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November 2016 Archives

November 1, 2016

Center For Art Law Case Law Updates

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

Zuckerman v. Metropolitan Museum of Art, 16-cv-7665 (S.D.N.Y. Sep 30, 2016) -- The estate of Paul and Alice Leffman, who fled from Europe in 1938, sued the Metropolitan Museum of Art (Met) to recover Picasso's "The Actor." The estate alleges that the owner was forced to sell the painting at a low price in order to flee the country and that the Met, to whom the work was donated in 1952, should have known that the 1938 sale was made under duress.

Berreau v. McDonald's, 16-cv-07394 (C.D. Cal. Oct. 3, 2016) -- The estate of late graffiti writer SACE is suing McDonald's over its alleged use of his tag in its decor in graffiti-themed restaurants across the country. The suit alleges that the use of the tag clashes with SACE's anti-consumerism and anti-corporate image, thereby diminishing the value of his artwork, which has fetched high prices at auctions.

Mayor Gallery v. Agnes Martin Catalogue Raisonne LLC, 655489/2016 (Sup. Ct. N.Y. Cty. Oct. 17, 2016) -- A British gallery filed suit against the Agnes Martin Catalogue Raisonné LLC for its failure to authenticate paintings that it sold to collectors for millions of dollars. The gallery alleges that the defendant failed to exhibit an adequate level of care in reaching its conclusions and was responsible for the gallery having to refund the purchases prices of the paintings.

Craig v. Princeton Enter., 2:16-cv-10027 (E.D. Mich. 2016) -- A Detroit artist filed suit against a property owner and manager under the Visual Artist Rights Act, seeking to enjoin them from damaging or destructing a mural that she painted on a building in 2009. Allegedly, the defendants plan to redevelop the property and have offered Katherine Craig only token compensation for any affect on her artwork.

Edelman Arts v. Geoffrey Diner Gallery, 1:2016cv02157 (S.D.N.Y. 2016) -- Art collector Asher Edelman sued the Diner Gallery following severe damage done to a $600,000 Pier Paolo Calzolari work during its shipping. Both parties had their own insurance policies covering the work, which Edelman had consigned to Diner. However, Edelman contends that the work must be repaired by Calzolari himself because, otherwise, the Visual Artist Rights Act would allow Calzolari to disavow the work, greatly devaluing it.

De Fontbrune v. Wofsy, D.C. No. 3:13-cv-05957-SC (9th Cir. Sept. 26, 20160) -- The Ninth Circuit ruled that a $2.2 million copyright infringement judgment issued by a French court is enforceable in California. In 2001, Yves Sicre de Fontbrune, who owned the rights to nearly 16,000 photos of Picasso works taken between 1932 and 1970, won a judgment in a Parisian appeals court against American art editor Alan Wofsy who reproduced the photos in books which were sold in Paris. The court held that, although the French word used for the judgment translates directly to "penalty," it is not an unenforceable penalty because it is the nature of the judgement, and not the dictionary definition, which prevails.

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.

November 5, 2016

Week in Review

By Ben Natter

Dispute at 'Natasha, Pierre & the Great Comet of 1812' Leads to a Lawsuit, Then Settlement

Ars Nova, the nonprofit theater group behind the Broadway show "Natasha, Pierre & the Great Comet of 1812", initiated a lawsuit and arbitration proceeding against Howard Kagan, the producer of the show, for failing to give proper credit to Ars Nova in the Playbill. Mr. Kagan was previously a member of the Board of Ars Nova.

The show stars Josh Groban, and is adapted from a section of Tolstoy's War and Peace. It was seemingly unaffected by the lawsuit and grossed $1,131,919 during its first week in previews.

Although the suit and arbitration proceeding were initiated over a week ago, by Monday the parties quickly resolved the dispute, corrected the Playbill, and released the following joint statement: "Ars Nova and the producers of 'The Great Comet' deeply regret that a contractual dispute became public, and are pleased to share that the matter has now been resolved, privately, and will continue to work to achieve success for 'The Great Comet' on Broadway."


Rolling Stone Loses Defamation Case Over Rape Story

A federal court jury in Charlottesville, VA, found Rolling Stonejournalist Sabrina Rubin Erdely guilty of defaming a former University of Virginia associate dean in a 2014 article about sexual assault on the University of Virginia campus. The jury also found Rolling Stone's parent company, Wenner Media, guilty of defaming the former associate dean. The story appeared on the Internet from November 2014 through April 2015, when it was eventually detracted after much of its content was questioned. The argument for damages is scheduled to commence on Monday, November 7th.


Universal Music's Deal for Prince's Song Rights May Bring a Wider Audience

Prince's estate reached a deal with Universal Music in connection with management of the songwriting rights to Prince's music catalog. The deal allows for Prince's estate to retain ownership of the songs, and excludes Prince's recorded music rights, which will be for sale separately. Prince had withdrawn from the performing rights societies, and the estate will need to strike a new deal with ASCAP, BMI, or SESAC.

Prince regained full control of his songwriting rights in 2014 and withheld his music from most online sources. This deal will likely bring Prince's music back to many music streaming services.


Gawker and Hulk Hogan Reach $31 Million Settlement

Gawker settled with Hulk Hogan for $31 million, and ended a dispute funded by billionaire Peter Thiel that has been ongoing for four years and led to Gawker's demise. Mr. Thiel, a founder of PayPal and early investor in Facebook, provided financial support for a number of cases against Gawker after being outed as a gay man by a Gawker publication 10 years ago. Several other plaintiffs with cases pending against Gawker also settled. As part of the settlements, the content posted by Gawker will be removed from the Internet.


Maurice Sendak's Estate Is Awarded Most of a Book Collection

A jury has decided a dispute between the estate of author and illustrator Maurice Sendak and the Rosenbach Museum and Library in Philadelphia, and has awarded the estate the majority of the disputed works. Much of the collection had been with the Rosenbach Museum prior the author's death in 2012. Mr. Sendak's will specified that the drawings and most of the works on loan would remain the property of the Maurice Sendak Foundation. Representatives for the estate stated that it was Mr. Sendak's intention to have a museum built in Connecticut to display the works. Much of the dispute surrounded the language of the will, which described items as "rare edition". Certain items not considered rare editions were to be left to the Rosenbach Museum.


Opera Lover Apologizes for Scattering Ashes and Silencing the Metropolitan Opera

A Dallas man and opera lover who scattered a friend's ashes in the orchestra pit at the Metropolitan Opera (the Met) on Saturday, apologized to the Met this week. The police decided not to press charges.

Roger Kaiser, a devoted opera lover, had made a promise to a dying friend, Terry Turner, to scatter Turner's ashes at various opera houses around the world. Musicians witnessed Mr. Kaiser scattering the ashes and police became concerned that anthrax may have been involved. The scare led to a performance being cut short and another performance being cancelled. Peter Gelb, General Manager of the Met, accepted Mr. Kaiser's apology.


YouTube Agrees to Pay Royalties, Ending German Music Dispute

On Tuesday, the dispute between YouTube and Germany's main performing rights organization, GEMA officially settled. Both parties reached a deal that will allow music videos to be displayed on YouTube in Germany. The dispute began in 2009 and, in 2012, a Hamburg court ordered Google, YouTube's owner, to install filters to detect and stop viewers from watching infringing content. The law in Germany does not protect websites from infringement caused by its users, and GEMA had repeatedly attempted to collect damages from Google.


November 12, 2016

Week in Review

By Eric Lanter

Austrian Authorities Thwart Group Attempting to Sell Fake Picassos

Austria's criminal intelligence service apprehended six individuals who sought to sell five fake artworks they attributed to Picasso. They tried to sell Picasso originals to undercover authorities for approximately $11 million each. The group was caught after an investigation prompted by a tip that a group had planned to sell the fake artworks. The suspects insisted that they believed the artworks were legitimate.


Rolling Stone Magazine Loses Defamation Case

A federal jury delivered its verdict that Nicole Eramo, the former Associate Dean of Students at the University of Virginia, has succeeded in her claim for defamation against Rolling Stone Magazine's parent company, Wenner Media, and the author of an inflammatory article, Sabrina Rubin Erdely. The article that formed the basis for the lawsuit was published in 2014, which claimed that a sexual assault occurred, and after the assault was reported to former Associate Dean Eramo, it was ignored. However, a police investigation revealed that the incident did not occur, and ultimately, Rolling Stone retracted the article after realizing that the author did not verify any of the alleged victim's facts in writing the article.


Following Rolling Stone Verdict, Magazine and Reporter to Pay $3 Million

The Charlottesville, Virginia jury decided that the author of the defamatory article is liable for $2 million and Rolling Stone's parent company, Wenner Media, is liable for $1 million. The former Associate Dean of Students, Nicole Eramo, asked for $7.5 million in damages in her complaint, which was filed in May 2015. It is unclear whether the Rolling Stone defendants will appeal the verdict.


After Bill Cosby Saga, States Revise Statutes of Limitations for Sexual Assault

In the past two years, six states have either extended or eliminated statutes of limitations for sexual assault crimes. Bill Cosby's victims are now lobbying to add more states to the list, including Nevada, Colorado, and California, to enable women who have been sexually assaulted to have an ability to press criminal charges long after the act occurred. Opponents contend that faulty memories and spoliation of evidence should be considerations that prevent extension or elimination of statutes of limitations.


Court Rules That American International Group Must Pay Cosby's Legal Fees

When three women throughout the country brought lawsuits against Bill Cosby for defamation, he used his insurance policies on his homes in Massachusetts and California to cover his legal fees. American International Group (AIG) brought suit seeking an insurance exemption to avoid paying Cosby's legal fees. However, a Massachusetts federal judge held that AIG must pay Cosby's legal fees, as defamation lawsuits fall under the policies' enhanced "personal injury" clauses.


New York Met Yoenis Cespedes Opts Out of Contract

Following the historic World Series, there is a period where teams are able to make offers to their pending free agents, or players that are set to finish their contracts. Typically, players take the opportunity to negotiate a better contract. The New York Mets' outfielder Yoenis Cespedes exercised the opt-out clause of his contract, forgoing the remaining two years of his contract and $47.5 million. Cespedes, being 31 years old, is likely to pursue a long-term contract to finish his career with one team.


New York Met Jeurys Familia Pleads Not Guilty in Domestic Violence Case

The New York Mets' relief pitcher, Jeurys Familia, made his first court appearance regarding a domestic violence incident at his home in New Jersey. The altercation occurred in Fort Lee, New Jersey on October 31, 2016. In court, the judge left an order in place prohibiting Familia from having firearms or engaging in further domestic violence. The next court appearance is December 15, 2016. Major League Baseball, pursuant to its own rules, may suspend Familia after investigating the matter further.


In Game 7 of World Series, Another Senseless Injury

The "baseball rule" provides that fans assume the risk of injury when taking in a baseball game, and courts have regularly upheld this rule. Nonetheless, Major League Baseball's Commissioner Rob Manfred vowed to reduce injuries in the 2016 season by encouraging teams to increase the amount of netting at their stadiums. Advocates for netting hope to cover foul pole to foul pole in netting, so as to prevent the vast majority of injuries that still occur. Fans have expressed their disappointment, as the nets interfere with the intimacy of interacting with the players.


President of Boxing's Governing Body Knew of Loan, Documents Show

The president of the International Boxing Federation, Ching-kwo Wu, has been found to know of a $10 million loan to the organization from Azerbaijan. Shortly thereafter, Azerbaijani boxers received an uptick in medals. PricewaterhouseCoopers conducted the investigation, revealing that the loan was not properly accounted for on the Federation's financial ledgers.


Venezuelan Soccer Official Pleads Guilty

The Department of Justice announced that it has secured the 21st conviction relating to conspiracy charges. Rafael Esquivel admitted that for three decades he collected millions of dollars in bribes in exchange for media and marketing rights for the competitions Copa Libertadores and Copa America. He has promised to pay $16 million to the United States government as part of his plea deal.


Russia Prepares to Block LinkedIn After Court Ruling

A court in Russia ruled that LinkedIn's data gathering violates Russia's data protection rules. The court's prohibition of LinkedIn, a social networking site for professionals, is the latest in a series of actions that have created more tension for American tech companies operating in Russia. Russia's five million users of LinkedIn may experience difficulty accessing the site as soon as Monday.


Arnold & Porter and Kaye Scholer to Merge

Effective January 1, 2017, the two major law firms Arnold & Porter and Kaye Scholer are to merge into Arnold & Porter Kaye Scholer, with more than 1,000 lawyers. Arnold & Porter, widely known as a litigation and "regulatory issues powerhouse in Washington," and Kaye Scholer, "best known for its financial services and life sciences work," combine complementary fields of practice.


November 16, 2016

Highsmith v. Getty Images et al

By Neil Rosini

In Highsmith v. Getty Images et al, No. 1:16-cv05924-JSR, Southern District of NY, Judge Jed Rakoff recently dismissed claims alleging unauthorized modification of copyright management information under the DMCA; violations of the Lanham Act for false advertising and unfair competition; and common law unfair competition.

Surviving were claims against defendants Getty, License Compliance Services (LCS) and Alamy for deceptive acts and practices under the NY General Business Law Section 349, alleging that the defendants held themselves out falsely as the plaintiff's agent, charged fees, and collected settlements of copyright infringement claims for the plaintiff's photos without the right to do so.

The plaintiff, Carol M. Highsmith, is a distinguished American photographer who dedicated thousands of photographs to the public domain, depositing them with the Library of Congress. The lawsuit was triggered by a letter addressed to Highsmith's foundation, accusing it of copyright infringement and demanding payment for displaying one of her own photographs on the foundation's website.

Thousands of her photos had been acquired by the defendants Getty and Alamy for their archives, which include many other public domain images, and offered Highsmith's photos to customers for a fee. The defendant LCS was retained by Alamy to seek out users of content and send them letters like the one sent to Highsmith's foundation.

There will be no opinion from Judge Rakoff, however, as the case was dismissed with prejudice by stipulation on Thursday.

Dr. Seuss Parody?

By Barry Werbin

There was an interesting new case that was filed on November 10th in the S.D. Cal. by Dr. Seuss Enterprises against a startup comics company, Comicmix LLC, which was seeking funding on Kickstarter for a Dr. Seuss-Star Trek comic mashup publication that copies many characters and background art elements from various Dr. Seuss books, along with Star Trek type characters, in an alleged parody (Seuss-Suit.pdf). The fight began when Dr. Seuss Enterprises served a take-down notice on Kickstarter, Comicmix served a counter-notice citing fair use parody, and Dr. Seuss Enterprises then filed this action for copyright infringement, false designation of origin under the Lanham Act and unfair competition.

Comicmix is looking for pro bono representation.

Here are some the works' images compared in the complaint - the prose text is different. Recall that Dr. Seuss Enterprises previously won a Ninth Circuit high profile case against Penguin over the book "The Cat NOT in the Hat! A Parody by Dr. Juice", because it satirized the OJ Simpson trial but did not parody Dr. Seuss' works themselves, leading the court to reject a parody fair use defense.

So, is this a "transformative" parody?image002.jpgimage004.png image008.png image010.jpg

Flo & Eddie v. Sirius XM Settlement

By Helene Freeman

Flo & Eddie have settled its case against Sirius XM in the Central District of California. According to reports, the settlement preserves the rights of the parties to continue to pursue appeals and therefore the cases in NY and Florida do not appear to be affected. The proposed settlement will be submitted to the court for preliminary approval in December.

Whether California law provides for a performance right for pre-1972 sound recordings is on appeal in litigation against Pandora in state court, so there yet may be a decision on that issue notwithstanding the settlement of Flo & Eddie.

November 20, 2016

Week in Review

By Michael Smith

Prince Estate Sues Jay Z's Tidal for Unauthorized Streaming

Prince's label, NPG Records, sued Jay Z's Roc Nation, alleging that Roc Nation's streaming service, Tidal, has been streaming Prince songs without authorization. NPG alleges that Tidal was only authorized to stream songs from one album (which Prince had agreed to release on Tidal), for 90 days. Roc Nation and Tidal say they have the right to stream Prince's entire catalog.


Department Of Justice Appeals SDNY ASCAP-BMI Ruling

The United States Department Of Justice (DOJ) filed a notice of appeal to the Second Circuit from the ruling of Judge Louis L. Stanton (SDNY), rejecting the DOJ's interpretation of a decades-old consent decree that would require music rights organizations like BMI and ASCAP to offer 100% licensing of their songs.


Studios Snuff Smoking Class Action

Judge Richard Seeborg (NDCA) dismissed a putative class action complaint filed against the Motion Picture Association of America and the National Association of Theater Owners by Timothy Forsyth, who contends that tobacco-related imagery in films causes children to become addicted to nicotine, and that the film industry is responsible because it has given films containing such imagery G, PG, and PG-13 ratings. Judge Seeborg found that the film industry ratings system, CARA, is protected by the First Amendment.


Plaintiff in "Kung Fu Panda" Lawsuit Found Guilty of Fraud

In 2011, Jayme Gordon sued DreamWorks Animation, claiming that the eponymous panda was his idea. On Friday, a Boston jury found Gordon guilty of fraud for back-dating drawings of a panda he made after seeing a trailer for the film. Some of the drawings were traced from a coloring book. Gordon faces 20 years in federal prison.


"Shuffle Along" Doesn't; Producers Seek Payout from Lloyds for Lead's "Surprising" Pregnancy

The Broadway musical "Shuffle Along" closed this summer only four months after opening, despite strong box office sales. The show closed after its lead actor, six-time Tony winner Audra McDonald, went on maternity leave. McDonald, who is in her mid-forties, said she was "surprised" to be pregnant, given her age and medical history. The producers of the show sued Lloyd's of London (Lloyd's) under a $12 million policy that insures against losses incurred if McDonald was unable to perform. Lloyd's contends that the pregnancy was not an "accident" or an "illness," and hence not covered under the policy.


"Hamilton" Cast Calls Out Pence, Trump Fires Back

On Friday, Vice President-elect Mike Pence attended a performance of the Broadway musical "Hamilton." After the cast took its bows, one of the actors stepped forward and addressed Pence directly from the stage, on behalf of "the diverse America who are alarmed and anxious that your new administration will not protect us, our planet, our children, our parents, or defend us and uphold our inalienable rights [and w]e truly hope that this show has inspired you to uphold our American values and to work on behalf of all of us." Although Pence has not complained, President-elect Donald Trump took to Twitter Saturday morning to demand an apology from the cast and crew of the show, "which I hear is highly overrated." Both the "Hamilton" statement and Trump's tweet were protected by the First Amendment.


Actor's Equity Association Wins Pay Raises for Off Broadway Actors and Stage Managers

After weeks of negotiations and an aggressive social media campaign by members of the Actors' Equity Association, the League of Off-Broadway Theaters and Producers agreed to a five-year agreement that will increase salaries for actors and stage managers by between 32% and 81% over the term of the agreement.


Richard Prince Sued Again Over Instagram "Appropriation"

Appropriation artist Richard Prince was sued by a photographer whose portrait of musician Kim Gordon, formerly of Sonic Youth, appears in an Instagram post that Prince printed onto a large canvas and displayed as part of a larger exhibition of such prints. Other photographers have sued Prince over similar works.


Seventh Circuit Revives Gawker Defamation Suit

On Monday, the Seventh Circuit reversed a ruling dismissing a defamation lawsuit filed by attorney Meanith Huon against Gawker Media LLC (Gawker) over comments on Gawker websites implying that Mr. Huon committed rape. Although the Court of Appeals agreed that Gawker's article and its headline fairly reported on Mr. Huon's trial for rape (Mr. Huon was acquitted), Mr. Huon's allegations that Gawker writers anonymously wrote at least one of the comments at issue was plausible enough to survive dismissal. The case has been remanded to the district court, but there is a stay of litigation in place under the U.S. Bankruptcy laws, because Gawker filed for bankruptcy protection after Terry Bollea (Hulk Hogan) obtained a $140 million judgment against it for defamation.


Google and Facebook Take Steps to Address Fake News

Google and Facebook both announced new efforts to combat the proliferation of fake news on their services. Google announced it would ban fake news websites from using its online advertising service, whereas Facebook announced that it had updated its existing policy to clarify that its ban on misleading or illegal content applies to fake news. Both companies have come under increased scrutiny since the presidential election, the results of which some say may have been affected by the ubiquity of fake news.


Real Estate Company Sued Over Clinton Bobblehead

Bobbleheads.com claims that a California real estate company, Wright Brothers, infringed Bobbleheads's copyright in a Hillary Clinton doll wearing prison garb and a ball-and-chain. Bobbleheads, which sells the "Hillary Clinton Striped Pantsuit Bobblehead," alleges that Wright Brothers copied its design and is illegally selling a competing doll.


Columbia University Suspends Wrestlers Who Exchanged Offensive Texts

After three years' worth of racist, misogynistic and homophobic texts exchanged by members of Columbia University's wrestling team were posted online, the university suspended the wrestling season pending its investigation. On Friday, Columbia suspended those wrestlers found to have participated in the texting, and cleared the remainder of the team to resume competitive wrestling.


Major League Baseball Fires Firm Hired to Promote Diversity

Last year, Major League Baseball (MLB) hired an executive search group, Korn Ferry, to help recruit and promote minority candidates. However, Korn Ferry also represents many individual teams who have not given the firm a mandate to focus on minorities. After complaints asserting that Korn Ferry had a conflict of interest, MLB terminated the relationship. Going forward, diversity recruitment efforts will be channeled through the MLB's own "Pipeline Program."


DraftKings and FanDuel Agree to Merge

Daily fantasy sports companies DraftKings and FanDuel have agreed to merge, pending regulatory approval. The merger comes at the end of a year in which both companies faced regulatory and legal challenges, including a lawsuit brought by the New York Attorney General, which ended when the companies paid a combined $12 million to settle it. Both companies acknowledge that they are in financial trouble, and the hope is that a merger will help mitigate some of this year's losses.


Leonard Cohen Dead at 82

Read the New York Times obituary at http://www.rollingstone.com/music/news/leonard-cohen-dead-at-82-w449792

November 25, 2016

Week in Review

By Eric Lanter

"We Shall Overcome" Copyright Case Moves Closer to Trial

The famous civil rights anthem "We Shall Overcome" is the subject of a lawsuit which challenges the validity of the song's copyright. A nonprofit group called the We Shall Overcome Foundation brought the lawsuit seeking to have the anthem declared to be part of the public domain. The publisher of the song, The Richmond Organization, is defending the anthem, saying that it underwent slight modifications in the Civil Rights Era, which caused it to enjoy the protection of copyright.

Facebook is Creating Censorship Tool to Re-enter China Market

According to confidential sources within Facebook, the company developed a tool that will enable foreign governments, like China, to hide certain content from Facebook users in parts of their countries. Mark Zuckerberg, the founder and head of the company, defended the development of the tool. Critics pointed out that Facebook's mission statement "to make the world more open and connected" appears to conflict with the use of a censorship tool. However, the development of the tool indicates that Facebook is eager to have unfettered access to the 1.4 billion Chinese market.


Notre Dame Appealing Cheating Ruling

Notre Dame announced that it will file an appeal of the National Collegiate Athletic Association's (NCAA) ruling that it must vacate all of the football team's wins in the 2012 and 2013 seasons after finding that a trainer completed coursework for football players. The university released a statement in response calling the NCAA's action unprecedented.


Law Firms Cull Partner Ranks

Some of the largest law firms in the country are downsizing their partner ranks by demotions and delaying promotions to partnership status. This comes as firms are recognizing a lessening demand for legal services. As profits have gradually fallen in recent years, and the number of partners has grown, the shares of equity have declined. While at some firms it is possible to de-equitize partners without their consent, other firms are forced to reduce partner compensation by effectively encouraging partners to resign their positions.


Olympics History is Being Rewritten with New Doping Tests

The retesting of urine samples from the 2008 Beijing Olympics and 2012 London Olympics resulted in revelations of the extent of doping that occurred in those two Olympic Games. Over 75 athletes who competed in those Games have been found to dope, and a majority of those who competed won medals. Following their disqualification, those who fell short of the podium in 2008 and 2012 have been receiving the medals. Even some who finished in sixth place are finding that they have won bronze medals for their efforts. These re-testing efforts are possible because Olympics officials store the urine samples provided for as long as 10 years.


How to Avoid Drug Testing in Russia: Radio Silence and Secure Perimeters

At the most recent World Anti-Doping Agency (WADA) board meeting, Rob Koehler spoke about the challenges in working with Russia while trying to verify that doping is not occurring in that country. He detailed the measures that Russian athletes have gone to in avoiding the screening, such as not providing updates as to where they are training or training inside military areas. This came after WADA detailed doping violations by Russian athletes in the weeks leading up to the 2016 Summer Olympics in Rio de Janeiro.


"Hamilton" Cast's Appeal to Vice President-Elect Pence Ignites Showdown with President-Elect Trump

At the conclusion of a recent performance, the cast of the Broadway hit "Hamilton", delivered a message to audience member Vice President-elect Mike Pence. They urged him and President-elect Donald J. Trump to "uphold our American values" and "work on behalf of all of us." Mr. Trump responded on Twitter stating that the cast harassed and criticized "our wonderful future VP Mike Pence." One group of individuals came to the defense of Mr. Trump, arguing that it was not the appropriate forum for such a message, while others denounced Mr. Trump for responding through social media in a way that was unbecoming of a president-elect. There were also concerns raised about the role that a Broadway cast should have in political discourse, which was complicated by the fact that "Hamilton" is a deeply political Broadway show.


November 29, 2016

Where's the Fair Use? YouTube's Copyright Protection Systems and the Reaction of Content Creators

By Robert Marotta

With 2016 coming to a close, it is important to take a look back at a movement that was lost to the noise of the presidential election. Over the past year, online content creators who use others' copyrighted works on YouTube came together in solidarity under the banner of "Where's the Fair Use?" Their aim was to bring attention to what they believe was YouTube's unfair system of preventing copyright infringement. While their content probably would have constituted fair use at trial under U.S. copyright law, videos and whole channels were being taken down. The chilling effect on commentary, criticism, and creativity as a whole placed a stranglehold on this burgeoning form of media.

As a 2014 episode of "South Park" noted: "Today commentary is the content." YouTube is abuzz with reviewers sharing their opinions on films, video games, and music. This content ranges from clips of copyrighted material over humorous voiceovers to full blown parody sketches. As the younger generations move away from television as their main source of content, YouTube increasingly captures more viewership. Its increasing influence on culture cannot be overstated. The rise of this medium brings with it the rise of a new type of creator. Without the big budget and exposure of shows like "Saturday Night Live", these creators critique, comment, and poke fun at copyrighted works in an engaging way. In the process, they can create new fans, and new ways of enjoying often forgotten films and games. If YouTube's current system regarding copyright enforcement continues, then these creators and their fan bases are in trouble.

Under 17 U.S.C. § 107, the use of another's copyrighted work for criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright as a defense in an infringement action, and protected under fair use. This is a central pillar to our copyright system. Most relevant to the discussion here is criticism and comment. Integral to the content of channels such as Cinema Sins, TEAMFOURSTAR, Channel Awesome's The Nostalgia Critic, and the Angry Joe Show, are the combination of scenes from various films and games intercut with commentary/parody to highlight a point. In a typical "Nostalgia Critic" episode, the absurdity of well-loved movies from the viewer's childhood are shown through comedic voiceovers. This creates a very clear reference for viewers who may not have seen the particular film in years, and allows them to appreciate the humor. The use of clips is especially important with respect to video game reviews, as found on the Angry Joe Show and many others. Any technical problems or fluid dynamic gameplay can only be truly shown to the viewer firsthand. It allows viewers to make informed purchases on increasingly expensive games. Without the ability to use short clips of the content, these reviewers' videos are completely neutered. The creators highlighted here are only a fraction of those affected. As some of the vanguards of the industry, they may have the resources to fend off a copyright attack on YouTube. Smaller up-and-coming channels are not as fortunate.

YouTube's flawed copyright system stems from the Safe Harbor Provision under Title II of The Digital Millennium Copyright Act (DMCA). While protection of Internet Service Providers (ISPs) like YouTube, under the DMCA, is integral to protecting those that make content available, it is their implementation of this system that creates problems. Under YouTube's system, there are two categories of copyright infringement penalties: 1) a claim and 2) a strike. The more severe is a strike, whereby the copyright holder must make a complete and valid legal request asking YouTube to take the video down. Furthermore, upon three strikes, a content creator will have its account terminated. This includes all videos being removed, along with ratings and comments that have accumulated since the videos were posted. Finally, the creator is prevented from creating a new account.

Many users manage multiple channels. A strike on one channel may affect non-infringing channels. When a strike is issued, a similar partner strike is placed on a user's account. These partner strikes are considered pending for the first 30 days. If the content creator has not resolved the issue after this period, it becomes "active". Accumulating 10 or more active partner strikes severely limit the online creators' accounts. With 10 partner strikes, a content creator loses the ability to add new channels or move channels between content owners. Even if a content creator removes channels, this will not resolve the copyright strike. At 15 or more partner active strikes, the content creator's freedom of expression is curtailed. A content creator loses the ability to access YouTube promotional features. This includes the ability to create custom thumbnails, modify channel art, add annotations (i.e. videos), and other features. With 20 or more active partner strikes, the user is prevented from uploading new videos or live streams, and YouTube further retains the right to terminate.

A silver lining does exist for content creators. After 90 days (120 days after a copyright strike was issued), a partner strike expires and is removed from the total. However the sheer volume of strikes many of the big creators receive in short periods of time limit the availability of this remedy. Multiple creators face new claims or strikes every other day.

A further remedy on which most content creators rest is the submission of a counter notification. They must submit that the takedown occurred due to a mistake or misidentification of the material. This seemingly fair system heavily favors the copyright owners. Many of the online content creators note the claims come not from the copyright holders themselves, but by automated rights management firms. It appears that these groups operate without placing an actual human in front of the content, whereby the nature of fair use could be readily apparent. Furthermore, no penalties for false strikes are included in the system, thereby favoring rights holders. Content creators feel as if they are under the thumb of often far wealthier organizations, and bear the costs for over-policing.

The next, and more common mechanism of how copyright infringement is handled on YouTube is a copyright Content ID claim. The claims process is dependent on YouTube's Content ID program, whereby the rightsholders provide the YouTube with full copies of their works. YouTube then compiles these reference files into a database, from which all videos are compared. The system is able to determine partial matches, video matches, and audio matches. It can even detect matches when the video has been uploaded with poor sound or video quality. When a match is detected, YouTube automatically takes action based on what the copyright holder wants: the video can be left alone, taken down, or left up with the rightsholder somehow monetizing it. The effect on monetization has especially drawn the ire of YouTube content creators, as even when a claim is resolved, they would not get the lost profits made off the video while the claim was in progress. In response to the protests of content creators, YouTube seems to have amended its policy on monetization. Currently, YouTube's content ID process includes the placing of monetized profits in a separate account to be paid to the appropriate party upon resolution. In response to the recent outcry from content creators, YouTube amended its systems, showing a willingness to support smaller creators. However, but problems still persists.

The claim system is rampant for abuse, and many content creators have seen their freedoms greatly reduced. When a claim is disputed, the claimant copyright holder has 30 days to respond. If no response is given, then the video is reinstated. If the copyright holder does respond, it can remove or reinstate the claim. If the latter, the user must file an appeal to which the copyright holder has another 30 days to respond. Online content creators recount horror stories of dealing with automated response from YouTube and rights management firms. For smaller creators, this lengthy, possibly costly process harms their ability to create additional content, which may impact their livelihoods. Furthermore, free speech is implicated, as many creators have seen videos that are critical or negative of certain films and games suffer claims and strikes. This indicates that some copyright holders may be attempting to silence criticism, and not merely protect their copyrights. The automated system has even led to the takedown of videos containing only commentary about films and games, with no actual footage or sound from those copyrights. Currently, YouTube has no penalties for erroneous claims or strikes, and thus the system incentivizes a "claim first" approach.

After widespread outcry from content creators, YouTube reexamined its system. Courts have also begun to warm to the YouTube user complaints. In Lenz v. Universal Music Corp, 801 F.3d 1126 (9th Cir. 2015), the U.S. Court of Appeals for the Ninth Circuit held that copyright holders must consider fair use when filing a takedown notice. In that case, Stephanie Lenz posted a 29-second clip of her young children dancing to the Prince classic, "Let's Go Crazy." YouTube sent her a takedown notice, complying with its duties under the DMCA. In response, Lenz posted a counter notification, claiming that the video should be re-posted on grounds of fair use. Later that year, Lenz sued for misrepresentation under the DMCA 17 § U.S.C. (f). Her claim further sought a declaration that the use of the song in the video was non-infringing. She rested her case on DMCA 17 U.S.C. § 512(c)(3)(A)(v), whereby the copyright holder must consider whether use of the material was allowed by the copyright owner or the law. Integral to the case holding is the Court's view that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is "authorized by law" and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c) (Lenz, at 1132-1133).

While Lenz represents a step in the right direction, many content creators will certainly still face hurdles. Despite the holding, in the year following this case, online content creators have seen the number of claims and strikes on their channels exponentially increase. The consequence of such a high volume of complaints is that they all cannot be defended. Furthermore, the case does little to address the automated takedown notices, and whether or not this would be some indicator of bad faith for the purposes of a misrepresentation claim. The takedown initiated by Universal had an actual human evaluate allegedly infringing content, a far cry from the automated rights management firms of today. It does seem to hint that a willful blindness standard can be used to determine whether the copyright holder knowingly materially misrepresented that it held a "good faith belief" the offending activity was not a fair use under 17 U.S.C. § 512(f). However as Lenz encountered, sustaining a misrepresentation claim on grounds of willful blindness is difficult to prove, due to the adoption of a subjective test for good faith, and whether the copyright holder was subjectively aware that the allegedly infringing content contains fair use.

To ensure that this burgeoning medium is allowed to succeed, content creators should stay vigilant, as YouTube and other online platforms are at risk. The hope is that creators of new content who rely on copyrights can continue to create, within the confines of the law. As YouTube grows, so too does the importance of these new creators. The rise of this new form of media has led to problems applying copyright laws that never contemplated the difficulties of the digital age. The risk of not adequately protecting these new content creators places a heavy burden on them, and chills otherwise entertaining and insightful content, as well as free speech. The questions left open by Lenz and issues raised by YouTube content creators means that this subject matter is primed for further review by the courts.

About November 2016

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

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