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December 2016 Archives

December 2, 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, a couple who fled from Europe in 1938, sued the Metropolitan Museum of Art (the 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 which 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 which 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 that he 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.

December 3, 2016

Week in Review

By Eric Lanter

SiriusXM Agrees to Pay Up to $99 Million to Settle Copyright Lawsuits

SiriusXM, the satellite radio company, agreed to settle a group of copyright lawsuits relating to recordings from prior to 1972. The Turtles, a band from the 1960s, brought lawsuits against SiriusXM, because the former allowed its channels to play the band's songs without permission. The settlement terms provide that SiriusXM is to pay the plaintiffs for the unlicensed use of the songs and to now have a 10-year license with a 5.5¢ royalty rate. It is estimated that the license is worth between $45 and $59 million, depending on the growth of SiriusXM's revenues.


Former English Youth Soccer Coach Faces Sexual Assault Allegations and Sexual Abuse Claims in England Prompt Wider Inquiry

Barry Bennell, a former English youth soccer coach, was accused of eight counts of child sexual assault dating back to his work in the 1980s and 1990s. The chief executive of the Professional Footballers' Association announced that more than 20 former players came forward with sexual abuse claims. Not all of those claims were against Bennell, however. Some of the largest soccer teams in England, like Manchester City, said that they will assist in the police investigations.

In addition, the Professional Footballers' Association announced that it was widening its inquiry. It hired Kate Gallafent, a lawyer experienced in handling sexual abuse cases, to lead the investigation. This is a landmark move for the Association, which had not previously made significant public comments about sexual abuse within the youth soccer programs in England.



More Law Degrees for Women but Fewer Good Jobs

In the aggregate, throughout the country, women sit in approximately half of all law school seats. However, new research indicates that female law students are more concentrated in lower-ranked law schools. This concentration resulted in women obtaining lower paying jobs, less job security, and less opportunity for advancement in their careers than men. This trend is not confined to law students. When women apply to law schools, they are also less likely to be accepted than men.


Facebook Runs Up Against German Hate Speech Laws

Facebook, with its 1.8 billion users, is facing increasing criticism in how it deals with offensive communication, such as hate speech in Germany. Germany has vigorous protections in place for minorities, and its laws can be used to punish those who deny the existence of the Holocaust. Recently, a far-right group posted a list of Jewish businesses and individuals, with their contact information, prompting a flood of insulting hate speech to the individuals on that list. Facebook deleted the group's page, prompting outrage from its supporters, but praise from those who believe Facebook should not permit such communication. A similar debate also recently arose in the U.S., with the advent of so-called "fake news" being spread on the social media platform. The role of Facebook in dealing with these forms of speech continues to be a hotly debated subject.


Sotheby's Tries to Block Suit Over a Leonardo da Vinci Sold and Resold at a Big Markup

Sotheby's, the prestigious auction house, filed a lawsuit in federal court against three New York art traders in a preemptive move to protect itself. The art traders approached Sotheby's to sell a Leonardo da Vinci work for $80 million. However, just days after the sale, the painting was resold for $127 million to a Russian billionaire. The traders inquired with Sotheby's as to how the painting was so quickly resold for an exceptionally higher price, alleging that they had been defrauded. Rather than wait for a lawsuit, Sotheby's filed a lawsuit alleging it was unaware that the painting would be resold at a higher price.


New York Poised to Host Grammy Awards in 2018

Following negotiations between Mayor Bill de Blasio's office with the Recording Academy, it is expected that the City of New York will announce that the city is hosting the 60th Grammy Awards, after a 13-year hiatus. While it is more expensive to host the Grammy Awards in New York than in Los Angeles, many are pleased with the awards show being held in Madison Square Garden.


Judge Adds $5 Million to McQueary's $7 Million Verdict Against Penn State

Former assistant football coach at Penn State Mike McQueary filed a lawsuit against the university, alleging that it retaliated against him for his whistleblowing regarding unlawful sexual acts of Jerry Sandusky, a fellow assistant football coach. A jury delivered a verdict in his case for $7 million for McQueary, and the judge revised that award upward by $5 million, noting that the alleged conduct arose only after McQueary openly discussed Sandusky's sexual misconduct.


Major League Baseball Deal Struck, Averting Work Stoppage

Major League Baseball and the players' union have announced that they reached a new five-year collective bargaining agreement (CBA), averting a work stoppage, which have previously plagued the sport. The new CBA revises rules for free-agent compensation and raises the threshold for payrolls subject to luxury taxes. Additionally, players will have more afternoon games on the days that they travel, and the 162-game schedule will fit into a 187-day window, a four-day increase from last season.


Awash in Fakes, China Rethinks Counterfeit Hunters

Counterfeit hunters are increasingly prevalent in China, especially as the government created a law incentivizing hunters to buy and report fake goods. In China, counterfeit goods are commonplace, and the Chinese government, recognizing that, designed the law to protect consumers from being duped. While this has happened to an extent, an industry has emerged of counterfeit hunters that make a living solely hunting counterfeit goods. The Chinese government, wanting to balance protecting consumers with keeping costs low, has indicated that the law may be revised to eliminate payouts for counterfeits turned in "for commercial purposes."


December 10, 2016

NYC's Freelance Isn't Free Act Protects Independent Contractors

By Kristine Sova

Last month, NYC Mayor Bill de Blasio signed the Freelance Isn't Free Act (the Act) into law. The Act will be effective beginning May 15, 2017.

The Act extends significant protections to freelance workers, who are defined as "any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for compensation." Excluded from this definition are commissioned salespersons, lawyers engaging in the practice of law, and licensed medical professionals.

Under the Act, a party who retains a freelance worker to provide any service where the contract has a value of $800 or more must enter into a written contract with the freelance worker. (The $800 threshold includes the aggregate value of all the contracts between the parties during the preceding 120 days.)

At a minimum, the contract must include the following information:

Names and mailing addresses of both parties,

Itemization of services to be provided by the freelancer, the value of those services, and the rate and method of compensation, and

The date on which the compensation is due or the method by which that date will be determined.

In the case where the date of payment or method of determining such date was not set forth in the contract, the Act makes it unlawful for the hiring party to pay the freelance worker more than 30 days after the completion of services. The Act also prohibits the hiring party from requiring, as a condition of timely payment, that the freelance worker accept less compensation than the contracted amount.

A freelance worker can bring an administrative claim with the NYC Office of Labor Standards or a legal claim in civil court against a hiring party who violates the Act. Such claims must be filed within 2 years of the alleged violations. Prevailing freelance workers will be awarded $250 in damages for prevailing on a claim based on a hiring party's failure to execute a contract or include all terms required in a contract. In addition, a freelance worker who prevails on this claim and any other claims for violations of the Act (including a retaliation claim for exercising his/her rights under the Act) will be awarded statutory damages equal to the value of the underlying contract. Double damages, injunctive remedies and other appropriate remedies may be awarded for prevailing on a claim based on unlawful payment practices, such as failure to pay or making late payments.

Hiring parties who are found to engage in a pattern or practice of violating the Act face a civil penalty of up to $25,000.

December 12, 2016

Week in Review

By Michael Smith

YouTube Settles with Music Publishers

On Thursday, YouTube announced that it reached a settlement with the National Music Publishers' Association in a dispute over unpaid songwriting royalties. As part of the settlement agreement, YouTube will give publishers access to a list of songs for which YouTube has missing or incomplete rights data, for which YouTube will then pay accrued royalties.


World Anti-Doping Agency Releases Russian Doping Report

Richard McLaren, the independent investigator appointed by the World Anti-Doping Agency (WADA) to head an investigation into allegations made by Dr. Grigory Rodchenkov of Russian doping, released a 151-page report implicating more than 1,000 athletes in at least 30 sports in a conspiracy involving the Russian Ministry of Sport to manipulate the doping testing system. The WADA report was released two days after the International Olympic Committee announced that it was extending its sanctions against Russia indefinitely.


Trump Executive Producer Role in "The New Celebrity Apprentice" Raises Questions

"The New Celebrity Apprentice," the latest iteration of the Mark Burnett unscripted series originally starring Donald Trump, is set to begin airing next month, this time starring actor and former governor of California Arnold Schwarzenegger. Although Trump is not hosting, and says he will devote "ZERO TIME!" to the show, he is an executive producer and has, in his own tweeted words, "a big stake in it." Trump's significant financial stake in the show is one of many business entanglements that have raised questions about the President-Elect's ability to govern independently.


'Skittles' Photographer Drops Trump Suit

UK Photographer David Kittos voluntarily dismissed his lawsuit against Donald Trump, Donald Trump Jr., Mike Pence, and Trump's presidential campaign for the unauthorized use of his photograph of a bowl of Skittles. During the presidential campaign, Trump Jr. incorporated the photo in a tweet comparing Syrian refugees to a bowl of Skittles.


Chinese High Court Awards Michael Jordan His Own Name

In a landmark trademark decision, the Supreme People's Court of China ruled that basketball superstar Michael Jordan owns the legal rights to the Mandarin transliteration of his name. The decision resolves years of uncertainty regarding the extent to which personal names are protected under Chinese trademark law.


East Timor Accused of Playing Ineligible Athletes

The East Timor Football Federation was suspended from the upcoming Asian Cup and World Cup campaigns for using forged documents to field ineligible Brazilian players to the East Timor national soccer team.


Spanish Police Arrest Tennis Players and 28 Others, in Match-Fixing Inquiry

34 people arrested in Spain last week are suspected of fixing tennis matches in Spain and Portugal as part of a criminal gambling ring. The players were not named, but police said they were not "well-known."


Hundreds Report Abuse by Youth Soccer Coaches

British police said that at least 350 people have reported that coaches molested them when they were participants in youth soccer programs. Last month, several professional soccer players went public with allegations of molestation.


Harvard Puts Students on Probation for Poor Use of Excel

Harvard University placed its men's cross-country team on probation in the wake of findings that, in prior years, the team had produced "crude and sexualized" spreadsheets rating the appearance of members of the women's team. Earlier this year, Harvard canceled its men's soccer season after similar documents were brought to light.


King Barnes Implicated in Assault

Sacramento Kings basketball player Matt Barnes is being sought for questioning in connection with the assault of a woman at a Manhattan night club


Cosby Drug Testimony Ruled Admissible

On Monday, a Pennsylvania judge ruled that testimony actor Bill Cosby gave in a civil lawsuit would be admissible in his upcoming criminal trial for sexual assault. Cosby testified in the civil suit that he obtained hypnotic sedatives in aid of his efforts to have sexual intercourse with women. Cosby's lawyers argued that Cosby had been induced to give the testimony by false promises of non-prosecution from the district attorney. Judge Steven T. O'Neill found no evidence of any non-prosecution agreement.


Polish High Court Rejects Polanski Extradition

The Polish Supreme Court rejected a request by the Krakow prosecutor's office (on behalf of Los Angeles County) for the extradition of filmmaker Roman Polanski. Polanski pleaded guilty to raping a 13-year-old girl in 1978, but fled the United States prior to sentencing.


Heirs Sue Bavaria for Return of Looted Paintings

The heirs of Jewish-German art dealer and collector Alfred Flechtheim filed suit in the southern District of New York against the German state of Bavaria, seeking the return of eight paintings allegedly looted by the Nazis. Bavaria contends that Mr. Flechtheim sold the paintings in 1932.


German Panel Says Nazis Stole Violin

The Limbach Commission, a German panel established to mediate disputes over cultural objects stolen by Nazis, determined that a 300-year-old violin was looted during the Third Reich. The panel recommended that the Franz Hofmann and Sophie Hageman Foundation, which currently has possession of the instrument, pay the heirs of the violin's last legitimate owner $105,000 (2/3 of its estimated value), but that it keep the violin for use in regional performances.


Celebrity Email Hacker Sentenced to Five Years in Prison

Alonzo Knowles, the man who hacked the email accounts of various celebrities and tried to sell their personal information and unreleased scripts, was sentenced to five years in prison. Knowles pleaded guilty earlier this year, and subsequently sent emails from jail promising to publish a book revealing the celebrities' secrets when he is released. Those emails figured into the sentence, which is twice what is recommended by the federal sentencing guidelines.


New Bill Would Outlaw Ticket Bots

On Wednesday, the United States House of Representatives passed the "Better Online Ticket Sales Act" or "BOTS Act", which would make it illegal to use "bots" (computer programs that snap up online tickets faster than humans can with their clumsy meat digits) to circumvent security on ticketing websites, and grant the Federal Trade Commission authority to enforce the law. High-demand tickets purchased by bots are typically resold at a substantial markup.


Bob Dylan a Gracious No-Show at Award Ceremony

Robert Zimmerman, a/k/a Bob Dylan, did not personally attend the Nobel Prize award ceremony in Stockholm last Saturday, but did send a note (read at the ceremony by the American ambassador to Sweden) thanking the Swedish Academy for awarding him the 2016 prize in literature. This is the first time the Academy has awarded the prize to a songwriter.


Bankruptcy Court OK's Legal Malpractice Suit by Real Housewife

"Real Housewives of New Jersey" star Teresa Giudice has reached a settlement with her creditors that will allow her to pursue a legal malpractice lawsuit against her former lawyer. Any recoveries from that lawsuit will be split 55/45, with the smaller portion going to pay off any remaining creditors.


December 19, 2016

Week in Review

By Michael Smith

Obama Signs Law to Aid in Recovery of Nazi-Looted Art

Last Friday, President Obama signed legislation that will extend statutes of limitations to allow heirs of those whose artwork was stolen by Nazis during World War II to sue for recovery of the art.


German Court Rules That Collection of Questionable Provenance can go to Museum

When Cornelius Gurlitt died in 2014, he bequeathed 1,500 artworks to the Museum of Fine Arts in Bern, Switzerland. His cousin, Uta Werner, challenged the bequest, arguing that Gurlitt was not mentally competent when he drew up his will. Last Thursday, a Munich court found that Gurlitt was competent, and that the works should be transferred to the museum. Even as that question is resolved, however, hundreds remain. A team of researchers continues to look into the history of all the works and has already identified 680 pieces within the collection that may have been looted by Nazis.


Dutch Court Rules That Crimean Artifacts Must Be Returned to Ukraine

In 2014, Crimean museums lent 565 artifacts to the Allard Pierson Museum in Amsterdam. After the Dutch exhibition opened, Russia annexed the Crimean peninsula. Ukraine, which considers the annexation to be a violation of international law, claims ownership over the artifacts and sued for their return to Kiev. On Wednesday, a Dutch court ruled that the works should be returned to Ukraine, but that an Ukranian court would determine the ownership of those pieces.


Facebook Tries to Compensate for Ignorance, Apathy of Users

Under fire for its role as a conduit for fake news, Facebook announced that it is taking steps to limit such misinformation by crowdsourcing fact-checking, as well as partnering with outside fact-checking organizations. Facebook also says that it will change some advertising practices to make it harder to profit from dissemination of fake news stories.


"Porn Troll" Lawyers Indicted

Paul Hansmeier and John Steele of Prenda Law were charged this week with fraud, perjury, and money laundering in connection with their scheme to extort millions of dollars through sham lawsuits. Prenda Law filed "John Doe" complaints based on the IP addresses of downloaders of pornography, obtained defendants' identities through discovery, and then extorted "settlement" payments.


Supreme Court Declines to Review National Football League Head Trauma Settlement

Last Monday, the United States Supreme Court denied a request by some retired players that it review a settlement reached between the National Football League (NFL) and former players who accused the NFL of hiding and ignoring the dangers of head trauma. The NFL is now free to begin implementing the settlement, which could involve payments of $1 billion to former players who have or develop conditions covered by the settlement.


Texas Launches Study of Brain Trauma in High School Sports

The state of Texas has began tracking two dozen high school sports to determine what can be done to better protect athletes from head trauma. The state is working with the O'Donnell Brain Institute at the University of Texas Southwestern Medical Center.


National Basketball Association and Players Reach Labor Deal

The National Basketball Association (NBA) reached an agreement in principle with the players' union, the National Basketball Players Association, on a 7-year collective bargaining agreement. The deal keeps the players' share of basketball-related income roughly the same at 51%, but expands the definition of "basketball-related income" such that the players' share will be worth hundreds of millions of dollars more. The NBA also agreed to limit back-to-back games--an acknowledgement of player concerns about the physical toll of consecutive games.


Russia Loses International Frozen Water Slide Competition

The International Bobsleigh and Skeleton Association announced that it will be removing the upcoming world championships from Russia to avoid a boycott due to reports of widespread state-sponsored doping by Russian teams, including the recently-released World Anti-Doping Agency report. A new location has yet to be announced.


Princeton Trails Harvard, Columbia Yet Again

In response to an anonymous complaint about vulgar, offensive, misogynistic, and racist materials, Princeton suspended the season of its men's swimming and diving teams. Last month, Harvard and Columbia each suspended the seasons of their men's soccer and wrestling teams, respectively, for similar behavior. Just last week, Harvard put its men's cross-country team on probation.


Gophers Show Solidarity with Accused Teammates

The University of Minnesota Golden Gophers have threatened to boycott all football activities to protest the suspensions of 10 players accused of sexual assault. The football players believe that their teammates did not receive due process, and as a result have had their names unfairly "destroyed." The University has said that it could not discuss the case, but the football coach tweeted his support for the team on Thursday.


Louisville Suspends Coach Involved in Wake Forest Scandal

Lonnie Galloway, a co-offensive coordinator for the University of Louisville Cardinals, was suspended for his failure to alert Wake Forest that he had received confidential game play information about their Deamon Deacons. Galloway received the information from Tommy Elrod, a former broadcaster for the Wake Forest Demon Deacons, who gave similar information to Virginia Tech and Army.


FBI Records Reveal Monitoring of Muhammad Ali's Involvement with Nation of Islam

Newly-released government records from 1966 show that the FBI was closely monitoring the involvement of boxer Muhammad Ali with the Nation of Islam, which is referred to in the documents as an "all-Negro, semireligious, antiwhite" organization.


New Jersey Drops Domestic Violence Charges Against Mets Pitcher

A municipal court judge in Fort Lee, New Jersey dismissed a domestic violence charge against Mets relief pitcher Jeurys Familia for lack of evidence. Familia may still face discipline from Major League Baseball (MLB) under its relatively new domestic violence policy.


Buccaneers Quarterback Settles Rape Suit

Jameis Winston, quarterback for the Tampa Bay Buccaneers, reached a settlement with Erica Kinsman, who accused Winston of raping her when they were both students at Florida State University (FSU). Winston was never prosecuted, and FSU found insufficient evidence of misconduct. Kinsman also sued FSU for violating her rights under Title IX, a suit FSU settled in the high six figures without admitting liability.


Argentine Marketing Company Fined in Soccer Bribery Scandal

Torneos y Competencias, an Argentinian sports marketing firm, agreed to pay over $112 million in penalties for bribing high-ranking FIFA officials to secure World Cup broadcast rights. The deal spares the company prosecution by the United States Department of Justice.


MLB Rookies Can No Longer Dress Up as Pretty Princesses

MLB established a new rule that would prevent players from dressing up as women during the ritual hazing of new players. The rule comes as a response to increasing complaints that some of the costumes were demeaning and offensive to women. Players can still dress up, just not in drag.


Manslaughter Conviction for Slayer of Saints' Smith

Cardell Hayes was convicted of manslaughter for fatally shooting retired New Orleans Saints football player Will Smith after their cars collided. Hayes testified that he was acting in self-defense and that Smith had a gun. This testimony appeared to conflict with Hayes' prior statements. Hayes faces 40 years in prison when he is sentenced in February.


Morehead Coach Accused of Battery Resigns

Morehead State University men's basketball coach Sean Woods resigned after two players accused him of assaulting them during a game last month. Woods is facing a misdemeanor battery charge.


Atlanta Councilwoman Proposes Restrictions on Hip-Hop Studios

Citing concerns about noise and safety, an Atlanta councilwoman has proposed beefing up the permitting process for music recording studios, requiring them to be soundproofed, and keeping them out of residential areas. The proposal met with sharp resistance from many in a city whose cultural and economic identity is increasingly tied to hip-hop.


Cosby's Lawyers Move to Exclude Accusations of Assault

Just days after losing their bid to exclude his own admission that he used drugs to aid in his pursuit of sexual encounters, Bill Cosby's lawyers asked the Pennsylvania judge presiding over Cosby's criminal trial to exclude the testimony of 13 women who have accused Cosby of sexual assault. Cosby's lawyers attacked those women's credibility and argued that their testimony was not relevant to the issue in the criminal case, namely, whether Cosby drugged and raped Andrea Constand in 2004. The district attorney argued that the testimony was admissible as evidence of a pattern of behavior consistent with the charged offense.


Redstone's Ex Sues his Daughter for Spying

Sydney Holland, who dated media mogul Sumner Redstone for five years, accused Redstone's daughter, Shari Redstone, of hiring private investigators to spy on her as part of a scheme to interfere with Mr. Redstone's plans to support her financially. Mr. Redstone sued Holland for elder abuse, claiming Holland and another ex-girlfriend tricked him into giving them money.


Fox Offers to Buy Sky

21st Century Fox, which owns a minority stake in British entertainment company Sky PLC, has formally submitted a $14.6 billion offer to purchase the remaining shares. The deal may face challenges from shareholders and regulators.


Fox News Reporter Suit Alleges Harassment by Ailes

Lidia Curanaj, a reporter for Fox 5 in New York, is the latest to accuse former Fox News chairman Roger Ailes of sexual harassment. Curanaj sued 21st Century Fox for discrimination and creating a hostile work environment. She alleges that Ailes turned her down for a job at Fox News because she would not "put out."


Warner Elevates Emmerich

Toby Emmerich has been promoted from manager at New Line Cinema to President and Chief Content Officer for Warner Bros. Pictures Group. Meanwhile, Greg Silverman will step down as President of Ccreative Development and Production for Warner Bros. Pictures.


Cerutti Ascends at Christie's

Guillaume Cerutti will replace Patricia Barbizet as Chief Executive Officer of Christie's auction house. Cerutti left Sotheby's last year to become Christie's President of Europe, Middle East, Russia and India operations.


He Wanted to Be a Producer

By, Bennett Liebman
Government Lawyer in Residence, Albany Law School

President-elect Donald Trump on November 19th tweeted a series of complaints about how the cast of the hit musical "Hamilton" had treated Vice President-elect Mike Pence. This was hardly the President-elect's first foray onto the Great White Way. In fact, he has been involved with Broadway for over 45 years, including a brief but unsuccessful stint as an investor and associate producer in 1970.

Soon after graduating from college, the 23-year-old Trump invested in the Broadway show "Paris is Out", which opened on Broadway in the winter of 1970. "Paris Is Out" was a comedy about an elderly Jewish couple who was planning a long-anticipated trip to Europe, while simultaneously dealing with problems about their children. It starred the venerable actors Molly Picon and Sam Levene. Trump, with a $70,000 investment, financed half the production cost. The Playbill program for the show lists David Black as the producer "in association with Donald J. Trump." Trump's bio in Playbill read, "Donald J. Trump who joins Mr. Black in this production as Associate Producer is making his theatrical debut. He is in the investment and real estate business, and will be associated with Mr. Black in his new musical, W.C." ("W.C." was never made.)

While Trump allegedly was not involved in the day-to-day production of the show, the production team was extraordinarily enterprising in its approach to the show. "Paris Is Out" was not a good show. It was unlikely to be a critical success. It was likely, however, given its stars and subject matter, to appeal to a distinct crowd of Jewish senior citizens who frequented the theater. The first innovation of the production team was to reduce the role of the critics by not officially opening the show. The show went into previews on January 19, 1970, and there was not to be any opening night. Instead, the critics were invited to attend the show several weeks after it started. At that point, critics would be welcome, and tickets would be made available to them. Management would not be soliciting any reviews. The producers ran ads from alleged theatergoers, and even from critic Rex Reed, in support of their non-opening night policy.

The policy was modified after critics threatened to review the play after its first preview. The critics were urged to come to the show but only after the show had been frozen. After the Associated Press and the Newark News had reviewed the play during its first week in previews, the policy was further changed to invite the critics to attend the show from January 28th to January 31st, with reviews embargoed for publication until February 3rd. Even then, the Daily News refused to review the show.

Not unexpectedly, the reviews were dismal. George Oppenheimer in Newsday found it "embarrassingly bad" and suggested that "Paris Is Out" "is the sort of play whose situations and dialogue you whistle as you enter the theater." Clive Barnes in the New York Times found the show "pitiable" with the writing "deplorable." Walter Kerr for the New York Times added, "I simply sat there and looked at it." He found the production "professional while the play is not."

Martin Gottfried for Women's Wear Daily was probably the most venomous. He wrote, "Frankly, it is terrible - gross, thick-witted, senseless, humorless, narrow-minded, hypocritical, boring, archaic, exclusively commercial, embarrassing, short-sighted, long-winded, uneducated, uninformed, uninteresting and unsuited for anyone un-Jewish and under age 50."

In fairness, most every reviewer mentioned that the audience seemed to love the show. There were also a minimal number of critics that liked it. The Wall Street Journal found it "warmly entertaining." Undoubtedly the most favorable review appeared in the horse racing daily, The Morning Telegraph. Its reviewer Leo Mishkin found the play to be "rich and delicious and as filling as a large helping of apple strudel." A play was surely in trouble when this was its main booster.

Faced with these harsh reviews, but with a receptive audience, the production team remained steadfastly creative. In an era when almost all shows held only two matiness (Wednesday and Saturday), "Paris Is Out" became the first show to move to four matiness. It had afternoon performances on Wednesday, Thursday, Saturday and Sunday. Business appeared to pick up for a time, but sank in April of 1970. The final performance of the show was April 19, 1970. Variety claimed that it ran 96 performances with 16 previews.

The show had a brief afterlife when the actor Pat O'Brien and his wife Eloise converted the show from a Jewish family comedy into an Irish family. They toured with the show across the country on the straw hat circuit and dinner theater circuits for half a decade. However, the play has hardly been seen in the past 35 years.

December 24, 2016

Week in Review

By Eric Lanter

SiriusXM Wins New York Appeal Over Older Songs

The New York Court of Appeals sided with SiriusXM in ruling that common law did not protect the public performance of songs composed prior to 1972. The Turtles, a band popular in the 1960s, challenged SiriusXM, a satellite radio company, as its stations were playing the Turtles' songs without paying royalties. This comes just a month after SiriusXM settled a counterpart case in California, also involving the Turtles, where SiriusXM agreed to pay up to $99 million.


Prominent Antiquities Dealer Accused of Selling Stolen Artifacts

Nancy Wiener, a prominent New York art dealer, was arrested on charges that she made millions of dollars from selling stolen artifacts "by creating fraudulent documents to camouflage their history." She, along with other conspirators, are alleged to have engaged in fraudulent activity since at least 1999. Her attorney, Georges G. Lederman, reported to the New York Times that he and his client were examining the charges and would respond when appropriate.


Rutgers Football is Facing National Collegiate Athletic Association Inquiry

The National Collegiate Athletic Association (NCAA) informed Rutgers University that it is investigating potential rule violations in the football program. Allegedly, one former coach at Rutgers, Kyle Flood, took steps to ensure that an academically struggling player received extra-credit work. Additionally, it is alleged that 16 players on the football team roster were allowed to compete even when they tested positive for banned substances. This investigation comes just a year after six Rutgers football players were dismissed for suspected involvement in criminal activities.


Bob Stoops Revisits Handling of Joe Mixon's Assault Case

Bob Stoops, the coach of the Oklahoma Sooners' football team, said that if his star player Joe Mixon had punched a woman now, he would have been removed from the team (rather than taking no action, which is what occurred over two years ago, when Stoops believed that Mixon would redeem himself). Now, Stoops has said that he hopes even players at the high school level understand that discipline is necessary for such misconduct.


Russian Cyberforgers Steal Millions a Day with Fake Sites

A group of Russian cyberforgers created over 500,000 fake internet users and 250,000 fake websites so that advertisers would pay nearly $5 million a day for advertisements that were never watched on some of the web's most popular sites, including Fox News and CBS Sports. White Ops, a computer security firm, released a report announcing these findings and informed "170 advertisers, ad networks and content publishers" of the result of its investigation. The cyberforgers exploited known loopholes with advertising and devised robots to perform the tasks at a volume not previously known before.


Judge Dismisses Case Against Motherwell Foundation

A New York State Supreme Court judge in Manhattan dismissed a lawsuit where the plaintiff was a former director and curator for the Dedalus Foundation. The Dedalus Foundation represents the interests of the artist Robert Motherwell, and the plaintiff, Joan Banach, sued for wrongful termination after being accused of stealing the artist's work and selling it for her own benefit. Her lawyers said that they will appeal the court's decision.


U.S. Blacklists Alibaba Unit Over Counterfeit Sales

The United States Trade Representative announced that it was placing Alibaba's Taobao marketplace on its blacklist, for permitting the sale of fake or pirated goods. While there are no penalties that come as a direct result of being blacklisted, Alibaba has been working to shed its reputation for selling fake goods. Alibaba has responded, questioning whether the blacklisting was done as a result of factual circumstances or the political climate between China and the United States.


FBI Agent's News Leaks May Doom Federal Case

In the Southern District of New York, Judge P. Kevin Castel held a hearing in a major insider trading case involving a Las Vegas sports bettor, William Walters. The case against Walters is set to unravel, as it has come to light that a federal agent leaked confidential information to the media. The agent claimed that the leak was made solely to draw attention to the case and the dangers of insider trading. The judge expressed shock in response to the leak of information, and suggested that Walters' lawyers file a motion to dismiss the case. If the matter is dismissed, it would be a blow to Preet Bharara, who is the United States attorney for the Southern District of New York, and has an established reputation for vigorous insider trading prosecutions.


North Carolina Fails to Repeal Bathroom Law that Prompted Boycotts

North Carolina legislators went home on Wednesday after failing to repeal the state law that "prompted economic boycotts, lawsuits, political acrimony and contributed to the defeat of the Republican governor." House Bill 2, which requires transgender individuals to use a public restroom that corresponds with the gender on their birth certificate, has been a contentious law in the state. Just days before the new governor, Roy Cooper, a Democrat, is set to be sworn in, the Republican-majority legislature was unable to make any change to the law. The impetus for change comes as a result of several businesses and artists, such as the NCAA and Bruce Springsteen, have boycotted visiting North Carolina.


Center for Art Law Case Law Updates

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

Mueller v. Michael Janssen Gallery, et al, 1:15-cv-04827-NRB (S.D.N.Y., 12/02/2016) On Dec. 1, 2016, District Judge Buchwald dismissed the 2014 lawsuit related to Cady Noland's artwork "Log Cabin," which the artist disavowed due to replacement of rooted wood logs. The plaintiff, the purchaser of the artwork, alleged unjust enrichment and breach of fiduciary duties against the gallery and art advisors who facilitated the sale. The dismissal provides some clues as to the business relationships between collectors and art experts. The Memorandum and Order in the case are available at https://drive.google.com/file/d/0B9yHAtGD-3ZGNjVhbllIY1RSTWkyZl94V3M3dWpRbVRpTEI0/view?mc_cid=a65515225f&mc_eid=8a2eda70d8.

McNatt v. Prince, 1:2016cv08896 (S.D.N.Y. Nov. 16, 2016) Photographer Eric McNatt sued Richard Prince, alleging copyright infringement over his use of McNatt's photo of musician Kim Gordon. Prince posted the photo on his own Instagram account and then displayed a 20 square foot screenshot of the Instagram post at a Tokyo gallery in 2015.

Statkun v. Klemens Gasser & Tanja Grunert, Inc., 1:13-cv-05570, (S.D.N.Y. Dec. 8, 2016) Tanja Grunert, former owner of the gallery Klemens Gasser & Tanja Grunert, Inc., was ordered to pay $500 for every day she ignores inquiries from contemporary artist Joseph Statkun stemming from a default judgment awarded to Statkun in 2014. Statkun alleged that Grunert violated VARA by cropping one of his paintings without authorization.

Heritage Capital v. Christie's, 3:16-cv-03404-N (N.D. Tex. Dec. 9, 2016) The plaintiff accused Christie's in federal court of copyright infringement, alleging that research, images and price information for 3 million different auction listings generated by the Dallas-based auction house were appropriated by the London-based auction house and resold as part of its own subscription database.

Banach v. Dedalus Found., 600918/2009 (Sup. Ct. N.Y. Cty. Dec. 8, 2016) J. Geoffrey D. Wright ruled for the defendant in the 2009 lawsuit brought by Joan Banach against the Daedalus Foundation, alleging gender discrimination in its discharge of her employment. The non-profit, which claimed to have fired Banach out of suspicion that she misappropriated art, counter sued to recover that art. The Supreme Court of New York County recently dismissed Banach's gender discrimination claim and denied her motion for summary judgment on Dedalus' counterclaims.

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.

John Wiley & Sons v Kirtsaeng

By Barry Werbin

On December 21st, Judge Cote (SDNY) denied Kirtsaeng's motion for attorneys' fees following the Supreme Court's reversal of the Second Circuit's prior decision, which had affirmed the District Court's initial rejection of Kirtsaeng's motion. Following a Second Circuit mandate issued on August 26, 2016, vacating the District Court's decision in light of the Supremes' reversal, Judge Cote held that Wiley was reasonable to submit its claims and that the claims were not frivolous. Judge Cote also noted that Wiley had acted in good faith.

The Supreme Court had remanded to ensure that while substantial weight could be given to the reasonableness of Wiley's litigation position, that alone should not be dispositive, and all other relevant factors had to be considered, as articulated in the SCOTUS Fogerty and 16 Casa Duse decisions.

A copy of the decision is attached at John Wiley & Sons v. Kirtsaeng.pdf. It will be interesting to see if Kirtsaeng appeals once again.

And here is new copyright case about the Grinch:


December 31, 2016

Week and Year in Review

By Eric Lanter and Michael Smith


Russians Fess Up to Systematic Doping Conspiracy

Russian officials finally admitted to the "institutional conspiracy" enacted by Russian sports officials, the staff of the drug-testing lab for the Sochi Olympics, members of the Russian Federal Security Service (FSB), and hundreds of athletes. Officials continued to deny that President Vladimir Putin and his closest advisers had knowledge of the scheme.


Prosecutors Give Gophers Second Look, No Charges

The county attorney's office for Hennepin County, Minnesota, has again declined to press charges against 10 suspended University of Minnesota football players accused of sexual assault. After declining to press charges in October due to lack of evidence, the county attorney reviewed the details of the University's investigation into the accusations, and concluded that, while the University's report "shined a light on what can only be described as deplorable behavior," there was insufficient evidence to warrant criminal charges.


Deceased Heisman Winner's Brain Won't Be Tested

The family of Rashann Salaam, who won the Heisman Trophy in 1994, refused to consent to tests that would determine whether he suffered traumatic head injury during his career playing football. The tests would have helped research into chronic traumatic encephalopathy (CTE), which is believed to contribute to depression and suicide among former athletes who suffered head trauma. Salaam shot himself to death.


Buccaneer to Enter Treatment After Drug-Use Suspension

Tampa Bay buccaneers running back Doug Martin said on Wednesday that he would enter a drug treatment program rather than appeal the four-game suspension for violating the National Football League (NFL)'s policy against using performance-enhancing drugs.


Archaeologists Employ Drones to Preserve Threatened Historical Sites

As wars, terrorists, and looters continue to devastate historical monuments and antiquities in Syria and elsewhere in the Middle East, archeologists have been using drones to take photographs of historical ruins. These images may be the only way to preserve some sites, which are being systematically destroyed by ISIS, and drones are the only safe way to obtain them. The images collected could be used to virtually reconstruct ancient structures. The Grand Palais in Paris currently is hosting an exhibition of 40,000 drone images taken at Palmyra, in Syria.


Cosby Wants New Jury Pool

Lawyers for accused rapist and former entertainer William (Bill) Henry Cosby asked the judge presiding over the upcoming criminal trial to move the trial and/or jury pool out of the county where Cosby allegedly committed the sexual assault because of "pervasive negative coverage" in local media.


DMC sues Amazon, Walmart, for Trademark Violation

Darryl McDaniels, a/k/a DMC, of the legendary hip-hop group Run-DMC, sued retailers for exploiting products bearing the Run-DMC logo that were not authorized by the group.


Playwright Sues Seuss, Says the Grinch Wasn't Stolen

Playwright Matthew Lombardo filed an action in the Southern District of New York against Dr. Seuss Enterprises, seeking a declaration that his play, "Who's Holiday!", does not infringe on "How the Grinch Stole Christmas," to which Dr. Seuss Enterprises holds the copyright. He also seeks $130,000 in damages. Lombardo's play was cancelled after Dr. Seuss Enterprises complained. Lombardo argues that elements borrowed from "How the Grinch Stole Christmas" are fair use. "Who's Holiday!" is a one-woman show featuring the Grinch's ex-wife, who was imprisoned for murdering him.


Poland Buys Private Collection to Keep it in Poland

Piotr Glinski, deputy prime minister and minister of culture of Poland, signed an agreement that will give the Polish government ownership of a collection of 250,000 historic manuscripts and documents, 86,000 museum artifacts, and 593 precious artworks (including works by da Vinci, Rembrandt, Renoir, and Durer. The $105 million purchase (the collection is estimated to be worth more than $2 billion) was part of a campaign by the Polish government to focus on national heritage.


With Artworks Stuck in Iran, Berlin Exhibition Canceled

An exhibition originally scheduled to open at the Gemaldegalerie in Berlin was postponed, and then canceled, after Iranian President Hassan Rouhani failed to sign export licenses necessary for the works to be transported from the Tehran Museum to Berlin.



Russia's Doping Program is Revealed

With Rio de Janeiro hosting the 2016 Summer Olympics and the International Olympic Committee (IOC) investigating doping, it came to light in the weeks leading up to the Olympics that Russia had engaged in an extensive doping scheme for a number of years going back to the 2008 Olympics in Beijing. Dozens of Russian athletes were banned from competing in the Rio Olympics, drawing outrage from the Russian sporting authorities and praise from European and American organizations. International sporting authorities conducted tests on samples from the 2008 Beijing Olympics and the 2012 London Olympics. Finding that a significant number of Russian athletes doped leading up to winning medals in those Olympic Games, the IOC reallocated medals, surprising athletes who had finished off the podium nearly a decade ago, only to be given their medals this year.

A Crackdown on Stolen Art

This year brought hope to those who had art stolen, even dating from Nazi Germany, as President Obama signed a piece of legislation extending the statute of limitations for individuals to bring suit seeking to reclaim the stolen artwork. In 2016, a prominent case in California became an example of how a family could have artwork stripped from it without any recourse, when a judge held that the family's inaction for a number of years precluded it from bringing suit to reclaim the stolen artwork. While this protected museums, which often can acquire notable pieces of art that were unwittingly stolen, that benefit came at the expense of families of collectors who may lack the resources of art institutions.

Sumner Redstone and Viacom Battles End

For Viacom, a battle broke out pitting Sumner Redstone and his family against the remainder of the Board of Directors. Several Directors sought to remove Redstone from the Board, arguing that he was mentally incompetent and incapable of administering his duties as a Director of the corporation. As evidence of his incapacity, the Directors called on Redstone's ex-girlfriends, who claimed he was mentally incompetent. Ultimately, Redstone and his family prevailed, agreeing to settle the matter by having the adversarial Directors resign. Redstone brought a lawsuit, claiming damages of $150 million against his ex-girlfriends. Following the resignation of the Directors from the Board, Redstone and his family installed a slate of new Directors. Near the end of 2016, Redstone announced that he was resigning his position from the Viacom Board.

NFL Grapples with Concussions and Brain Disease

In 2016, the NFL introduced a new protocol for dealing with players that potentially have sustained a concussion during the course of a football game. The NFL, headed by Commissioner Roger Goodell, has struggled to deal with the fallout coming from the frequency of concussions, which scientists have connected to the degenerative brain disease known as CTE. 2016 follows in the footsteps of previous years, with former players continuing to die seemingly as a result of CTE. To mitigate the dangers of concussions, and hopefully prevent instances of CTE, the NFL adopted protocols that require players who are suspected of a concussion to not play in a game and undergo medical procedures to determine the existence of a concussion. If teams do not comply with the new protocol, there are significant monetary penalties.

Bill Cosby's Litigation Moves Forward

Throughout 2016, the actor and comedian, Bill Cosby, was plagued with litigation from California to Pennsylvania relating to sexual assault accusations from a growing number of women. At the beginning of 2016, Cosby's attorneys argued that the cases could not move forward on the basis of the applicable statutes of limitations expiring and immunity from prosecution based on promises from one district attorney's office. As the year progressed, the judge in the Pennsylvania case determined that there was sufficient evidence for the matter to move to trial. Then, toward the end of the year, the battle for Cosby's attorneys focused on what evidence could be introduced at the trial. The trial is scheduled for June 5, 2017.

About December 2016

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

November 2016 is the previous archive.

January 2017 is the next archive.

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