rights to the images whose use is proposed. The forms only include fields indicating the manufacturer of the proposed product, the artist represented, and the suggested price, along with space for unspecified "comments" by Live Nation and the artist. From the face of the documents, one could conclude that they are directed at design decisions, not the rights to the photographs. Nor do the specific forms signed by Run-DMC indicate in any way that the group was clearing the legal right to use the photographs, on their own behalf or anyone else's."

Given an approval process that never explicitly asks about copyrights at all, a jury could reasonably conclude that Live Nation's reliance on the artists who were the subjects of the photographs at issue to clear photographic rights, rather than on the photographers who took them -- based only on a purported industry practice never reflected in any document -- amounted to recklessness or willful disregard, and thus willfulness.

The Court also found that there was an issue of fact as to whether Live Nation "knew of the removal of the CMI", even though it did not remove the CMI itself, because "a reasonable jury could certainly conclude that Live Nation had knowledge that photographs are often copyrighted." The Court also held that the plaintiff was entitled to only one award of statutory damages despite numerous "downstream" infringements.

August 26, 2016

Week in Review

By Michael B. Smith

Almost None of Rio's Athletes Were Previously Suspended for Doping

Of the approximately 11,000 athletes who competed in Rio, only 120 (fewer than 1%) had previously served suspensions or had to return medals because of doping. Just 3.5% of the 974 medals awarded were won by previously-suspended athletes. The vast majority (more than two thirds) of countries participating in the 2016 Olympics had no athletes on their teams who had ever served suspensions for doping. Although the U.S. had the second highest number of previously suspended athletes on its team (second only to Ukraine), those athletes constituted less than 2% of the team. The few athletes with histories of doping suspensions were largely held in contempt by fans.


Players Accused of Drug Use Agree to Meet with National Football League

In connection with its investigation of allegations (later retracted) that appeared on Al-Jazeera, the National Football League (NFL) set August 25th as the deadline for players named in the report to consent to an interview or face suspension. Pittsburgh Steelers linebacker James Harrison and Green Bay Packers linebackers Clay Matthews and Julius Peppers each have agreed to meet with the NFL. The 4th player named, free agent Mike Neil, did not agree to be interviewed.


Major League Baseball Clears Howard and Zimmerman of PED Allegations

Major League Baseball announced Friday that its investigation into allegations reported by Al Jazeera that Phillies first baseman Ryan Howard and Nationals first baseman Ryan Zimmerman used performance-enhancing drugs found no violations by either player. Both players had filed lawsuits against Al Jazeera in January.


NFL Investigation of Josh Brown Allegations Goes Nowhere

Giants kicker Josh Brown was arrested for domestic violence in 2015. At the time, Brown's wife told the police that he had been physically violent with her on many occasions. On Friday, the NFL announced that neither Brown's wife nor law enforcement officials had cooperated in the NFL's 10 month investigation into Brown's conduct. The NFL ultimately concluded it had insufficient information to corroborate prior allegations, and closed the investigation. Brown was suspended for one game.


Kenya Disbands Olympic Committee

Kenyan athletes brought home 13 medals, the most of any African nation, and were second in the world in track and field. They may also have had the most disorganized Olympic Committee. Players were housed in a dilapidated shanty, uniforms went missing, and their return home was delayed while airline tickets were sought. Team manager Michael Rotich was arrested for allegedly helping athletes beat drug tests. On Thursday, Kenya's government disbanded the Olympic Committee. However, the Olympic Committee challenged that by stating that the government lacked the authority to disband it.


Lochte Loses Sponsors

U.S. Olympic swimmer Ryan Lochte lost all four of his sponsors after falsely claiming that he and his teammates were held at gunpoint in Rio de Janeiro. Speedo dropped him first, announcing it would be donating $50,000 of Lochte's fee to help children in Brazil. Ralph Lauren followed, saying that its agreement with Lochte was limited to the Rio games, and would not be renewed. Gentle Hair Removal said that Lochte did not meet its "high standards", and Airweave was the last to drop him "after careful consideration."

Lochte reportedly has already found a new sponsor in the Pine Brothers throat lozenge company as the face of the "forgiving on your throat" ad campaign. I did not make that up.


Daily Fantasy Sports Get Temporary OK from New York State

The New York State Gaming Commission issued temporary permits to FanDuel, DraftKings, and three other daily fantasy sports sites on Monday. These permits will allow the sites to begin operating within New York State while the Commission devises formal regulations.


Florida Court Green-Lights Privacy Suit over Medical Records Tweet

A federal judge in Florida denied a motion to dismiss New York Giants defensive end Jason Pierre-Paul's invasion of privacy lawsuit against ESPN and Adam Schefter. Schefter, an ESPN reporter, tweeted a photo of a medical chart showing that Pierre-Paul's finger had been amputated after an accident involving fireworks. The defendants argued that the tweet was protected by the First Amendment.


Blond(e) Disrupts Music Industry

Not Madonna, Frank Ocean. One day before musician Frank Ocean released his much-talked about and well received album "Blonde" (or "Blond," no one is certain) on iTunes, he released a 46 minute "visual album" called "Endless." "Endless" apparently fulfilled Ocean's contractual obligations to record company Def Jam, leaving him free to make an exclusive deal with Apple for the release of "Blond(e)" without involving Def Jam or its parent company, Universal Music Group. Although no one involved agreed to comment on the affair, it is believed that Def Jam and UMG are not particularly happy about it.


Demi Lovato Hears Sleigh Bells Suing

On Monday, musicians Alexis Krauss and Derek Miller, who perform as "Sleigh Bells," filed a complaint against pop star Demi Lovato in the Central District of California, alleging that Lovato's 2015 release "Stars" infringes on Sleigh Bell's 2010 song "Infinity Guitars." Lovato's people denied sampling "Infinity Guitars."


Williams, Thicke, T. I. appeal "Blurred Lines" Decision

Pharrell Williams, Robin Thicke, and T.I. have filed their appeal from a judgment that awarded $5.3 million plus 50% of royalties from the song "Blurred Lines" to the estate of Marvin Gaye. The appellants claimed to the Ninth Circuit that the proceedings below had been "a cascade of legal errors."


Snoop and Wiz Sued over Concert Injuries

17 people injured when a railing collapsed at a Snoop Dogg/Wiz Khalifa concert in New Jersey have sued the artists and the owner of the venue for damages. The plaintiffs' attorney contends that the collapse was caused by a lack of adequate crowd control combined with Snoop Dogg allegedly inciting the fans to move en masse.


Greggs Sues Grande and Guetta

Canadian songwriter Alex Greggs has sued musicians David Guetta and Ariana Grande, who respectively wrote and performed the song "One Last Time," for copying a song he wrote called "Takes All Night."


Plaintiff Apologizes for Copyright Suit, Blames Expert

Composer Richard Friedman sued Hans Zimmer in January 2015, alleging that Zimmer's score for the Oscar-winning film "12 Years a Slave" was lifted from Friedman's 2004 composition "To Our Fallen." Friedman voluntarily dismissed the lawsuit on Tuesday, saying he had been "misguided and mistaken" in suing Zimmer, and should not have relied on the findings of his expert.


Carrie Underwood and Brad Paisley Beat Copyright Suit

On Thursday, a federal judge in Nashville granted summary judgment in favor of musicians Carrie Underwood and Brad Paisley in a copyright lawsuit filed in 2013 by Amy Bowen (a/k/a Lizza Connor). The court found that Bowen failed to establish "substantial similarity" between her song "Remind Me" and Underwood/Paisley's hit of the same name. The fact that both songs repeated the phrases "remind me" and "baby remind me" was not enough.


Melania Trump Threatens to Sue News Outlets for Defamation

Melania Trump has hired Charles Harder, who made headlines successfully representing Hulk Hogan against Gawker Media, to put news outlets including The Daily Mail, Inquisitr, Politico, and Liberal America on notice that she may sue them for defamation. Specifically, Ms. Trump contends that these news organizations published false allegations -- first appearing in Suzy magazine -- that Ms. Trump worked as an "escort" in the 90s.



Gov's Hub's a Dud, Bud

Two years ago, Gov. Andrew Cuomo announced that the state would spend $15 million to build a high-tech film studio in Onondaga County, which he said would create at least 350 new jobs. The studio, improbably called the Central New York Hub for Emerging Nano Industries, currently has two full-time employees. The hub's "anchor tenant," FilmHouse, has yet to release a film, has a spotty legal and financial history, and, apparently, not a great deal of film making experience. Furthermore, the New York Times' investigation suggests that FilmHouse propagated misleading information about its physical headquarters, and that in fact its "offices" are in a P.O. box near Albany. None of FilmHouse's executives are reported to be incredibly tiny.


Tantaros Slams Fox Executives in New Complaint

On Monday, former Fox News host Andrea Tantaros commenced a lawsuit in New York County Supreme Court against Fox News, ex-CEO Roger Ailes, and what the complaint calls Ailes's "most senior lieutenants," new CEO Bill Shine, VP of Legal Affairs Diane Brandi, VP of Corporate Communications Irena Briganti, and EVP of Programming and Development Suzanne Scott. Tantaros alleges that she was repeatedly harassed by Ailes and Bill O'Reilly, and that when she complained, she was subjected to "threats, humiliation, and retaliation." Among other things, Tantaros alleges that Shine told her to "let this one go," because Ailes was a "very powerful man"; that Brandi blocked her from appearing on the O'Reilly factor and fabricated claims that Tantaros's book violated Fox policies; that Briganti led a "retaliatory media vendetta against her"; and that Scott ignored her complaints and requests and lied about the reasons for her demotion.


Former Theater Agent Accused of Selling "Phantom Production"

The Manhattan District Attorney alleges that Roland Scahill, a former talent agent, persuaded seven individuals -- mostly close friends -- to invest a total of $165,000 in a one-woman show starring Lupita Nyong'o. Scahill claimed to have obtained the rights to the life story of opera singer Kathleen Battle, and that he already had deals with the Schubert theater and Netflix. Ms. Battle, Ms. Nyong'o, and the Schubert Organization all say they knew nothing about the supposed production.


SEAL Who Wrote bin Laden Book to Pay U.S. $7 Million

Matthew Bissonnette, the Seal Team 6 member who wrote a best-seller about the raid that killed Osama bin Laden, reached a settlement with the Justice Department, pursuant to which he will pay the federal government at least $6.8 million. By publishing the book, Bissonnette violated the terms of a non-disclosure agreement requiring him to pre-clear publications to ensure they did not reveal classified information.


Illinois Judge Confirms: Doige not Doig, Supposed Doig Not a Doig

On Tuesday, a judge in Chicago resolved a bizarre case of mistaken identity. At issue was the authenticity of a painting the plaintiff, Robert Fletcher, claimed was made by celebrated artist Peter Doig, but which Mr. Doig said he did not paint. Evidence suggested that the painting (which does resemble Doig's work) actually was made by another man: Peter Doige, with an "e". After a bench trial, the judge found that the painting was not an authentic Doig.


About August 2016

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

July 2016 is the previous archive.

September 2016 is the next archive.

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