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January 2017 Archives

January 4, 2017

Moore v. Cognizant Tech. Solutions & Walt Disney Parks & Resorts United States, Inc.

By Michael Cataliotti

Case Update

The case against Cognizant and Disney for replacing Disney employees with H-1B workers was dismissed.

Moore filed a putative class action suit, in which she alleged that Cognizant and another contractor colluded with Disney to make false statements on the ETA Form 9035 "Labor Condition Application" when petitioning for workers to receive H-1B status. Moore further alleged that those false statements were violations of: (1) the civil RICO statute, (2) the RICO conspiracy statute, and (3) conspiracy at common law. Counts 2 and 3 were dependent upon Count 1, so the court began by evaluating the civil RICO claim.

In his analysis of Count 1, Judge Presnell concluded that the facts failed to substantiate the claim, because: (i) Cognizant's affirmations that the employment of H-1B workers would not adversely impact its U.S. workers did not pertain to Disney employees; (ii) Cognizant was not bound to certify that it would not displace U.S. workers, because the certification did not pertain to the workers petitioned by Cognizant, which Moore expressly stated in her complaint; and (iii) Cognizant was not required by law to file the other forms that allegedly contained false statements. It followed then, that without any false statements, there could be no conspiracy to make false statements (Counts 2 and 3), and the complaint was dismissed.

None of these findings are revolutionary, but we must keep an eye on future cases and developments regarding the H-1B program.


January 5, 2017

Paramount Pictures Corp. v. Axanar Productions, Inc. - "Star Trek" Copyright Infringement Case

By Cynthia Arato

Essentially on the eve of trial of a copyright infringement case against the producers of an unauthorized "prequel" to the "Star Trek" enterprise -- of which only a trailer was produced, and which was to be distributed for free -- an L.A. District Court Judge made several substantive rulings, including:

a) that the Ninth Circuit's "objective extrinsic similarity" test had been met;

b) that the Circuit's "subjective substantial similarity" test was for the jury;

c) that the character "Garth of Izar" "is entitled to copyright protection";

d) "all four factors" compel the rejection of the defendants' "fair use" defense; and

e) the issue of willfulness was for the jury.

The Order is available here: paramount.pdf

January 6, 2017

Week in Review

By Michael Smith

Petition Seeks to Keep Painting out of Trump Inauguration

An art historian and an artist have initiated a petition calling on the St. Louis Art Museum to reverse its decision to make a painting in its collection, George Caleb Bingham's "the Verdict of the People", available for display at Donald Trump's inauguration luncheon on January 20th. As of Thursday, the petition had fewer than 2,000 signatures. The museum has said it will meet with the two women who initiated the petition.


Artist's Grandson Sues to Keep Works in Prague

In 1913, American philanthropist Charles R. Crane, who financed the creation, by Czech artist Alphonse Mucha, of a series of enormous paintings titled "Slav Epic", agreed that the works would be donated to the city of Prague on the condition that they be permanently housed in their own facility. Last month the Prague City Gallery announced that it would be lending the works to the National Art Center in Tokyo. Mucha's grandson has sued for ownership of the works to be transferred back to the Mucha estate.


Simon & Shuster Criticized for Publishing Breitbart Editor's Book

Simon & Schuster has come under attack in the Twitterverse for publishing a book by Milo Yiannopoulos, an editor of Breitbart News. Mr. Yiannopoulos, who openly delights in the public humiliation of others -- and in particular of women -- was permanently banned from Twitter for inciting his Twitter followers to bombard "Saturday Night Live" and "Ghostbusters" actor Leslie Jones with abusive tweets.


Annotated Mein Kampf Big Hit in Germany

A two-volume annotated version of Adolf Hitler's manifesto, Mein Kampf, the first edition of the book to be officially published in Germany since 1945, has sold roughly 85,000 copies and spent 35 weeks on Der Spiegel's best-seller list. The 70-year copyright in the work, which had been held by the German state of Bavaria, expired in 2015. An audiobook version narrated by David Hasselhoff is rumored to be in development.


Cowboy Receives Third Suspension for Drug Use

The National Football League (NFL) suspended Dallas Cowboys defensive end Randy Gregory for the third time this season--this time for at least a year--for violating the NFL's substance-abuse policy.


Announcer Criticized for Praising Player Who Punched a Woman

ESPN announcer Brent Musburger was on the receiving end of harsh Twittercism on Monday after he said that he hoped Oklahoma running back Joe Mixon "goes on to have a career in the National Football League." In 2014, Mixon was videotaped punching a woman in the face, breaking her jaw and cheekbone--an act for which he received a deferred prison sentence and community service. Musberger defended his statement later in the game, saying that Mixon's actions ware "brutal" and "uncalled-for," but that he hoped Musberger made the most of his second chance.


Cooperstown Considers Canonizing Jocks Who Juiced

The New York Times reports that many of the sports writers who decide who gets into the Baseball Hall of Fame in Cooperstown, NY, are reconsidering whether to keep out players who used performance-enhancing drugs. Many pointed to the recent induction of former baseball commissioner Bud Selig (by a separate committee of voters), who was widely criticized for failing to combat the use of steroids, as a justification for including the players who actually used the drugs. One of the voters, sports writer Kevin Cooney, said it would be "hypocritical to put the commissioner of the steroid era and a manager who had connections with the steroid era in and leave out the greatest pitcher and the greatest hitter of that time," referring to Barry Bonds and Roger Clemens. It is not clear whether Mr. Cooney considered whether Bonds and Clemens would have been as successful without cheating, and whether playing by the rules should be considered when evaluating a player's "greatness."


Draft Ops Loss is Good News/Bad News Situation

The good news for Emil Interactive Games LLC (Emil), operator of daily fantasy sports operator Draft Ops, is that the U.S. District Court for the District of Minnesota has declined to conclude that daily fantasy sports contests are illegal in that state. The bad news is that the court therefore rejected Emil's argument that its sponsorship agreement with National Hockey League team the Minnesota Wild is illegal and therefore void. However, the other good news is that the court declined to sanction Emil for making that argument. Yet the other bad news is that it did so because a court could still determine that Emil's conduct violated the Unlawful Internet Gambling Enforcement Act and the Illegal Gambling Business Act. A classic win/win/lose/lose situation.


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On Tuesday, the U.S. District Court for the Central District of California found that an unauthorized "Star Trek" fan film was not protected by the "fair use" doctrine, paving the way for Paramount Pictures Corp. to move forward with its copyright infringement lawsuit against Axanar Productions, Inc. At the same time, the Language Creation Society has renewed its request for leave to file an amicus brief arguing that languages (specifically, the "constructed" Klingon language featured in the "Star Trek" franchise) are not copyrightable. The briefs, and the decision, are lousy with painfully forced references to the series.


Texas Sports Fans Could Find Themselves Alone in the Bathroom

On Thursday, Texas officials announced a bill that would require persons to use the bathrooms corresponding to their "biological sex." The law is similar to one passed last year in North Carolina, which triggered a backlash that included moving several major sports events out of the state. If the law passes, the 2017 Super Bowl may be the last national sporting event to be held in Texas for a while.


Federal Circuit Declines to Revisit Alice Lip-Sync Ruling

The Court of Appeals for the Federal Circuit has denied the request by Electronic Arts and other gaming companies that the court reconsider its ruling that plaintiff McRO Inc.'s lip-sync animation technology was not an abstract idea ineligible for patent protection under the Supreme Court's 2014 decision in Alice Corp. Pty Ltd. v. CLS Bank International. The defendants had argued that McRO's patent merely described an automated version of a process previously performed manually by animators, but the appellate court found that the computerized process claimed by McRO was "unconventional" and represented a technological improvement over existing animation techniques.


Ex-Manager Loses Bid to Avoid $9.35 Million Judgment on Jurisdictional Grounds

In 2012, the record companies that hold the distribution rights to songs by David Bowie, Iggy Pop, and John Mellencamp won a $9.35 million judgment against the rock stars' former manager, Anthony Defries, for distributing songs without authorization. Defries, a resident of California, filed a "Motion to Confirm that Plaintiffs do not have Personal Jurisdiction over Defendants", seeking to have the judgment vacated and declared void ab initio. The court denied the motion, stating that there was no case or controversy and that the court's authority over the matter had expired.


Record Labels Settle with Amway in "Ambush" Lawsuit

In a lawsuit filed in the U.S. District Court for the Middle District of Florida in 2014, Amway accused Sony Music Entertainment, Warner Music Group Corp., and UMG Recordings Inc. of "ambushing" Amway with infringement claims in breach of their agreement to notify Amway of infringement claims prior to filing suit. Earlier this week, the case was dismissed as part of a confidential settlement.


Court Finds No Jurisdiction Over Allegedly Infringing Label

On Wednesday, the U.S. District Court for the Northern District of Illinois dismissed claims that UMG Recordings, Inc. infringed the copyright for plaintiff Syl Johnson's 1968 song "I Feel the Urge" by using it without permission in a 1991 song "Know the Ledge." The court found that Johnson failed to establish specific jurisdiction over UMG by alleging that UMG shipped "6,194 wholesale units to third-party distributors and/or retailers with Illinois mailing addresses over the course of 16 years."


January 13, 2017

Week in Review

By Eric Lanter

Billionaire Art Dealer Cleared of Tax Fraud

A French tribunal of judges cleared Guy Wildenstein of tax fraud. He was charged with money laundering allegedly facilitated with the formation of foreign trusts to avoid inheritance taxes with his art collection. After his father died in 2001, prosecutors alleged, Wildenstein and his brother developed a scheme of complex trusts and moved assets to tax havens in Switzerland. The court's decision acknowledged that Wildenstein's behavior fell into a gray area of French law, in that he was required to declare foreign trusts. His attorneys argued that he had no knowledge of the structure of his financial assets.


Doping at Beijing Olympics Costs China Three Golds

The International Olympic Committee (IOC) stripped three Chinese women of their gold medals in weightlifting from the 2008 Beijing Olympics. This came as a result of retesting of samples, and China may incur a one-year ban from international weightlifting. This round of IOC retesting has yielded eight disqualifications thus far.


National Antidoping Groups Want Russian Athletes Barred

Organizations focused on antidoping from 19 countries have called for sanctions against Russia for its doping offenses. The IOC has been reluctant to impose a punishment as severe as banning Russian athletes outright, but the organizations advocated for such a ban, particularly after recent developments. Last month, the World Anti-Doping Agency released a report showing that the Russian doping program extended to 1,000 athletes in 30 sports.


Team Relocations Keep National Football League Moving Up Financially

The San Diego Chargers announced that they will be leaving their city and moving north, permanently. The team will take the name the Los Angeles Chargers and join one other team in that city, the Rams, giving Los Angeles two football teams in two years after decades without any. Additionally, there is the potential for the Oakland Raiders, located in the San Francisco metropolitan area, to move to Las Vegas in the coming weeks. These moves are part of the National Football League's (NFL's) plan to increase revenue by $1 billion annually. Already, the Rams' move from St. Louis to Los Angeles has produced an increase in revenue for the teams in the NFL, and the same effect is expected with the movement of the Chargers, and potentially the Raiders. Some analysts have concluded that the drop in ratings and momentum for the sport because of the link between concussions and brain disease will not stop the upward financial trajectory that the NFL desires.


President-elect Donald Trump pledged to name a nominee to the United States Supreme Court "within about two weeks" of his inauguration. He indicated at a press conference at Trump Tower that he intends to choose a strong conservative to fill the seat left vacant by Justice Antonin Scalia's death. Democrats vow to put up a vigorous fight against any nominee "out of the legal mainstream," citing the Republicans' not considering the nomination of Judge Merrick Garland, who was nominated by President Barack Obama in early 2016.


HarperCollins Pulls Book by Trump Pick After Plagiarism Report

Monica Crowley's 2012 book What the (Bleep) Just Happened? was pulled from bookshelves after evidence has come to light that she may have plagiarized. President-elect Donald Trump picked Crowley to be in a high-ranking communications role in the National Security Council. Since then, it has been revealed that her book plagiarized passages from Wikipedia and newspaper articles with no attribution of credit. While plagiarism used to spell the end of a writer's career, some publishers, like Simon & Schuster, have given second chances to those who plagiarized.


Fox News Settled Sexual Harassment Cases Against Broadcast Personality Bill O'Reilly

Around July 2016, when Roger Ailes was being ousted as chairman of Fox News, company executives were also dealing with allegations that broadcaster Bill O'Reilly had sexually harassed an employee of Fox News in 2011. The employee rejected his advances, and he sought to "derail her career" afterward, according to a draft letter from her lawyers to Fox News. It is rumored that the matter settled out of court and the employee received a sum of money in the high six figures for remaining silent about his conduct. This also came at the time that Fox News was dealing with a former anchor, Gretchen Carlson, alleging that Ailes had sexually harassed her.


France Arrests 17 in Kardashian Robbery

French police arrested 17 individuals who are suspected of being involved in the robbery of Kim Kardashian West in October 2016. Under French law, police can hold suspects for four days before charging or releasing them. While information about the suspects was not entirely revealed, it is known that at least some of the suspects are older individuals who have a history in organized crime, including drug trafficking and aggravated theft. The suspects were located through DNA evidence, which was left on a necklace dropped in the street and found by a passer-by.


Norway Becomes the First Country to Start Switching Off FM Radio

Norway, as a measure to save money, ended the broadcasting of FM radio and switched all radio to digital broadcasting. Proponents of the switch say that it is beneficial, as it will result in a wider range of options for listening and superior sound quality. Others have articulated concerns, such as the risk drivers face as their cars will no longer have an emergency alert system, as they had with their FM radios. One analyst has argued that Norway is uniquely suited to eliminating FM radio and switching to digital, noting that the possibility of FM radio disappearing in the United States is very slim.


Martha Swope, 88, Photographer of Dance and Theater, Has Died

Martha Swope, a photographer revered for her compelling photographs of dancers and actors, died in New York at the age of 88. As a young amateur photographer, she photographed the directing and choreography of "West Side Story," and when Life Magazine published one of her photographs, her career blossomed. By the end of her career, she had a studio with over a million images, which she sold to Time and Life Pictures. The deal did not go smoothly. After a saga of litigation, she regained possession of her archive as a result of a settlement in 2002. In 2010, she donated her life's work to the New York Public Library for the Performing Arts at Lincoln Center.


January 21, 2017

Week in Review

By, Tiombe Tallie Carter, Esq.

Raiders File for Las Vegas, Calling National Football League's Bluff

The Oakland Raiders applied to relocate to Las Vegas, as the team stated that it was unable to find a replacement for its Oakland-Alameda County Coliseum home. For many years, the National Football League (NFL) resisted putting a team in Las Vegas, due to gambling and potential influence on the games. However, recently many stakeholders, including players, coaches and owners have softened on the idea. The move would require approval of 24 of the 32 teams who are expected to vote in late March.


Writer of Children's Books Based on Classics Is Sued

Frederik Colting, a Swedish writer, and his partner Melissa Medina publish KinderGuides, which are children's books based on classic novels. The duo is being sued in federal court on copyright infringement by Simon & Schuster, Penguin Random House, and the estates of several authors including Truman Capote, Jack Kerouac, Ernest Hemingway and Arthur C. Clark. The major publishers and authors assert that the books are unauthorized derivative works of Capote's Breakfast at Tiffany's, Kerouac's On the Road, Hemingway's The Old Man & The Sea and Clark's 2001: A Space Odyssey. The books are directed towards 6 to 12 year olds. The publishing couple claim that they want to make classic adult novels accessible to youth, and that they are protected by law to make literary comment on the classic novels. It is surprising to some in publishing that Colting and Medina continue to publish books based on classic novels after the 2011 settlement between J.D. Salinger Estate's and Colting, over Colting's novel, 60 Years Later: Coming Through the Rye, a sequel to Salinger's Catcher in the Rye. Pursuant to the settlement, Colting was required to cease all domestic sales.


Paul McCartney Sues to Get Back His Beatles Songs

Paul McCartney filed a federal lawsuit against SONY/ATV over ownership of famous Beatles songs he wrote with John Lennon. The lawsuit is based on the copyright termination rule under the 1976 Copyright Right Act, which provides the right of creators to reclaim ownership of their works from publishers after a specific time has passed. According to the Complaint, McCartney filed legal notices over the last nine years as a step to reclaim the songs beginning in January 2018, and that SONY/ATV executives suggested that McCartney did not have right to reclaim. SONY/ATV referenced the recent Duran Duran case, in which the court ruled that the band Duran Duran's publishing contract did not allow reclaiming rights based on British Law. The McCartney lawsuit seeks declaratory judgement that the termination rule applies to his songs.


An "Apprentice" Sponsor Pulls Out Over Trump

Kawasaki, a Japanese company, said that it will no longer sponsor "The New Celebrity Apprentice", a show that originated with Donald Trump in 2004. Although the new show is hosted by Arnold Schwarzenegger, President Trump retains executive producer credits, and is continuing to earn income from it. After featuring Kawasaki on #GrabYourWallet, an online campaign to boycott companies with ties to Trump, the company issued a statement that it was not informed that President Trump would continue as executive producer, and in response to concerns from its customers and dealers, it elected to pull out of the show.


Former "Apprentice" Contestant Files Defamation Suit Against Trump

Summer Zervos, a former contestant on "The Apprentice", filed a defamation lawsuit against President Trump. Ms. Zervos accused Trump of sexual assault in October during the presidential race, claiming that while at his New York office and a hotel in Los Angeles, he kissed and groped her without her consent. President Trump accused Zervos of lying. If the suit moves forward and Trump is required to testify under oath, the veracity of his statements may have an impact on his presidency.


Censors Delight in the World's Reliance on App Store

It started small. First, the Chinese government compelled Apple to remove New York Times apps from the Chinese version of the App Store. Next, the Russian government made Apple and Google remove the LinkedIn app. Now, app stores operating in China are requested to register with the government, a probable precursor to broader restrictions. These small restrictions will have a huge impact.


Obama Pardons Studio 54 Owner

Famed Studio 54 nightclub owner Ian Schrager, along with partner Steve Rubell, were charged with conspiracy to avoid paying $2.5 million in corporate income taxes, plus a misdemeanor drug offense after being caught with 24.67 grams of cocaine, during a 1978 raid. They both plead guilty for evading corporate and personal income taxes, receiving 3 ½ years in prison plus fines. After completing his sentence, Schrager rebuilt his life by becoming a hotel developer with strong ties to the community. The pardon will restore his civil liberties.


Asian American Band The Slants Takes Its Trademark Battle to the Supreme Court: Is it free speech or a Racial Slur?

The Supreme Court heard arguments last Wednesday for Lee v. Tam, No. 15-1293, a trademark dispute case involving an Asian-American band called The Slants. Simon Tam, the band's leader, filed an application to register the band name for a trademark and was denied by the U.S. Patent and Trademark Office (PTO). The PTO refused registration on the grounds that the Lanham Act will not allow a trademark to be issued for a name that disparages people or brings them into contempt or disrepute. Tam appealed to the U.S. District Court of Appeals for the Federal Circuit, which overturned the ruling, determining that the law was in violation of freedom of speech. The Justices then questioned whether the refusal by Congress and the PTO to register trademarks that can be seen as disparaging violates the First Amendment. The Slants stated that its members are not offended, that they chose the name to address the stereotyping of Asians, and did not intend to disparage anyone. The government argued that the band was not prevented from using its name, and that trademark is the government's speech and thereby immune from First Amendment attacks. The government relied on the 2015 Supreme Court decision in Walker v. Sons of Confederate Veterans (https://www.nytimes.com/2015/06/19/us/supreme-court-says-texas-can-reject-confederate-flag-license-plates.html). The Slants case will be watched closely, as its outcome is expected to impact the Washington Redskins case involving an appeal of a PTO decision to revoke the Redskins trademark name as offensive to Native Americans.


Second Old Master Painting A Fake, Sotheby's Says in Lawsuit

Sotheby's seeks a refund of a fake "Saint Jerome", a painting attributed to Old Master Girolamo Francesco Maria Mazzola's circle called Parmigianino. "Saint Jerome" was sold for $842,500, and now Sotheby's declared the painting to be a forgery. A lawsuit has been filed against the seller Lionel de Saint Donat-Pourrieres, who received $672,000 and refuses to return the funds. Sotheby's is fully refunding the buyer. This second forgery comes on the heels of the Frans Hals painting determined to be fake last year, which required a $10 Million refund.


Qualcomm Accused of Anticompetitive Practices by F.T.C.

The chip maker, Qualcomm, is accused of anticompetitive practices by the F.T.C. In the new lawsuit, Qualcomm is accused of using "its dominant position as a supplier of certain phone chips to impose onerous supply and licensing terms on cellphone manufacturers and to weaken competitors". This is not the first time the company has faced such complaints. South Korea, China and the European Union have also accused it of antitrust practices.


Mark Zuckerberg, in Suit, Testifies in Oculus Intellectual Property Trial

Mark Zuckerberg provides a glimpse into the world of technology in ZeniMax Media's suit against Oculus, a recent Facebook acquisition. He testified that it will take another 5 to 10 years and more than $3 billion to get Virtual Reality to the masses; the ability to negotiate quickly is important in an environment with players like Google, Apple and Twitter, nothwithstanding the considerable effort spent thinking about acquisitions; and that helping potential acquisitions to understand their pain points is a useful tactic, although not Zuckerberg's main focus. The suit accuses Oculus of stealing elements of the technology that went into the Oculus headset.


Podcast Host Arrested in Shooting at T.I. Concert in Manhattan

Daryl Campbell, a/k/a Taxstone, a Hip Hop podcast host, was arrested on a federal weapons possession charge in connection with a shooting at a Manhattan nightclub last year. DNA believed to belong to Campbell was found on a handgun that was used in a shooting involving rapper Troy Ave, a long-term adversary. A bodyguard, Ronald McPhatter was killed in the shooting.


After Plagiarism Reports, Monica Crowley Will Not Take White House Job

Monica Crowley will not serve on President Trump's National Security Council, and stated that she has decided to pursue other opportunities. There have been recent reports from CNN that passages in her national best seller What the (Bleep) Just Happened? and parts of her doctoral dissertation were plagiarized. President Trump's transition team claims that the reports are politically motivated.


Governor Cuomo Nominates Rowan Wilson to New York's Highest Court

Rowan Wilson of Cravath, Swaine & Moore has been nominated to the New York Court of Appeals by Governor Cuomo. When confirmed by the NYS Senate, Mr. Wilson will be the second African-American serving on the court. Mr. Wilson is a Harvard Law graduate who began his career as law clerk for Chief Judge James R. Browning, U.S. Court of Appeals (9th Circuit). A 25-year partner at Cravath, he handles complex litigation matters and currently serves as chairman of the Neighborhood Defender Service of Harlem.


For Early "Jersey Boys' Investors, Oh, What a Run

What do a dentist, psychotherapist, a literary agent, venture capitalist and a posse of lawyers, doctors and academics have in common? They belong to that rare pool of theater investors who win big on Broadway. They were early backers of "Jersey Boys", one of the longest running musicals on Broadway. Reportedly, approximately 3 out of 4 Broadway shows fail. "Jersey Boys" is that one exception, and it has been an exceptional return for this early group. Some with as little as $12,500 have profited roughly $250,000. The show, which closed this week, is a unicorn. It won the 2006 Tony Award, has been produced in Chicago, Las Vegas, San Francisco, Toronto and London, and will continue to tour nationally as well as abroad.


Justices Will Hear Challenges to Mandatory Employee Arbitration

It is expected that the question of mandatory employee arbitration will be settled this year. The U.S. Supreme Court announced a one hour panel on three cases involving Epic Systems Corp., Ernst & Young, and Murphy Oil USA. Each representative of the question as will address whether companies can use employment contracts to prohibit workers from coming together as a class to take legal action against their employer. A national standard is sought, as it is challenging for companies with employees in multiple states. For example, federal appeals courts in Chicago and San Francisco allow the class actions, while New Orleans continues to prohibit them.


Censors Delight in the World's Reliance on App Store

Farhad Marjoo points out how seemingly small restrictions on apps availability in foreign app stores shed light on the growing centralization of information, which is a departure from the Internet's early design. In the last few weeks, several apps were removed from app stores in foreign countries: Apple was compelled by the Chinese government to remove New York Times apps from the Chinese version of the App Store, both Apple and Google were required by the Russian government to remove the LinkedIn app from their app stores, and the Chinese government now requires registration of app stores operating in China, which is seen as a beginning of further restrictions. These recent bans are the tip of increasing concern of censorship, because not only are digital users prevented access to the apps, the online infrastructure of a decentralized network is being challenged, as more publishers like the New York Times and startups invest heavily in social media and mobile apps.

The benefits of mobile apps are hard to resist, they are easier and more convenient to download from app stores, as there is less risk of malware, and creators receive a better reward. However, mobile apps are a departure from the Internet's early design of a decentralized network that upon attack, would be able to re-route itself and thereby never fail. Countries would not be able to harness or control the Internet.

Nevertheless, there is no recourse for digital users when the fight against censorship relies on the goodwill of the mega corporations who control most of the Internet and foreign governments seeking competing control.


January 23, 2017

EASL Speakers Bureau/New York Foundation of the Arts Program: Your Art Will Outlive You - How to Protect it Now!

The New York Foundation for the Arts (NYFA) and New York State Bar Association Entertainment, Arts, and Sports Law Section's Fine Arts and Pro Bono Committees recently joined forces to present a panel about how to preserve and extend a creative legacy after the creator's death. The event was co-moderated by art law professionals Judith Prowda and Carol Steinberg with esteemed legal panelists Elisabeth Conroy, Declan P. Redfern, and Peter Arcese with Alicia Ehni of NYFA Learning.

Estate Planning 101: Advice Provided to Creators

Start planning now. Think about creating a will so that your loved ones are guided by you in making the decisions about your creative work. Wills can be amended and revoked at any time.
Protect your loved ones by making specific bequests in their names, or by setting up a testamentary trust that distributes all or any portion of your estate upon your death.
Think further ahead. You can set up a foundation to maintain an archive of your life and art; support other artists, initiatives, or institutions; and provide and foster scholarship about your work. Notable examples include the Adolph & Esther Gottlieb Foundation, Roy Lichtenstein Foundation, and Robert Rauschenberg Foundation.

Key Takeaways

Trust the people that are going to be handling your estate, and select people who understand you and the content and rights of your work.
Keep good records of your creative output throughout your career: Part of what you can do today is to start creating a history of your work. This is of special importance when concerning authentication and helps to preserve the personality of the artist moving forward.
Make clear, precise instructions for those who will be carrying out your estate plans to discourage potential disputes.
Ownership of copyright in your artwork (reproduction rights, etc.) is separate from ownership and or possession of the artwork itself, so it is important to think about who will manage the copyright in the work as well as the work itself.

Helpful Legal Terms

Testator - one who makes a will
Will - a legal document in which you, the testator, declare who will manage your estate after you die
Fiduciary - a personal representative who manages and protects your property or money
Executor - the person, persons, or institution named in the will to manager your estate; be sure to designate someone with legal or financial acumen
Witness - the person who observes the execution of a legal document and authenticates it with his or her signature; the person cannot be the executor or attorney and must be someone who is not receiving anything from your will
Valuation - the process of determining the value or worth of an asset, also used as a synonym for appraisal
Bequest - gift of personal property or possessions by will
Trust - a relationship whereby property is held by one party for the benefit of another
Foundation - a permanent fund established and maintained by contributions for charitable, educational, religious, research, or other benevolent purposes
Copyright - a form of intellectual property that protects creative works for a limited time and gives the copyright holder (typically the creator), the exclusive right to reproduce, create adaptations, distribute, perform, and display
Authentication - the act or mode of giving authority or legal authenticity to a statute, record, or other written instrument or a certified copy thereof

Additional Resources

Courtesy Barbara T. Hoffman, Esq.: A Visual Artist's Guide to Estate Planning (http://www.hoffmanlawfirm.org/Publications/A-Visual-Artists-Guide-to-Estate-Planning-The-Marie-Walsh-Sharpe-Art-Foundation-and-The-Judith-Rothschild-Foundation.pdf), based on a conference co-sponsored by The Marie Walsh Sharpe Art Foundation and The Judith Rothschild Foundation, and 2008 Supplement Update (http://www.hoffmanlawfirm.org/Publications/A-Visual-Artists-Guide-to-Estate-Planning-The-2008-Supplement-Update.pdf); see also www.hoffmanlawfirm.org

VLA provides pro-bono arts-related legal representation and education to low-income artists and nonprofit arts and cultural organizations. VLA's Artists Over Sixty program provides legal services and education to senior artists to address age-specific legal and business issues.

January 28, 2017

Week in Review

By Anna Stowe DeNicola

For your browsing convenience, the below blurbs are divided into the following categories: Entertainment, Arts, Sports, and Media.


Settlement Reached in "Star Trek" Fan Fiction Copyright Infringement Case

A settlement was announced between Paramount Pictures Corp. and CBS Studios, owners of the copyrights in the Star Trek portfolio, and Axanar Productions. Axanar was sued by Paramount and CBS for alleged copyright infringement for its 2015 20-minute fan fiction film, "Prelude to Axanar," which was influenced by an episode from "Star Trek". The settlement agreement was structured to "encourage fan fiction and creativity" so long as the works are non-professional in nature and met the companies' guidelines for fan films. Under the agreement, "Prelude to Axanar" may remain on YouTube, and Axanar may produce up to 2 additional films under 15 minutes in length.


Executive of AFTRA Retirement Fund Arrested for Alleged Kickback Scheme

The former co-head of IT at the AFTRA Retirement Fund was arrested and charged with two counts of conspiracy to commit wire fraud connected to an alleged kickback scheme thought to have re-routed $3.4 million from the Retirement Fund. An internal investigation revealed documents that showed evidence of "unauthorized expenditures" associated with certain vendor relationships.


Performances by South Korean Soprano Cancelled in China - Suspected Casualties of Political Tensions Between the Nations

Three upcoming performances in China by veteran South Korean coloratura soprano Sumi Jo were cancelled, by separate but "seemingly coordinated notices." The cancellations are suspected to be casualties of the increased political tensions between China and South Korea, related to South Korea's announcement that it will employ a U.S. missile defense system. These concerts are the latest in a series of cancellations by the Chinese; also affected were the South Korean pianist Kun-woo Paik and several other South Korean music and television stars. In each case, a Chinese musician stepped in to cover for the cancellations. Ms. Jo's upcoming concerts with the Hong Kong Philharmonic have not been affected, and she is a featured soloist in the New York Philharmonic's Chinese New Year celebration.


Saturday Night Live Writer Suspended for Mocking Barron Trump

Katie Rich was suspended indefinitely by "Saturday Night Live" immediately following her tweet mocking Barron Trump, the youngest son of President Trump. Ms. Rich posted the controversial tweet during the Inauguration. Her post was quickly removed and twitter account deactivated. After reactivating her account on Monday, she issued an apology, stating that she deeply regretted her "actions and offensive words."


In Deal With Sprint, Top Execs at Tidal Will Continue to Oversee its Operation

Music streaming service Tidal will survive another day, thanks to an undisclosed injection of cash by Sprint, who agreed to buy a 1/3 stake in the company. Tidal faces tough competition from industry giants, such as Spotify, Apple Music, and Pandora. The company is headed by Jay Z and a roster of additional artist owners, including Beyoncé, Madonna, Kanye West, and Alicia Keys. It has attempted to distinguish itself by creating a platform that shares exclusive content from its associated celebrities. The deal will allow Tidal to tap into Sprint's 45 million customers, providing an opportunity for Tidal to greatly expand its membership base by providing exclusive content to Sprint customers who elect to subscribe to Tidal.


Cyberattack at the Sundance Film Festival Under FBI Investigation

Last weekend, the Sundance Film Festival was the subject of a cyberattack. A series of Distributed Denial of Service (DDoS) attacks targeted the box office. The FBI's investigation did not find evidence that any particular film, director, or actor was the target. The attack rekindled suspicion regarding cyberattacks in the United States attributed to Russian operatives, but no specific organization or country was linked to the attacks.


Telemundo Ordered to Hold a SAG/AFTRA Vote by the National Labor Relations Board

The National Labor Relations Board (NLRB) confirmed a hearing officer's decision to order a unionization vote for actors at Telemundo, a big step for the network's Spanish-speaking actors, who currently work with out a collective bargaining agreement. The vote is scheduled to begin on February 7th; if it passes, the network will be obligated to negotiate with its talent. The bargaining unit will comprise of main cast actors, guest stars, day players, singers, dancers, and stunt persons. Many high-powered English-speaking actors voiced their support of the unionization efforts, which will bring Telemundo actors in line with their English-speaking counterparts at NBC, Telemundo's sister network.


President Trump's Overseeing "Apprentice" Royalties Becomes the Subject of a Lawsuit Filed in Southern District of New York

Foreign television royalty payments are the most recent legal challenges facing President Trump. This week, the Citizens for Responsibility and Ethics filed a lawsuit against President Trump for violation of the "Foreign Emoluments Clause." The lawsuit claims that he is in violation of the Constitution because he receives royalty payments from spinoffs of the "Apprentice" that are aired by foreign government-owned broadcasters. Specifically, the claim points to the UK and Vietnam, where government-owned networks currently air the show. The lawsuit seeks a declaratory judgment that certain activities do or will violate the Constitution.


In Response to Protests From Feminist Groups, Roman Polanski Will Not Preside Over César Awards

Roman Polanski, the French director who fled from the United States in the late 1970s, after being convicted for having sex with a 13-year old girl, declined an invitation to preside over the César Awards this year. Multiple feminist organizations were outraged in response to the news that Mr. Polanski was invited, and mounted an aggressive campaign against the invitation. Mr. Polanski holds dual French and Polish citizenship, and in December the Polish government rejected a request from the United States to extradite him in connection to the 1978 conviction. A representative for Mr. Polanski maintains that the outrage over his invitation was "based on false information."


The Show Will Go On: Resolution in Dispute Between BroadwayCon and the Actors' Equity Association

The Actor's Equity Association (AEA) lifted its "do not work" order against the second annual BroadwayCon after settling a contract dispute that threatened to disrupt the event. AEA barred its members from performing or even rehearsing for the event during the dispute, which arose over payment terms for performers engaged for this year's main-stage performances. Several actors who were scheduled to sing will continue participate in the event as speakers and panelists, and many others will be replaced by songwriters and composers. The event is scheduled to draw over 5,000 people to the Javits Center this weekend.


Director's Guild of America Ratifies New 3-year Agreement with Alliance of Motion Picture and Television Producers

By "an overwhelming margin" the Director's Guild of America (DGA) members ratified a new 3-year agreement with the Alliance of Motion Picture and Television Producers (AMPTP). Gains for the DGA include increases in subscription video on demand residuals, employer contributions to the pension plan, wage increases, and increases in almost all residual bases.


Lawsuit Filed against "Hamilton" Producers For Lack of Accommodations for the Blind

Mark Lasser filed a class action against the producers of the musical "Hamilton", claiming violations of the Americans with Disabilities Act, because the show does not provide audio description technology for blind and visually impaired patrons. These devices assist the blind and visually impaired, by playing an audio feed that describes each scene's visual elements. The lawsuit seeks a court order stipulating that the producers provide audio devices and live narration services at one show per week.


Artificial Intelligence as a Muse for Composers

Computer-generated compositions are not new, as computer-generated scores date back to 1950s. With significant advancements in artificial intelligence (AI), the use of computers to compose or assist in the composition of music has become more common. Today, small startups, such as Jukedeck, are moving to commercialize these compositions, shifting AI compositional output from the classical genre towards pop music, jingles, and background music for games, commercials, and videos. Several tech giants are on the AI composition bandwagon, as well. Google has "Magenta" and "DeepMind" (a Google-owned British AI company), IBM recently debuted "Watson Beat," and the Sony Computer Science Laboratory of Paris has the "Flow Machines project." Some companies, such as Jukedeck, feed scores into an AI system that then analyze them and eventually generates compositions in a similar style. Other companies give the AI output to musicians, who are then free to use some, all, or none of the generated work. So far, musicians do not see AI "composers" as a threat to replacing them in the creative process, despite the lower cost of using AI technology.


Shia LaBeouf Arrested at Live Stream Anti-Trump Art Show

Shia LaBeouf's latest art project is a Live Stream anti-Trump protest, "He Will Not Divide Us," staged at the Museum of the Moving Image in Astoria, Queens. Mr. LaBeouf was arrested early Thursday morning in response to a call the police received, reporting an argument between Mr. LaBeouf and a man at the instillation. Mr. LaBeouf allegedly pulled off the man's scarf and scratched the man's face in the process; he was issued a desk appearance ticket and ordered to appear in court on April 4th. The installation is scheduled to continue for the duration of Mr. Trump's presidency.



Approximately 3,500 Pieces of Stolen Art and Artifacts Recovered in the European Sting Operation "Pandora"

Law enforcement agencies from 18 European countries pooled resources to investigate and arrest 75 people accused of international trafficking of art and antiquities. Among the trove of items recovered across Europe were stolen pieces from museums and looted art from countries stricken by war. The sting operation involved investigating over 48,000 individuals. Over 500 works of art were recovered from cities in Spain and Greece.


Junior Officials in South Korean Government Helped Expose Artist Blacklist

Three top officials from the government of ousted South Korean President Park Geun-Hye were arrested in conjunction with the discovery of a blacklist of almost 10,000 artists. Among those targeted by the blacklist were artists, writers, entertainers, and film directors considered hostile to the government. This practice is not new in South Korea; previous military dictators, including Ms. Park's father, also maintained artist blacklists. Junior officials in Ms. Park's government worked with investigators to expose the blacklist by covertly saving documents and data relating to the list and sharing it with a special prosecutor. The South Korean Ministry of Culture, Sports, and Tourism issued an apology on Monday following the arrests.


Cuban Art Loan to Bronx Museum Will Not Proceed

The second phase of an art exchange between the Bronx Museum of Arts and the National Museum of Fine Arts in Cuba will not move forward, after the government of Cuba declined to allow the works of art to travel to the United States. Although the State Department agreed to provide protection for the Cuban works, fears remained that the pieces would be seized to satisfy legal claims by Americans whose property was confiscated by the Cuban government after Castro took power. This exchange has not been without internal turmoil at the Bronx Museum; internal controversy over the exchange lead to the resignation of seven trustees last year. The Bronx Museum's exhibit will proceed, now with works by Cuban artists held in collections outside Cuba.


Former Harrisburg, Pennsylvania Mayor Enters Guilty Plea on Charges of Stealing Artifacts

The former mayor of Harrisburg, PA, Stephen R. Reed, faces up to 9 months in prison after entering a guilty plea to 20 counts of theft by receiving stolen property, including two felonies. In his capacity as Mayor, Mr. Reed used taxpayer money to acquire artifacts and items slated for a museum dedicated to the Wild West. The museum was never built, and in 2015 Mr. Reed found himself faced with hundreds of counts of political corruption related to the acquisitions. Of the items recovered from his home were letters, documents, and photos, some valued upwards of $3,000.


Fate of Poland's New Independent WWII Museum at Stake

Poland's new independent WWII museum, the Museum of the Second World War, was slated to provide a broad international context for the war. Now its fate is "imperiled", due to the ruling from a Polish court that will allow for a merger between the Museum and a smaller institution dedicated to the first Polish battle of WWII. The Polish government has long criticized the Museum for its lack of focus on the Polish experience during WWII. While the government maintains that it will retain the leadership of the Museum of the Second World War, the Museum's director views the move as a per se liquidation of the Museum and his position.


New Director for Smithsonian American Art Museum

Stephanie Stebich was named the next director of the Smithsonian American Art Museum, slated to start on April 3rd. For the past 12 years, Ms. Stebich ran the Tacoma Art Museum, located in Washington State, and earlier in her career was at the Minneapolis Institute of Arts and the Cleveland Museum of Art. At the Tacoma Art Museum, she acquired over 300 objects from the Haub Family collection of Western American Art.


Christo Walks Away From 'Over the River' in Protest Against President Trump

Said to be the art world's largest protest yet over President Trump, artist Christo announced that he will abandon the 'Over the River' project, along with 20 years of planning and $15 million of his own money. The project was subject to multiple lawsuits from environmentalists who claim that the instillation would endanger wildlife and disrupt habitats. Despite prevailing in every lawsuit, Christo stated that since the land upon which the project was to be installed is owned by the federal government, he will walk away. The project was slated to be the largest Christo project attempted in the United States.


Professor of Japanese Literature in Seoul Was Acquitted of Defamation Charges Over Book About WWII Military Brothels

Professor Park Yu-ha's book, Comfort Women of the Empire, has been largely controversial and the subject of both civil and criminal lawsuits. Her book presents the controversial view that the Japanese government was not "officially involved" in the recruitment of South Korean women for Japanese military brothels during WWII. Instead, she contends, Korean collaborators and private Japanese recruiters were largely responsible for placing women in the brothels. Ms. Yu-ha lost the civil case and was required to pay restitution to 9 of the surviving women from the brothels. The judge in the criminal case sided with Ms. Yu-ha, stating that her "academic freedoms must be protected," whether the expressions are right or wrong.


Court Rules That South Korea May Keep Statute Stolen From Japan

In 2012, a 20 inch bronze statue was stolen from a Japanese monastery. South Korea claimed that the statue was the work of 14th century South Korean artisans, and therefore it had a rightful claim to the object. An injunction was granted in 2013, and the statute has since been held by the South Korean government. An investigation was conducted to determine whether the statute lawfully entered Japan or was acquired by pirate raids, and the court determined that the statute was likely part of a cache of objects plundered by Japanese pirates. Japan maintains that the statute entered Japan as part of traditional cultural exchange of objects, and has formally requested that the statute be returned.


Instagram Boosting Interest in Art Auctions

Online sales of art have been historically uncommon, but the trend of major auction houses, galleries, curators, and high-profile collectors to use Instagram to promote art has greatly increased the number of art sales that can be linked to the Internet. Auction houses such as Phillips, Sotheby's, and Christies (each with several hundred thousand followers) are actively using Instagram as a marketing tool. Many galleries are exclusively promoting exhibits through Instagram, and curators are using their personal Instagram accounts to share works of art up for sale. Younger collectors are especially engaging with the market through Instagram, and perceive it as a "safe place" to enjoy art and engage in the market. Although it is difficult to quantify the effect Instagram has had on art sales, the use of Instagram as a marking and promotional tool has quickly become a "game changer" for the art market.



Woody Johnson Named Ambassador to Great Britain

President Trump named Woody Johnson, owner of the New York Jets, as ambassador to Britain. This ambassadorship is historically viewed as one of the more prominent diplomatic posts, but Britain's impending exit from the European Union could place additional challenges on the Ambassador. President Trump has offered support of "Brexit," and his especially close personal relationship with Ambassador Johnson is seen as an advantage in maintaining strong ties between the two countries. The Irish Ambassadorship of Pittsburgh Steelers' Chair Dan Rooney sets a likely precedent for Ambassador Johnson's ongoing relationship with the Jets. Johnson will likely surrender the daily operation of the team to his younger brother, but the impact of his Ambassadorship on the team remains unclear.



Women's National Basketball Association Players Risk Their Safety by Working Overseas to Supplement Their Salaries

It is not uncommon for Women's National Basketball Association (WNBA) players to supplement their income in the off-season by playing abroad. This year, 26 WNBA players ended up in Turkey during the off-season, and the rise of terrorist attacks in the region highlighted a need to keep the players safe or, alternatively, in the United States. In response to increased security threats, the WNBA instituted new security measures for its players that chose to go abroad. Steps taken include stronger communication with players during the off-season and the use of apps that provide information about safe areas and emergency contacts. Additionally, the WNBA collaborated with the U.S. State Department to develop a crisis management plan and educate players about State Department programs designed to keep Americans safe while abroad. The players remain grateful for these efforts, but not far from their minds is the desire for higher salaries here in the U.S., eliminating the need to play abroad in the first place.


Jamaican Men's Relay Team Stripped of 2008 Gold Medal

Members of the Jamaican Men's 4x100 relay team, including Usain Bolt, were stripped of their 2008 gold medals due to the doping violation of one of its members. The Olympic Committee generally keeps samples for up to 10 years. Recent retesting of Nesta Carter's sample revealed the banned substance methylhexaneamine. Traditionally, if one member of a relay team is found guilty of a doping violation, all are stripped of their medals. Exceptions to this practice do exist, and the athletes may appeal the decision to the Court of Arbitration for Sport.


Russian Tatyana Lebedeva Stripped of Two Olympic Medals

Tatyana Lebedeva, a retired Olympic athlete and current Senator from Russia, was stripped of two silver medals from the 2008 Beijing games after the steroid turinabol was detected during reanalysis of samples taken at the time of the games.


Decline in Reported Concussions for this National Football League Season

The National Football League (NFL) reported that the number of concussions dropped 11.3% this season. Despite this positive news, the NFL recognizes that more must be done to further reduce the occurrence of concussions. Steps taken to do so include incorporating limits on full-contact practices into the most recent labor agreement with the players, and staffing games with more medical spotters. Challenges remain in recognizing concussions in real time, and the NFL recognizes that flaws exist in current concussion protocols. Significantly reducing the number of concussions remains a top priority for the medical team.


No Penalties or Charges Filed in Kansas Jayhawks Rape Case

Charges were yet filed following a police investigation of the reported rape of a 16-year old girl in a Kansas Jayhawks dormitory. Although five players were listed as witnesses on the police report, Coach Bill Self stated that he had no reason to discipline players following the incident.


Discovery of Falsified Player Documents Lead to East Timor Suspension From the 2023 Asian Cup

East Timor was suspended from the 2023 Asian Cup and ordered to forfeit 29 matches after an investigation revealed that the team falsified documents of at least 12 payers. The Asian Football Confederation worked in conjunction with FIFA, and the investigation uncovered falsified birth and baptism certificates. At stake are 7 additional matches and the potential for FIFA to impose its own punishment, including the possibility of banning the team from the 2022 World Cup. Two team officials were punished, but neither the Timorese Federation nor the players subject to the investigation were officially sanctioned.


Brawl Leads to 15 Division II Suspensions

A brawl during a Division II basketball game last Saturday lead to the suspension of 15 players and the imposition of fines on the respective colleges and coaches. The incident occurred during a game between Lane College and LeMoyne-Owen. The Memphis police are conducing an investigation of the incident.


Indian Protests Over Bull Riding Ban Turn Violent

Protests against an Indian Supreme Court Ban on jallikattu, a traditional Indian bull-wrestling sport, turned violent in the southern Indian state of Tamil Nadu. The Supreme Court issued the ban after years of complaints about the sport, including allegations of animal cruelty. PETA India alleges that the bulls are poked with sharp objects and given alcohol, while men compete to see who can hold onto the bulls for specific distances or lengths of time. Many claim that jallikattu is essential to their cultural identity. The protesters blocked parts of the beach and many roads in Chenni, the capital city of Tamil Nadu, and attacked the police station and burned several cars and other vehicles. In response, the state adopted an emergency law allowing the sport to continue while the Supreme Court reviews its ruling.



Incoming Head of the Federal Communications Commission is a Critic of Net Neutrality

Ajit Pai was confirmed as Chairman of the Federal Communications Commission (FCC) this week. Chairman Pai has been an FCC Committee member since 2012, and one of two Republicans on the currently 3-member Committee. He is a critic of net neutrality, and has stated that the FCC needs to cut "unnecessary regulations that hold back investment and regulation." Critics of his views are concerned that deregulation will lead to large scale mergers, and an increase in costs for media and technology companies.


Ninth Circuit Rejects Appeal

A judge in the Ninth Circuit ruled this week that plaintiffs suing tech services for copyright infringement must show volitional conduct or causation when claiming a service infringes its copyrighted material. Adult publisher Perfect 10 sued Giganews for copyright infringement after Giganews failed to respond to a series of takedown notices. Giganews successfully challenged the validity of the notices in district court, and was awarded $5.6 million in attorney's fees. On appeal, Giganews argued that since it is the users that do the actual copying, a plaintiff alleging copyright infringement must show that a tech company "caused" the wrongful copying. The Ninth Circuit agreed, and stated that a central part of the analysis is active versus passive infringement. The Court found that because users uploaded the infringing content, Giganews did not play an active role in causing its distribution.


Google & Facebook War Against "Fake News" - A Small Drop in a Large Bucket

Both Google and Facebook announced actions that they have taken to combat the proliferation of "fake news" on their websites. Google announced that it banned over 200 publishers from its AdSense Network, and Facebook announced changes to its "Trending Topics" feature in order to promote more reliable news sources. However, industry leaders say that these steps are a very small drop in the large bucket that is the battle against "fake news." Both companies are facing widespread backlash about the lack of oversight and responsibility taken in response to fake news on their sites, and accusations that fake news swayed voters and the outcome of the 2016 presidential election.


Apple's Latest Infringement Suit - Jamie xx Sues for Violation of Right to Privacy Under CA Law

Persuasions Singer Jerome Lawson is suing Apple for violation of his right to privacy for the company's use of Jamie xx's song "I Know There's Gonna Be (Good Times)" in a televised iPhone 6 commercial. The song was previously subject to controversy, when it was alleged that Jamie xx did not obtain a license for the use of the Persuasions' song, "Good Times," but the controversy was ultimately resolved by Universal. Mr. Lawson contends that because his voice is "prominent and recognizable," his fans were "deceived into falsely believing that Lawson endorsed Apple and/or the iPhone." The lawsuit also alleges a direct violation of both SAG and AFTRA collective bargaining agreements. However, the larger legal issues may be federal preemption of copyright and the issue of copyright protection for pre-1972 sound recordings.


Additional Woes for Qualcomm as Apple Files a Lawsuit Over Unpaid Rebates

Apple filed a federal lawsuit against Qualcomm in the Southern District of California over Qualcomm's withholding of $1 billion in rebates. Apple's lawsuit is the latest in a series of legal battles for Qualcomm, which was recently accused by the FTC of using anti-competitive practices in conjunction with "elevated" royalty payments for its advanced wireless technology. Additionally, Qualcomm faced a $975 million fine from China, $850 million fine from South Korea, and was the subject of multiple activist shareholder complaints. The company, however, maintains that Apple mischaracterized the agreements between the companies and vowed to fight the lawsuit.


January 31, 2017

The Creative Commons, or "Commonly Creative"

By Cheryl Davis

Any playwright or other theatre artist ought to have some familiarity with the copyright law, not only to protect their own rights to their creative work, but also to understand what kind of work they can use created by somebody else--no one works in a vacuum. Artists are constantly riffing and expanding upon the images and ideas that they see and hear around them. But as a general matter of copyright law, only the person who creates the work has the right to copy and/or use it. Does that mean that when you quote something written by another writer, or sample music for your score, or incorporate someone else's artwork into your design, you're infringing their copyright? Does it mean that no one can ever use your work without your permission? What if you find it on the Internet--isn't that free for public use? The lawyerly answer is: "It depends."

There is a legal principle known as "fair use," which permits artists and scholars to use copyright-protected work without the permission of the copyright owner. The U.S. Copyright Office generally describes fair use as: a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act (https://copyright.gov/fair-use/more-info.html) provides the statutory framework for determining whether something is a fair use and identifies certain types of uses--such as criticism, comment, news reporting, teaching, scholarship, and research--as examples of activities that may qualify as fair use.

So, what do you do if you want to use someone else's work as a creative jumping off point? "Appropriation art" is in the news these days; just ask artist Richard Prince (https://en.wikipedia.org/wiki/Richard_Prince), who's been sued multiple times for copyright infringement and won, based on the "fair use" principle. You could also ask co-creators Erin Pike, Courtney Meaker, and Hatlo who sparked fair use controversy earlier this year (http://howlround.com/convivial-control-culture-war-and-the-thatswhatshesaid-watershed)with their show thatswhatshesaid. But if you're more risk averse, one way you can freely use the work of others--and permit your work to be freely used--is through Creative Commons (https://creativecommons.org/). According to its website: "Creative Commons helps you legally share your knowledge and creativity to build a more equitable, accessible, and innovative world." The site provides a variety of copyright licenses through which you can use and adapt the work of others with their permission, and through which you can permit your own work to be used in a similar fashion. It doesn't mean that copyright in the works no longer exists, but that the copyright owners have granted a royalty-free license for others to use the work in certain specified ways and on specified terms. For example, "licensees must credit the licensor, keep copyright notices intact on all copies of the work, and link to the license from copies of the work. Licensees cannot use technological measures to restrict access to the work by others."

The website also states: Our licenses do not affect freedoms that the law grants to users of creative works otherwise protected by copyright, such as exceptions and limitations to copyright law like fair [use]. Creative Commons licenses require licensees to get permission to do any of the things with a work that the law reserves exclusively to a licensor and that the license does not expressly allow.

Creative Commons also offers you a way to search (via other search engines, such as Google and YouTube) for works that you can either use "for commercial purposes" or "modify, adapt or build upon." However, the website cautions the user that Creative Commons "has no control over the results that are returned [from the search]. Do not assume that the results displayed in this search portal are under a CC license. You should always verify that the work is actually under a CC license by following the link."

So why can't you just throw your creative work to the winds and let anybody use it any way they choose? The simple answer is you can...but then you have no control over how other people use it, and whether they credit you. Even more to the point, you may not be able to prevent others from making money off of your freely donated work by licensing it to others. Photographer Carol Highsmith recently brought a lawsuit against Getty Images and others alleging just that (http://www.latimes.com/business/hiltzik/la-fi-hiltzik-getty-copyright-20160729-snap-story.html). According to her complaint, Highsmith "has made her photographs available to the public for free through the US Library of Congress" since approximately 1988.

However, on December 19, 2015, she received a letter stating that her use of one of her own photographs on her own website did not have "valid licensing" from Alamy, a provider of digital imagery that was licensing the photograph to others. (Cue the train entering the irony tunnel.) The letter stated that "[u]se of imagery represented by Alamy without proper licensing is considered copyright infringement and entitles Alamy to pursue compensation for infringing uses." Highsmith, not content with just pointing out her ownership of the photo to Alamy and getting them to drop the matter, decided to sue for violation of the Digital Millennium Copyright Act (https://www.copyright.gov/legislation/dmca.pdf), "based upon the Defendants' gross misuse of Ms. Highsmith's photographs--more than 18,000 of them."

As you can see, the issue of what is protected by copyright law on the Internet is a sticky one, even for those who are in the copyright business. So, for your information (and in conclusion): Creative Commons is one way of using images and texts, and to make your own work available for use by others. But even their licenses are not limitation-free.

This piece, "The Creative Commons, or 'Commonly Creative'" by Cheryl Davis was originally published on HowlRound (http://howlround.com/the-creative-commons-or-commonly-creative), a knowledge commons by and for the theatre community, on 9/27/16.

Center for Art Law Case Law Updates

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

XL Speciality Insurance Co. v. Otto Naumann Ltd., 1:12-cv-08224 (S.D.N.Y.) On January 19, 2017 a Summary Judgement Motion was filed by the plaintiff, an insurance company, seeking to collect funds paid to a "forgetful" defendant, Otto Naumann Ltd, for a painting "Still Life With Oysters, Lemons, Shrimps and Fruits and a Blue and White Earthen Jug on a Draped Table", attributed to an Davidsz de Heem, which was declared as lost in 2012 but was simply forgotten at the Lowy framing business. According to the complaint, the "combination of [Naumann's] poor memory, poor records and an extended absence from the gallery caused him to forget that he gave the painting to Lowy." The defendant, who later reclaimed his painting, reportedly collected $357,500 under a fine art dealer policy covering "all risks of physical loss or damage."

Sotheby's, Inc. v. De Saint Donat-Pourrieres, 1:17-cv-00326-GBD (S.D.N.Y. Jan. 17, 2017) Sotheby's is seeking the return of $672,000.00 paid to the defendant, Lionel De Daint Donat-Pourrieres, for the sale of an alleged forged painting, "St. Jerome" that was purported to be attributed to Parmigianino, a 16th Century Italian painter. Decision to amend attribution is based on the tests performed by Orion Analytical, LLC, of pigment samples from the painting that were found to contain modern synthetic pigment. The defendant refused to return the money he received. Sotheby's Consignment Agreement indicates that a forgery is subject to rescission of the proceeds. Sotheby's is seeking damages for breach of contract.

Phoenix Ancient Art, SA v. J.Paul Getty Museum, 1:17-cv-241-ER (S.D.N.Y. Jan. 12, 2017) The plaintiff, a Swiss dealer, sued the Getty Museum, trust and director, alleging breach and tortious interference with contract, fraud and trade secret misappropriation. According to the complaint, the defendants stopped the negotiations to acquire a collection of sculptures from the Torlonia family and worked without Phoenix, after the Italian Culture Ministry signed an accord, to effectuate a transfer of the collection. The art dealer has claimed $77 million in damages.

Fontenot v Pruitt, 5:16-cv-01339-W (W.D. Okla. Nov. 22, 2016) In 2016, the Oklahoma legislature passed a law, Oklahoma House Bill 2261, amending American Indian Arts and Crafts Sales Act of 1974 and effectively prohibiting artists like the plaintiff to market their art as "American Indian-made" when they are not members of federally-recognized tribes. The plaintiff is a member of a state-recognized tribe, and joined the Pacific Legal Foundation to challenge the law with a federal constitutional lawsuit against the Attorney General of Oklahoma. On January 4, 2017, J. Lee. R. West issued a stipulation to stay enforcement of the law while the lawsuit is pending. Complaint is available here http://blog.pacificlegal.org/wp/wp-content/uploads/2016/11/2016-11-15-Complaint-FINAL.pdf?mc_cid=4308e35fe6&mc_eid=8a2eda70d8.

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.

About January 2017

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in January 2017. They are listed from oldest to newest.

December 2016 is the previous archive.

February 2017 is the next archive.

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