« April 2017 | Main | June 2017 »

May 2017 Archives

May 3, 2017

Federal Appeals Court Weakens Digital Millennium Copyright Act Safe Harbor Protection for Moderated Online Content

By Jeremy S. Goldman and Andrew J. Ungberg

If you're an online publisher or other internet service provider ("ISP") that relies on moderators to police or curate user-generated comments or other content, your risk of liability for copyright infringement just increased. In a recent opinion (http://law.justia.com/cases/federal/appellate-courts/ca9/14-56596/14-56596-2017-04-07.html), the influential Ninth Circuit Court of Appeals sent shockwaves through the ISP community by ruling that LiveJournal.com, a social media platform, may not be immunized from copyright liability under the Digital Millennium Copyright Act ("DMCA"). The court held that LiveJournal may be liable for infringing content submitted by users of the site because the company relied on paid and volunteer moderators to curate and police the content for substance and possible infringement. The opinion calls into question many widely held assumptions about the scope of DMCA immunity and raises serious concerns for websites that rely on user-generated content, curated by moderators, as part of their business model. The decision represents a sea change in the interpretation of the DMCA for internet media outlets. Here's what you need to know.

DMCA Safe Harbor: A Quick Review

The DMCA, passed in 1998, created four separate safe harbors for ISPs, including one which exempts ISPs for material posted on ISP networks or websites "at the direction of users." To be eligible for the safe harbor, ISPs must develop a notice and takedown procedure, through which rights holders can file a notice with the ISP and have allegedly infringing content taken down from the website in question. These DMCA take-down notification systems have formed the basis of day-to-day copyright enforcement on the Internet for nearly twenty years, allowing ISPs like Google, YouTube, Facebook and others to exist and thrive without the constant risk of infringement claims for user-generated content.

Background - Mavrix Photographs v. LiveJournal

The case was brought by Mavrix Photographers, a photo agency specializing in "candid celebrity photography," which it sells to celebrity gossip magazines. The defendant, LiveJournal.com, operates a platform that provides users with the ability to create online communities dedicated to a wide range of subjects. The lawsuit centered on LiveJournal's most popular community, a celebrity news and gossip journal called "Oh No They Didn't!" ("ONTD").

ONTD consists entirely of user-submitted content, which moderators review and approve to be posted onto the site based on certain technical and editorial standards. The moderator-screening process was designed to ensure that the celebrity gossip was new and relevant, and that the submissions did not contain pornography or constitute harassment. Moderators also had the authority to delete existing posts and remove users from the community. Notably, although the majority of the moderators were community volunteers, ONTD's success prompted LiveJournal to hire one of those volunteers as a full-time, paid community manager. This moderator supervised existing volunteers, and had the ability to set coverage schedules, issue guidelines for moderators' work, and remove volunteers for performance issues.

In its complaint against LiveJournal, Mavrix alleged infringement of at least 20 photographs that were posted to ONTD without authorization, including several that retained a "Mavrixonline.com" watermark. LiveJournal asserted a DMCA safe harbor defense, arguing that the allegedly infringing posts had been uploaded to ONTD "at the direction of users" and that Mavrix had failed to issue a take-down notice for the content. The trial court agreed with LiveJournal, finding that the posts were created "at the direction of users" because all of the posts had been submitted to the site by its users.

Appeals Court Decision

Mavrix appealed, arguing that the lower court had erroneously focused on the submission of materials to LiveJournal's moderator team, rather than on how content was posted onto the ONTD site. Posts only appear on ONTD, Mavrix argued, if LiveJournal's agents, the moderators, approve the content, which meant that the safe harbor did not apply.

The appeals court agreed and reversed the lower court. The appeals court framed the central issue as whether the moderators' conduct, in screening and approving submissions to be posted on ONTD, could be attributed to LiveJournal under common law agency principles, which the court held were applicable in the DMCA safe harbor context. The appeals court noted several factors suggesting that the moderators acted as agents, including that:

-the moderators "performed a vital function in LiveJournal's business model";
-LiveJournal exercised control over the moderators by issuing guidelines for their work, and reserved the authority to remove moderators for unsatisfactory performance; and
-Users believed that moderators were acting on LiveJournal's behalf, and relied on their approval as a statement of compliance with copyright law.

The Mavrix opinion articulated a narrow interpretation of the critical DMCA "at the direction of users" safe harbor, holding that "[p]osts are at the direction of the user if the service provider played no role in posting them on its site or if the service provider carried out activities that were 'narrowly directed' towards enhancing the accessibility of the posts." These "accessibility-enhancing" activities include reformatting or re-sizing content so it fits on the website, and possibly screening for pornography or other harmful material. The appeals court decision made clear its view that LiveJournal's moderators went beyond accessibility-enhancing activities, repeatedly citing the statistic that only one-third of all posts submitted to ONTD were approved by moderators and posted to the site.

Ultimately, the appeals court remanded the case to the trial court to determine whether the moderators acted as agents of LiveJournal and whether the content was posted at the direction of the users in light of the role of the moderators.

In the event that the moderators are found to be LiveJournal's agents, the appeals court also issued "guidance" for the trial court to use in analyzing the remaining factors under the safe harbor, set forth in 17 U.S.C. § 512(c)(1). Specifically, the appellate court instructed the district court to consider whether:

-LiveJournal had actual knowledge that the photos were infringing, holding that Mavrix's failure to submit a take-down notice, by itself, did not establish that LiveJournal lacked such knowledge; or, alternatively
-LiveJournal had so-called "red flag knowledge," which it defined as "facts that would have made the specific infringement objectively obvious to a reasonable person," such as an obvious watermark.


While the full impact of the case will not come to light until the trial court revisits the issues on remand, Mavrix has already called into question the long-standing interpretation of the DMCA safe harbor among ISPs.

The appeals court decision suggests that a key DMCA liability shield may turn on the ISP's oversight and control of user-generated content. The opinion suggests a spectrum based on that activity. On one end of the spectrum there are websites "where users may independently post content," and the ISP does nothing beyond keeping the site online and operational: i.e., a moderator-free "Wild West Web," where anyone can post anything at any time. Also on this end of the spectrum would be websites where ISPs take a slightly more active role, but limit themselves to ministerial "accessibility-enhancing actives," such as reformatting user-posted content so that it can be viewed on mobile devices. Under the principles laid out in Mavrix, websites at this end of the spectrum are much more likely to qualify for safe harbor protection under the DMCA.

At the other end of the spectrum, however, are websites where ISPs engage in "extensive, manual and substantive activities," and function as editorial gatekeepers for user-submitted content. Although the Ninth Circuit did not go so far as to hold that LiveJournal was per se outside the DMCA safe harbor, that certainly is the implication.

The takeaway from Mavrix is clear --- an ISP can no longer take its DMCA safe harbor status for granted if it engages with user-submitted content beyond merely performing "accessibility-enhancing activities." If an ISP's business model depends in part on managing an active user community, or if it relies on user-submitted content, it should consider a legal review of its policies and procedures in light of Mavrix. Potential red flags for loss of safe harbor status include:

-Top-down editorial review of user-submitted content before material goes live on the website;
-Use of paid moderating teams, or volunteer moderators coordinated through a paid community manager;
-ISP-issued editorial guidelines for user content; or
-Terminating moderators for performance or failure to comply with ISP directives.

Although Mavrix suggests that the surest way to qualify for DMCA safe harbor status is to refrain from moderating, many ISPs cannot risk leaving their brands exposed in a moderator-free Wild West bonanza. Structuring a moderator program and content submission policy means taking on the risk of policing content for infringement; ISPs should think carefully about weighing these competing risks and designing their programs accordingly.

This article first appeared as an IP Alert from Jeremy S. Goldman and Andrew J. Ungberg at Frankfurt Kurnit Kurnit Klein & Selz PC. For more information, visit www.focusonthedata.com

May 6, 2017

Week In Review

By Eric Lanter

Harvard Law Expands Deferral Program, Pushing Students to Gain Work Experience

Harvard Law School announced that it is expanding its deferral program, which previously permitted Harvard undergraduate students to defer their admission to the law school for up to two years while they work and pursue other opportunities. Harvard is expanding that program to all juniors, as an attempt to diversify the pool of applicants and increase the experience range of the incoming law students.


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


Hollywood Writers Kept the Heat on Studios to Win Contract

The Hollywood writers' union came to an agreement with the Alliance of Motion Picture and Television Producers to avert a prolonged strike. Both sides conceded points. The writers did not achieve equality amongst their ranks, whether they be writers for streaming services or television channels. The studios conceded higher pay for streaming service writers. Both sides agreed that the premium healthcare plan for the writers could take a small cut, as it was too expensive to be tenable. The three-year deal for writers will soon lead to negotiations between actors and the studios, whose contract expires on June 30th.


Fyre Festival Organizers Face Fraud Lawsuit After Cancellation

Rapper Ja Rule and a business partner collaborated to host a music festival rivaling Coachella in the Bahamas, called the Fyre Festival. The festival billed itself as an elite getaway for celebrities and others, with tickets costing $2,000 plus airfare to come to an exclusive island for concerts, catered food, and VIP treatment. In the days leading up to the festival, the organizers cancelled the event and have since acknowledged that they were in over their heads in its planning. In California, a man who had purchased a ticket filed suit and is seeking millions of dollars and class-action certification for the action. His attorneys reported that they have been overwhelmed by calls from other similarly situated ticket purchasers.



Rocky Start for a Brand

The first 100 days of the Trump administration has been difficult for the polished, refined branding that Trump strives to achieve. From Jared Kushner visiting the Middle East with a flak jacket under his blazer to Sean Spicer's wearing an American flag pin upside down during a press conference, there have been several moments where the fashion world has snickered at the administration's misfortune. Even with First Lady Melania Trump's initial wearing of Ralph Lauren, she has since reverted to more European brands, drawing the ire of those who support wearing only American brands.



Asian Olympic Chief Quits FIFA Role Over Bribery Scandal

As a result of a bribery case being played out in a United States federal court, a member of the FIFA Olympic Council of Asia has resigned all soccer-related positions. The man, Sheikh Ahmad Al-Fahad Al-Ahmed Al-Sabah, resigned his position after it came to light that he may have bribed another FIFA official, Richard Lai, who is currently on trial in Brooklyn for bribery. Al-Sabah released a statement denying any wrongdoing, and the FIFA president, Gianni Infantino, thanked him for resigning from the organization.


Bengals Draft Joe Mixon, Who Was Suspended for Punching a Woman

The Cincinnati Bengals drafted Oklahoma's former running back, Joe Mixon, to join the team. This, despite the fact that in 2014, he was filmed punching a woman and breaking the bones in her woman. Mixon was suspended from Oklahoma for a year and returned for two impressive seasons. The Bengals's head coach, Marvin Lewis, told the media that fans may pause because of the selection, but then have to move on.


European Soccer Teams Change Logos at Own Risk

Liverpool's soccer team is preparing to celebrate its 125th year of soccer in England with a new logo. While fans have benignly accepted the revised logo, other teams have not been so lucky. Another soccer team in Liverpool, the Everton Football Club, changed its logo a few years ago, and quickly reversed the change following outrage from its fanbase. Even the biggest teams in the world, like Real Madrid, have learned to do so with caution, carefully explaining to its fanbase changes, like removing a Christian cross from the logo as it helps to introduce the team's clothing line in the Middle East.



TV Station Owners Rush to Seize on Relaxed Federal Communications Commission Rules

With the Trump administration leading to a relaxing of Federal Communications Commission (FCC) rules as to how many stations an owner may have, companies like The Blackstone Group, Sinclair Broadcasting, and Nexstar Media Group have been scrambling to acquire new stations. The consolidation of local broadcast stations means higher fees for broadcasters and consumers. At a time where more viewers are migrating to streaming services like Netflix and Hulu, the FCC's relaxation of these rules is a boon for companies like Sinclair and Nexstar, who stand to gain from acquiring stations in this new environment. Sinclair, a company that owns nearly 200 broadcast channels throughout the country, is seeking to fill a void it perceives is being created by Fox and its recent scandals. While prior to the changes in the FCC rules, Sinclair was focused on expanding, the relaxation of those rules has accelerated the pace at which Sinclair has sought to acquire stations and expand into larger markets, challenging those on which Fox had a tight grip.


Giving the Behemoths a Leg Up on the Little Guy

The hegemonic nature of the telecommunications industry is only being reinforced under the Trump administration. The FCC's head, Ajit Pai, is overseeing changes in regulations that are intended to eliminate Obama-era protections of net neutrality. The elimination of net neutrality would lead to situations where an Internet service provider, like Verizon, could charge more money to a small streaming service and less money to a larger, more established streaming service. Some analysts not only see this as bad for the industry, but also bad for innovation, as it suppresses the smaller startups that may be pioneering new technologies.


Fox News, Pledging New Culture, Faces More Tumult

Rupert Murdoch, the head of 21st Century Fox, the parent company of Fox News, has overseen a transformation of the cable channel in the past year. With the departure of Roger Ailes 10 months ago and the more recent departure of Bill O'Reilly, and the revelations of alleged widespread sexual harassment, Murdoch has now dismissed co-president of Fox News, Bill Shine. Shine was viewed by many to be an Ailes disciple and protected. This may not be the last change in the newsroom, as Suzanne Scott was recently been promoted to head of the newsroom, while also being named in lawsuits as being one who enabled and helped conceal Ailes' wrongdoing for years. Analysts speculate that these changes are an attempt to reinvent the image of the Murdoch empire, as it seeks to add the Sky network, a prominent British broadcasting service, to its European operations. However, British regulators will be meeting with individuals who have been dissatisfied with their appearances on the network, such as Wendy Walsh, who was a guest on Bill O'Reilly's show and alleged that he made improper sexual advances towards her.

A reporter for Fox News and a Fox News Radio reporter independently filed suit against the network for discrimination based on gender. Three days after the Fox News reporter published a column detailing her struggle with endometriosis and its likely resulting in her being infertile, her supervisor told her that she would not be permitted to be on-air or in writing at Fox News without providing any reason. As she had positive reviews leading up to the publication of the column, she has argued in her complaint that the treatment is discriminatory based on her gender and fight against a chronic disease. The Fox News Radio reporter informed her supervisors that she had been the subject of discrimination for approximately two years, as she was regularly subordinated to her male coworkers. Fox terminated her the day after she reported the discrimination.


In Europe's Election Season, Tech Vies to Fight Fake News

Technology experts around the world have been using their skills to tackle the increasing amount of misinformation circulating on the Internet. With elections approaching in France and England, the risk of fake news spreading and influencing the results of the elections has politically inclined technology specialists devising tools to perform automatic fact checks and combat fake news.


Insurer Threatens to Sue Chinese Magazine Over Critical Article

Anbang Insurance Group, a Chinese insurance company owned by Wu Xiaohui, failed in talks with Jared Kushner to buy a Manhattan skyscraper and then threatened to sue a Chinese magazine, Caixin Weekly, which revealed potential fraudulent reporting by the company. The magazine detailed the "labyrinthine funding" of the company, which may be manipulating accounts to create the appearance of more capital than actually exists. Caixin Weekly is a magazine that has withstood considerable scrutiny from Chinese officials and is a respected financial magazine, but one analyst suspects it may have a serious challenge in defending a lawsuit against the titan insurance company, Anbang.


CNN Refuses Trump Campaign's "Fake News" Ad

President Trump's re-election campaign accused CNN of censorship, after the network refused to run its advertisement that touted the accomplishments of the Trump administration's first 100 days in office. The network told the campaign that it would air the commercial only if it removed the segment that placed "fake news" over several journalists, such as CNN's Wolf Blitzer. One analyst concluded that CNN is free to deal with the administration how it pleases.


Facebook Scrambles to Police Content Amid Rapid Growth

Facebook, with its ever-growing revenue and number of users (surpassing two billion active users), has encountered a new problem: policing the trillions of posts made on the site. Monitoring posts is one problem and new developments, like live video streaming on Facebook, only further complicate Facebook's efforts. Facebook's head, Mark Zuckberberg, announced that the company is going to hire 3,000 people tasked with monitoring the site and taking down offensive content. This development comes after individuals in the U.S. and abroad streamed homicides live on their Facebook, prompting widespread outrage.


Turkey Purges 4,000 More Officials and Blocks Wikipedia

The Turkish government, in its continuing crackdown and consolidation of power, purged approximately 4,000 public officials and blocked access to Wikipedia and television matchmaking shows. To date, approximately 140,000 people have been purged from the state and private sectors since the attempted coup in July 2016, which targeted President Recep Tayyip Erdogan's regime.


Dubai Introduces Its Own Font, Lauding Free Expression it Does Not Permit

Dubai, the most prominent city in the United Arab Emirates, developed its own font that is meant to reflect the heritage and culture of the seven-member federation of the Emirates. The news in Dubai is censored to conform with the royal family's wishes. The crown prince announced that the font will elevate the Emirates' global business profile, which has been plagued by human rights abuses and a lack of democracy.


Time Inc. Decides Not to Sell Itself

Time Inc. announced that after a months-long bidding process, it will not sell itself, as it plans to increase its digital audience and revenue growth. The home of Time, Sports Illustrated, and People thus begins a new chapter in the company's 95-year history, at a time where the future of print magazines is unclear. While several companies approached Time Inc. during the bidding process, none matched its valuation, prompting its directors to end sale talks.


In Mexico, "It's Easy to Kill a Journalist"

The Mexican state of Veracruz is the most dangerous place for a journalist in the Western Hemisphere. In Mexico, over 104 journalists have been murdered in the country since 2000, while 25 more have disappeared during that time. The reasons for the killings vary from aggressive coverage of cartels to revelations of corruption to random violence. The government has discounted its role in the killings, noting that it has passed laws to protect journalists and the freedom of expression. Government watchdogs disagree, stating that self-censorship is the standard as a result of pressure from local officials and organized crime. Mexico's supreme court has held that all crimes against journalists must go to the country's federal courts, which some hope will deter future crimes.


Iranian TV Executive Assassinated in Istanbul

Saeed Karimian, an exiled Iranian living in Istanbul, was assassinated for unclear reasons on Saturday evening. He was a television executive for a network, Gem, widely distributed in the Middle East, which produced soap operas among other television shows. While it is rumored that Karimian's assassination is a result of a money dispute, some analysts speculate that the Iranian state may have played a role in the killing as he had been convicted in absentia of spreading propaganda through his television channels.


May 10, 2017

NYC Mayor Signs Law Barring Inquiries into an Applicant's Salary History

By Kristine A. Sova

On May 4, 2017, Mayor Bill de Blasio signed into law an amendment to the New York City Human Rights Law that now restricts employers in New York City, with four or more employees, from inquiring into a prospective employee's salary history during the interview and hiring process. The restriction is part of a growing trend across jurisdictions to reduce the likelihood that women will be prejudiced by prior compensation levels and help break the cycle of gender pay inequity. The restriction takes effect on October 31, 2017.

Specifically, the law makes it an unlawful discriminatory practice for an employer to inquire about the salary history of a job applicant, or to rely on a job applicant's salary history in determining the salary, benefits, or other compensation to be offered to a job applicant. Employers are also prohibited from making salary inquiries to an applicant's current or prior employer (as well as their present or former employees or agents) for the purpose of obtaining the applicant's salary history, and from conducting a search of publicly available records or reports for the purpose of obtaining an applicant's salary history.

"Salary history" includes not only an applicant's current or prior compensation, but also benefits and any other form of compensation that he or she may have received.

The law contains a few exceptions, namely:

Without inquiring about salary history, employers may engage in discussion with the applicant about their expectations with respect to salary, benefits, and other compensation including, but not limited to, unvested equity or deferred compensation that an applicant would forfeit or have cancelled as a result of the applicant resigning from his or her current employer.

If an applicant voluntarily and without prompting discloses salary history to an employer, then the employer may consider such salary history in determining salary, benefits, and other compensation to be offered to the applicant. Further, the employer may verify the salary history.

The law does not apply to applicants for internal transfer or promotion with an employer.

The law also does not prohibit employers from verifying an applicant's non-salary related information or from conducting a background check. However, if in doing so, an employer inadvertently learns about the applicant's salary history, the employer cannot rely on that information for purposes of determining salary, benefits, or other compensation to be offered to the applicant.

May 13, 2017

Week in Review

By Michael Smith

Below, for your browsing convenience, the categories are divided into Entertainment, Art, Sports, and Media; but first, of universal interest:

Former Partners Sue Chadbourne & Parke for Sex Discrimination

Mary T. Yelenick joined the lawsuit filed by Kerrie L. Cambell, accusing Chadbourne & Park of sex discrimination and pay inequity. The complaint alleges that Chadbourne has "systematically disparately underpaid" its female partners and "systematically shut [them] out of firm leadership, demoted, de-equitized and terminated them."



Jay Z Renews Touring Deal with Live Nation

In a deal Variety reports is worth $200 million, Jay Z and Live Nation renewed their 10-year partnership, pursuant to which Live Nation produces and promotes Jay Z's shows.


Crowdsourced Video Games: Value or Vaporware?

"Star Citizen," a video game announced in 2012, raised $148 million through crowdfunding --a record amount-- but has yet to release the game. Cloud Imperium Games, the developer, says that it keeps pushing the release date back, because more money allows it to develop a better game (Cloud Imperium's founder, Chris Roberts, was hoping to raise $4 million). Some funders have begun demanding their money back.


Hackers Tap Celebrities' Vendors

Some experts estimate that 80% of security breaches occur somewhere in the middle of the supply or distribution chain. Big film and music studios have comprehensive (expensive) security protections, but their various suppliers, vendors and collaborators often do not. Hackers have been targeting those weak links in order to obtain pre-release copies of music, movies, and television shows. One hacker or group of hackers going by the name, TheDarkOverlord, has been demanding ransoms from major studios to prevent them from leaking upcoming content.


Grammys Coming Back to New York

After 15 years in LA, the annual Grammy Awards ceremony will be held at Madison Square Garden on January 28, 2018.




Burglars stole a card on which J.K. Rowling wrote an 800-word prequel to the "Harry Potter" Series. The card's owner bought the card at auction for about $32,000 to raise money for literacy causes.


Canadian Editorial Stirs up Controversy

The Writers Union of Canada apologized for an editorial by Hal Niedzviecki, former editor of the union's magazine, in which he said the "exhaustingly white and middle-class" majority of Canadian authors should be encouraged to "appropriate" from other cultures. Mr. Niedzviecki has resigned.


'Rebecca' Producers Win Small in Legal Battle

On Wednesday, a jury found Mark Thibodeau, a publicist who had sent anonymous emails to a prospective investor warning him that the production of 'Rebecca' Thibodeau was supposed to be promoting was plagued with problems, liable for tortious interference and breach of contract. The jury awarded the plaintiffs, erstwhile producers of the arrested musical, a total of $90,000. They had asked for over $10 million.


Damien Hirst Accused of Misappropriating Nigerian History

Nigerian artist Victor Ehikhamenor accused British artist Damien Hirst of copying a famous ancient Nigerian sculpture known as "Head of Ife." "[F]or the thousands of viewers seeing this for the first time, they won't think Ife, they won't think Nigeria," Ehikhamenor wrote on Instagram after seeing Hirst's work at the Venice Biennale. "Their young ones will grow up to know this work as Damien Hirst's."


Massachusetts Seminary Fumbles with Tribal Artifacts

Two years ago, the Andover Newton Theological School in Newton, Massachusetts, proposed selling some of the 158 Native American tribal artifacts it has kept at the Peabody Essex Museum for the past 70 years. The museum notified the U.S. Department of the Interior, who warned the school selling the artifacts would violate federal law. As the Andover school is in the process of joining Yale Divinity School, it is coming under renewed scrutiny, as it has yet to provide the required inventory to the tribes involved.


Met Wants to Charge Bridge & Tunnel Crowd

The Metropolitan Museum of Art (Met) filed a formal proposal with the City of New York to charge mandatory admission to out-of-state visitors. This fact was disclosed at a hearing to approve the Met's settlement with a class of plaintiffs over allegedly misleading signs about the cost of admission.


Coach Pays too Much for Handbags

Luxury handbag maker Coach will pay $2.4 billion to purchase competitor Kate Spade. The New York Times reports that the purchase price represents a 27.5% premium over Kate Spade's share price before rumors of the deal began to circulate.



MMA Fighter Clobbers Tai Chi Master, Runs Away

Mixed martial arts fighter Xu Xiaodong dismissed practitioners of traditional Chinese martial arts as frauds. Wei Lei, a practitioner of "thunder style" tai chi, accepted Xiaodong's challenge and, 10 seconds into the match, was having his head repeatedly smashed against the floor. The ensuing outcry has been so intense that Xiaodong has gone into hiding.


FIFA to Replace Ethics Leaders

FIFA is replacing the officials whose ongoing investigations resulted in the suspensions of several FIFA officials. The departing officials said their replacements were "politically motivated" and would "end...reform efforts."


Hernandez Conviction Nullified

On Tuesday, a Massachusetts judge vacated Aaron Hernandez's murder conviction, because Hernandez, who hanged himself in prison last month, died before his appeal was heard.


FIFA Lifts Messi Ban

FIFA will allow Lionel Messi, captain of Argentina's soccer team, to play in the next three World Cup qualifiers. Messi had been banned from four matches after he insulted a referee's assistant. The FIFA disciplinary appeal committee found that Messi's conduct, while "reproachable," did not merit a four-game suspension.


Messi Look-Alike Causes Tumult in Iran

Iranian Reza Parastesh is a dead ringer for Lionel Messi. This weekend, so many people came out to take selfies with him the Iranian city of Hamadan that the police detained him and impounded his car.



FCC Reviewing Colbert Complaints

In his opening monologue on Monday night, Stephen Colbert, host of "The Late Show" on CBS, made a crude remark combining President Trump, Vladimir Putin, and sodomy. Many viewers were offended, and some have said the remark was homophobic. The FCC is evaluating the remark (which was bleeped, and Mr. Colbert's mouth blurred) to determine whether it violates FCC guidelines.


Richard Simmons Sues Tabloids

Fitness celebrity Richard Simmons sued The National Enquirer and Radar Online for defamation, after the two tabloids published stories claiming that Simmons had undergone a sex change.


Cannes Commits to Cinema in le Cinéma

French theater owners are not happy with the Cannes Film Festival. This year's festival will feature two Netflix-produced films, neither of which will be shown in theaters before streaming on Netflix's service. Under pressure from those theater owners, the festival said that it would change its rules to require all future submissions to be distributed in French movie theaters.


Mexico Increasing Protection for Journalists

Mexican President Enrique Peña Nieto has vowed to remove the lead prosecutor responsible for investigating crimes against journalists, and to fund a federal protection program for threatened journalists. 11 Mexican journalists were killed in 2016.


Sinclair to pay $3.9 Billion for Tribune

The Sinclair Broadcast Group, the largest owner of local television stations in the United States, has agreed to buy Tribune Media for $3.9 billion. The combined entity would cover more than 70% of the market. Some have expressed concern that Sinclair will use its expanded reach to advance a conservative political agenda.


Comcast Joins with Charter in Wireless Service Alliance

Comcast and Charter Communications announced that they will partner to provide wireless voice and data services to consumers.


Facebook Launches "Fake News" Education Campaign Ahead of UK Elections

Facebook has published a series of newspaper ads in the United Kingdom, advising readers how to spot "fake news" online. Facebook also said it had removed tens of thousands of possibly fake accounts in Britain, and adjusted its algorithms in the country to reduce misinformation and spam. Britain's general elections will take place next month, and Facebook faced widespread criticism for its role in spreading misinformation during the 2016 U.S. presidential election.


May 15, 2017

EASL Section Letter Opposing the De-Funding of the National Endowments for the Arts and Humanities and the Corporation for Public Broadcasting

The Entertainment, Arts and Sports Law ("EASL") Section's Executive Committee voted to draft and send a memorandum opposing the de-funding of The National Endowment for the Arts ("NEA"), The National Endowment for the Humanities ("NEH"), and The Corporation for Public Broadcasting ("CPB"). The memorandum was sent by the NYSBA to United States Senators Charles Schumer and Kirsten Gillibrand, as well as each of the 27 elected members of the U.S. House of Representatives from the State of New York. EASL Memorandum 1 Support.doc

This outcome is excellent and should have an impact on the budget legislation. The Continuing Resolution, which passed in late April and was signed by the President, funds the federal government through September 30, 2017. The focus of the ongoing debate on this issue now shifts to the forthcoming debate on the Fiscal Year 2018 Federal Budget (October 1, 2017 through September 30, 2018).

I thank all of those who were so dedicated, passionate, engaged and involved in this difficult process, especially the crack writing and editorial team of Meital Waibsnaider, Irina Tarsis, Marc Jacobson, Steve Richman, Rosemarie Tully and Steve Rodner, and as always, Beth Gould, EASL's own Wonder Woman.

Diane Krausz
Chair, Entertainment, Arts and Sports Law Section, NYSBA

May 20, 2017

Week in Review

By Anna Stowe DeNicola

Below, for your browsing convenience, the categories are divided into Entertainment, Art, Sports, and Media; but first, of universal interest:

Possible Path to Independent Register of Copyrights Paved by House Vote

The House voted 378-48 to make the Register of Copyrights independent of the Library of Congress. If the bill passes the Senate, the Register of Copyrights would be a presidential appointee and serve a 10-year term. Last year's decision by the Librarian of Congress to fire the long time Register of Copyrights, Maria Pallante, was met with much criticism and dismay. This new structure purports to provide more autonomy for the Register, and give him or her more resources to modernize the Copyright Office. Under the bill, Congress and the Librarian of Congress would recommend qualified individuals to the President. The recommended candidates for the position would be required to have a background in copyright law and the ability to oversee a CIO or an individual who would manage modern IT systems. Missing from the bill were other copyright reforms that many were hoping to see, including the establishment of a copyright small claims court.


Charlotte Law School Now Subject to State Inquiry

The embattled for-profit Charlotte Law School is facing yet another challenge - an investigation by North Carolina's State Attorney General's office. The law school was put on probation by the ABA last November, and the Department of Education has cut off student loan funding on the basis that the law school misrepresented itself to students about its accreditation status. The law school maintains that it was required to keep the accreditation issues confidential until the probation was publicly disclosed last fall. The North Carolina Attorney General's office asked the Department of Education to extend the time for students to discharge their student loans. The law school is seeking an "alternative teaching plan" so it may keep its doors open. The school has over $150,000 in past due city taxes, revenue shortfalls, and has dealt with turnover in the dean's office. Students of the law school have filed lawsuits and are seeking class-action status in some cases. As an alternative to federal funds, students may pursue private loans through the law school, which is currently offering zero interest loans.



Cosby Will Not Testify at Criminal Trial

In an effort to reshape the "optics" surrounding his reputation, for the first time since 2015, Bill Cosby gave a radio interview. In the interview, he maintained his innocence, suggested that racism was the foundation of the claims against him, and shared that he would not take the stand in his trial. Cosby is the subject of a criminal lawsuit brought by a woman who claims that he drugged and assaulted her. Cosby has retreated from public life as a result of claims against him by several women. In the interview, he discussed his desire to perform again, and believes that even though negative public opinion about him may not change even if he is exonerated, he maintains his innocence and believes that ultimately, the "truth" will set him free.


The Inevitable Clash Between Netflix and Cannes

This year, two Netflix titles are eligible for the Palme d'Or; however, the Cannes Festival announced a change in its rules for next year, essentially excepting any Netflix films from consideration. The French cultural exception, the basis for the rule change, mandates a 36-month delay between theatrical release and streaming date for a film. Netflix opted to not participate in the French system. The French National Cinema Center indicated that people in the film industry felt offended - that it showed a refusal on Netflix's part to understand the French cultural exception. Even though many in the French film industry believe that 36 months is too long to wait, changes to the waiting period must be approved by many who profit from its existence, including cinema owners, producers, cable and television broadcasters, and associations that represent writers. Cinema attendance rates in France continue to increase, and many argue the French system, although heavily regulated, works. With a new President sworn into office in France, a new Culture Minister is slated for appointment in the near future. In theory, a new Culture Minister could be the tipping point to shortening the waiting period, leading to yet another rules change for the Cannes Festival.


Conan O'Brien Heads to Court on Joke Theft Allegations

Late-night comedian Conan O'Brien is facing allegations of joke theft after a freelance comedy writer claimed that O'Brien stole five of his jokes from December 2014 to June 2015. Two of the allegations were dismissed by a federal judge in the Southern District of California, but three were allowed to move forward. A trial date has yet to be set.


Partial Summary Judgment Denied in Blizzard Entertainment Case

A district judge in the Southern District of California this week denied partial summary judgment in Blizzard Entertainment v. Lilith Games. The case tackles complex issues of copyright ownership and rights to derivative works in the gaming industry, where it is common for gamers to share and further develop "mods" created and developed by other gamers. Lilith Games and uCool developed mobile versions of games based on DotA platforms extensively developed and modified by gamers known as Eul, Median, Madcow, Guinsoo, and Icefrog. These gamers eventually moved on and joined gaming companies Valve and Riot and assigned their rights in the platforms they developed to the gaming companies. Riot later sold its rights to Blizzard Entertainment. Blizzard and Valve sued uCool and Lilith, claiming that their copyrights in the games were violated when uCool and Lilith developed mobile versions of the games. After a lengthy inquiry into copyright ownership in this arena, which is quite complex given the number of works at issue, the court found that the games now owned by Valve and Blizzard were not collective works, but rather each version of the games, developed by gamers, were individual works. The court also found that Eul, Guinsoo, and Icefrog were authors of the works, even though they incorporated suggestions of other gamers, and therefore had the ability to assign their copyrights in the games to Valve and Riot. In denying the motion for partial summary judgment, the court is allowing the case to proceed and further address the issue of uCool's and Lilith's alleged copyright infringement, when mobile versions of the games were developed.



Dutch Efforts in Looted Art Restitution May Be Lagging Behind

The Dutch government has had mixed moments in its efforts for restitution of art looted during World War II (WWII). In the early days after WWII, many looted works were recovered from the Nazis, only to be hung in museums and absorbed as Dutch national property. In 1997, the Dutch government hired an art historian to track looted art and return it to its rightful owners. An exhibit chronicling this process, "Looted Art - Before, During and After WWII", is currently running in the Netherlands. Though the country made significant efforts in the late 1990s and 2000s to increase its efforts to restitute looted works, it is again under scrutiny. A recent policy change allows for a balancing-of-the-interests inquiry when considering claims. Specifically, panels can consider "'the significance of the work to public art collections' against the emotional attachment of the claimant.'" The exhibition contains 75 works from the "NK Collection," which contains over 3,800 looted works that have yet to be returned for various reasons. After WWII almost 9,000 works of art were returned to the Netherlands that had been recovered in Germany. This number is less than half of the works that were eventually reported missing by survivors or heirs. The Dutch government defends its process, stating that many of the claims that have come before the panel in recent years were weak, and were rejected not because the new balancing test was bad, but because the claims were not strong enough. The exhibit organizers are not aiming to criticize the new policy, but highlight past failings.


Author of Book on Campus Sex Sued for Defamation

A student at Northwestern is suing the author of a book on campus sex, with claims of defamation and invasion of privacy. Laura Kipnis's book, Unwanted Advances, claims that Title IX's provision for sexual misconduct may be "overzealous[ly]" applied, with some students using the provision to "adjudicate relationship disputes post-breakup." While Kipnis used a pseudonym for the plaintiff (identified as "Jane Doe" in court papers), Kipnis published text messages and private details about the plaintiff and her relationship with a former professor at the University. Among other things, the plaintiff claims that the book damaged her job prospects. There is a legal history between the parties - Kipnis was the subject of a Title IX complaint brought by two students alleging that Kipnis creating a "hostile environment" after publishing an essay in 2015. One of the students was Jane Doe. Kipnis was cleared of the charges, but Jane Doe alleges that Kipnis wrote the book to retaliate against Doe for filing the 2015 complaint.


Record-Setting $110.5 Million Sale at Sotheby's This Week

Now the sixth most expensive work ever sold at auction, Jean-Michel Basquiat's 1982 painting, "Untitled," was purchased for a whopping $110.5 million this week, by Japanese billionaire Yusaku Maezawa. Maezawa shared his purchase via Instagram. He also recently purchased another Basquait painting for $57.3 million. Maezawa is the founder of the Contemporary Art Foundation, and of Japan's online fashion mall, Zozotown. Maezawa plans to open a museum in his hometown of Chiba, Japan, and says that he purchased "Untitled" for the museum. Basquait's notoriety has risen astronomically in the past several years. He was a graffiti artist from Brooklyn who died at the age of 27 from a drug overdose. Last year alone, his works grossed $171.5 million at auction, to make him the highest-grossing American artist at auction.


Mixed Feelings About the Proposed Mandatory Entry Fee at the Metropolitan Museum

The Metropolitan Museum is exploring the possibility of charging a mandatory admission fee to non-New Yorkers. The museum's current admissions policy remains fuzzy to most, prompting surprise when people were questioned about how much they would be willing to pay. Currently, it has a suggested admission policy, with the prices are clearly stated at the admissions desks. The museum is considered a public institution - New York City funds it each year with $26 million in taxpayer dollars, and owns the building itself. While other New York City cultural institutions charge mandatory admissions fees, the City's public support muddies the waters. While visitors generally are supportive of the proposed admissions policy, many question how it would impact those from the Greater NYC area, such as visitors from New Jersey and Connecticut, who may be deterred by a mandatory fee. Next steps include a longer, formal proposal, and approval by the City. Then talks would ensue regarding terms, price of admission, and how to delineate residents from tourists.



National Hockey League Will Not Release Players for the 2018 Olympic Games

The National Hockey League (NHL) last month announced that it would not release players for the 2018 Winter Olympics. This decision impacts all 12 teams that qualified for the Olympics. The NHL does not want to shut itself down for three weeks during the Olympics, which it argues would cause a loss of revenue and "expose its players to injury." The impact on the qualifying teams varies, depending on the number of non-NHL players per country. For example, Slovenia and the Czech Republic will feel a greater impact, whereas countries such as Sweden, Finland, Russia, and China, will not. Some countries see the NHL's decision as an opportunity for their non-NHL players to shine. The International Ice Hockey Federation purportedly is "engaged' in talks with the NHL Player's Association, and the New York Times reported that the Federation disagrees with the NHL's stance on Olympic participation.


Texas Bill Could Impact Transgender Student Athletes

The state of Texas currently requires all student athletes to compete in the genders listed on their birth certificates. This has been challenging for some athletes, including high school wrestler Mack Beggs, who was required to wrestle against girls, rather than boys, because the gender listed on his birth certificate is female. Currently pending in Texas is a related bill that would disqualify transgender athletes undergoing hormone therapy. The bill would require any transgender athletes to disclose medical information to the University Interscholastic League, which is the state's governing body for high school sports. Lawmakers argue that the competition's fairness would be "substantially affected" by the hormone therapy.


No Reinstatement for Josh Gordon

The National Football League (NFL) denied the reinstatement of Josh Gordon, the Cleveland Brown's wide receiver, who has been suspended several times for substance abuse violations. Gordon voluntarily entered a rehabilitation facility last September and completed a 30-day program. The Browns have remained in touch with Gordon, and still own his rights, but have stated that it is moving forward without him on the team roster.


In Spain, A Surprising Boost for Girls Soccer

A Spanish soccer team comprised of 13- and 14-year old girls recently clinched the championship in a league comprised mainly of boy's teams. Efforts in Spain to promote women's and girl's soccer lag behind other countries, and clubs that include girl's rosters often focus their time and resources nurturing the boys. One club, AEM Lleida, has been focusing on girls for a decade, and has recently capitalized on a Spanish soccer federation rule that allows clubs to put both boys and girls at play - including mixed teams - for junior league competition. Parents were reluctant in the early years, but have united behind the effort, as they have experienced the girls' success. The club believes that a large part of the girls' success is discipline - they absorb feedback from their coaches and do what is asked of them. The club is currently raising money specifically for the girl's coaching program, as sponsors are slow to get behind female teams, and its success has increased female membership in the club by 25% - not a small feat.


Recovery of Brady Super Bowl Jersey Highlights the Less Than Fortunate Fate of Most Stolen Sports Memorabilia

The fact that Tom Brady's stolen Super Bowl jersey was recovered is a real story, as the majority of stolen sports memorabilia remains unrecovered. Major pieces, including Yogi Berra's World Series rings, Belmont Stakes trophies, Roger Maris's 1960 MVP plaque, and countless other objects collectively worth in the millions of dollars, have recently disappeared in a "string of thefts." The sports memorabilia market is valued at over $1 billion, and the value continues to climb. Most stolen pieces are difficult to track, because they do not often change hands. A recovery occurs generally when a mistake is made - tracks aren't covered, or a thief becomes sloppy when identifying buyers for the items. In the case of Brady's jersey, the thief, Mauricio Ortega, sent photos of the jersey to a teenager and sports memorabilia enthusiast. The Seattle teen connected the dots when he heard that Brady's jersey was missing. With the teen's help, investigators were able to track down the jersey and recover additional Super Bowl memorabilia.


$12 Million Raised for WinView, a New Player in the Sports Betting Arena

Some heavy hitters have stepped up to provide initial backing for WinView, an interactive sports-betting startup, that aims to change the way fans interact with games in real time. The platform allows users to make predictions in a game as it develops in real time, and presents that it is a "new way for sports fans to engage with games." So far WinView has 130,000 users and is unique, in that it can operate nationwide because it does not charge an entry fee. The NFL, National Basketball Association, and Major League Baseball have signed on to offer game experiences for WinView users. Advertising revenue is coming in through PepsiCo, and the company is working on pay-to-play options to source additional funds. The new funding will add more sports, and work to expand beyond American offerings. Backers include Graham Holdings (former owner, Washington Post), Discovery Communications, Ted Leonsis (owner, Washington Wziards and Washington Capitals), and LionTree (a boutique investment bank). This service differs from DraftKings and FanDuel, two fantasy sports web companies that were previously sued and face troubles with their businesses.


Despite Lack of Official Reporting, Gisele Bundchen Discusses Brady Concussions

The NFL is sensitive about player concussion reporting, especially after its recent agreement to a $1 billion payout to retired players, who accused the NFL of concealing the correlation between football and brain damage. In an interview this week, Tom Brady's wife, Gisele Bundchen, stated that Brady played through a concussion in 2016. There are no records that Brady had a concussion or head injury that season. "Significant or noteworthy" injuries are required to be reported, even if the injury does not result in loss of playing time. The NFL stated that it has been in touch with the NFL Players Association regarding the statement, and is looking into any head injuries Brady may have experienced. Brady, who at 39 is considered one of the best players in NFL history, recently suggested that he would like to play well into his 40s. His wife, however, seems to have a different perspective on his safety in a game that is known for aggression and injury.


Another Sexual Assault Lawsuit for Baylor - Ex-Student Claims Gang Rape at the Hands of Football Players

A former Baylor student is suing the University, alleging that she was drugged and gang-raped by members of the football team. This is the most recent lawsuit for the university, which has been involved in several sexual assault lawsuits. The lawsuit claims that the university swept her claim under the rug in order to protect the football team, and created an environment that "advanced sexual violence toward women by its football players." The lawsuit claims that the university often used sex as a way to attract recruits, and would allow team members to "engage in unrestricted behavior." Last year, football coach Art Briles and Kenneth Starr, the University's president and chancellor, were forced out as the university faced repeated sexual assault lawsuits.


No French Open Wild Card for Sharapova

Maria Sharapova, who recently returned to competition after serving a suspension over a doping violation, was denied a wild card into the French Open. Commentators are suggesting that this is a snub and further penalization for Sharapova, while others argue that wild cards are discretionary - and that the Women's Tennis Association acted appropriately by not giving her preferential treatment. Sharapova equates ticket sales for large tournaments. Her next shot at a Grand Slam event is the Wimbledon qualifying tournament at the end of June. No rules exist regarding the issuance of wild cards to players returning from doping suspensions, and Sharapova has been offered wild cards in other tournaments.


Anti-Gay Slur Leads to Two Game Suspension

Toronto Blue Jay's player Kevin Pillar was suspended for two games for an anti-gay slur he flung at an Atlanta Braves pitcher. The Blue Jays released a statement condoning the behavior, and swiftly responded with the suspension. In addition to the suspension, which includes a salary forfeiture, Pillar will pay a fine. Pillar issued an apology, stating that the slur was made in the heat of a moment of frustration, and was not reflective of his feelings towards the LGBTQ community.


With Rules Change, Russia Could be Barred from the 2018 Olympics

The World Anti-Doping Agency (WADA) is looking to fast-track rules changes that will allow it to directly apply sanctions against international sporting federations that are non-compliant with anti-doping policies. The goal is to have the proposed rules ready for the November Board meeting, which would satisfy the requisite three month implementation window to apply to the 2018 Winter Games. Widespread, state-sponsored doping was discovered in Russia, and WADA recommended Russia be barred from Rio two years ago. However, the International Olympic Committee (IOC) overruled WADA, and allowed Russian athletes to compete. Under the proposed rules, the IOC would be unable to circumvent WADA.


Suspicious Anti-Doping Violations at Nike's "Oregon Project"

The Nike-sponsored "Oregon Project," a training program for runners, is under investigation for anti-doping violations. After uncovering a confidential report by the United States Anti-Doping Agency (Usada), the New York Times reported on the suspect activities. Alberto Salazar, the coach of the Oregon Project, asserts that he followed anti-doping protocols when he provided the athletes with supplements and drugs that have no proven benefits for runners, and pressured the athletes to unquestionably follow his recommendations for medical treatments that he asserted were legal and designed to help their performance. Among the "treatments" administered in the program was a controversial transfusion of L-carnitine, itself not a banned substance; however, the scope and extent of the transfusions, and method used, was in violation of anti-doping policies. Further, Salazar bound the athletes to secrecy and altered medical records to hide the scope of the transfusions. Athletes felt trapped - they were often threatened with promises to withhold pay if they didn't comply with Salazar's instructions. Anti-doping sanctions have not been announced against anyone in the report.



Federal Communications Commission Votes 2-1 to Reverse Classify Broadband - No Longer a "Utility"

The Federal Communications Commission (FCC) this week voted 2-1 to repeal Obama-era classifications of Broadband, advancing the Republican agenda to repeal Obama's 2015 net neutrality order. Under the prior administration, broadband was classified as a utility, which allowed government regulation. A public comment period has commenced, where the FCC is soliciting comments regarding net neutrality. The FCC is asking for opinions regarding whether it can bar Internet companies from "blocking, throttling or giving 'fast lanes' to some websites", and whether states should be able to establish their own Internet regulations. The Chairman of the FCC, Ajit Pai, publicly supports an "open Internet." Major supporters of an open Internet include the big broadband providers - AT&T, Verizon, and Comcast, while other internet companies, such as Facebook and Alphabet Inc., are strong supporters of net neutrality.


News Media Giant Roger Ailes Dies At Age 77

Roger Ailes, the news media giant and acclaimed political strategist, passed away this week at the age of 77. Ailes was no stranger to health issues, and had long suffered from hemophilia, obesity, and arthritis. He was the mastermind behind the incredible success of Fox News, which he founded in 1996 with Rupert Murdoch and lead ferociously for two decades until his ouster last year, in the wake of a sexual harassment scandal that has left the network reeling in its wake. In addition to his work at Fox, Ailes was a leading media strategist for many political campaigns, including those of Richard M. Nixon, Ronald Regan, and George H.W. Bush. He was known for incorporating elements of entertainment to news reporting and was often criticized for his methods and approach. He was "feared" in the news industry, and known for frequent outbursts of anger. His drive and tenacity were critical to Fox News's almost instant success. At the end of his tenure there, the network boasted 2 million average daily viewers, more than MSNBC and CNN combined. Ailes is survived by his third wife, Elizabeth Tilson, and son Zachary.


Facebook Receives Warning from Thailand Over Alleged Violation of Lesè-Majesté Law

After pictures of Thailand's new king wearing a crop top surfaced on Facebook, the company was asked by the Thai government to remove dozens of pages from its servers. The government has clamped down on online speech since the 2014 military junta coup. Facebook has struggled with how to balance its core values as a platform for the sharing of news and ideas with local laws and customs that may curtail or limit expression. Thailand's lesè-majesté law, which imposes a criminal penalty of up to 15 years in jail for insulting the king, queen, or crown prince, may be more strictly enforced under the new military rule. Commentators believe that the junta will turn the law into an "offensive weapon designed to eliminate all forms of political opposition." Facebook was asked to remove 131 pages, and the Thai government obtained a court order to block 34 of the pages. The Thai Internet Service threatened to shut Facebook down, but did not follow through on the threat. Facebook released a statement stating that it was the company's policy to comply with such governmental requests to restrict content that was believed to violate local laws.


More Trouble for Facebook From European Privacy Regulators

Dutch and French privacy watchdogs stated that Facebook broke data protection rules in both countries. The European Union (EU) has been increasingly critical about how Facebook collects and stores information about EU residents, including German threats to levy significant fines against the company if it doesn't increase its efforts to crack down on hate speech and misinformation. France this week fined Facebook 150,000 Euros. The Dutch did not impose a fine, and is striving to reach a settlement with the company. Both watchdog groups stated that Facebook compiled massive amounts of personal data about its users in order to provide targeted advertisements, and collected browsing activity of users on third-party websites without their user's knowledge. Facebook, in response, stated that it fully complies with European data protection rules, and has taken steps to simplify its online privacy settings to afford users more control over the use of their personal data.


Chobani Claims Retracted As Part of Settlement

The eye-catching headline, promoted by Alex Jones, read, "Idaho Yogurt Maker Caught Importing Migrant Rapists." Jones, on his radio show, promoted not only the story, but also connected Chobani to the sexual assault of a child and rising levels of TB cases. Chobani was founded by a Turkish immigrant, Hamdi Ulukaya, who has become a prominent advocate for refugees. He employs refugees in his factories, and started a foundation to aid migrants. Ulukaya has been the target of anti-immigrant anger since he has increased his advocacy efforts. Jones, on the other hand, is no stranger to cease and desist letters, and has a reputation for outrageous, right-leaning remarks. This was not his first apology - prior apologies include those made for his role in the "Pizzagate" scandal, where he spread a hoax claiming that Democratic leaders were involved in a child abuse ring at a Washington restaurant.


"Must Runs" Are Meeting Criticism at Sinclair Broadcast Group Stations

Sinclair Broadcast Group owns a staggering 173 stations, with 42 likely to be added in a proposed acquisition of Tribune Media. This would allow the company to reach over 70% of households across the country. The company hands down daily "must-runs," segments produced by the company that stations are required to broadcast during a 24 to 48 hour window. The segments have a recognizable right-leaning slant, and many journalists are wary of what they consider "intrusive direction" from the company. In Seattle, journalists rebel against these segments in small ways, by airing them at times with low viewership or at the tail end of an ad segment. As the company expands its ownership of stations into the largest markets, journalists are likely to be more resistant to these required segments. Big-market journalists are generally more experienced, lean more to the left, and struggle with what may appear to be interference with their work. Sinclair maintains that it aims to be objective and it works to remain in the center.


An Unfortunately Common Occurrence in Mexico - Murder of Another Prominent Mexican Journalist

Javier Valdez Cardenas, a prominent Mexican journalist who covered drug cartels and the ensuing cultural violence they instigated, was killed on Monday. Since 2000, over 100 journalists have been murdered in Mexico. Most of the murders remain unsolved, and many believe that this is due to "pervasive" corruption. Mr. Valdez was an award-winning journalist and had extensively covered the drug wars in his home state. The murders likely are the work of drug gangs of corrupt politicians who have become embroiled with the gangs or criminal activity. Mexican President Enrique Pena Nieto condemned the killings, and the Mexican Attorney General's office said the murder would be investigated by a special prosecutor for crimes against freedom of expression.


State Television Offices Stormed by Suicide Bombers in Afghanistan

The fight lasted three hours and at the end six people were found dead, after suicide bombers raided a state television station in Nangarhar Province in Afganistan. An additional 18 to 24 people were injured. An affiliate of ISIS claimed responsibility.


WannaCry Hits Hard in China, Where Bootleg Software is the Norm

Last week's ransom ware attack hit hard in China, leaving companies, universities, and government agencies scrambling to recover. The extensive nature of the attack in China is believed to be related to the high proliferation of bootleg software, which is the norm in the country. It is so common, that an entire industry of cybersecurity firms has risen to protect users of pirated software. Unlicensed versions of software are not often registered with companies, so users miss critical updates and security fixes necessary to ward off this type of cybersecurity breach. According to researchers, 70% of software installed in China is not properly licensed. Universities and government agencies rely heavily on copies of Windows, and using unlicensed software is generally considered legal, because it is so commonly used. Microsoft had previously cut off support of older versions of Windows, to attempt to curb the use of bootleg copies, but the outcry was so great that the company agreed to upgrade users for free. Additionally, Microsoft abandoned the practice of distributing its software on discs, which makes it more difficult to copy and share the software. Chinese tech companies are rushing to develop their own operating system software, hoping to reduce the country's reliance on foreign software.


May 22, 2017

11th Circuit Holds That Copyright Registration (Not An Application) Is Necessary to Commence a Copyright Infringement Claim

11th Circuit's opinion summarizes the circuits' split on the question of what "Registration" of a copyright as a precondition to filing suit for copyright infringement means. This Court decides an issue that divides the circuits: Whether registration occurs when an owner files an application to register the copyright, or when the Register of Copyrights registers the copyright. It finds that the first instance is correct.

A summary from the decision fourth estate.pdf:

The question when registration occurs has split the circuits. The Tenth Circuit follows the "registration" approach to section 411(a), which requires a copyright owner to plead that the Register of Copyrights has acted on the application--either by approving or denying it -- before a copyright owner can file an infringement action. La Resolana, 416 F.3d at 1197-1203. In contrast, the Ninth and Fifth Circuits follow the "application" approach, which requires a copyright owner to plead that he has filed "the deposit, application, and fee required for registration," 17 U.S.C. § 411(a), before filing a suit for infringement. Cosmetic Ideas, 606 F.3d at 618-19; Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 365 (5th Cir. 2004), abrogated in part by Muchnick, 559 U.S. 154; Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386-87 (5th Cir. 1984); see also Melville B. Nimmer, et al., 2 Nimmer on Copyright § 7.16[B][3][b][v] (2016). The Eighth Circuit, in dicta, also endorsed the application approach. Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir. 2006). The case law of the Seventh Circuit contains conflicting dicta on whether it follows the application approach, Chi. Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 631 (7th Cir. 2003) ("[A]n application for registration must be filed before the copyright can be sued upon."), or the registration approach, Gaiman v. McFarlane, 360 F.3d 644, 655 (7th Cir. 2004) ("[A]n application to register must be filed, and either granted or refused, before suit can be brought."), or whether it has even decided this question, Brooks-Ngwenya v. Indianapolis Pub. Sch., 564 F.3d 804, 806 (7th Cir. 2009). And both the First and Second Circuits have acknowledged the circuit split but have declined to decide whether to adopt the application approach or the registration approach. Alicea v. Machete Music, 744 F.3d 773, 779 (1st Cir. 2014); Psihoyos v John Wiley & Sons, Inc., 748 F.3d 120, 125 (2d Cir. 2014).

May 27, 2017

Week in Review

By Michael Smith

Below, for your browsing convenience, the categories are divided into Entertainment, Art, Sports, and Media. First, of general interest:

Eleventh Circuit Adopts "Registration" Approach to § 411(a)

The Eleventh Circuit has joined the Tenth Circuit in holding that a copyright owner must plead that the Register of Copyrights has acted on its application as a prerequisite to filing a copyright infringement action. The Ninth and Fifth Circuits follow the "application" approach, which requires only that the owner allege that it has properly submitted the application. The Eighth Circuit also has endorsed the "application" approach, albeit in dicta. The Seventh Circuit is split, and the First and Second Circuits are ambivalent as to whether an application or registration is sufficient.



China Approves 116th Trump Trademark

China's Trademark Office granted preliminary approval for Donald Trump's application to trademark the use of his name in connection with the sale of apparel. President Trump faces a lawsuit in the U.S. that alleges that his business interests constitute collection of foreign tributes in violation of the emoluments clause of the U.S. Constitution.


Frye Festival Organizers Face Lawsuits, Criminal Investigation

Frye Media, the partnership between rapper Ja Rule and entrepreneur Billy McFarland, is facing over a dozen lawsuits and a federal investigation after a supposed luxury music retreat turned out to be a post-apocalyptic millennial nightmare. In the wake of that disaster, which McFarland and Rule blamed on weather and other external factors, patrons, investors, vendors, talent, and employees are accusing McFarland of fraud.


Cosby Jurors Selected; Racial Bias Claimed

Nearly three thousand potential jurors were summoned to the Pittsburgh courthouse where the sexual assault trial of Bill Cosby will take place, and earlier this week a 12-member jury was empaneled. The jury is made up of seven men and five women. The New York Times reports that the majority of the jurors appear to be between the ages of 20 and 40, and that 10 appear to be white. Cosby's lawyers accused the prosecution of "systematic[ally] exclu[ding] African-Americans," but the court upheld the prosecution's peremptory challenges.


Ringling Brothers Pack Up Big Top

The legendary Ringling Bros. and Barnum & Bailey circus, which began in 1871, performed its last show last week, at the Nassau Veterans Memorial Coliseum.



Legal Battle over Pier 55 Continues

For several years, the Hudson River Park Trust has tried to build a $200 million performing arts center on the Hudson River, but the project was stalled by legal obstacles, including several lawsuits filed by the City Club of New York. In March, Judge Schofield of the Southern District found that the Army Corps of Engineers had failed to consider the affect of the project on a protected fish and wildlife sanctuary. On Monday, the Corps appealed that decision. In the meantime, the Trust filed a revised permit application that it says addresses Judge Schofield's concerns.


Stolen Art Bounty Increased

The Isabella Stewart Gardner Museum is offering $10 million for the return of 13 works stolen from the museum in 1990 by thieves posing as police officers. The museum initially offered $1 million, raising the reward to $5 million in 1997. The stolen works are collectively valued at around $500 million.


Edward Albee Estate Criticized for Blocking Production with Black Actor

The estate of playwright Edward Albee drew criticism for and sparked debate over its refusal to grant a production company rights to put on a performance of Albee's "Who's Afraid of Virginia Woolf," which would have cast a black actor as a character Albee wrote as white. The estate's decision is consistent with Albee's historical refusal to permit such "nontraditional" casting of his play. The producer, Michael Streeter, said: "I do not question the motives of those that made the decision -- I think they have some fealty to a sense of integrity to Edward Albee's desires.... But I had hoped the negative aspects of Albee would die with him."



Child's Injury Stokes Debate Over Safety Netting

On Wednesday, a young boy sitting near the third-base dugout at Yankee Stadium, was struck in the head by the barrel of a shattered bat. A bill pending before the New York City Council that would require the Yankees and the Mets to extend the protective netting behind home plate to both foul poles will come up for debate in September. Opponents to the bill are concerned that extended netting would affect fans' views.


Former Soccer Official Pleads Guilty to Money Laundering

Costas Takkas, former general secretary of the Cayman Islands Football Association, plead guilty to facilitating millions of dollars in bribes in exchange for marketing and broadcast rights. Takkas faces up to 20 years in prison, and will be sentenced by Judge Chen in the Eastern District in September.


Russia Paralympics Ban May Persist

The International Paralympic Committee, which suspended Russia's entire team from the 2016 Paralympics for doping, said on Monday that Russia still had not met all the criteria necessary for reinstatement. The Committee's president said that it would revisit Russia's compliance with the World Anti-Doping Agency's standards in September.


Former Barcelona Soccer President Arrested

Former Barcelona football club president Sandro Rosell is one of five people arrested by the Spanish police as part of a money laundering investigation concerning audiovisual rights to Brazil's national soccer team.


Rio Medals are Rusting

More than 80 U.S. athletes asked for replacement medals as the ones they were awarded at the Rio Olympics are flaking and rusting. Author's aside: There is no word yet on whether the U.S. Olympic Committee intentionally issued defective medals as a metaphor for the ethical corrosion eating away at international sports.



E.U. Parliament Member Found Guilty of Defamation

Mario Borghezio, an Italian member of the European Parliament, was found guilty last week of defamation and ordered to pay over $50,000 in damages to Cécisle Kyenge, Italy's former minister of integration, after he made racist and sexist remarks about her during a radio interview in 2013. Borghezio said in that interview that Kyenge wanted to "impose her tribal traditions from the Congo," called her a "good housewife, but not a government minister," and said that Kyenge, a doctor, had taken the job of an Italian doctor. The conviction comes after the Parliament voted to lift Borghezio's immunity.


Fox News Retracts Conspiracy Theory About a Democratic National Committee Aide's Murder

On May 16th, Fox News published an article on its website suggesting that Seth Rich, a staff member of the Democratic National Committee (D.N.C.), was shot to death in July in retaliation for sharing D.N.C. emails with WikiLeaks. A week later, Fox News issued a curt retraction, saying that the article "was not initially subjected to the high degree of editorial scrutiny we require for all our reporting." Notwithstanding the acknowledged lack of evidence, several Fox News personalities, including Sean Hannity, Newt Gingrich, and Geraldo Rivera, continue to espouse the theory.


Embattled Fox News Fires Yet Another Host

Last week, Fox News fired Bob Beckel, co-host of "The Five", after an employee accused Beckel of making a racist remark. The employee, who came to Beckel's office to fix his computer, says Beckel left the room and said he was doing so because the employee was black.


Hannity Advertisers Not Fleeing Fake News

Recently, advertisers fled from Fox News commentator Bill O'Reilly after the accusations of sexual harassment that have followed him for decades became too numerous and public to ignore. Sean Hannity has not yet suffered the same fate, despite his recent promotion of a conspiracy theory that Fox News has stated has no basis in fact.



Fox News Seeks Sanctions for Allegedly False Fake Twitter Allegations

A lawsuit filed against Fox News by former host Andrea Tantaros alleges that the network used fake Twitter accounts to make false claims about her. Fox is fighting back, claiming that those allegations are themselves false and easily disprovable, and asking that Tantaros and her attorney be sanctioned.


May 30, 2017

Art Law Mixer @ VLA: Estate Planning for Artists

Wine and Cheese Reception followed by Panel Discussion

6:00 PM - 8:00 PM, Thursday, June 8th

Volunteer Lawyers for the Arts Headquarters, 1 East 53rd Street, New York, NY 10022

Speakers: Amy Altman, Esq., Peter Arcese, Esq., Barbara Hoffman, Esq., and Betsy Dale, Esq.

Moderator: Irina Tarsis, Esq.

Preceded by our signature wine and cheese reception, the Center for Art Law brings you a group of experts who will discuss important issues involved in creating an estate plan. They will explain the benefits of wills and trusts, the importance of record-keeping, the more nuanced issues of art appraisal and taxation, and considerations in establishing a foundation. They will offer insight on how to retain and manage tangible and intangible assets and increase revenue through licensing.

The evening is designed to provide a useful overview for emerging and established artists who are interested in preserving their legacies in a way that aligns with their values. If you haven't considered your options before, this is a good starting point; if you are in the midst of the process of estate planning, this may offer helpful guidance. As you approach your final resting place, what will you do to ensure your art lives on?

About May 2017

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

April 2017 is the previous archive.

June 2017 is the next archive.

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