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September 2016 Archives

September 2, 2016

Trader Joe's Company v Michael Normal Hallatt Lanham Act Decision

By Fabien Thayamballi

The Ninth Circuit recently issued a decision (trader joe's.pdf) allowing extraterritorial Lanham Act claims. The Court's introductory paragraphs state:

This trademark infringement case turns on the extraterritorial reach of the Lanham Act. It is uncontested that Defendant Michael Norman Hallatt purchases Trader Joe's-branded goods in Washington state, transports them to Canada, and resells them there in a store he designed to mimic a Trader Joe's store. Trader Joe's sued for trademark infringement and unfair competition under the Lanham Act and Washington state law. The district court recognized that the Lanham Act can apply to conduct that occurs abroad, but it dismissed the Lanham Act claims for lack of subject-matter jurisdiction after concluding that Hallatt's allegedly infringing activity takes place in Canada, and that Trader Joe's did not adequately explain how Hallatt's activity impacts American commerce. The district court dismissed Trader Joe's' state law claims for similar reasons.

We affirm in part and reverse in part. Consistent with recent case law from the Supreme Court and our court, we hold that the extraterritorial reach of the Lanham Act raises a question relating to the merits of a trademark claim, not to federal courts' subject-matter jurisdiction. On the merits, we conclude that Trader Joe's alleges a nexus between Hallatt's conduct and American commerce sufficient to warrant extraterritorial application of the Lanham Act. We therefore reverse in part. But because Trader Joe's does not allege trademark dilution in Washington or harm to a Washington resident or business, we affirm the court's dismissal of the state law claims.

Week in Review

By Eric Lanter

What to do When Uncle Sam Steals Your Intellectual Property?

Even the federal government has taken up stealing intellectual property. Some companies, like Bitmanagement, have sued the federal government, despite the fact that they cannot obtain an injunction or treble damages as a result of the action. Several of these actions have sprung from software companies giving the federal government trial software without a license limit imposed. The government then installed the software on hundreds of thousands of systems without paying for additional licenses. Companies can only hope that they will recoup a portion of the millions of dollars lost in the deals.


Antidoping Authorities in 17 Countries Seek Reform

Antidoping authorities from 17 countries met in Copenhagen, Denmark to discuss reforms in sports. During the meeting, one proposal discussed called for prohibiting antidoping employees from having a leadership role in sports, as that would create a conflict of interest. This meeting comes just weeks after the extent of Russia's state-sponsored doping was revealed. Following this meeting, authorities hope that the International Olympic Committee will take a stronger stand in eliminating the conflict of interest between antidoping and leadership roles in countries like Russia.


Reminder of a Lawsuit as Eugenie Bouchard is Knocked Out of U.S. Open

Eugenie Bouchard was knocked out of the U.S. Open Tuesday in her match against Katerina Siniakova. This marks nearly a year since she was concussed during a match at the U.S. Open that prompted her to bring a lawsuit against the U.S. Open and the United States Tennis Association (USTA), as the concussion forced her to withdraw and miss tournaments last year. The USTA has emphasized that she was treated equally, despite the lawsuit. Discovery in the action is ongoing through at least January 2017, and as such, depositions are expected to take place soon.


National Football League Clears James Harrison, Clay Matthews, and Julius Peppers of Doping

Three major National Football League (NFL) stars, James Harrison, Clay Matthews, and Julius Peppers, have been cleared of claims that they were using performance-enhancing drugs. The NFL, after conducting an investigation of a pharmacist each used, concluded that there was "no credible evidence" that they were provided with or used prohibited substances.


One More Appeal for NFL Concussion Case

The late running back Cookie Gilchrist's lawyers have appealed his case to the United States Supreme Court. The appeal is a last ditch effort to alter a concussion-related settlement between the NFL and all retired players, worth hundreds of millions of dollars. Typically, once an appeal is filed, the Supreme Court decides whether to take the case within a few weeks. The question is whether the four Justice requirement for hearing a case will be met, as they agree to hear about one in 100 petitions seeking review.


Pop Warner Faces Class Action Lawsuit

In California, a class action lawsuit has been filed against Pop Warner, the largest youth football league, asserting allegations that children have been knowingly exposed to grave risk of concussion and injury by participating in the football program. Pop Warner, facing declining participation amidst the revelations of football's dangers, now faces the additional costs of paying attorneys to defend the organization. In this sense, Pop Warner has followed in the footsteps of the NFL, which has spent extraordinary amounts of money hiring attorneys to defend itself in recent years.


Meldonium Added to Ban List

The National Hockey League added meldonium to its prohibited substances list. Meldonium is the drug that knocked the Russian under-18 hockey team out of competition this spring.


Suspensions Handed Down for Baseball Dopers

A Boston minor league outfielder, Chad Hardy, was suspended for 60 games following a drug test revealing that he used the performance-enhancing drug Tamoxifen. Free agent pitchers Julio Lugo and Adolfi Tellera each received 72-game suspensions after testing positive for stanozolol, a performance-enhancing drug.


Kardashian Endorsed Product on Instagram, or Did She?

Kim Kardashian, when she posted an image on Instagram of her eating candy, tapped into a larger debate about whether a post on social media with a product is simply a testimonial or an endorsement. The Federal Trade Commission (FTC) has been grappling with this question, as consumer advocacy groups have insisted that such posts should come with tags such as "#ad" or "#sponsored", so that viewers can understand whether they are testimonials or endorsements. The FTC's regulation provides that it should be "clear and conspicuous" to consumers if an individual endorsing a product "has been paid or given something of value." This leaves room for interpretation, which companies have been more than eager to exploit before the FTC makes any firmer of a regulation.


Police Seize Sports Offices in Kuwait

Authorities in Kuwait ordered police to seize the country's Olympic Committee and soccer association offices. This comes after the International Olympic Committee and FIFA suspended the country from the Rio Olympics and the qualifiers for the 2018 World Cup in soccer, as well as the removal of Sheikh Talal Fahad Al-Sabah, the head of both the Kuwait Football Association and the national Olympic Committee.


Investigation Underway of Germany's 2006 World Cup Bid and German Legend Beckenbauer

Switzerland's Attorney General's Office confirmed that an investigation is underway of those who were involved with securing Germany's 2006 World Cup bid. This investigation began in November of last year, following allegations of widespread corruption in FIFA. Investigators focused on a $7.5 million payment from Germany's football entity, which was intended to finance a gala staged as part of the country's bid for the 2006 World Cup. Franz Beckenbauer, a soccer legend in Germany who brought West Germany European and World Cup titles, is under investigation as well. He acknowledged that mistakes were made in the bidding process. Swiss authorities have jurisdiction over this matter by virtue of accounts in question being located in Switzerland.


Fox Wants Ex-Host's Harassment Suit Sent to Arbitration

After former Fox News host Andrea Tantaros filed suit in New York State Supreme Court, Fox News filed a motion this week to move the lawsuit into arbitration. The lawsuit, centered on purported sexual harassment she received from Roger Ailes, the former chairman, Bill O'Reilly, an anchor, and others, names several executives as defendants. In its motion, Fox News argued that Tantaros' lawsuit violates her employment contract's arbitration clause, as all disputes regarding her employment are required to be sent to arbitration. Ms. Tantaros' lawyer says that this fits his client's narrative, as Fox News would like to keep this action "in the shadows."


September 10, 2016

Week in Review

By Eric Lanter

Roger Ailes Hints at Suit Against New York Magazine

Charles Harder, a prominent lawyer who represented Hulk Hogan in his lawsuit against Gawker, has sent a letter on Roger Ailes' behalf to New York magazine. Ailes, the former chairman of Fox News, was the subject of several extensive articles about the sexual harassment lawsuits that have plagued Fox News in recent months. The letter to New York Magazine requested that the magazine preserve all documents relating to Ailes, which is typical of a pre-litigation letter. The magazine has insisted the articles were "carefully reported."


Fox News Settles with Gretchen Carlson, Former Anchor, as Another Host Leaves

Fox News' parent company settled with former Fox News anchor, Gretchen Carlson, for $20 million on Tuesday. This news was immediately followed by another shockwave to the newsroom: long-time host Greta Van Susteren resigned effective immediately. While officials at the network insisted that the departure was coincidental, it is clear that there is significant tumult in the cable news channel.


Bill Cosby to Stand Trial in Sexual Assault Case

Bill Cosby will begin his trial for sexual assault in Pennsylvania on June 5, 2017. The charges center on allegations that "he drugged and molested a woman he once mentored at his suburban Philadelphia home more than a decade ago." Meanwhile, the judge will consider the prosecution's motion to allow as evidence testimony from 13 other women who allege Cosby also drugged and sexually assaulted them. A spokesman for Cosby, Andrew Wyatt, said that Cosby "is not giving up the fight for his rights."


Colin Kaepernick's Anthem Protest Creates Unease in the National Football League

The San Francisco 49ers' quarterback Colin Kaepernick has been staging a protest at the start of each football game during the national anthem, and until now, the commissioner of the National Football League (NFL), Roger Goodell, has not taken a side. Goodell said, "I don't necessarily agree with what he's doing." These noncommittal words have ignited controversy, as Goodell further acknowledged that the NFL values patriotism, but also realizes society is not perfect. Three other NFL players recently joined in Kaepernick's protest, leaving the question of whether the NFL will have a larger issue to deal with by remaining noncommittal now.


Roger Goodell's Power Play

Roger Goodell, after a decade as commissioner of the NFL, has established himself as a strict disciplinarian for players' conduct, much to the ire of the players. Many players despise the increasingly overbearing management style of the commissioner and his staff, who routinely hand out suspensions for off-the-field behavior as well as more routine infractions, like cheating or using performance-enhancing drugs. While players, and their union, have sought to check the authority of Goodell, there is an outstanding question as to what lengths they will go to in doing so, knowing that their careers may be on the line in making their statements.


Ryan Lochte Banned for 10 Months

The American swimmer Ryan Lochte was banned from domestic and international swimming for 10 months. The ban will leave him out of the 2017 World Championships in Budapest, Hungary, but he may not have qualified anyway, given his slowing performances in recent months. The ban comes as a result of his conduct in lying to Brazilian authorities regarding a drunken escapade at the Rio Olympics that involved public urination, drunkenness, and vandalism.


Real Madrid and Atletico Madrid Lose FIFA Appeals

Spanish soccer clubs Real Madrid and Atletico Madrid lost their appeals in Switzerland this week with FIFA, ensuring that they will not be permitted to take advantage of Spanish soccer's so-called transfer windows to sign new players until January 2018. The two teams met in the European Champions' League final in May, with Real Madrid winning on penalty kicks. The transfer bans were imposed as a result of both clubs signing under-18 non-Spanish players, a violation of FIFA's rules.


September 13, 2016

AME Awards® 2017 Competition

The AME Awards® competition is now accepting entries for the 2017 competition. Since 1994, the AME Awards® has honored campaigns worldwide that successfully demonstrate groundbreaking solutions to challenging marketing problems.

"The 2017 AME Awards® continues its 23-year tradition of showcasing brilliant creative delivering measurable results," said Deb Ryan, newly appointed Executive Director of the AME Awards®, "and AME diligently monitors the industry to provide relevant categories that mirror evolving creative industry trends across all platforms."

For 2017 competition, the AME Awards® unveiled a new category to showcase Olympic-themed advertising and marketing created for the 2016 Summer Olympics in Rio. This additional category compliments AME's robust category roster that included Technology in the Product & Services category group, which was added last year to showcase digital advertising and marketing applications utilized within the advertising industry to drive consumer engagement. The AME Awards rigorous monitoring of global technological advancements led the competition to previously launch categories in Augmented Reality and Social TV.

"AME's global Grand Jury is comprised of five regional juries, allowing entries to be judged with cultural relevance within their own region by jurors with the most up to date knowledge of that particular market.", said Ms. Ryan. "Entrants can be sure that their creative work is given the utmost attention and that all award-winning work is worthy of being called the World's Best Advertising & Marketing Effectiveness℠."

The AME Awards® Grand Jury is responsible for awarding Gold, Silver, and Bronze to the highest scoring entries through two rounds of regional judging to ensure scoring accounts for cultural and economic relevance. The Grand Jury also selects the AME Green Award winner -- the highest scoring, Gold-winning entry for a company whose emphasis is on resource conservation and negative environmental impact. Gold-winning works from all regions are judged by the full international Grand Jury to determine a Platinum Award for each of the five regions (North America, Latin America, Europe, Middle East & Africa and Asia Pacific) and the International Grand AME Award.

The 2017 AME Grand Jury of interactive and multidisciplinary marketers, media planners, strategy directors, social media experts, and creative directors will evaluate entries based on four specific criteria, each weighted by importance: Challenge/Strategy/Objectives - 20%; Creativity - 25%; Execution - 25%; and Results/Effectiveness - 30%.

In 2016, the AME Grand Jury presented the AME Grand Award and Regional Platinum Award/Europe to Grabarz & Partner/GGH Lowe Germany for its campaign "Nazis Against Nazis - Germany's Most Involuntary Charity Walk" for client ZDK Zentrum Demokratische Kultur. Leo Burnett Melbourne earned 2016 AME Regional Platinum Award/Asia-Pacific for "#MyFamilyCan" for client SPC. BBDO New York was honored with the 2016 AME Regional Platinum Award for "Vines in the Real World: Making the Digital Analog" for client Lowe's Companies. Impact BBDO Cairo earned the 2016 AME Regional Platinum Award for "Everyday Hero" for Sting, PepsiCo's energy drink.

The deadline to enter the 2017 AME Awards is October 31, 2016. Entry details and competition rules and regulations can be found on the AME website, at www.ameawards.com.

September 14, 2016

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., et al. Partial Summary Judgememt

Judge Gutierrez's decision granting Sirius XM partial summary judgment dismissing the request for punitive damages and the unfair competition claim in the Turtles' pre-1972 recording suit in California is available here:


September 19, 2016

Week in Review

By Michael Smith

Hayden Sworn In

Last Wednesday, Carla D. Hayden was sworn in as the 14th Librarian of Congress, who also oversees the U.S. Copyright Office, which is part of the Library. She is the first woman and the first African-American to hold the position.


Music Industry Continues to Grapple with Streaming

In the latest conflict spawned by the music industry's efforts to reconcile decades-long practices and decades-old laws with the relatively new digital streaming model of music distribution, a group of songwriters sued the U.S. Department of Justice, challenging a recent ruling in which the Department of Justice required music rights organizations like ASCAP and BMI to offer "100 percent licensing" of their songs -- in other words, they cannot license songs for which they do not have 100% of the rights. This is often not the case, because many songs are co-written by authors who belong to different organizations. The plaintiffs allege that the ruling violates their property rights by nullifying contracts among co-writers of songs.


"Napalm Girl" Sparks Discussion About Facebook Content Rules

When a Facebook user posted an iconic 1972 photograph of Vietnamese children running from a napalm attack, Facebook took the photo down because one of the children in the photo was naked. The resulting outcry was substantial and widespread and, although Facebook initially defended its decision, it recently backed down. The incident has renewed debate over whether Facebook is a media outlet.


Nike-University of Michigan Deal Raises Privacy Concerns over Wearable Tech

The University of Michigan entered into a $170 million apparel contract with Nike that includes a provision allowing Nike to harvest anonymous data from players' wearable technology (heart-rate monitors, fitness trackers, etc.). Privacy experts have expressed serious concerns about the level of control and protection afforded to the athletes, especially in light of the rapidly-expanding scope of data that can be collected by wearable tech, and the likelihood that the data could be hacked.


Russian Hackers Release Athletes' Medical Records

A group of Russian hackers has been leaking information from the World Anti-Doping Agency's athlete database. The group, which calls itself "Fancy Bear," and which has been linked to the recent hacking of the Democratic National Committee's servers, claims to be exposing American hypocrisy about doping in sports. The documents Fancy Bear leaked show that U.S. athletes, including Serena and Venus Williams and Simone Biles, tested positive for banned drugs. All three women had been granted exemptions to take those drugs to treat existing conditions.


Univision Removes Gawker Sites Post-Acquisition

On Friday, executives at Univision Communications--which has acquired news websites from bankrupt Gawker Media -- voted to remove six posts on those websites about people who are currently suing Gawker. They did so over the strenuous protest of Executive Editor John Cook, who called the decision "an affront to an idea that we have been committed to for 13 years, which is that we should be able to say true things about public figures."


Shmurda Rap/Hip Hop Artist Pleads Guilty

Boby Shmurda, a/k/a Ackquille Pollard, accepted a 7-year prison sentence when he plead guilty to conspiracy and weapons possession charges last week. Pollard was accused of being a leader of a violent, drug-dealing gang responsible for one murder and several shootings. Two of Pollard's co-defendants took the same deal. Two other co-defendants were convicted earlier this year--one received 98.5 years, the other 53.5.


Making a Murderer Subject Asks for Prison Release Pending Appeal

Brendan Dassey, whose story is documented in the Netflix series Making a Murderer, was convicted of murder in 2005. The show has raised many questions about the legitimacy of his conviction, and earlier this year, a federal judge found that Dassey's confession had been coerced and overturned the conviction. The prosecution appealed from that decision, and Dassey was ordered to remain in prison pending that appeal. Last Wednesday, Dassey's lawyers moved to have Dassey released on bond during the appeal.


Gymnastics Team Molestation Allegations Continue to Mount

Last month, while the U.S. Gymnastics team was competing in Rio, the team organization was accused of repeatedly turning a blind eye to allegations of sexual abuse by coaches. Since then, several women have come forward to accuse the team's former physician, Larry Nassar, of sexually molesting them. On Friday it was reported that several additional women have alleged that Nassar abused them.


Baldwin Accuses Artist, Gallery Owner of Bait-and-Switch

Alec Baldwin thought he was buying "Sea and Mirror," a 1996 painting by Ross Bleckner, when he paid $190,000 to art gallery owner Mary Boone. In fact, he says, what he got was a very similar painting that Mr. Bleckner made for Ms. Boone to sell to Mr. Baldwin after Ms. Boone failed to procure the original painting from its current owner. Boone says Baldwin knew he was not getting the original painting.


California State Official Resigns Over Canceled Show About Race

Michele Roberge, director of the Carpenter Performing Arts Center at California State University, Long Beach, has resigned in protest over the University's decision to cancel a campus performance of a controversial play, "N*W*C" (nigger*wetback*chink), which deals with issues of race in America.


Twitter Launches Free Sports Streaming App

This week, after having obtained the appropriate licenses, Twitter launched a free app that will stream live sports events on Apple TV, Amazon Fire TV, and Xbox One. #sportsball!


Leaders Move to Make Streaming Content Consistent Across the EU

Streaming content typically is licensed on a country-by-country basis. As a result, French Netflix does not have the same shows and movies as Polish Netflix, for example. The EU has proposed changes to copyright laws that would make streaming content more readily and consistently available to citizens in all member states.


National Football League to Spend $100 Million on Head Injury Safety

On Wednesday the National Football League (NFL) announced a $100 million initiative focused on preventing, diagnosing, and treating head injuries through technological advancement sand medical research. Although many have praised the initiative, the NFL remains subject to strong criticism from safety advocates.


September 23, 2016

John Wiley & Sons, Inc. v. Book Dog Books, LLC

The decision in JohnWiley&SonsIncv.BookDogBooksLLC13cv816.pdf, S.D.N.Y. No. 13-cv-816, discusses the limits of the affirmative defense of copyright misuse.

September 24, 2016

Week in Review

By Ben Natter

Judge Rejects Justice Department Ruling on Music Licensing

Judge Louis L. Stanton (SDNY) last week rejected the Justice Department's recent interpretation of the consent decree governing royalties for songwriters represented by BMI. BMI is governed by a consent decree dating back to 1941, and compliance of the consent decree is monitored by separate SDNY judges.

The Department of Justice interpretation would have required BMI (and ASCAP) to offer 100% licenses, even if only a portion of a song is in their repertoire and the song has multiple copyright owners that belong to different Performance Rights Organizations.

The Department of Justice can appeal the decision.


Bill to Shield International Art Loans Gains in Senate

Last week the Senate Judiciary Committee approved the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act. The bill furthers extends existing protection from seizure for artwork on loan for exhibitions in the United States. The bill is designed to encourage foreign governments to permit loaning of artwork for exhibitions in the U.S. It carves out exemptions for works looted between 1933 and 1945 by Germany and its allies and also includes an exemption for works seized after 1900 by a foreign government from members of a "targeted group."

Opponents of the bill argue that looting committed by the Russian government falls outside the scope of these two exemptions.


Who's Too Young for an App? Musical.ly Tests the Limits

Musical.ly, a video/lip syncing app growing in popularity, is pushing the limits of the Children's Online Privacy Protection Rule's (COPPA) strict compliance requirements for software users under the age of 13. The industry standard for COPPA compliance by social networks is willful ignorance. Social networking companies require their users to be above the age of 13, and thus exempt from COPPA.

Musical.ly has a particularly young user base that industry experts say is sometimes as young as first or second grade. As the company, which acknowledges a target user age of between 13 and 20, continues to gain steam it will be interesting to see if it triggers a change to COPPA, which was enacted in 1998, long before apps existed on mobile phones.


After Quake, an Italian Crisis Unit Races to Rescue a Region's Heritage

The Italian crisis unit of the Culture Ministry is currently in Amatrice, Italy. Amatrice was hit by an earthquake on August 24th, and, in addition to killing almost 300 people, put at risk of destruction thousands of treasured dossiers and other artifacts in churches and museums across earthquake zone, which extends through four regions of Italy. Some of the pieces date back to the 1600s, when another earthquake hit the area.

The crisis unit was created after a 1997 earthquake in Italy that severely damaged a number of monuments, including the Basilica of St. Francis in Assisi. It is now regularly deployed in both natural and man-made disasters in Italy and abroad. The project is very risky, as many of the buildings are unstable.

The crisis unit is working simultaneously with restorers attempting to salvage historic buildings.


Felon is Nominated by Public to the Football Hall of Fame

Darren Sharper was included in the list of nominees for the Pro Football Hall of Fame released last week. Sharper is currently serving 20 years in prison for drugging and raping women.

Sharper was an excellent football player (a five-time Pro Bowl safety in a 14-year career). However, his nomination caused outrage because of his criminal past. Unlike the Baseball Hall of Fame, the Football Hall of Fame does not have a character clause. The only requirement is that a nominee played for five seasons and made one All-Pro team or Pro Bowl and has been retired for five seasons. Additionally, the Hall of Fame does not nominate players -- this is left up to the public. Sharper was also nominated last year.


Varvara Lepchenko Is Cleared in Meldonium Inquiry

Several months after reports of meldonium doping first surfaced, Varvara Lepchenko was cleared of all wrongdoing. Lepchenko, a U.S. tennis player born in Uzbekistan, was declared to bear "no fault or negligence" for her violation by the International Tennis Federation. Lepchenko originally tested positive for meldonium in January at a WTA tournament in Brisbane, Australia. The substance was banned beginning on January 1st, and later conducted testing confirmed Lepchenko's assertion that she had not taken the drug since approximately December 20th.

Lepchenko repeatedly declined to discuss the case.


Eisenhower Family Drops Objections to Memorial

The $150 million memorial to Dwight D. Eisenhower was given new life earlier this week after the Eisenhower family reached a compromise on the Frank Gehry design. The Eisenhower family had opposed many aspects of the proposed design. Among the changes, the memorial will now feature a representation of the D-Day landing in Normandy and pay homage to Eisenhower's Kansas roots. The Eisenhower Memorial Commission was originally created by Congress in 1999 and the project has been consistently delayed.


Museum Officials and Archaeologists Sign Petition Against North Dakota Pipeline

1,281 people have signed on to a petition asking for further study of land involved in the pipeline project around the Missouri River.
The pipeline has been opposed by Native American tribes that argue that the land and water are sacred and serve a number of tribal purposes.
The new petition against the pipeline was originated by New York Natural History Museum.


Rome Mayor Nixes 2024 Olympic Bid

Mayor Virginia Raggi rejected Rome's bid for the 2024 Olympics on Wednesday. "This city is unlivable," Raggi stated, and further added that she has a larger plan for Rome beyond the 2024 Olympics. Raggi's decision needs to be approved by Rome's City Assembly. Once approved, the remaining contenders for 2024 would be Los Angeles, Paris and Budapest. The International Olympic Committee will decide on the host city in September 2017.


September 27, 2016

Post Kirtsaeng, Withdrawal of Attorneys' Fees

After Kirtsaeng, a federal judge in Los Angeles withdrew an earlier award of $720,000 in attorneys' fees to Madonna for winning summary judgment in a music case. vmgv.madonna.pdf

September 28, 2016

The Language of Disability: Top 10 Dos and Don'ts

By Kristine A. Sova

On Thursday, September 22, 2016, I had the pleasure of attending a workshop led by Christine Bruno, Disability Advocate, and David Harrell, Disability and Program Associate, from Inclusion in the Arts. A portion of the workshop focused on the language of disability -- particularly dos and don'ts -- and is a useful tool for workplace inclusion and diversity initiatives as well as equal employment opportunity (EEO) compliance. Employers, lawyers, and HR professionals: Please consider using these examples in your next workplace training.

DON'T USE wheelchair-bound/confined to. DO USE wheelchair user/ uses a wheelchair.

DON'T USE suffers from/afflicted with/crippled by/victim of. These terms make assumptions about how the disabled person feels about his/her disability. Use "has" and the name of condition (e.g., has cerebral palsy, has paraplegia, etc.).

DON'T USE the disabled/the blind/the deaf. Always use as an adjective rather than a noun - disabled person, blind filmmaker, deaf man or woman.

DON'T USE retarded (e.g., mentally retarded)/retard. USE intellectual disability; cognitive disability; developmental disability (when using these terms, however, it is important to understand the distinction among them).

DON'T USE handicapped (handicap). In general: If you're not writing about sports, don't use it! Use disability, disabled person, person with a disability. Similarly, DON'T USE handicapped parking, restroom, etc. USE accessible parking, restroom, etc.

DON'T USE midget/dwarf. DO USE little person. (Dwarf is acceptable only if the person actually has dwarfism.) Keep in mind: Anyone with dwarfism is a little person, but every little person is not a dwarf.

DON'T USE deaf-mute/deaf and dumb/hearing-impaired. DO USE deaf or hard of hearing.

DON'T USE physically challenged/differently abled. Avoid outdated or saccharine terms and euphemisms. Use disabled as an adjective (e.g., disabled sportscaster) or person-first language (e.g., person with a disability).

DON'T USE overcoming/inspiring/brave/courageous. Avoid patronizing and condescending descriptives - describe the person's accomplishments without value judgment or interpretation.

DON'T USE special/special needs. Do not use when referring to disabled people.

September 29, 2016

Summary of Today's Meeting of the Commissioners of the Federal Communications Commission

By Barry Skidelsky, Esq.

Barry is a NYC based attorney and consultant in private practice, handling diverse regulatory, litigation and transactional matters, principally for clients (such as lenders, owners, management and talent) and other lawyers who are involved directly or indirectly with communications, media, entertainment and technology. A member of the NYSBA EASL Section Executive Committee, Barry co-chairs its Television-Radio Committee, and he is former chair of the NY chapter of the Federal Communications Bar Association (whose members in part practice before the FCC in Washington DC). Barry was also a former General Counsel for several private and public companies in the above mentioned fields, and can be reached at (212) 832-4800 or bskidelsky@mindspring.com.

At this morning's meeting of the Commissioners of the Federal Communications Commission (FCC), the FCC: (i) voted unanimously to adopt a Report and Order intended to foster increased foreign ownership of and foreign investment in U.S. broadcast stations; and, (ii) with two dissents along party lines, as frequently occurs, voted to adopt a Notice of Proposed Rule Making (NPRM) intended to promote the growth of independent video programming.

Foreign Ownership of U.S. Broadcast Stations (FCC GN Docket No. 15-236)

Citing the outdated original policy underpinnings of avoiding interference with ship to shore radio communications during war time, the FCC downplayed those national security concerns and noted the current inconsistency between FCC regulations that on the one hand allow foreign citizens to own a nation-wide mobile wireless network in the United States, but on the other hand restrict foreign ownership of merely one small rural American radio station (an implied reference to Pandora's efforts to buy a small FM radio station in South Dakota, in an attempt to leverage a music copyright licensing advantage).

Accordingly, the FCC today unanimously voted to extend to broadcasters a liberalized and streamlined foreign ownership approval process, akin to that adopted about three years ago for common carriers. Stated goals were to reduce regulatory burdens and to foster or improve access to capital, which now affords foreign lenders and investors an unprecedented opportunity to be (or become more) involved with inter alia U.S. radio and television stations licensed by the FCC.

Diverse and Independent Sources of Video Programming (FCC MB Docket No. 16-41)

In addition, a majority of the FCC Commissioners voted to adopt an NPRM intended to benefit video programmers -- who are independent of major studios and multichannel video program distributors (MVPDs), such as cable and satellite system operators -- in connection with carriage contract negotiations between the video programmers and MVPDs.

Essentially, the FCC proposes to ban certain TV carriage contract clauses that the Commission believes unfairly favor MVPDs, such as most favored nations (MFN) and alternative distribution media (ADM) clauses that MVPDs have insisted on being included in deals they negotiate with independent programmers. MVPD bargaining power generally disfavors the content owners.

Although both MVPDs and independent video programmers or content owners (as well as other interested persons or entities) will have an opportunity to file formal comments with the FCC about this matter after the agency releases the text of its NPRM (as usual, editorial privileges were reserved at today's meeting), the lack of authority by the FCC to meddle in private TV contract negotiations will surely be raised.

Video Navigation Choices and Devices (FCC MB Docket 16-42; CS Docket No. 97-80)

Lastly, the also controversial and so-called TV set top box (STB) item was dropped from today's FCC agenda at the eleventh hour in the wake of opposition from content and copyright owners, as well as due to the apparent failure of a majority of the FCC Commissioners to reach consensus on this item.

The STB item remains in circulation for further consideration at the FCC behind closed doors, with any opportunity for further public comment uncertain as of this writing.

Ostensibly, the FCC wants to give consumers competitive alternatives to paying monthly STB rental fees to their cable or satellite providers. However, the politics, issues and other realities behind this item are much more complex, and they are far beyond the scope of this brief summary of today's FCC actions.


As always, all of us who are involved directly or indirectly with the ever converging fields of communications, media, entertainment and technology, are best advised to stay informed -- and, whenever possible, to actively participate in rule-makings and otherwise engage in advocacy -- to help shape the federal government's involvement in the related creative and business realms, and for the benefit of the public and private interests we may respectively represent.

September 30, 2016

The Center for Art Law Updates

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

9-Year Sentence for Smashing Timbuktu Shrines: According to the case information sheet for the International Criminal Court (ICC) trial of Ahmad Al Faqi Al Mahdi, the first individual to be accused of a war crime in relation to destruction of cultural heritage, the accused first appeared before the court on September 30, 2015. A year later he was found guilty of the crimes perpetuated in 2012 and imprisoned for ordering attacks against historic monuments and buildings dedicated to religion in Timbuktu, Mali. Who's next?

Israel's Ministry of Culture Sued by Artists and Museums: Under threat from policies that limit freedom of expression, a group of Israeli artists, museum directors and art educators filed a lawsuit in July against the country's Ministry of Culture. As reported by The Art Newspaper, in the lawsuit they demand disclosure of criteria for decision-making from the culture ministry and the Israeli Council for Culture and Art.

It ain't Doig! In an authentication case that should have been dismissed on a summary judgement motion, Judge Gary Feinerman finally ruled that the living art-defendant in Fletcher v. Doig did not create a landscape painting attributed to him by plaintiff. According to Feinerman any similarities between the desert scene on the claim and Mr. Doig's paintings were "purely coincidental."

Ulay v. Marina Dutch court ruled that Abramović had to pay royalties to her former partner in art and life, Frank Uwe Laysiepen, from profits made on sale of works made jointly. As is true under the US Copyright law, coauthors cannot stop each other from exploiting the works they create but may be held accountable for their share of the proceeds from the sale of the property.

HEAR Act: HEAR stands for Holocaust Expropriated Art Recovery Act of 2016. This Bill would provide the victims of Holocaust-era persecution and their heirs a fair opportunity to recover works of art confiscated or misappropriated by the Nazis is making its way through the Congress. On September 29th it was placed on Senate Legislative Calendar under General Orders. Calendar No. 654.

ISA 2nd Act: Foreign Cultural Exchange Jurisdictional Immunity Clarification Act that passed Committee on the Judiciary on September 15th has been characterized as placating the Russians who are refusing to loan art works to the United States for fear of having cultural diplomacy turn ugly and give rise to seizures. The bill is proposed to amend Immunity from seizure sections of the United States Code and as such it is widely lauded by museum administrators but not attorneys who represent individual claimants trying to recover their looted property.

On the Radar: Von Saher v. Norton Simon notifies of appeal to the 9th Cir (Sept. 9, 2016).

Rouse v. Elliot Stevens, Ltd., 13-CV-01443 (S.D.N.Y. 2016) - British tourist Christopher Rouse is suing an art gallery and antiques shop which sold him allegedly fraudulent art deco sculptures by the artist Demétre Chiparus. The gallery, located in the lobby of the Waldorf Astoria, told Rouse that the sculptures were made from molds that were in the artist's possession when he died in the hotel. Rouse later learned that Chipraus actually died in Paris. His suit alleges that the sculptures are Chinese forgeries copied from photographs.

U.S. v. Maritime Exchange Museum, 2:2016cv13198 (E.D. Mich. 2016) - The federal government has filed suit against a Michigan museum, seeking a judgment declaring them owners of two 19th century lighthouse lenses in the museum's possession and ordering their return to the government. The complaint describes the lenses as "irreplaceable historic artifact[s] of great beauty" and estimates their value at $600,000 in total.

Green v. Nat'l Gallery of Art, London, 1:16-cv-06978 (S.D.N.Y. Sep. 7, 2016) - The purported heirs to a Matisse painting, "Portrait of Greta Moll"(1908), are suing the National Gallery of Art, London, for its possession and $30 million in damages. Greta Moll's relatives allege the painting was lost during the Allies' occupation of Germany and, therefore, its acquisition violates international law. The defendants argue that (1) they performed their due diligence in purchasing the painting in 1979, and (2) because the Allied occupation of Germany came after the fall of the Third Reich and end of World War II, the painting is not protected by the international laws on which the plaintiffs rely.

Baldwin v. Boone, 654807/2016 (Sup. Ct. N.Y. Cty. Sep. 12, 2016) -- Actor Alec Baldwin has filed suit in New York against Mary Boone and her eponymous gallery, alleging the defendant intentionally deceived him by delivering to him a copy of Ross Bleckner's painting Sea and Mirror (1996) after he paid her $190,000 to obtain the original for him. Baldwin is seeking treble damages from the plaintiff.

Blue Art Ltd. v. Zwirner, 653810/2016 (Sup. Ct. N.Y. Cty. 2016) Dealer Fabrizio Moretti has filed suit in Manhattan against dealer David Zwirner seeking $6 million in damages, alleging that Zwirner offered to sell him a Jeff Koons sculpture which was still in production at the time of the transaction. However, according to the complaint the exact identity of the work was not agreed upon and it is worth much less than Moretti paid.

Magnum Photos Int'l v. Houk Gallery, 16 CV 7030 (S.D.N.Y. Sep. 8, 2016) Magnum Photos International has filed a complaint in federal court in Manhattan alleging that Houk Gallery violated its copyrights in several photographs taken by the late Henri Cartier-Bresson. Magnum, as exclusive licensee of the copyrights in the photographs at issue, alleges that Houk, without authorization, used the photos on its website to promote exhibitions in 2009 and 2013.

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About September 2016

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

August 2016 is the previous archive.

October 2016 is the next archive.

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