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March 2017 Archives

March 4, 2017

Week in Review

By Michael Smith

Below, for your browsing convenience, posts are divided into the following categories: Entertainment, Arts, Sports, and Media


Cosby's Jury Will Come from Another County

Earlier this week, the judge presiding over the sexual assault case against Bill Cosby ruled that jurors would be brought in from another county. Cosby's lawyers had made an application to have the trial moved because of intense press coverage of the case.


Nintendo Goes After Real-Life Mario Kart Company

Japanese company MariCar rents go-karts made up to look like the vehicles in Nintendo's popular "Mario Kart" franchise, along with costumes that customers can wear to look like the video game characters. On Friday, Nintendo filed a lawsuit in Tokyo, alleging that MariCar was using Nintendo's intellectual property without permission.



Fearing Cuts, Arts Groups Lobby Congresspersons

Members of the Trump Administration, along with some Republicans in Congress, are sending strong signals that indicate funding cuts to or elimination of the National Endowments for the Arts and the Humanities. Other Republicans, however, are ready to defend the endowments. The ultimate decision may rest in the hands of a few Republican members of the House Appropriations Committee.


New Nazi Art Law Opens Latest Chapter in Fight over Schiele Drawings

Fritz Grunbaum's art collection has been the subject of much debate and litigation. Grunbaum's heirs assert that the collection (including two drawings by Egon Schiele) was seized by the Nazis and should be returned to the family. Several courts have rejected those claims, but the heirs contend that none of those rulings were on the merits, and therefore they should not be barred from pursuing their claim to the two Schiele drawings under the new Holocaust Expropriated Art Recovery Act, which was meant to prevent claims to Nazi-confiscated art from being barred by nonmerits defenses.


Penguin Random House to Publish Obama Memoirs

Former President and First Lady Barack and Michelle Obama have signed a deal granting Penguin Random House worldwide publication rights for their respective autobiographies. Penguin Random House reportedly paid over $60 million for those rights.


San Fransisco Symphony Holds LGBT Fundraiser for North Carolina Concerts

In protest over North Carolina's law limiting the rights of lesbian, gay, bisexual and transgender people, the San Francisco Symphony canceled two concerts it had scheduled in that state. Instead, the symphony is holding a gala concert called "Symphony Pride," which will highlight works by lesbian and gay composers. The proceeds will go to nonprofit organizations that serve the LGBT community.


New York Artists Save Nina Simone's North Carolina Home

When the childhood home of legendary singer and activist Nina Simone went on sale late last year, four New York artists concerned that the historical building would be destroyed, pooled their money to buy the house for $95,000. The group described the rescue as a political act taken, in part, in response to the increasing racial tensions in the United States.


For Thomas Campbell, MOMA no More

Thomas P. Campbell, former director and chief executive of the Metropolitan Museum of Art, resigned Tuesday amid concerns about his ability to manage the museum, which faces significant financial challenge


Melee in Minneapolis Museum

A kerfuffle broke out in the Minneapolis Institute of Art, after a group of protesters followed members of an alt-right group inside. The hubbub apparently began outside the museum, where the Industrial Workers of the World were holding a rally. Not surprisingly, the two groups have differing accounts of the ruckus. One man was hit during the donnybrook before a security guard ended the rumpus, but declined to press charges.



U.S. Congress Chews Out Olympic Officials

On Tuesday, the House Subcommittee on Oversight and Investigations heard testimony from the International Olympic Committee (IOC), the World Anti-Doping Agency (WADA), and two American Olympians (Michael Phelps and Adam Nelson). However, most of the hearing consisted of Representatives from both sides of the aisle taking shots at the officials for the latters' mishandling of the Russian doping scandal and doping in general.


U.S. Sports Executives Biting the Hand that Could Feed Them

Even as the United States Olympic Committee lobbies for the 2024 Games to be held in Los Angeles, the United States Anti-Doping Agency is criticizing the way the Olympics has handled recent doping scandals.


Putin Challenges Doping Evidence

Referring to the investigation by the World Anti-Doping Agency into the Russian state-sponsored doping operation said to have involved more than 1,000 Russian athletes, Russian President Vladimir Putin called into question the chain of custody for urine test sample vials that WADA says show evidence of tampering. Putin said the vials were fine when they were handed over to Olympic officials and may have gotten scratched while in storage.


UEFA President Says That Immigration Policy Could Hurt U.S. Chances of Hosting World Cup

Aleksander Ceferin, president of UEFA (Europe's governing body for "soccer") and a vice president of FIFA (the world governing body and organizer of the World Cup) said that President Trump's immigration policy would be taken into account in considering the United States' bid to host the 2026 World Cup. "If players cannot come...then the World Cup cannot be played there." Ceferin also noted that Brexit could impact Britain's chances of hosting finals.


Baylor Ex-Coach Denies Cover-Up

A day after Texas opened a criminal investigation into Baylor University's handling of assault reports, former football coach Art Briles released a statement saying he had not covered for his players or tried to obstruct any investigations. Baylor fired Briles in May 2016 after an investigation by Pepper Hamilton found that at least 19 football players had been accused of sexual assault. In recent months, evidence has surfaced that suggest Briles may have tried to shield players from accusations.


British Cycling Admits Failures, Promises "Better Behavior"

Representatives of British Cycling have apologized for failures in the face of accusations of bullying and sexism, and say they will change their approach.


Women Athletes Probably Better Prepared for Post-Pro Life

The New York Times reports that WNBA players are, on average, better at preparing for the transition between sports and whatever comes next. Among the factors that may account for this include: WNBA players make less (sometimes far, far less) than 14% of their male counterparts' salaries. The WNBA is smaller, so there are fewer opportunities within the world of professional basketball, and WNBA players typically have had more life experience before they start playing pro ball. Some research suggests that women in general are less likely to take risks and more likely to stick to a plan, while men tend to be overly confident.



Federal Communications Commission Blocks Data Security Regulations

On Wednesday, the Federal Communications Commission (FCC) blocked the implementation of regulations that would have subjected broadband Internet providers to stricter scrutiny of their efforts to protect customers' personal data. The FCC said that it and the Federal Trade Commission needed more time to come up with "a comprehensive and consistent framework."


...From My Cold, Dead Thumbs

The United States Supreme Court heard argument on Monday about whether or not North Carolina can bar registered sex offenders from accessing social media. Its decision in the case (Packingham v. North Carolina) could have far-reaching effects to the extent that it finds that unrestricted access to social media sites like Facebook and Twitter is protected by the First Amendment.


Parties Compete in Bid for Time

Time Inc. has requested formal bids from potential acquirers, who may include Meredith Corporation and a group led by Edgar Bronfman Jr. The company's board says that it has not yet decided whether to sell the company.


Turkish Tycoon Told to Testify

Aydin Dogan, whose corporate empire owns several Turkish newspapers, was ordered to appear in court on Wednesday in connection with accusations that he ran a fuel-smuggling ring. Mr. Dogan, whose newspapers historically have taken editorial positions critical of president Recep Erdogan's government, has long been at odds with Erdogan, and some believe the government has taken steps against Mr. Dogan and his newspapers as retribution for those positions.


Security Firm Finds Vulnerabilities in Future Robot Overlords

IOActive, a Seattle computer security consulting firm, announced on Wednesday that it had found significant security flaws in six different home and industrial robots. The firm warned that these vulnerabilities were found as part of a high-level sweep, not an extensive security audit. It expressed concerns that robot manufacturers were rushing their products to market without adequate security, but failed to consider that the flaws were placed there intentionally, as a safety mechanism for when SkyNet becomes self-aware.


Snap Shares Up After IPO

The price of Snap Inc. shares skyrocketed after Snap's IPO on Thursday, giving the business a paper value of over $30 billion. Snap is operating at a substantial deficit, but its 20-something founders say they will spend the next five years trying to explain why their company has value.



Tech Companies Join Amicus Brief in Transgender Rights Case

53 companies, including Amazon, Apple, eBay, Intel, Twitter, and Microsoft, signed the amicus brief filed by the Human Rights Campaign in support of Gavin Grimm, a transgender student who sued a Virginia county school board over his right to use the school bathroom. The Supreme Court will decide whether Title IX's protections against discrimination on the basis of sex extend to gender identity.


French Presidential Candidate Loses Immunity for Graphic Tweets

Marine Le Pen, a deputy in the European Parliament and candidate for president of France, has been charged with the crime of "dissemination of violent images" for a series of tweets she made in December 2015. Those tweets included graphic images of violence perpetrated by the Islamic State. On Thursday, the European Parliament voted to lift the parliamentary immunity that would have protected Le Pen from prosecution. Le Pen is the leader of France's far-right National Front, and an outspoken critic of the European Parliament. Le Pen also is being investigated for allegedly misusing funds provided by the European Union.


March 13, 2017

Week in Review

By Eric Lanter

In China, Trump Wins a Trove of New Trademarks

President Donald Trump won preliminary approval to register 38 trademarks in China, raising additional concerns about potential conflicts of interest. The trademarks were approved for "use in golf clubs, insurance services, child-care centers and nursing homes, among other categories." Senator Dianne Feinstein of California, among other members of Congress, argued that the awarding of the trademarks may be a breach of the Constitution. It is unclear whether the trademarks would be a profit to the Trump Organization.


Below, for your browsing convenience, the categories are divided into Entertainment, Arts, Sports, and Media:


A Robbery Based on a Movie? Yes, the Jury Can See Clips

In a federal trial for a $200,000 robbery, a judge approved the prosecutors showing short clips of the 2010 movie "The Town," which was allegedly an inspiration for the robbers. The three men were convicted. On appeal, Judge Debra Ann Livingston of the Second Circuit affirmed the district court's allowance of showing the clips, holding that the short clips did not unfairly prejudice the jury and were relevant to the robbery.


Russian Official Seeks to Ban "Beauty and the Beast" Over Gay Character

Russian lawmaker Vitaly Milonov is seeking to ban the new Disney version of "Beauty and the Beast" on the basis that it is "homosexual propaganda" as a result of a scene involving a gay character in the film. Director Bill Condon noted the presence of the gay character, LeFou, as a point of pride for the film, as it is the first Disney movie to contain a gay character. Controversy is not limited to Russia, however. A drive-in theater in rural Alabama refused to screen the movie, citing similar concerns about the movie.


After an Online Uproar, South by Southwest Festival Promises to Amend Contracts

The South by Southwest Festival (SXSW) in Austin, Texas responded to criticism to its contracts. Bands that perform there publicized a "deportation clause" in the performance contracts, which suggest that the contracts are designed to encourage the deportation of foreign artists visiting the United States to perform at SXSW. The festival organizers announced that they will amend the contracts starting in 2018 to exclude the deportation clauses.



Heirs Sue for Return of a Kandinsky, Saying It Was Looted by Nazis

A Jewish family filed a federal lawsuit seeking repossession of a Wassily Kandinsky painting, "Colorful Life", that is hanging in a Munich museum. According to the family's lawsuit, it owned the painting prior to the Nazi invasion of the Netherlands in 1940. The current owners of the painting sent a request to the family to take part in a binding review by the Limbach Commission, which helps to return Nazi-looted art to rightful owners. The family did not respond to the letter and instead filed the federal lawsuit in New York.


A Year After Raids, Asia Week New York Returns to the Spotlight

After a series of seizures of antiquities last year, sales of Asian artwork dropped from $360 million the year before to $130 million last year. However, Asia Week New York has kicked off, which is a 10-day festival where Asian art is on display and for sale throughout the city. Museums and special events host showcases and vendors at the Metropolitan Museum of Art, the Korean Cultural Center, the Asia Society Museum, as well as other locations.


New York Art Scene Anxiously Waits for Decision on National Endowment for the Arts Fate

Amidst reports that President Donald Trump is considering eliminating funding for the National Endowment for the Arts, which provides millions of dollars to arts groups throughout New York City, the art scene is tense. Last year, the Endowment gave $14.5 million to 419 organizations throughout the city. Supporters of the Endowment argue that the total annual budget of $148 million is a small fraction of the annual federal budget of approximately $4 trillion, however, the Endowment as well as the Corporation for Public Broadcasting and AmeriCorps have been targets for trimming spending by conservatives in Congress.


Louvre Attendants Strike After Vermeer Bottleneck

Dozens of attendants at the Louvre in Paris went on strike to protest the museum's handling of a temporary exhibition dedicated to the Dutch painter Vermeer. The ticketing system, in combination with the surge in popularity in the exhibition, have created bottlenecking and crowding around the space, frustrating the attendants. However, the employees on strike comprise just 2% of the Louvre's employees, and the museum's operations have not been affected, as it is using temporary workers for the duration of the strike.



Jeanie Buss, Fearing Brothers' Takeover of Los Angeles Lakers, Briefly Takes to Court

A week after Jeanie Buss, one of the owners and president of the Los Angeles Lakers, removed her brother as executive vice president of basketball operations and replaced him with Magic Johnson, she went to court to stop what she has argued is her brothers Jim and Johnny's attempt to oust her as owner and president. After their father died in 2013, Jeanie Buss became the controlling owner, and the brothers each have ownership stakes in the team. The complaint comes after the brothers requested that a board meeting be held with four proposed directors to be elected. The brothers' lawyer stated that the brothers have no interest in "wresting control from their sister."


Soccer Players Go on Strike in Argentina

The Argentina Footballers Union announced that the country's soccer season will not start until the clubs pay millions of dollars owed to the players. Thus far, two first-division games have been postponed and weekend matches may be postponed as well.


U.S. Soccer Will Require National Team Players to Stand for Anthems

The U.S. Soccer Federation adopted a bylaw that requires players to "stand respectfully" during the national anthems leading up to kickoffs. The penalties for failing to follow the bylaw were not immediately clear. The board of directors adopted it after Megan Rapinoe, a member of the national team, knelt during the national anthem on at least two occasions last year.


French Are Investigating Possible Bribes for Rio Olympics

The French newspaper Le Monde reported that French investigators suspect that bribes were paid for Rio de Janeiro to be awarded the 2016 Olympic Games, prompting attention from the International Olympic Committee. The Games were awarded in 2009, three days after transfers of $1.5 million and $500,000 were made to the son of Lamine Diack, the former head of the International Association of Athletics Federations. French prosecutors have expanded their investigation to the 2020 Tokyo Games as well.


Allowing Substitutes After Head Injuries in Cricket Meets Resistance

The death of a batsman from Australia's professional cricket team prompted a wave of reform in the sport, including the wearing of helmets to prevent head injuries. It has even prompted rule changes, like substitutions for players who have been suspected of having concussions. So far, only Australia and New Zealand implemented such rules changes, and despite their lobbying to the international cricket body, no changes are being adopted elsewhere thus far.


The Rise, Then Shame, of Baylor Nation

In a matter of a few years, Baylor University experienced a rise and fall in its reputation; first characterized through athletic success, then sullied by revelations of a widespread toxic culture where football players had freedom to act without consequences. This is best exemplified through Jasmin Hernandez's experience five years ago. Tevin Elliott, then a football player at Baylor, raped her during a party. When Hernandez sought to have Baylor investigate, the university, with Kenneth Starr leading it and Art Briles as the football coach, favored its athletes over allegations like Hernandez's, even encouraging an environment where football recruits would be given alcohol, drugs, and introductions to female students upon their visits to campus. While Elliott was convicted of sexually assaulting several other women and many in the Baylor hierarchy submitted resignations, the university's reputation has suffered.


United States Olympic Committee Delivers Recommendations to USA Gymnastics

The United States Olympic Committee (USOC) announced that it reached a consensus for recommendations to USA Gymnastics in light of revelations that Larry Nassar was allegedly in possession of child pornography and committed sexual abuse on potentially 50 children. While USOC cannot remove USA Gymnastics president Steve Penny, it can force USA Gymnastics to take action itself by cutting funding or decertifying the federation.


International Olympic Committee May Suspend Defiant Kenya

The International Olympic Committee (IOC) cut funding to Kenya after the country's executives defied the IOC's orders to make changes to its constitution to prevent wrongdoing. Kenya's track federation and Olympic committee have been plagued by charges of theft and mismanagement since the 2012 Olympics.



Selfie with Merkel by Refugee Became a Legal Cases, but Facebook Won

A German state court announced its ruling in a case involving a Syrian refugee seeking to require Facebook to prevent users from reposting a selfie that he took with Chancellor Angela Merkel. The image has been doctored for fake news reports linking the refugee to terrorism.

Judge Volkmar Seipel ruled that there were no grounds for an injunction, as Facebook did not manipulate the content, and could not be held legally responsible for its distribution. Facebook had argued that it was not possible to search all content on its site, in congruence with the European Union's laws, which only hold a company responsible for eliminating content from its site when technically possible.


Facebook Reports BBC to Police Over Investigation Into Child Sex Images

When a journalist at the BBC reported to Facebook that pedophiles had private pages where they were sharing child pornography, Facebook reported him and the BBC to police. Facebook, as well as other social media companies like Twitter and Google, are grappling with finding the level of oversight necessary to ensure that the platform's content is appropriate. Facebook has argued that it reported the matter directly to the Child Exploitation and Online Protection Center, and police have not confirmed or denied whether an investigation has begun.


Fox Said to Settle With Former Contributor Over Sexual Assault Claims

Last summer, when Fox's chief Roger Ailes had a scandal explode over allegations of sexual harassment, Fox ordered an internal investigation as to similar allegations. Fox is continuing to deal with the allegations, as in recent weeks it settled a case for $2.5 million brought by contributor Tamara Holder. She alleged that an executive at the company sexually assaulted her two years ago.


Docudramas, Created Without Permission of the Subjects, May Face New Challenges in New York

By Marc Jacobson

An appellate court in New York held recently that a plaintiff, representing himself, who asserts that the defendant knowingly produced a materially and substantially fictitious biography about the plaintiff, without the plaintiff's consent, states a claim for violation of New York's right of privacy statute, and that the defendant must answer the complaint. This case, on its face, may suggest a reversal of trends in the entertainment industry, which of late has permitted docudramas to proceed without the subject's consent.

From his prison cell in Dannemora, plaintiff Christopher Porco first successfully obtained an injunction against Lifetime TV Networks' planned broadcast of a motion picture based upon Porco's conviction for murder of his father and attempted murder of his mother. That injunction was later reversed as a prior restraint -- a violation of the First Amendment -- and the case was remanded to the trial court. On remand, Porco's complaint was dismissed. This decision arises from Mr. Porco's appeal of that dismissal for failure to state a cause of action.

New York's Civil Rights Law §50 states that when a firm or corporation "uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such a person" the entity commits a misdemeanor. Section 51 creates a private right of action for such violation, but under relevant case law, the statute does not apply to "newsworthy events or matters of public interest." Does the film about Porco's life story fit a newsworthy event or matter of public interest?

The court noted, however, that in Porco's case, the limitations on the statute's applicability must be viewed in accordance with binding precedent. Where, as in this case, the program is a "substantially fictitious biography", the newsworthy exception will not help the production company or distribution company. Quoting from Messenger v Gruner + Jahr Print. & Publ., 94 NY2d at 446, the court said that the work "may be so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception."

In support of his position, Porco submitted a letter sent to him by the producer, who noted that she was involved in the production of a documentary intended to accompany the film that the producer "hope[d] . . . [would] provide the platform for [the mother's] family to state their position in a non-fictional program after the [film] airs." Relying on the existence of that letter (which is apparently not part of the complaint) and construing the complaint most favorably to the plaintiff, the appellate court found that Porco stated a cause of action, and the defendant must file an answer.

In my opinion, the court bent over backwards to provide recourse to a plaintiff representing himself and allowed this claim to proceed, at this preliminary stage. When all is said and done, there remains the possibility that the defendants will not be found to have violated Porco's rights. At this juncture, the court merely held that the defendants must answer the complaint, and that as required, it construed the complaint in the light most favorable to plaintiff, and in so doing found that a cause of action was stated.

Porco v Lifetime Entertainment Servs., LLC 2017 NY Slip Op 01421 Decided on February 23, 2017 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. The opinion is uncorrected and subject to revision before publication in the Official Reports. http://law.justia.com/cases/new-york/appellate-division-third-department/2017/522707.html

March 15, 2017

The March 6th Executive Order Regarding Immigration

By Michael Cataliotti

On January 27th, one week after assuming the presidency, Donald Trump signed his Executive Order that instantly stopped immigration from seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen), and left many questions unanswered about how to interpret and apply the provisions contained therein. I wrote about that executive order and its related litigation in the Spring issue of the EASL Journal.

On March 6th, Donald Trump signed a new Executive Order, this time taking into account the opinion of the Ninth Circuit and making some noticeable revisions to his prior order. Some of the notable provisions of this new executive order include: (1) a list of six countries, rather than the seven - Iraq has been noticeably omitted, because it has made enhancements in its immigration system and government operations; (2) lawful permanent residents (green-card holders) and those who have valid visas from those six countries shall not be automatically denied entry to the U.S.; (3) there are nine situations in which waivers may be available for nationals of those six countries to enter the U.S.; (4) "Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility"; (5) suspended for 120 days a U.S. refugee resettlement program; and (6) the Executive Order shall become effective as of 12:01 am (EDT) on March 16, 2017.

Since signing the Executive Order on March 6th, (i) the state of Hawaii filed suit to stop its enactment, arguing that it will harm Muslims in the state, and has had a "'chilling effect' on travel revenues", and (ii) Washington state filed an amended complaint seeking to further enjoin the order. Joined by five other states (New York, Massachusetts, Maryland, California, and Oregon), Washington argues that the prior injunction should be applied to the new Executive Order, which "will cause severe and immediate harms to the States". Of course, considering that the Executive Order has not yet gone into effect, there are also questions of ripeness and standing.

In both matters, hearings are scheduled for March 15, 2017, so hold onto your hats!





SXSW Band Members Detained and Denied Entry to the U.S. - The Importance of Good Legal Advice

By Michael Cataliotti

On March 8th, members of a band that sought entry to the U.S. to perform at the South-by-Southwest (SXSW) Festival were stopped, removed for secondary examination, and ultimately detained in a detention center (akin to a jail), before being denied entry to the U.S. and sent back to Italy on the next available flight. The band was Soviet Soviet, an "Italian postpunk trio", and it posted a lengthy statement on its Facebook page regarding the band members' ordeals. The circumstances of their detention and denial of access to communicate are not uncommon, and have been the normal course of business at the border, no matter how much we dislike it. However, the biggest issue is regarding the statement that the band members were advised and directed that entry into the U.S. under the visa waiver program (sought by applying through ESTA) would be perfectly acceptable and was lawful. It was not.

The band's statement reads, in part: "We left Italy headed towards the US with all necessary documents, passports and various declarations in which we clearly explained the purpose of our tour, confirming it is was strictly promotional and that we were in no way going to earn money from it or receive any form of payment. We knew that if we were to receive any compensation we would have had to apply for work visas. This was not the case and the people we spoke to for information told us we would be fine. We had not agreed on any payment whatsoever and the scheduled showcase performance at KEXP was most certainly not a paid performance." (emphasis added)

The band was simply the victim of bad advice, and though it is worth noting that bad advice or misleading information abounds these days from all corners of the Internet, a very simple review of the authorized activities is able to be viewed as follows: (1) first, run a quick search for, "b1b2 visa what can I do" in Google and click the first link that appears; and (5) second, scroll down on the U.S. Department of State's website regarding the B-1/B-2 visa and click on "Travel Purposes Not Permitted On Visitor Visas:" to reveal the following:

These are some examples of activities that require different categories of visas and cannot be done while on a visitor visa:

 study

 employment

 paid performances, or any professional performance before a paying audience[...]. (emphasis added)

The issue here is whether or not the band would be deemed professional. If it was designated as an amateur group, then under the B-2 component of the B-1/B-2 visa, Soviet Soviet would have been perfectly fine engaging in SXSW: One such example of "activities permitted with a visitor visa" includes "participation by amateurs in musical, sports, or similar events or contests, if not being paid for participating". (emphasis added)

There are many who seem conflicted by these points, both practitioners and others, but both the U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) have been consistent regarding this interpretation, even if CBP officers were not dogmatic about enforcing this aspect of immigration law. However, they are now.

As those CBP officers are now being dogmatic in their enforcement of these provisions of immigration law, we need to be extra vigilant in providing advice to our clients, executives, artists, entertainers, athletes, and the like.




Executive Order Suspended

By Michael Cataliotti

Well, it looks like the new Executive Order was just suspended nationwide.


March 16, 2017

President's Proposed Budget Eliminating National Endowments for the Arts and Humanities and the Corporation for Public Broadcasting

By Marc Jacobson and Steven H. Richman

At the January meeting of the Executive Committee of the NYSBA Section on Entertainment Arts & Sports Law (EASL), there was a discussion regarding reports that federal funding for the National Endowment for the Arts, the National Endowment for the Humanities, and the Corporation for Public Broadcasting would be cut or eliminated. In response, the Executive Committee unanimously adopted a resolution opposing the elimination of that funding.

Now that the President has submitted his budget for the upcoming fiscal year, NYSBA procedures allow the EASL Section to draft correspondence reflecting the January resolution, which will be reviewed by the State Bar, and then sent to the New York State Congressional Delegation, the Senate and House Leadership and the White House.

Those who wish to participate in this effort should contact Marc Jacobson (Marc@marcjacobson.com), Steve Richman (srichman@boe.nyc.ny.us) or Diane Krausz (Dkrausz@dianekrausz.com).

Here is a link to the New York Times article dated March 16, 2017, describing the article. http://nyti.ms/2mNnf1a

New York Art Scene Anxiously Waits for Decision on N.E.A.'s Fate: https://www.nytimes.com/2017/03/09/nyregion/national-endowment-for-the-arts-new-york.html?_r=0

March 18, 2017

Flo & Eddie, Inc. v. Pandora Media, Inc.,

On March 15th, the Ninth Circuit issued an order certifying the pre 1972 sound recording public performance right question to the California Supreme Court in Flo & Eddie, Inc. v. Pandora Media, Inc. (9th Cir. No. 15-55287)

The Certification Order: Flo & Eddie Certification Order.pdf

March 20, 2017

Week in Review

By Tiombe Tallie Carter

Trump Proposes Eliminating the Arts and Humanities Endowments

National Endowment for the Humanities (NEH), National Endowment for the Arts (NEA), and the Corporation for Public Broadcasting -- which includes PBS, National Public Radio, and the Woodrow Wilson International Center for Scholars -- would all be scrapped if President Trump's federal budget is adopted as proposed. This nationwide elimination of arts, humanities, and culture is a complete abandonment of the ideals of an advanced civilization as declared by President Lyndon B. Johnson, when he created the national endowments in 1965. Although the endowment budget is a tiny fraction of total discretionary spending, $300 million of the $1.1 trillion, Conservatives have been trying to dismantle the endowments for years. With Republicans controlling Congress and the White House, it will take a different type of battle to preserve the endowments without the Democratic majority shield used in the past. Ironically, Ivanka Trump supports the arts, as well as Vice President Pence's wife, Karen, the latter of whom is a visual artist who also supports art therapy. It will be interesting to see if Republican arts supporters will cross their own party's president. William D. Adams, chair of the NEH, noted major contributions that the endowment has made to the humanities, including theater work by veterans of the Iraq and Afghanistan wars. Chair of the NEA, Jane Chu, called her staff together to brief them on the proposed budget so that they would not be surprised. It has been reported that Mary Anne Carter, a Trump administration's arts endowment liaison, would not have taken the position if she had known that the endowment would be eliminated. According to Teresa Eyring, executive director of Theater Communications Group, arts groups and supporters have begun a nationwide lobbying campaign to "communicate with their legislators and really try to make clear the value of this relatively modest but very important investment in our country through the arts."

EASL is included in this effort, as mentioned in this recent blog post: http://nysbar.com/blogs/EASL/2017/03/presidents_proposed_budget_eli.html



Below, for your browsing convenience, the categories are divided into Entertainment, Arts, Sports, and Media:


Members of the Italian Band Soviet Soviet Are Deported

Soviet Soviet, a three-member postpunk band, was deported before getting to perform in the United States. The trio was scheduled to play at South by Southwest (SXSW), as well as in Seattle and Southern California, via travel authorizations through the Department of Homeland Security's Visa Waiver Program (also known as ESTA). According to its Facebook statement, it was the band's understanding that because it was performing for free, the performances were promotional, and the ESTAs were sufficient for short-term travel within the U.S. Although equipped with the ESTAs, an invitation from SXSW, and a letter from their U.S. label, Felte Records, the band members were individually interrogated for 4 hours, handcuffed, and taken to jail without a chance to make any phone calls. According to a Department of Homeland Security statement to the Seattle radio station where Soviet Soviet was to perform, "it was standard procedure."


Disney Says That It Will Not Edit Beauty and the Beast for Malaysian Censors

Disney's $300 million live-action remake of its 1991 animated classic, Beauty and the Beast, has a three-second scene where two male characters dance in a ballroom. These three seconds caused the Malaysian Film Censorship Board to deem it promotes homosexuality and calls for its elimination from the film. Notwithstanding the director's admission that the scene is an "exclusively gay moment," Disney has refused to make the edits. Unlike Russia who will allow the film to be shown with the restriction that youth under the age of 16 must be accompanied by someone over 16, Malaysia will not allow the film to be shown without the edit. Disney may appeal to the Malaysian Film Appeal Committee, but to date no application has been submitted. Malaysia, with a population of 30 million, represents less than 1% of Disney's overall audience. Last year, Malaysia brought in $5.7 million of the $967 million global ticket sales for The Jungle Book.



Stolen Etruscan Vessel to Be Returned to Italy

A vase dating back to 470 B.C. and valued at $250,000 was spotted in a Midtown Manhattan gallery. The Etruscan vessel titled "Attic Red-Figure Nolan Amphora" is a "dual-handled vessel featuring a nude satyr and draped youth from the Royal-Athena Galleries." It was discovered by Christos Tsirogiannis, a researcher with the Scottish Center for Crime and Justice Research Center in Glasgow. The vase was looted and then trafficked by Gianfranco Becchina, an Italian antiques dealer who was convicted in 2011. The Manhattan District Attorney's office seized the vessel when Mr. Tsirogiannis informed it of the vase's location. The vase was returned to the Italian consul general in New York, where it will be on display before being sent to the Polo Museale del Lazio in Italy.


A New York Philharmonic Coup: Deborah Borda Is Named the New Leader

Debora Borda is the next president and CEO of the New York Philharmonic. Borda, who ran the orchestra in the 1990s, has been poached from the Los Angeles Philharmonic, where she was at the helm for the last 17 years and made significant achievements during her tenure there. She has moved the orchestra into the Walt Disney Concert Hall, which was designed by Frank Gehry, and signed Gustavo Dudamel as its music director. She also quadrupled its endowment, a skill she will need to immediately put to use in New York, since the New York Philharmonic has substantial financial challenges. When Borda ran the orchestra in the 1990s, its endowment was valued at $210 million. It decreased to $183 million during its 2015-16 season. Ms. Borda may have her work cut out for her, but the sentiment is that she's up for the challenge.



U.S. Women's Hockey Team Plans to Boycott World Championship Over Pay Dispute

The International Ice Hockey Federation World Championship to be held this month may be boycotted by members of the U.S. women's national team, due to stalled compensation negotiations. The players are seeking living wages and full support of the women's program. Law firm Ballard Spahr has taken the case pro bono. Although participation in the sport has grown considerably, with more than 75,000 athletes (compared to 23,000 in 1998), women players often have to work two or more extra jobs to make ends meet. According to a statement from U.S. Hockey executive director, David Ogrean, each player would receive $85,000 annually. However, according to Jocelyn Lamoureux-Davidson, a national team veteran, $37,500 is earned only if the team wins an Olympic gold medal, with $24,000 of that amount paid by the Olympic Committee. The women players' attorney stated that during the six-month Olympic period, the players received $1,000 per month and "virtually nothing" afterwards between Olympics. In addition to living wages, the women players are seeking support comparable to what the men's team receives: a training facility, development programs for teen girls, and international competitions between Olympics. The U.S. Hockey Federation threatened to use other players at the World Championship, should the team boycott. According to attorney John Langal of Ballard Spahr, the meeting with the federation has not "advanced the ball."

According to Meghan Duggan, the U.S. women's hockey team captain, the team decided to boycott the upcoming World Championship "because we feel like we've been ignored and this shows how serious we are about this issue." This women's hockey team fight is not dissimilar to the U.S. women's soccer fight of 20 years ago. Then, the women's soccer team boycotted a scheduled tournament game in response to a denial from the U.S. Soccer Federation for pay equality, more marketing of the sports, and financing to develop younger players. That boycott was the pivotal moment in the women's soccer team's journey for equitable treatment. The women's hockey team is represented by the same attorney, Langel, who represented the women's soccer team. He sees similarities in each federation's position: "Like U.S. Soccer back in 1998, U.S.A. Hockey is saying, 'We are not going to support the women more than we have in the past, in any significant way.'" Attorney Jeffrey L. Kessler of Winston & Strawn, experienced in professional sports leagues and who represented the U.S. women's soccer team, warned that "strikes and boycotts might not be for everyone."

The team was given a 5:00 on Thursday ultimatum by the hockey federation. The team held its ground, leaving the federation with few options. It could try to field a new team with younger, less experienced players, host the World Championship without a U.S. team, or come back to the table and work with the current team. Not long after its self-imposed deadline, the federation stated that its objective was to "continue to work toward ensuring the players that have been selected for the team are those that represent the United States in the world championship."





South Carolina Ends One Controversy and Exploits Its Neighbor's

Oh, how times have changed, or have they? The NCAA has not held a basketball championship tournament in states displaying the Confederate flag since 2002. This year, Greenville, South Carolina is hosting the NCAA's men's basketball tournament, because its state legislature ended the tradition of displaying the Confederate flag on statehouse grounds in 2015. Furthermore, now that the NCAA imposed its ban on states with anti-gay restrictions, Greenville will get to host another tournament, due to Greensboro, North Carolina's HB1 law, which "curbs anti-discriminatory protections for lesbian, gay, bisexual and transgender people" and was found discriminatory by the NCAA. This is a declaration sure to have serious effects on Greensboro, who has held so many back-to-back men's and women's tournaments that, according to Kim Strable, president of the Greensboro Sports Commission, its logo is "Tournament Town." The NCAA ban will affect Greensboro, Raleigh, and Charlotte, which submitted bids for the 2019-2022 cycle of tournaments. The ban is not limited to North Carolina, but to any state with discriminatory practices. Earlier this month, Texas tentatively approved Senate Bill 6, also known as the "Bathroom Bill," which will require transgender people to use bathrooms based on their biological sex rather than their gender identities. States with discriminatory practices will be ineligible to hold NCAA tournaments while the NCAA sticks to its mandate. "The NCAA remains committed to maintaining a college sports experience that is inclusive and fair for all individuals, regardless of sexual orientation or gender identity," according to a written statement from Mark Emmert, NCAA president.


July Sentencing Set in Cuban Smuggling Case

Bartolo Hernandez, a sports agent, and Julio Estrada, a trainer, were convicted with conspiracy and alien smuggling. A federal jury decided the two men managed an operation to get players from Cuba into the United States to be signed by Major League Baseball teams. Chicago White Sox player Jose Abreu and Seattle Mariner Leonys Martin both testified. The evidence detailed how Hernandez and Estrada used a network of "boat captains, handlers, document forgers, and phony paperwork to obtain player[s'] residenc[ies] in Mexico and Haiti before coming to the U.S.". Agent Hernandez and trainer Estrada face prison sentences of 15 years and five to 35 years, respectively. Sentencing is set for July 11th.


Penn State Ex-Officials Plead Guilty in Sandusky Case

The Sandusky scandal continues to reverberate. Ex-athletic director Tim Curley and former university vice president Gary Schultz pleaded guilty to misdemeanor child endangerment. Their original indictment in their roles in the Sandusky child molestation were with felonies punishable by over 15 years in prison. This week's plea deal reduced the charges down to five years in prison. The Sandusky case stems from a 2001 complaint of Sandusky sexually assaulting a boy in the Penn State team shower. Curley, Schultz, and ex-president Graham Spanier handled the complaint by telling ex-coach Sandusky that he could no longer bring kids on campus. This was 10 years before Sandusky was arrested. He is now serving a 30 to 60 year prison sentence for 45 counts of sexual abuse of 10 boys. In the aftermath, coach Joe Paterno was fired. He died shortly thereafter and was never charged with a crime. The costs due to the scandal are mounting: $93 million paid to 33 people who made sexual abuse allegations, $48 million in NCAA penalties, plus a $12 million verdict in favor of former assistant coach Mike McQueary's (the ex-graduate assistant who saw the team shower incident) whistle-blower and defamation case. Graham Spanier's prosecution is moving forward to trial.


Leader of U.S. Governing Body Resigns as Scandal Spreads

Steve Penny, president of USA Gymnastics, resigned on Thursday. He was CEO of the national governing body of gymnastics, reporting more than 174,000 members. Penny's departure comes in response to calls for his resignation due to accusations of negligence pertaining to the indictment of Dr. Larry Nassar. Nassar was the national team doctor from 1996-2015, who is currently in prison facing several state child sexual abuse charges and federal child pornography charges. Although Penny has received support from several prominent executives and athletes, including Olympic gymnast Mary Lou Retton, other prominent athletes, such as Olympian Dominique Moceanu, have called for his resignation.


After 29 Years, Kingpin of African Soccer Is Abruptly Shown the Door

Issa Hayatou, 70, president of the Confederation of African Football (CAF) for the last 29 years, lost his presidency to Ahmad Ahmad of Madagascar. Hayatou, the son of a sultan in northern Cameroon and the brother to a former prime minister, became president of CAF in 1988. His presidency is complex as much as it is lengthy. He changed rules that allowed him to run for eight terms and made sure to limit the pool of presidential candidates. He decided where the Cup of Nations tournament would be held and executed large sponsorship deals in dictatorial fashion. Although his presidency was mired in controversy, no one disputes his impact on the sport; at least 10 teams will qualify for the world cup, FIFA was held in Africa for the first time, the Cup of Nations has grown from eight sides to 16, and the African Champions League has increased its value tremendously. Hayatou's dethronement by Ahmad is the result of a changing mood calling for more transparency and reformation.


With Phil Mickelson on Witness List, Gambler's Insider Trading Trial Begins

Phil Mickelson, pro golfer, was named on the witness list of the William T. Walters insider trading trial in the Federal District Court in Manhattan. The case involves Walters, a high stakes sports gambler, and Thomas C. Davis, chairman of Dean Foods. Walters is accused of profiting from insider information from Davis between 2008 and 2014 to the tune of $40 million. Federal authorities allege that "Lefty" Mickelson also profited from receiving stock tips. He agreed to pay $1 million in profits; however, he has not been charged. It is not yet confirmed whether he will actually testify.


Affidavit Cites a Jayhawk's Threat

Douglas County District Court officials released an affidavit stating that Josh Jackson, a freshman star of top seeded Kansas, threatened to beat McKenzie Calvert, a female basketball player. The affidavit, sent to the Lawrence Journal-World, includes statements from Kansas basketball players, Ms. Calvert, and two witnesses of the alleged December 9, 2016 incident outside a Lawrence venue called the Yacht Club. According to the sworn statement, Jackson followed Calvert to her car, "yelling for her to get out of the car and that he would beat her." Jackson is due to respond to the allegation in court on April 12th.


Charges Against Darrelle Revis Are Dismissed

All charges against Darrelle Revis, 31, an National Football League (NFL) cornerback, were dismissed by a municipal court judge. Revis was charged with two counts of aggravated assault, one count of robbery, one count of conspiracy, and one misdemeanor count of making terroristic threats. These charges stemmed from a February 12, 2017 fight on Pittsburgh's South Side. According to testimony from Revis' childhood friend, Rashawn Bolton, Revis was not the one to knock out two men, it was Bolton who landed the punches. Bolton stated that two men (ages 21 and 22) attempted to jump Revis when he stepped in to help and subsequently knocked out each of them. Bolton was not charged with any crime. Revis, who was recently released from the Jets, is now a free agent interested in joining the Pittsburgh Steelers. However, the criminal charges could affect his standing in light of the NFL's personal conduct policy.



Us Weekly Is Sold to National Enquirer Publisher

American Media Inc expands its celebrity gossip holdings by adding Us Weekly to its stable, which includes The National Enquirer, Radar Online, Star, and OK! Wenner Media, publisher of Rolling Stone, Men's Journal, and Glixel, a website devoted to games, agreed to sell Us Weekly for $100 million. Us Magazine became Us Weekly when purchased by Wenner Media. The weekly was saddled with debt since Wenner bought back its 50% stake from The Walt Disney Company at a cost of $300 million. It originally sold the 50% stake for $40 million. The Us Weekly sale will help to pay down Wenner's debt.


Donald Trump Condemns Snoop Dogg on Twitter for Satirical Video

What do you get when you put a clown and a rapper in a video? When it occurs in a tweet of umbrage from President Trump. Snoop Dogg, a renowned rapper, was featured in a music video of hip hop jam band's BadBadNotGood's song "Lavender." In the clip, Snoop Dogg pulls the trigger of a toy gun, pointing at a clown named Ronald Klump. After a sign reading "bang" drops from the barrel, clown Klump later appears in handcuffs. The video drew the ire of President Trump whose tweet suggested that a similar video pointing at President Obama would result in "jail time."


Ferguson Documentary Disputed as New Footage Is Released

The documentary "Stranger Fruit", by Jason Pollock about the 2014 shooting of Michael Brown, an unarmed Black man, by police officer Darren Wilson in Ferguson, Missouri, was released at SXSW. The film shows additional unreported footage of Michael Brown at the Ferguson Market & Liquor store minutes before he was fatally shot. A grand jury of nine white jurists and three black jurists brought no criminal charges against officer Wilson. The interpretation of the included surveillance video is controversial. Mr. Pollock claims that Michael Brown was trading marijuana for cigarillos and returned to the store to pick up his merchandise. This claim is disputed by Jay Kanzler, attorney for the store and its employees, who says that no trade was made by his clients. The additional footage supports the community's protest of a police cover-up. The store's attorney said that the documentary had "reopened old wounds," while the documentarian has called for a new criminal investigation of officer Wilson.


Twitter Accounts Hacked With Pro-Erdogan Messages

On Wednesday, several Twitter accounts were hacked, affecting prominent politicians, large brands, and the BBC. Several of the exposed posts showed support of Turkish president Recep Tayyip Erdogan, notable of late for his dispute with the Netherlands and Germany. He accused the two countries of Nazi practices because Turkish politicians were prevented from entering those countries. It was not confirmed who committed the attacks; however, a third party application called Twitter Counter was indicated. Twitter stated that it isolated the hacking. Separate attacks also occurred on Tuesday, when a distributed denial of services, or DDoS, was sent to two websites established to help Dutch voters. The websites were overwhelmed with messages until their servers shut down. Anita de Jong of ProDemos, an organization that runs one of the Dutch voter-aid sites, stated, "We don't know where it is coming from, but it is an organized attack coming from abroad." However, she could not confirm the geographical origin.


British Regulators to Investigate 21st Century Fox's Deal for Sky

Karen Bradley--Britain's minister of culture, media, and sport--has asked regulators to investigate 21st Century Fox's acquisition of Sky, the British satellite television company and 24-hour news channel. Bradley, concerned over the level of influence the $14.3 billion deal will give Rupert Murdoch over British media, requested its broadcast and communications regulator, Ofcom, and the Competition and Markets Authority to investigate. 21st Century Fox opposed Bradley's position. Sky has almost 22 million customers in Austria, Britain, Germany, Ireland, and Italy. Murdoch is the executive chairman of both 21st Century Fox and News Corp, which also owns three dailies: The Sun, The Times of London, and the Wall Street Journal. The deal will additionally face antitrust review by European Union regulators. The British regulators' determination is due in May. 21st Century Fox expects to close the deal by the end of the year.


March 22, 2017

Supreme Court 6-2 Decision in Star Athletica, LLC v. Varsity Brands, Inc.

By Olena Ripnick-O'Farrell

This morning, the Supreme Court decided Star Athletica v. Varsity Brands, Inc., holding that that decorative elements of a cheerleading uniform could be protected by copyright law.

In a decision written by Justice Thomas, the Court ruled that such expression could be protected only if it "can be perceived as a two- or three-dimensional work of art separate from the useful article" and that it would qualify as protectable expression "if it were imagined separately from the useful article into which it is incorporated."

The ruling is limited, in that Varsity can sue to stop reproduction "only of the surface designs on a uniform or in any other medium of expression." Justice Thomas wrote that "[r]espondents have no right to prevent anyone from manufacturing a cheerleading uniform that is identical in shape, cut, or dimensions to the uniforms at issue here."


March 24, 2017

2-4-6-8, Let's Give A Cheer For Copyright: SCOTUS Holds Original Imprinted Designs On Functional Cheerleader Uniforms Are Protected By Copyright If "Separable"

By Barry Werbin
Herrick, Feinsten LLP

In Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir. 1980), the Second Circuit held in a seminal decision that original artistic sculptural designs depicted on designer silver belt buckles were protectable by copyright notwithstanding the functionality of the buckles themselves, because the designs could be separated from the utilitarian function of the buckles.

It took 37 years for this issue to get to the Supreme Court, which has now held that "an artistic feature of a design of a useful article" -- in this case cheerleader uniforms-- "is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately form the useful article." Star Athletica , LLC. v. Varsity Brands, Inc., No. 15-866 (Sup. Ct. March 22, 2017).

The Court concluded that the chevrons, curves, stripes, angles, diagonals, colors and shapes covered by Copyright Office registrations and imprinted on Varsity Brand's cheerleader uniforms met this test.

So let's break down the test, which is a refinement of existing language in the Copyright Act ("the Act") that extends protection to "pictorial, graphic and sculptural works" that are "fixed" in any "tangible medium of expression." However, because the Act excludes from protection any "useful article," §101 provides a qualification that: "the design of a useful article ... shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."

While seemingly clear on its face, judges have struggled with these statutory concepts of a design's separability and existence independent from an article's otherwise utilitarian aspects. Some courts, for example, have distinguished between "physical" and "conceptual" separability, which the Supreme Court has now rejected because "physical" separability would require the useful article to remain useful after removal of the design features, whereas "separability does not require the underlying useful article to remain...." Interestingly, the U.S. Government noted in its brief that after removal of the design elements, the uniforms would remain as plain white uniforms and thus maintain their utilitarianism, a point the Court found unnecessary to address because the focus of the test is on the "extracted" design features and "not on any aspects of the useful article that remain after the imaginary extraction."

Star Athletica's argument that the Act only protects "solely artistic features" that have no effect on a useful article's utilitarian purpose was also rejected by the Court, because it would undermine copyright protection for "applied art," which, by definition, is artistic design applied to useful articles. Similarly, the Court emphasized that an artistic feature that in itself qualifies for copyright protection does not lose that protection when it is created to be applied to a useful article.
The more difficult question is what "existing independently" means in this context. The Court noted this more difficult aspect of the test in saying that the subject design feature "must be able to exist as its own pictorial, graphic, or sculptural work ... once it is imagined apart from the useful article," thus implicating "conceptual" separateness. In other words, the consideration would be whether the design is eligible for copyright protection as a "pictorial, graphic and sculptural work."

Significant reliance was placed on a 1954 decision of the Court in Mazer v. Stein, 347 U.S. 201 (1954), which was decided under the 1909 Copyright Act. Mazer involved protection for a lamp base that depicted a dancer, essentially a sculptural statuette. At the time, the Copyright Office had a regulation that extended protection to works of art that might also serve a useful purpose, which was cited in the Mazer opinion. The Mazer Court also had emphasized that it was irrelevant whether the statuette "initially was created as a freestanding sculpture or as a lamp base." In 1960, the Copyright Office incorporated these concepts in an amended regulation that introduced the concept of "separability," which was then included in the 1976 Act's definitions.

Here, the Court had little problem (with only Justice Breyer dissenting) applying its test to the surface designs on the cheerleader uniforms, finding they were readily identifiable as having pictorial, graphic or sculptural qualities, and that if separated from the utilitarian uniforms and applied in another context -- such as a "painter's canvas" -- they would constitute "two-dimensional ... works of art" under §101 of the Act. Justice Thomas noted in his majority opinion that even if the design elements fit the "contours" of the uniforms, as argued by Justice Breyer in dissent, that is not a bar to copyright because two-dimensional art often corresponds to the contours of its medium, such as a design etched or painted onto the surface of a guitar.

In a concurring opinion, Justice Ginsburg noted that Varsity Brands had used the same designs from the uniforms on other items of apparel, including tee-shirts and jackets, and that it was not necessary to expound on the separability doctrine because it was clear these designs were "themselves copyrightable pictorial or graphic works reproduced on useful articles." [Emphasis in original]

While agreeing with much of the Court's opinion, Justice Breyer felt that the designs themselves were not eligible for copyright protection because they could not be perceived as two- or three-dimensional works of art apart from the uniforms. His rationale would not extend protection to any design that would make the useful article non-functional if the design were removed from that article, or, if it would make it non-functional, could not be conceived of separately from the useful article without conjuring up the article itself. These concepts were rejected by the majority's opinion.

This author thinks that the majority opinion got this one right and calms the waters over the separability doctrine. Nevertheless, what constitutes an independently protectable "pictorial, graphic and sculptural work" will continue to present challenges. Yet as the level of originality required for copyright protection is "extremely low" and creativity only need be "minimal" under Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 345, 358, 562 (1991), the test should not be difficult to apply. Indeed, we see all manner of modern abstract art qualifying for copyright protection that may consist of little more than a few geometric shapes and colors. This is emphasized in the Copyright Office's Compendium of U.S. Copyright Office Practices, Third Edition, which observes in §308.2 that under Feist, "[e]ven a "slight amount" of creative expression will suffice."

Few would argue that an original Mondrian geometric painting was not worthy of copyright protection, but is it that much different from the chevrons and other elements found on the cheerleader uniforms? Mondrian.jpg


In another extension of Star Athletica's arguments, one could argue that the designs on the uniforms were associated with the teams that ordered them, thus rendering the designs functional as they merely represented the teams. Yet this logic would eviscerate copyright protection for all original team logos that constitute artistic designs, many of which are famous, such as the NY Yankees' "top hat" logo.

Yankees.pngIndeed, this was the subject of a 2012 Second Circuit decision addressing ownership of the copyright in this very logo. Buday v. New Yankees Partnership, 486 F. App'x 894 (2d Cir. 2012). The Yankees won... again.


NYS Court Rejects NYC Mayor's Claim of Exemption Regarding Freedom of Information Law

By Barry Skidelsky, Esq.

Citing the public interest in a transparent government and a presumption of openness, Justice Joan Lobis of the Supreme Court of the State of New York in New York County determined that NYC Mayor Bill De Blasio is not entitled to an exemption from disclosure required by the State's Freedom of Information Law (FOIL) (Public Officers Law §84 et seq).

In a hybrid Article 78 proceeding/action commenced against the Mayor (in his official capacity) by NY1 and the New York Post (a local cable news channel and newspaper, respectively) (Grace Rau, TWC News and Local Programming LLC, Yoav Gonen, and NYP Holdings, Inc. v. De Blasio (NYS Supreme Court, New York County, Index No. 157525/2016,
https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=m4kufpB4k2hsj_PLUS_phHU4aGg==&display=all&courtType=New%20York%20County%20Supreme%20Court), the court rejected the Mayor's claim that requested email correspondence with a local public relations firm were privileged as inter-agency or intra-agency materials under Public Officers Law §87(2)(g).

Finding that the public relations firm is not part of the Mayor's office or any other city agency, and that it had not been hired by the Mayor but is merely advising him on an informal basis, the court sided with the media petitioners, awarded them attorney fees, and directed the Mayor to disclose requested records.

In her decision and order entered on March 23, 2017, Justice Lobis also referred to a 1986 NYS Court of Appeals case, Capital Newspapers Div. of Hearst Corp. v. Burns (67 NY2d 562 (1986)), for the proposition that "where an agency is asserting an exemption limiting availability, not only does it bear the burden of showing that the record withheld falls within a specified exemption, it must articulate a 'particularized and specific justification for denying access.' "

Obviously failing to meet his burden in this case, the Mayor immediately announced an intention to appeal rather than to comply with the court's directive and produce the withheld documents. This case reinforces the idea that freedom of information is important for an informed electorate at all levels of government.

Barry Skidelsky is a NYC based attorney and consultant with a prominent private practice focused on traditional and digital media, entertainment, telecommunications and technology. Barry is a frequent author and speaker, a member of EASL's Executive Committee, and co-chair of its Television and Radio Committee, as well as a former chair of the NY chapter of the Federal Communications Bar Association (whose members' practices in part involve the FCC in Washington DC). Contact Barry at bskidelsky@mindspring.com or 212-832-4800.

March 25, 2017

Week in Review

By Anna Stowe DeNicola

Below, for your browsing convenience, the categories are divided into Entertainment, Arts, Sports, and Media:


Travel Ban Puts Lincoln Center Play in Jeopardy

The Lincoln Center Festival is scheduled to mount the American premiere of a play by Syrian playwright Mohammad Attar. Visas for several of the Syrian artists involved in the production are pending. President Trump's second travel ban, though currently blocked by a federal district court order, has administration at the Festival concerned about obtaining the artists' visas. Thought the play was programmed to be part of the Festival prior to the travel ban, Festival Director Nigel Redden stated that even the idea of the travel ban highlights "how important it is for us to have greater understanding of the world beyond our own boarders."


Disney Fined for Minimum Wage Violations

The Disney Company was fined $3.8 million dollars for violating minimum wage laws. Practices such as deducting uniform or costume expenses from wages, or failing to count any pre-shift hours employees worked, caused many people to fall below federal minimum wage. The $3.8 million will be paid out as back wages to thousands of employees working at the Florida arm of the company.


Another Venue for the Stairway to Heaven Battle

The heir of songwriter Randy Wolf appealed the district court verdict that found that Jimmy Page did not copy the introduction to "Stairway to Heaven." The jury found that Jimmy page had heard Wolf's song, but that the two were not substantially similar. In the brief filed last week in the Ninth Circuit, the heir's attorney argues that evidentiary errors and erroneous instructions were the reason for the verdict. Another issue on appeal is the issue of using sound recordings versus recreations of sheet music filed with the Copyright Office as evidence at trial. Both issues are also central to the appeal of the "Blurred Lines" decision, in which a jury found that Robin Thicke and Pharrell Williams infringed Marvin Gaye's work.


Russian Eurovision Entrant Barred by Ukraine from Competition

The Ukrainian government barred Russia's Eurovision entrant from entering the country, claiming that she had illegally entered Crimea without going through Ukrainian boarder controls. Fans were wondering if Russia would participate at all this year, given the delicate and sometimes contentious relationships between the two countries. Every year, contestants from around the world participate in the contest. The home country of the prior year's winner hosts the competition. This year's production already had a rocky start, when the show's producers suddenly resigned in February amidst rumors of corruption.


Cosby's Legal Team Requests that Jurors Be Screened for Bias

Attorneys for actor Bill Cosby asked that potential jurors be pre-screened for bias. Cosby is facing civil sexual-assault accusations in a Pennsylvania state court in June. The increased media scrutiny of the case has caused his lawyers to fear that it will be impossible to find jurors who have not already made a decision regarding the accusations against him. The court has already issued an order ruling that the jury pool be selected from a county 300 miles away from the location of the trial.


In Remembrance of Trisha Brown

Trisha Brown, the celebrated postmodernist dance choreographer, passed away last week. Born in the Pacific Northwest in 1936, she earned her degree in modern dance fro Mills College in Oakland, California. Her early influencers were Louis Horst, Robert Ellis Dunn, and composer John Cage. She began her career in New York in the 1960s, founding an avant-garde dance theater group when she first arrived. She then founded an experimental dance collective, Grand Union, an finally her own ensemble, the Tricia Brown Dance Company.

The early years in her career were marked by choreography performed in unconventional spaces and without music. The concept was called "democratic dance," many of the movements in her pieces were those that an untrained dancer could perform. She "pared dance down to its basics" and then reconstructed it by combining physical acts together in innovative ways. Her self-proclaimed approach was "the line of least resistance." In the late 1970s she began adding music and theatrical elements into her works. Her works gained notoriety in London and France. She entered a phase where she choreographed dances set to classical music, including works by Monteverdi, Bach, Rameau, Schubert, and Bizet. Her canon included several solos created for herself, including one that she later adapted to a duet for herself and Mikhail Baryshnikov. She stopped creating new works in 2011, although her company continued performing her repertoire. In 2016 BAM mounted the final presentation of her "Proscenium" theater pieces.

Brown was recognized by the French government with the honor of Chevalier dans l'Ordre des Arts et Lettres, and was promoted to Officer and later Commandeur in 2004. She was the first female choreographer to be named a MacArthur fellow.



Supreme Court Holds Separable Designs on Utilitarian Objects are Eligible for Copyright Protection

The Supreme Court held 6-2 in Star Athletica, L.L.C. v. Varsity Brands, Inc., No. 15-866 (Sup. Ct. March 22, 2017), that the design features of a cheerleader's uniform, namely the stripes, chevrons, angles, curves, colors, and diagonals, are copyrightable. The Court articulated a two-pronged test for copyright eligibility for the "artistic feature[s] of a design of a useful article." The design element is eligible for copyright protection if "the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article."

The Copyright Act excludes useful articles from copyright protection. Although this standard is facially clear, judicial interpretation of this statutory limitation has been inconsistent. The Supreme Court in Star Athletica rejected the approach of many courts, which have distinguished between the "physical" and "conceptual" separability of a design. Justice Thomas, writing for the majority, instead wrote that the test should focus on the "extracted" features of the design, not "any aspects of the useful article that remain after the imaginary extraction." The Court easily applied this new test to the designs on cheerleader uniforms, finding that they were "readily identifiable" as independent pictorial, graphic, or sculptural qualities, and would constitute two-dimensional works of art if separated from the uniform itself.

Justice Breyer dissented, arguing that the designs could not be perceived as two- or three-dimensional works of art independently from the uniforms, and therefore were not eligible for copyright protection. His view was that the designs "could not be conceived of separately from the useful article without conjuring up the article itself."

Justice Ginsburg filed a concurring opinion, and Justice Breyer wrote a dissenting opinion, in which Justice Kennedy joined.


The Republican Lineup in the Fight for the National Endowments for the Arts and Humanities

With Republicans controlling Congress and the White House, elimination of the National Endowment for the Arts (NEA) and National Endowment for the Humanities (NEH) in theory should be a slam-dunk. However, the fight to eliminate these line items from the budget is far from over. A faction of Republicans are backing away from the traditional Republican stance on funding for the arts and humanities and are publicly advocating against their elimination. The argument about funding for the arts and humanities as shifted over the past decades. Arguments over content, ideology and free speech no longer frame the dialogue. The conversation now tends to center on economic allocation and the President's vision for the country. Congressional representatives are not losing sight of the fact that grants from the NEA and NEH infuse millions of dollars into their districts. Last year, 2,400 grants were recommended in 16,000 communities. Strong advocates of the programs are framing the case for arts and humanities funding around its economic impact and the potential for grant money to have a multiplying effect on economic investment.


New York Appeals Court is the First to Test the HEAR Act: Whether Statute of Limitations Should Apply To Possibly Looted Art

The Holocaust Expropriated Art Recovery ("HEAR") Act, passed by Congress in 2016, requires "good faith efforts to facilitate the return of ... works of art to the rightful owners in cases where assets were confiscated from the claimant during the period of Nazi rule...." The Act The NY Court of Appeals is set to hear a case under the HEAR Act. Heirs of Fritz Grunbaum claim his art collection was looted by the Nazis, but a 2010 court ruling found no evidence that the works in question were stolen, but rather had been part of a lot of 53 works sold by Grunbaum's sister-in-law to a Swiss art dealer. Further, the court held that the heirs should have been aware of their rights to the art, and that they failed to make a timely claim. The Court of Appeals now has to decide if that prior decision applies to all of the 53 works or whether to adjudicate the current case on the merits alone. Many people believe that the 2010 ruling "imposed an onerous burden" on the Grunbaum heirs to search for their property following the Holocaust. The heirs argue that it is unreasonable to allege that they could have previously asserted a claim for the paintings at issue, and that the prior holding should not affect their ability to assert a claim.


Gaping Gender Gap in Leadership Roles at Top Museums

The Association of Art Museum Directors released a study of gender in leadership at museums, which shows that only three out of 20 of the largest museums in the U.S. are led by women. While that percentage is alarming, the great news is that out of all the art museums in the country, 48% of them are led by women. At the smallest museums, the number of women leaders increases to 54%. Smaller museums lead in offering comparable salaries between genders. However, as the budget size of the museum increases, the study revealed that the gender salary gap widened. Notable among female leaders at top-tier museums is Anne Pasternak, Director of the Brooklyn Museum. She was a unique and unconventional choice to lead a large museum, not having risen through the traditional ranks. The Board and Search Committee of the Brooklyn Museum was comprised of a large percentage of women, which may explain the Board's willingness to think outside the box and hire an unconventional candidate. Generally, women who aspire to a museum directorship often enroll in curatorial leadership programs. Alumnae of these programs have been successfully in securing top posts at museums across the country. The hope is that these graduates, and now museum leaders, continue to feed in to the pool of attractive executives for some of the larger posts. Of course, the most attractive opening of all is currently vacant with many watching to see who will fill the role at the Metropolitan Museum of Art.


Painting From the National Gallery in London Is the Victim of an Attack with a Sharp Object

A Thomas Gainsborough painting was "attacked" by a man with a sharp object at the National Gallery in London last weekend. The canvas was not damaged in the attack, but the attacker cut through several layers of paint. The wing of the National Gallery that was home to the painting was evacuated, and the alleged attacker was apprehended and subsequently charged with "causing criminal damage."


Art Thief Octave Durham Subject of Dutch Documentary - Discloses Details Regarding His Heist of Three Works By Van Gogh

In a new documentary, Octave Durham tells the tale about how he lifted two priceless Van Gogh paintings from the walls of the Van Gogh Museum in 2002. He faces no legal consequences by making a confession, as he already served his 25-month prison sentence. Burglary was a way of life for him, and he does not shy away from boasting about his various heists. He claims the theft of the paintings took just over 3 ½ minutes: he targeted the smallest paintings in the gallery, stuffed them in his bag, and later discarded the frames by throwing them in a canal. Durham was ultimately caught when he attempted to sell the paintings to an Italian mobster. Authorities tracked down Durham by following the trail of expenditures as he blew through the proceeds from the sale. Italian police located the stolen paintings after they received a tip regarding their location, and ultimately turned them over to Dutch authorities. The mobster who purchased the painting from Durham ultimately fled from Italy to Dubai, and faces a 20-year prison sentence upon his return. Italian authorities are seeking extradition.


Remembering David Rockefeller's Arts Philanthropy

Besides being the head of Chase Manhattan Bank, an internationally revered businessman, a stalwart in New York black tie gala social circle, and the last surviving grandson of John D. Rockefeller, David Rockefeller was a prominent arts philanthropist with a legendary art collection of about 15,000 works. He served as Chair of the Museum of Modern Art and used his influential role in the business community to encourage corporations to purchase and display art in their buildings and offices, and to subsidize local museums. Rockefeller joined the Board of the Museum of Modern Art in 1940, replacing his mother, who had helped found the museum in the 1920s. He spent time wooing art dealers, and coordinated a syndicate to buy Gertrude Stein's modern art collection. Works from his own collection remain on permanent loan to the Museum.

In addition to his arts philanthropy, Rockefeller was a strong voice in the development of lower Manhattan. He founded and served as Chair of the Downtown-Lower Manhattan Association. He recommended the construction of the World Trade Center and established Chase's headquarters in the Wall Street area, providing financial stability and leverage to complete the World Trade Center project. When the city began defaulting on loans and bonds in the mid-1970s, he was instrumental in pulling city leaders together with federal and state officials to compose an economic plan for the city. Two U.S. Presidents offered him the position of Treasury Secretary, but he turned the job down both times.

Later in his life, Rockefeller pledged a $100 million bequest to the Museum of Modern Art. Energetic until his last days, his 90th birthday celebrations included a celebrity-filled gala with a price tag of up to $90,000 for a table. More than 850 people clamored to celebrate his life and impact on New York City. His lasting philanthropic endeavors and contributions will be felt for generations to come.



NCAA President Remains Steadfast Over Discrimination Policy

The NCAA believes strongly in its anti-discrimination policy and will continue to stand up against state laws that curb anti-discrimination protections for LGBTQ individuals. This year, the NCAA pulled its first- and second-round tournament games from North Carolina in response to the state's "bathroom bill" that pulled back anti-discrimination protections for the LGBTQ population. Texas and Arkansas have similar bills pending. Approval of the Texas Senate could cause the NCAA to relocate the 2018 Final Four series of games, currently set for San Antonio. North Carolina faces a potential void of NCAA games for six years if it does not repeal the controversial bill.


President of USA Gymnastics Resigns Amidst Scandal

Last week, the president of USA Gymnastics, Steve Penny, resigned amidst a sexual abuse scandal. Penny's background is in media and public relations. He worked in this area for many years before joining USA Gymnastics. One of his functions with the organization was to evaluate sexual abuse claims. His lack of experience conducting this type of investigation did not raise any red flags for the organization. However, as allegations of rampant sexual abuse is hitting many Olympic sports franchises, the U.S. Olympic Committee is establishing new programs and guidelines for Olympic sports organizations in order to protect athletes from sexual abuse. At USA Gymnastics, internal investigations into 54 coaches were opened, some with multiple complaints filed against them. It was the policy of USA Gymnastics to conduct an internal investigation first, to determine whether the complaint should be referred to the police. The investigation into former team doctor Larry Nassar lasted five weeks, leaving gymnasts exposed to his abuse. Former Coach Martin Sharp went unreported for four years. He was arrested and charged with counts of child pornography, child molestation, and sexual abuse with a minor. Another coach, Steve Infante, was accused of having sex with gymnasts, but went unreported. He later was charged with raping one of his athletes. Both Penny and USA Gymnastics have been accused with negligence in several civil lawsuits against them.


Sexual Abuse Accusations at Michigan

Michigan State finds itself further embroiled in sexual abuse allegations, as a gymnast accused sports doctor Larry Nasser of sexually assaulting her in 2000. The current investigation is independent from the formal criminal inquiry and host of accusations against the doctor. The University is currently defending itself against other accusations made against Dr. Nasser.


The Face of Sports Marketing Without the Players - NCAA as a Case Study

Strict prohibitions by the NCAA from using the names or likenesses of college athletes in advertising forces advertisers to be creative in their approach to sports marketing. Over $1 billion is spent in TV ads during the tournament, and millions of dollars more in online and venue advertisements. Some companies are using team mascots rather than players, and one chose to use an actor portrayed in a team uniform. The use of former players or coaches is another approach. Despite the creative marketing approaches, advertisers at times still find it difficult to connect their brands to their audiences without the star power of the players themselves. Of course, the increased commercialization of college athletics, especially football and basketball, continues to open the door to questions regarding whether collegiate players should receive a piece of the pie.


An Unlikely New President for the UEFA - A Young "Outsider" From Slovenia

UEFA's new president, Aleksander Ceferin, is poised to make "sweeping changes" to the landscape of European soccer. Considered an outsider, Ceferin was elected in a landslide. He aims to institute changes, such as term limits, and increase transparency in the organization. His first order of business, and perhaps a sign of things to come, is a small measure that perhaps only a few will notice: at the upcoming annual UEFA Congress, he placed all Federation presidents and Executive Committee members at a single hotel, rather than giving Executive Committee members more luxurious lodging, and creating an open seating plan for the dinner. Ceferin feels compelled to change the traditional approach to the sport, encouraging cross-border leagues and eliminating clandestine deals and "murky patronage."


Former Football Player Gale Sayers Diagnosed with Dementia

The family of Gale Sayers, a member of the Professional Football Hall of Fame, blames his football career on his diagnosis of dementia. He received the diagnosis several years ago. Doctors suggested that the head impacts common in football and more broadly the shaking of the brain that occurs during a tackle contributed to his dementia. The family did not hide his diagnosis, but weren't publicly vocal about his condition. He filed a lawsuit against the National Football League (NFL) and a helmet manufacturer, claiming that they failed to prevent repeated head injuries. The lawsuit pointed to headaches, short-term memory loss, and cognitive deficits due to chronic traumatic brain injuries. He withdrew the lawsuit in 2013.


Ex-Baylor Player's Conviction Overturned

A Texas appellate court overturned the assault conviction of a former Baylor football player. The court held that text messages exchanged between the victim and assailant prior to the assault should have been admitted into evidence. The trial court ruled that these texts had no bearing on the issue of consent. Two former Baylor football players were convicted of assault, and the University hired counsel to investigate the University's response to sexual assault allegations. Several women filed lawsuits against the University, claiming that the school mishandled, suppressed, or ignored their allegations of sexual assault for years.


Tom Brady's Missing Jerseys Recovered by the FBI

The FBI, in collaboration with Houston police tracked star quarterback Tom Brady's missing Super Bowl jersey to Mexico, where it was found in the possession of a Mexican newspaper editor. Mauricio Ortega, editor of La Prensa, also had in his possession another one of Brady's Super Bowl jerseys, and a helmet belonging to Bronco's linebacker Von Miller. Ortega was seen on surveillance footage leaving the Patriot's locker room with something under his shirt. Other Mexican journalists who were in Houston for the game stated that he was acting like a fan, not a reporter. He collected autographs and selfies, and purchased memorabilia. This case has raised questions about the security vetting for the thousands of journalists who cover the Super Bowl each year. Many credentialed journalists attend the Super Bowl simply for the fanfare, and have access to the playing field and locker rooms. Although the locker rooms are staffed with security, game day chaos makes it difficult to ensure nothing is stolen. Whether the NFL will change its policy allowing reporters to have access to team locker rooms remains up in the air.



Women's Hockey Labor Dispute

This week there were a series of articles covering the labor dispute between Women's Hockey and USA Hockey. Below is a brief summary of each.

Light Shed on USA Hockey Leadership

Last Monday's 10-hour negotiation session between players of U.S. women's hockey team and USA Hockey left the players feeling hopeful that an agreement was in sight. However, USA Hockey came back on Thursday with a counter proposal, and communication that replacements would be sought if the parties did not reach a deal. The ongoing labor dispute has highlighted the lack of women in leadership roles at USA Hockey. Three out of 14 Executive Committee members are women, and throughout the organization leadership positions are held by men. This puts the labor issues in perspective, and not surprising in an organization dominated by men. The International Olympic Committee set a goal for all partner organizations to include 20% women by 2005. Several American governing bodies lack diversity: only six out of 47 national governing bodies have women in top leadership roles. 157 of a total of 569 members are women, and only eight boards have 40% or higher female representation.

The women's U.S. hockey team is one of the most successful American teams in Winter Olympic sports. Many young players are supporting the team members by refusing to act as replacements if the boycott moves forward. Among the demands made, the players are requesting a wage increase to $70,000 annually, a sharp increase from the $1,000/month salary currently paid to players during the Olympic period (six months every four years). They have also demanded equitable accommodations, insurance, and more opportunities for girls.


Women and USA Hockey Exchange Barbs in Contract Talks

Contract talks between the U.S. Women's Hockey Team and USA Hockey continue as the sides disagree regarding the cost of the demands made by the players. USA Hockey contends that the demands would cost between $5.7 million and $8 million per year, and the players state those figures are "patently false."


National Women's Hockey Team Threatens to Boycott World Championships

USA Hockey and representatives from the women's national team are set to meet early this week. An ongoing wage dispute is looming over the upcoming world championship tournament, with the players threatening to boycott if their demands are not met. The U.S. Women's team is the defending world champion.


Women Gave a Two Week Deadline Before Boycott

The women's national hockey team has issued an ultimatum - either resolve our differences within the next two weeks, or we will boycott the World Championships. The players contend that they are not receiving a living wage, especially compared to their male counterparts. Their plea argues that of the women's soccer team - that they want equitable compensation. While a boycott would bring visibility to the dispute, the Federation would likely seek replacements and the show would go on.


Women's U.S. Hockey Spring Training Postponed Due to Labor Dispute

Spring training for the women's World Hockey Championships was scheduled to begin on March 28th, but has been delayed due to the ongoing labor dispute between the players and USA Hockey. An exhibition game was also cancelled against Finland, which was scheduled for March 30th. The World Championships are set to begin on March 31st in Plymouth, MI. The U.S. team is the reigning title holder.


Replacements Being Contacted to Step In At Women's Hockey World Championships

Despite a statement indicating it is working towards having the original U.S. Women's Hockey team play at the upcoming World Championships, the players' threat to boycott the Championship over a labor dispute has caused USA Hockey to start contacting potential replacements.



Ninth Circuit Holds That Streaming Companies Are Not Eligible for Compulsory Licenses Under the Copyright Act

The Ninth Circuit reversed a district court ruling that streaming companies could be categorized as "broadcasters" and qualify for compulsory broadcast licenses under §111 of the Copyright Act. Section 111 was enacted to relieve the burden on cable systems from individually negotiating with copyright owners for retransmission of channels on public airwaves. The Court distinguished broadcast cable systems from secondary transmission systems, the latter of which capture copyrighted programs broadcast over the air, and then retransmit them over the Internet to paying subscribers. The panel also noted that this case was different than last year's Supreme Court ruling in the Aero case, because it dealt with a different section of the Copyright Act.


Hacked Yahoo Accounts Remain For Sale Despite Indictment

Even in the midst of an indictment, data stolen during the hacks into Yahoo's system remains for sale on underground hacker forums. The price tag for 1 billion accounts is $200,000 or best offer. Yahoo was subject to two cyber attacks in recent years, one in 2013 and another in 2014. The FBI is not disclosing information relating to the intrusions and has declined to comment on whether they are connected. The Russian hacker Alexsey Belan, along with two Russian intelligence agents, was indicted for the 2014 attack. Belan has a long history of cyber crimes. Although some experts who have studied the attacks believe they were carried out by different people, they agree that it is possible that Belan capitalized from the first attack by using information sold to Russian intelligence agents to breach Yahoo's system in 2014. Russia denies responsibility for the attacks, which threatened a $4.8 billion deal for the sale of Yahoo to Verizon.


Criminal Cyberstalking Charges Pending After Cyber Attack on Journalist Kurt Eichenwald

The FBI arrested John Rayne Rivello, who was charged with criminal cyberstalking with the intent to kill or cause bodily harm. Mr. Rivello sent a .gif to Kurt Eichenwald on Twitter. When opened by Mr. Eichenwald, the .gif emitted a strobe light that triggered Mr. Eichenwald's epilepsy and caused Mr. Eichenwald to go into seizure, leaving him incapacitated for several days. Experts have likened this attack to a targeted physical attack, similar to sending poison through the mail. Mr. Eichenwald is a prolific author, and a critic of President Trump. After obtaining a search warrant, investigators found evidence of the attack in Mr. Rivello's Twitter account, including Tweets showing Mr. Rivello's knowledge that Mr. Eichenwald was epileptic.


YouTube Apologizes After Filtering LGBTQ Videos

A faulty filter setting on YouTube's website is to blame for the wrongful filtering of some videos about LGBTQ issues, claims YouTube. The company apologized and vowed to fix the settings, which are part of the website's parental control features. Several YouTube stars applied pressure on the company to quickly address and correct the issue. According to the company, the parental filters aim to target videos that discuss topics such as politics, health, and sexuality, but not LGBTQ topics. Advocates argue that LGBTQ issues should not be subject to the filters, as the filters would prevent "lesbian, gay, bisexual, and transgender children from accessing the resources and support the videos can provide."


Advertisers Jumping Ship at YouTube

YouTube quickly became a "pillar" of Google's advertising business, as advertisers flocked to the site because of the ability to reach a diverse and younger audience. However, this week, several large companies pulled their ads from YouTube, stating that the automated system that places the ads on the site has often resulted in their brands showing up next to offensive material. Companies who have pulled their ads include Lyft, AT&T, and Johnson & Johnson. YouTube's audience watches an astounding 1 billion hours of videos per day on the site. The programmatic advertising technology used to place ads on the site allows advertisers to select general parameters about the audience they want to reach. However, due to the large amount of new content loaded on to the site (400 hours of content every minute), it has been impossible for the automated system to prevent ads from appearing next to inappropriate material. Google's advertising network includes over 2 million websites. The sheer scale and the use of automated technology rather than a human filter has caused inappropriate placement of some brands. The unique structure of the YouTube advertising model is particularly troubling for some companies, as YouTube splits its advertising revenue with its users. This puts companies at risk of directly funding the creators of hateful or offensive content. While Google acknowledges that it needs to increase the human review of ad placements, it also recognizes that it also needs to review its guidelines for the types of content that is allowed on the site.


Google Responds to Fleeing Advertisers

In response to several large advertisers pulling their brands from YouTube, Google pledged to give companies greater control over where their ads appear on the site. This includes giving brands more say over where their ads would appear, and power to remove the ads if companies remain unsatisfied with their placement. Google stated that it will hire more staff to monitor advertising placement, and continue to use technological advances to remove inappropriate content. The company did stop short, however, from claiming that it will remove content before it had been flagged as inappropriate.


March 28, 2017

Rally at City Hall in NYC to Save the National Endowments for the Arts and Humanities

I am writing today to extend an invitation to join the New York City Council and colleague advocates to rally to save federal support for the arts.RALLY TO SAVE THE ARTS.pdf

RSVP: https://www.risestronger.org/events/rally-to-save-the-arts

Organized by Speaker Melissa Mark-Viverito and Majority Leader Jimmy Van Bramer, the rally will be held on the steps of City Hall next Monday, April 3rd, from 12-1 p.m.

March 30, 2017

Horizon Comics Productions, Inc. v. Marvel Entertainment, LLC et al

By Mike Steger

In this case, brought by Horizon Comics, Horizon claims that the armored suits used in Marvel's "Iron Man" and "Avengers" movies infringe on Horizon's copyrights in armor displayed in its "Radix" comic book series. On Marvel's motion to dismiss the complaint, the court ruled that (1) issues of fact exist as to similarities between the armor used in a promotional poster for "Iron Man 3" and promotional art for the "Radix" series, and (2) the mechanized body armor in the films was not substantially similar to that in the "Radix" series.


"Warm Kitty"

In Ellen Newlin Chase and Margaret Chase Perry v. Warner Bros. Entertainment, Inc., et al, Judge Buchwald of the Southern District dismissed the copyright action brought by daughters of a poet for failure to state a claim against "The Big Bang Theory" for the song "Warm Kitty".


Cert denied in Capital Records v. Vimeo

By Barry Werbin

On Monday, March 17th, the Supreme Court denied cert in Capital Records v. Vimeo, thereby leaving intact the Second Circuit's 2016 decision (826 F.3d 78 (2d Cir. 2016)) finding that the DMCA does apply to pre-1972 sound recordings to protect compliant providers from copyright claims under state laws.

Scam Targets NY Payroll and HR Professionals

By Kristine Sova

On March 24, 2017, the New York State Department of State (DOS) distributed an alert about a scam targeting payroll and HR professionals. According to the DOS, cybercriminals posing as company executives are emailing payroll and HR professionals to request lists of employees and their personal information. These emails may appear legitimate because they contain the name of the company's chief executive officer. If a General Counsel receives such an email, one should not include any payroll data, such as W-2 forms and Social Security numbers, in a response, or better yet, should not respond at all.

The New York State Tax Department is aware of at least 37 businesses with New York employees that have fallen for this scam and believes more than 5,000 Social Security numbers may have been compromised.

About March 2017

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

February 2017 is the previous archive.

April 2017 is the next archive.

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