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September 2017 Archives

September 2, 2017

Week in Review

By Michael B. Smith

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

White House Reverses Rule Requiring Detailed Pay Data Reporting

Last year the U.S. Equal Employment Opportunity Commission adopted a rule that would require employers to report detailed pay data broken down by gender and race, saying the information was necessary to identify and address discriminatory wage gaps. The rule would have gone into effect in March 2018, but the Trump administration blocked the rule, saying that it would not have the intended effect.


White House Backing Away from Tubman $20

In April 2016, President Obama's treasury secretary announced that Andrew Jackson would be moved to the back of the $20 bill, and would be replaced by former slave and abolitionist Harriet Tubman. Both as a candidate and as president, Trump criticized the plan, saying a place on the $2 bill might be "more appropriate" for Tubman. The Treasury Department took down the website created by the Obama administration to showcase the new bills, and on Thursday treasury secretary Steven Mnuchin suggested that the Trump administration might not move forward with the plan. "People have been on the bills for a long period of time. This is something we'll consider. Right now we've got a lot more important issues to focus on."


Department of Justice Settles First Travel Ban Lawsuit

On Thursday the American Civil Liberties Union (ACLU) and Department of Justice (DOJ) announced a settlement of the lawsuit over the Trump administration's first travel ban, which the administration withdrew after it was blocked by the courts. The settlement requires the government to notify an unspecified number of people overseas who were banned that they can reapply for visas with the help of a DOJ liaison for a three-month period.



Iran Turns to Rap Videos, Violent Films as Anti-USA Propaganda

The propaganda apparatus of the government of Iran, where dancing is illegal and rap music is decried as morally deviant, started producing its own nationalist rap videos, as well as other patriotic music videos and even feature films delivering unsubtle--but catchy--anti-USA messages.


Recent Stunt Deaths Revitalize Debate over Safety Regulations

Two stunt persons died in the last several weeks on the sets of high-profile productions ("The Walking Dead" and "Deadpool 2"), and Paramount Studios recently halted filming of the sixth installment in the Mission Impossible franchise after Tom Cruise (who does many of his own stunts) broke his ankle. These events have brought new focus to a long-standing debate over whether there should be greater regulation of the stunt industry.


Skrein Backs out of Playing Originally Asian Comic-Book Character

Actor Ed Skrein backed out of a role in the upcoming "Hellboy" movie (based on a popular comic book), after public criticism over the casting of a white person to play Captain Ben Daimio, who is Japanese-American in the source material. Skrein is a light-skinned man from what he refers to as a "mixed heritage" family.


AMC Soured on MoviePass

Not so long ago, AMC Theaters--the country's largest movie theater chain--and MoviePass--a subscription service that offers its members one movie per day for a flat monthly fee, were partners. However, since MoviePass dropped its fee to $9.95/month, AMC says that it is "not welcome" at AMC theaters, and is looking for ways to block MoviePass subscribers from using the app to buy AMC tickets. MoviePass dismissed AMC's complaints as "bluster."



Concern over Trumps' Decision not to Attend Kennedy Honors

Since 1978, the Kennedy Center Honors have recognized the lifetime contributions of honorees to the performing arts. With few exceptions, the President of the United States has participated in the ceremonies. This year will be the first time that neither the President nor the First Lady will attend. On August 19th, after several honorees said they would not attend if the Trumps were there and all 16 members of the President's Committee on the Arts and Humanities resigned in protest of the president's statements about the incident in Charlottesville, the White House announced that the Trumps would not attend, "to allow the honorees to celebrate without any political distraction." Kennedy Center officials and others are concerned that the Trumps' decision will set a precedent, making it easier for future presidents to skip the awards.


Washington Square Association Challenges Proposed Weiwei Installation

Chinese artist Ai Weiwei is preparing a city-wide public art installation, called "Good Fences Make Good Neighbors," which will include 300 works centered on the theme of borders and immigration. One of these works would be installed in the iconic arch in Washington Square Park. In an open letter to the Public Art Fund (which commissioned the installation), the Washington Square Association protested the exhibition, in part because neither the Association nor the Washington Square Park Conservancy was consulted before the project was greenlighted. The installation received all necessary municipal approvals, and the Public Fund offered to pay for the relocation of the holiday tree that is placed under the Arch every year.


Newseum CEO Resigns

Jeffrey Herbst, president and CEO of Washington D.C.'s Newseum, which seeks to educate visitors about the press, the First Amendment, and the history of communication, resigned as the organization continues to suffer financial difficulties. The Newseum is funded primarily by the Freedom Forum, a nonprofit education and advocacy organization focused on the First Amendment.


Tolstoy Adaptation on Broadway Brought Low by "Whitewashing"

"Natasha, Pierre & the Great Comet of 1812," a musical adaptation of Leo Tolstoy's War and Peace, starring Josh Groban, garnered 12 Tony nominations this year. When Groban ended his run, he was replaced by Okieriete Onaodowan, who had played James Madison and Hercules Mulligan in the original cast of "Hamilton." By all accounts, Onaodowan's tenure on the show was difficult. As sales began to dwindle later in the show's run, producers began looking for a big-name star and found one in Mandy Patinkin. Patinkin was only available during the last three weeks of Onaodowan's run, so the producers let Onaodowan go three weeks early (with pay), hoping that even a brief run with Patinkin would bolster sales. News of the casting change was met with criticism on Twitter, and Patinkin withdrew. Other actors who had been considered for roles in the show also backed out. On August 8th, it was announced the show would close this weekend.


De Blasio Fumbling over Statues

Riding the recent wave of cities taking down Confederate monuments, Mayor Bill de Blasio ordered a review of possible "symbols of hate" in New York City. De Blasio has not yet appointed a commission to perform the review, and has given inconsistent signals as to what the criteria would be. A few weeks ago, de Blasio tweeted that one of the first symbols to be removed would be the plaque commemorating Philippe Pétain's ticker-tape parade on Broadway for his heroism in World War I. Pétain later became a Nazi collaborator. De Blasio also announced that he would be marching in the Columbus Day parade, despite the condemnation of many for the atrocities Columbus committed on Native Americans.


De Blasio to Appoint "Director of Night Life"

The New York City Council approved a bill to establish an Office of Nightlife and a 12-member appointed Nightlife Advisory Board. The office's head, the Director of Night Life, will liaise between the city's night life industry, its residents, and the government. Council member Rafael Espinal, who proposed the bill, said the director would "create a plan for cities and establishments so that they may coexist and to actively develop the cultural and monetary growth night life contributes to New York City."


"Pepe the Frog" Creator Gets Children's Book Pulled from Shelves

The illustrator who created Pepe the Frog, a cartoon frog that has become a symbol of the alt-right, reached a settlement with Eric Hauser, the author of The Adventures of Pepe and Pede, which Hauser calls "a children's book with a conservative viewpoint," and which Hauser contends "espoused racist, Islamophobic and hate-filled themes...." As part of the settlement, the book will be pulled from distribution and Hauser will donate his profits to the Council on American-Islamic Relations.



High School Cheerleading Coach Fired Over Forced Splits

The Denver Public Schools system fired coach Ozell Williams after video surfaced of Williams and some of the students at a high school cheerleading camp forcing one of the girls into the "splits" position, while she pleaded with them to stop. KUSA, an NBC affiliate in Denver, says that it received videos showing eight cheerleaders being subjected to this treatment.


The World Anti-Doping Agency Study Says That One Third of Track Athletes Doped Defore 2011 World Championships

The World Anti-Doping Agency (WADA) released a study showing that 30 to 31% of athletes at the track world championships and 45 to 49% of athletes at the Pan-Arab games used banned substances within 12 months of the events. Some experts have suggested the numbers do not reflect the current prevalence of doping in the sport. Release of the study apparently was delayed by negotiations between WADA and track's governing body, the International Association of Athletics Federations.


Prominent Sports Broadcaster Resigns Over Concerns About Brain Injuries in Football

Ed Cunningham, a football analyst for ESPN, resigned, citing his concern about the prevalence of brain injuries in football. "I can just no longer be in that cheerleader's spot," said Cunningham of his decision to leave.



Legendary Buenos Aires Newspaper Leaves With a Whimper

The 140-year-old Buenos Aires Herald closed its doors last month. The paper rose to global prominence during the "Dirty War," when it stood up against the military dictatorship, publishing information others would not as thousands of political dissidents were "disappeared" by the government. The Herald caved, not to government pressure, but to the economic realities of paper journalism.


Bill Nye Sues Disney Over Royalties

Bill Nye sued the Walt Disney Company for $37 million, claiming that he was deprived of $9 million in profits from his show, "Bill Nye the Science Guy". Nye alleges that Disney and its subsidiaries knew of profits that were kept from Nye, and ultimately stopped paying him at all. A spokesperson for Buena Vista Television (one of the defendants) called the lawsuit "a publicity ploy".


Web-Hosting Company Ordered to Turn Over Trump Protest Data

A Washington judge ordered DreamHost, which hosts the website at DisruptJ20.org, to produce emails passing through that website and related mailing lists. The ruling addresses DreamHost's legal challenge to a DOJ search warrant for records related to the website, which hosted plans for protests of President Trump's inauguration. The scope of the order is substantially narrower than the DOJ's original demand, and requires the DOJ to submit a list of all the data it is requesting and a justification for why it should be included under the warrant. The judge will supervise examination of the data. Meanwhile, DreamHost was subjected to distributed denial of service (DDOS) attacks from hackers upset that DreamHost hosts neo-Nazi websites.

Judge Dismisses Palin Defamation Suit Against the New York Times

Judge Jed Rakoff of the Southern District of New York dismissed a defamation lawsuit filed by former Alaska governor Sarah Palin against the New York Times (NYT) over an editorial Palin claimed linked her to a 2011 mass shooting in Arizona. The editorial suggested a connection between districts targeted by Palin's political action committee and the shooting. The NYT later issued a correction, saying that there was no link between Palin and the shooting. Judge Rakoff found that the NYT's conduct may have been negligent, but did not rise to the "actual malice" required to sustain a cause of action for defamation of a public figure.


Fake Facebook Pages Becoming Part of Staten Island Politics

Staten Island lawyer Richard A. Luthmann was accused of creating fake Facebook pages for local candidates he opposes. Luthman neither admits nor denies creating the pages, but NY1 has uncovered exchanges between Luthman and Assemblyman Ron Castorina Jr., discussing the creation of such pages. Luthman says the pages are protected by the First Amendment as political satire.


Mexican President Denies Exerting Pressure to Quell Criticism

Enrique Peña Nieto, Mexico's president, denied accusations that he told the chairman of Kimberly-Clark de Mexico that his son should stop criticizing the government. The son, Claudio González Jr., runs an investigative news group that has exposed corruption by Peña Nieto's allies. González Jr. has been the target of spying linked to the Mexican government, as well as nine government audits.


U.N. Human Rights Chief Says Trump's Attacks on Media Could Incite Violence

At a news conference in Geneva on Wednesday, the high commissioner for human rights at the United Nations, Zeid R'ad al-Hussein, criticized President Trump's repeated attacks on media outlets, calling it a "stunning turnaround" from the United States' historical defense of freedom of the press. Al-Hussein said, "[t]o call these news organizations fake does tremendous damage. I believe it could amount to incitement."


"Vigilantes" Outing Extremists on the Internet

After Charlottesville, an increasing number of activists are responding to the rise in white supremacist activity by "doxxing" extremists: Identifying them as white supremacists on the Internet. Proponents say that this will shame racists into changing their ways; others, including a former neo-Nazi who now runs a rehabilitation program for white supremacists, say it is counterproductive. "If isolation and shame is the driver for people joining these types of groups, doxxing certainly isn't the answer."


September 7, 2017

Employers Must Use Updated I-9 Form No Later than September 18, 2017

By Kristine A. Sova

In July, United States Citizenship and Immigration Services (USCIS) published a revised Form I-9 for employers to use. Employers must use the new form beginning no later than September 18, 2017.

Among the more notable changes to the form is the addition of Form FS-240 (Consular Report of Birth Abroad) to List C of acceptable documents.

The revised form does not change an employer's obligation to collect or retain I-9 Forms from every employee. Specifically:

Employers must complete the form to document verification of the identity and employment authorization of every new employee (both citizen and noncitizen) hired after November 6, 1986 to work in the United States.
The form must be completed and documents presented and verified within 3 business days of a new employee starting work for pay. However, if the employee is hired to work for less than 3 business days, then the form must be completed and documents presented and verified no later than the first day of employment.
Once an individual's employment ends, employers must retain the I-9 Form and any photocopies of documentation presented by the employee that may have been made for either 3 years after the date of hire (i.e., first day of work for pay) or 1 year after the date of employment ended, whichever is later.

The updated I-9 form (revision date July 17, 2017) may be downloaded at i-9-paper-version (1).pdf.

September 11, 2017

"We Shall Overcome" in the Public Domain

By Barry Werbin

In a significant decision issued on Friday (We Shall Overcome opinion.pdf), Judge Denise Cote granted summary judgment in favor of the class action plaintiff organizations against the owners of the publishing rights to Pete Seeger's iconic civil rights song "We Shall Overcome," finding that the original 1948 copyrighted version of the sheet music (with lyrics), which was owned by Seeger's company, People's Songs, Inc. ("PSI") and had fallen into the public domain in 1976, was not sufficiently different from the core portions of later versions recorded in 1960 and 1963, in which derivative copyrights were claimed by the defendant music publishers. Judge Cote agreed with the plaintiffs "that the lyrics and melody in the first verse and its identical fifth verse ("Verse 1/5") of the Song are not sufficiently original to qualify for copyright registration as a derivative work." The opinion goes through a detailed, lengthy history of the song's genesis.

The song likely originated from an old spiritual that Zilphia Horton learned from striking tobacco workers in South Carolina in the early 1940s. Seeger learned a version of the song from Horton. In 1960, defendant Ludlow Music, Inc. registered a copyright in the sheet music for a claimed derivative version of the song, listing Horton as a co-author with two others (but not Seeger). In 1963, Ludlow obtained a second registration that identified Seeger, along with Horton and the others, as the authors of "New words and music adaption."

The court found only minor differences between the 1948 public domain PSI sheet music version and the later versions registered in 1960 and 1963. Specifically, the words "I will overcome" were changed to "I shall overcome" and the phrase "down in my heart" was changed to "deep in my heart." Two small music changes were also noted, described by Judge Cote as follows:

In both versions of the Song the differences occur during the melodic descent from note "A" to "E" during the singing of the word "overcome." Specifically, the descent from "A" to "E" begins one beat later in the Copyrighted Song, and an eighth note "F" is added between notes "G" and "E" in the second measure. This also changes the rhythm of the second measure. The second difference appears in the seventh measure. In both versions, the melodic descent is from note "D" to "G" during the singing of the word "someday," which is sung over measures six to eight. The Copyrighted Song adds a flourish or trill during this descent, while the word "day" is being sung. The trill consists of three eighth notes "A - B - A."

The court initially rejected any presumption of validity of the 1960 and 1963 copyright registrations because of erroneous information submitted to the Copyright Office about the derivative nature and authorship of those works.

On the core issue of similarity with the 1948 PSI public domain version and the enforceability of the 1960 and 1963 versions as independent derivative works, Judge Cote held "that the melody and lyrics of Verse 1/5 of the Song are not sufficiently original to qualify as a derivative work entitled to a copyright. As a matter of law, the alterations from the PSI Version are too trivial. A person listening to Verse 1/5 of the Song would be hearing the same old song reflected in the published PSI Version with only minor, trivial changes of the kind that any skilled musician would feel free to make. As §101 of the Copyright Act teaches, a judgment about modification to an original work must be based on a consideration of the derivative work 'as a whole.'"

Week in Review

By Tiombe Tallie Carter, Esq.

Court Ruling Opens Door Once Closed to Refugees

A ruling from United States Court of Appeals for the Ninth Circuit in Seattle unblocked access to thousands of refugees and clarified who was covered by President Trump's travel ban. In July, Judge Derrick K. Watson of Federal District Court in Honolulu disagreed with the Trump administration's narrow interpretation of the Supreme Court's directive to allow in travelers and refugees with a "bona fide relationship with a person or entity" to mean only immediate family members and in-laws, but not grandparents, cousins, aunts, and uncles. The administration appealed to the Ninth Circuit and lost when three appellate court judges--Michael Hawkins, Ronald Gould, and Richard Paez--upheld Judge Watson's decision. Stating that the government had not made a compelling explanation as to why an in-law was a more bona fide relationship over a "grandmother, grandchild, cousin, aunt, uncle, niece or nephew," the appellate court not only established that a resettlement agency met the "bona fide relationship with the U.S." standard, but also rejected the government's claim that a resettlement agency did not have a formal relationship with the refugees themselves but had one with the government. The Supreme Court then overturned the Ninth Circuit, and left the travel ban in place pending a determination on the merits.


U.S. Law Firm Chases Fraud Tips in Britain

A chance client inquiry call in 2015 paved the way for Britain to be the next hunting ground for U.S. whistle-blower cases, which can be quite lucrative for whistle-blowers and the firms who represent them. There are several whistle-blower laws, including the Motor Vehicle Safety Whistle-Blower Act, the 2010 Dodd-Frank program under the Securities and Exchange Commission, and the False Claims Act, among others. Recently, a British whistle-blower utilized the U.S. False Claims Act. Under that Act, whistle-blowers can collect 15-30% of the amount the federal government recovers. Andrew Patrick, a warehouse operative from the north of England, was canvassing attorneys to handle an employment matter he was having with his former employer, Pure Collection Ltd. He contacted Richard Pike, who is based in London (and is a partner at Constantine Cannon, the firm founded by Lloyd Constantine, the former chief of the New York Attorney General's Antitrust Unit). Patrick happened to mention that Pure Collection "avoided paying custom duties on the luxury sweaters it shipped to the U.S. by splitting up orders from customers," taking advantage of the legal rule, at that time, that merchandise packages with retail values under $200 could enter the U.S. duty free. Patrick had contacted the I.R.S. and the U.S. Embassy in London, but nobody was interested. To test the company's shipping tactics, Constantine Cannon had a customer in Maine place an order for merchandise above the $200 duty free limit. Sure enough, three separate packages arrived over the course of three days to fill the $937 order. With Maine as an appropriate venue, the attorney general of the state brought a complaint stating that "by finding a way around the customs duties, Pure Collection put itself in the same favorable domestic pricing position as its American competitors". Constantine Cannon expects that there will be many other opportunities under whistle-blower laws, and has added a European team to pursue them.


States Sue to Save Dreamers, Claiming Bias Drove Decision

A group of 16 Democratic attorneys general filed suit in Federal District Court in Brooklyn, alleging that President Trump improperly ended the policy known as Deferred Action for Childhood Arrivals (DACA). Attorneys general from New York, Massachusetts, and Washington are leading the group. Eric Schneiderman (NY) "accused the Trump administration of using the threat of lawsuits as a pretext that hid the president's true motives: bias against immigrants and Latinos." Separate challenges to President Trump's plans are expected from California's attorney general, and major companies, such as Starbucks, Microsoft, and Amazon. The group lawsuit claims, in addition to the Trump administration violating the U.S. Constitution's Equal Protection clause, that the "administration failed to follow the right process, under the Administrative Procedure Act." Attorney General Jeff Sessions said that DACA would begin to phase out in March 2018. The court challenge is one alternative to thwarting that policy.


Business Leaders Urge Trump to Keep Shield in Place

More than 400 American business leaders signed a letter to the president and congressional leaders urging President Trump to extend DACA, citing that the Dreamers, immigrants brought to the United States as children, are "vital to the economy." The letter, titled an "Open Letter From Leaders of American Industry," includes Mark Zuckerberg of Facebook, Hubert Joly of Best Buy, David Zalesne of Owen Steel, Warren Buffett, executives from Hewlett-Packard, General Motors, Marriott, and Wells Fargo. According to the letter, 65% of the Dreamers own cars and 16% are homeowners, an "economic activity that would be eliminated if the Dreamers were deported." The chief economist at Moody's Analytics, Mark Zandi, estimates that five years after the repeal of DACA, there would be a $105 billion loss to the nation's gross national product. In addition to the economic toll of repealing DACA, there is also the human toll that deportation would take on people who have known only the United States for the better part of their lives.


Federal Reserve's Vice Chairman to Depart, Giving Trump an Opportunity

Stanley Fischer, who was midway through his four-year term as vice chairman of the Federal Reserve (the Fed), resigned. Citing "personal reasons," he will leave his office in mid-October. His resignation will leave the Fed with four vacant seats. President Trump will now have an opportunity to significantly direct the policy of the Fed's board with his appointments. Questions remain as to whether President Trump will replace chairwoman Janet L. Yellen, and who his other appointments may be. So far, he has only offered one candidate, Randal K. Quarles, who is expected to receive a Senate vote soon.


Reverence for Entrepreneurs Guide Trump Policy on Protecting Workers

The Trump administration reversed the government's original position under President Barack Obama on National Labor Relations Board v. Murphy Oil USA, No. 16-307, (Arg. 10.02.2017), a case before the Supreme Court involving employers being able to force workers to forfeit their rights to bring class-action lawsuits. This reversal is yet another action setting the tone of the Trump administration's position on worker issues "that entrepreneurship is the highest economic calling and the entrepreneur is the economic actor most deserving of respect." The administration has "undone Obama-era guidances on enforcement of employment laws." One such guidance clarified when a worker could be classified as an independent business operator as opposed to an employee, who is covered by protections such as minimum wage and overtime pay. The Trump administration withdrew the Obama interpretation that suggested that many gig-economy companies were improperly treating workers as independent contractors. Trump's approach provides more cover to tech entrepreneurs who largely employ the gig economy. Other actions establishing the current administration's position include "proposing to cut the government agency that conducts research into workplace hazards by 40%, seeking to eliminate a program that helps organizations to educate workers on how to avoid injury and illness . . . and the requirement that employers pay workers a time-and-a-half rate for overtime if their salary falls below a certain threshold."


Letter by Trump on Comey Ouster Informs Inquiry

In Washington, special counsel Robert S. Mueller III obtained a letter said to be drafted by President Trump and Stephen Miller, one of his top political advisers, that provides President Trump's perspective on firing James B. Comey, then FBI director. The letter, referred to as a "screed," was curtailed by White House counsel Donald F. McGahn II, "who believed that its angry, meandering tone was problematic" and was concerned about its references to "private conversations between Mr. Comey and President Trump," particularly those about the FBI's Russia investigation. According to the New York Times, "Mr. McGahn's concerns about Mr. Trump's letter (that was dictated to Mr. Miller by the president) show how much he realized that the president's rationale for firing Mr. Comey might not hold up to scrutiny." Deputy attorney general Rod J. Rosenstein received a copy of the multipage diatribe, "who then drafted his own letter that was later used as the Trump administration's public rationale for Mr. Comey's firing."


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


Verses of Civil Rights Anthem "We Shall Overcome" Are Ruled Not Under Copyright

A portion of the civil rights song "We Shall Overcome" is not under copyright as originally claimed by music publisher, Ludlow Music. The copyright suit was brought against the publisher by makers of a documentary on the song's history and filmmakers of "Lee Daniels' The Butler". Judge Denise L. Cote of the United States District Court in Manhattan decided that the song's adaptation from an earlier work, which included changing the word "will" to "shall", lacks originality to qualify for copyright protection. The issue of whether the entire song's copyright is invalid will have to go to trial.


Milestone for Broadcast Music Inc.: More Than $1 Billion in Music Royalties

Broadcast Music Inc. (BMI), a performing rights organization with members including Sting and Ed Sheeran, reached its goal to pay $1 billion in royalties to its music publishers and songwriters one year early. In 2015, BMI predicted that it would take three years to be able to pay the record-level revenue after expenses. Last week, it announced that during its most recent fiscal year, it distributed $1.02 billion in royalties from its $1.13 billion in revenue. The income growth for BMI and ASCAP (the latter of which reached the billion-dollar mark a few months earlier than BMI) is attributed to the growth in digital uses and payments. In 2010, BMI collected $20 million from then called "new media" and most recently took in $163 million from that sector.


Honorary Oscars Give a Nod to Diversity

Honorary Oscars will be bestowed by the Academy of Motion Pictures Arts and Sciences to Agnes Varda, a French New Wave director; Charles Burnett, an independent filmmaker; actor Donald Sutherland; and Owen Roizman, a cinematographer. Varda's and Burnett's awards are the result of the Academy's effort to address diversity. The honorary awards, which will be distributed at the Academy's Governor's Awards in November, "reflect the breadth of international, independent and mainstream filmmaking and are tributes to four great artists whose work embodies the diversity of our shared humanity," said John Bailey, the Academy's president.


Disney Plots to Stream Movies and Sports

Disney is planning two streaming services: one geared toward sports and the other for Star Wars and Marvel movies. In response to the growing segment of consumers who are cutting the cord of cable, the new services will be Netflix-like, with the sports programming service offering an a la carte model, allowing viewers to purchase "a season, a league, maybe a conference" as early as next spring, according to Disney chief executive Robert A. Iger. The second service is expected to roll out in 2019 and will include not only Disney's core film factory, Pixar, Marvel, and Lucasfilm but also original, live-action movies developed by Disney that will only be available on the service.



Keith Haring Mural Is Restored in Paris

After heavy weather damage and almost 30 years of wear, a mural called the "Tower" has been restored. Painted by American artist Keith Haring in 1987 with his boyfriend Juan Rivera in the stairwell at the Necker-enfants Malades hospital in the 15th Arrondissement of Paris, the 88.5 foot work was nearly demolished when the hospital planned construction. The mural's poor condition gave the conservator, William Shank, concern as to whether the work could actually be saved. Shank and fellow conservator, Antonio Rava, "painstakingly restored" the work with funds raised by Jerome de Noirmont and the Keith Haring Foundation.


Paternity Test Clears Dali in Lawsuit

DNA testing determined that Pilar Abel, a Tarot card reader, is not the daughter of renowned surrealist artist Salvador Dali. The judge presiding over Abel's 2015 lawsuit against the Gala-Salvador Dali Foundation and the Spanish state ordered the exhumation of the artist's remains for forensic testing. Dali died in 1989 at the age of 84. Had the test results been in her favor, Abel could claim part of Dali's estate, estimated to be in the "hundreds of millions of dollars." Now that paternity has been established as not being Dali, his remains will be returned to his crypt underneath his museum in Figueres, Spain.


National Cathedral Will Remove a Tribute to Confederate Generals

In the Washington National Cathedral hang two 4-by-6-foot stained glass windows that pay homage to Confederate generals Robert E. Lee and Stonewall Jackson. On Tuesday, church officials voted to remove the windows donated by the Daughters of the Confederate and a private donor in 1953. The Episcopal Diocese of Washington took notice of the windows after the horrific 2015 Charleston, South Carolina mass shooting by a white supremacist at a Black church. A task force that studied the issue for six months discussed the impact of having the windows in a sacred worship space. The recent unrest in Charlottesville, Virginia, which resulted in one death and many injured, spurred the resolution: the windows would be removed, preserved, and possibly used in an education programming. There have been mixed reactions to the decision. The Daughters of the Confederate have not commented. The Very Rev. Randolph Hollerith, who is also Dean at the cathedral, stated, "I fully believe we're doing the right thing at the right time in the history of our nation."


Dakota Tribe Plans to Bury Sculpture

Scaffold, the Sam Durant sculpture that gained notoriety when mounted in the Minneapolis Sculpture Garden, will be buried. The Dakota people protested at the garden, which sits on former Dakota land, largely because they were never consulted about the piece that "depicted gallows and was intended to represent seven state-sanctioned executions, including the hanging of 38 Dakota men in Mankato, Minnesota after the Dakota War in 1862." The protesters demanded that the Walker Art Center, which commissioned the piece and manages the garden, remove the sculpture. Durant and Olga Viso, director of the Walker Art Center, apologized for not involving the Native American people at the beginning of the process. Durant went so far as to give the Dakota people the copyright to the work. A council of Native American elders was formed to determine the outcome of the sculpture. An early suggestion was to burn the 51,000-pound wood sculpture; however, burning is discouraged in the Dakota tradition. The alternative to burying the sculpture in an undisclosed location was approved by a majority of the council members and is seen as the first step in healing.



Whistle-Blower Says He Told I.O.C. of Corruption Linked to Rio Games Years Ago

The International Olympic Committee (I.O.C.) was told about the corruption in Brazil as early as 2011, according to Eric Maleson, a former ice sports federation official. An investigation by law enforcement recently raided the home of Carlos Nuzman, one of Brazil's top Olympic officials, and the "crucial architect" of Rio de Janeiro's successful bid to host the Olympics. Maleson led the Brazil ice sports federation that he founded for over a decade. He has been an "outspoken critic of Mr. Nuzman" and warned the I.O.C. of corruption. His main complaint was the obvious conflict of interest with Nuzman holding the dual roles of leader of the Rio 2016 organizing committee and chief of Brazil's national Olympic Committee. Maleson accused Nuzman of corruption and election fraud in 2012. The I.O.C. confirmed that
Maleson had in fact contacted it and was told to work directly with Brazil's national Olympic Committee, which, ironically, is run by Nuzman. Brazil's corruption inquiries go back far beyond the 2016 Olympics, and include the downfall of a former president, Dilma Roussef and the governor of Rio, Sergio Cabral, who was convicted of receiving kickbacks from some construction firms linked to the Olympics. The widespread graft and corruption continue to be under investigation.


2026 World Cup Bid Will Consider 41 Cities

Forty-one cities submitted formal proposals to host the 2026 World Cup in North America. From New York and Chicago to Regina, Saskatchewan and Salt Lake City, almost every market is represented, and venue choices include stadiums and football arenas. The current pool of proposals will then be reduced to 20-25 stadiums. FIFA will complete the proposal review by early March and make its award in June. The U.S., Canada, and Mexico have made a joint proposal. FIFA rules require that World Cup stadiums hold 40,000 people, and opening and closing matches must be in stadiums with double that capacity.


Massachusetts Settlement Announced

DraftKings and FanDuel, two fantasy sports companies, reached a settlement with Massachusetts, resulting from an inquiry into their unfair and deceptive practices. Massachusetts Attorney General Maura Healey announced that each company will pay $1.3 million. New regulations adopted in 2016 protect participants by prohibiting persons under 21 from playing and restrict how the games are marketed.


Seahawks' Bennett Says Police Held Gun to His Head

Michael Bennett, defensive end for the Seattle Seahawks, was "held at gunpoint and handcuffed by Las Vegas police." The episode occurred after the Floyd Mayweather Jr. and Conor McGregor boxing match on August 26th. According to Bennett, he began running, along with other people, after hearing what he thought were gunshots. Police singled him out, and an officer "forcefully jammed his knee into his back, held a gun to his head and handcuffed him so tightly that his fingers went numb." He attributed his detention to being Black. The Las Vegas Police Department's Undersheriff Kevin C. McMahill said that Bennett's actions of crouching behind a gaming machine, running out, and jumping a wall led them to "believe that he may have been involved in the shooting." It was not until the police later realized Bennett's celebrity status, being a two-time Pro Bowl player, that he was released. The National Football League (NFL) stated its support of "Mr. Bennett and all NFL players in promoting mutual respect between law enforcement and the communities they loyally serve and fair and equal treatment under the law." Bennett is exploring the possibility of a civil rights lawsuit.


Crude Rant Gets a Player the Boot--and Good Riddance

Tennis gets edgy. Italian tennis player Fabio Fognini, who is the No. 22 seed in singles, was "provisionally suspended" from playing in the United States Open after calling Louise Engzell, a female veteran umpire, "among others things, a whore." Fognini was fined $24,000 for unsportsmanlike conduct and pending further investigation could be facing upwards of $250,000, the fine for major offenses. The Grand Slam Board will determine whether Fognini committed a major offense during the September 2nd match. According to Grand Slam rules, "major offenses include violations like a single episode of egregious behavior, or conduct contrary to the integrity of the game." In addition to the fine, if found to have committed a major offense, Fognini will be "permanently barred from future Grand Slam tournaments."


Cowboy's Elliott and Union Sue to Void Any Suspension

Ezekiel Elliott of the Dallas Cowboys and the NFL players' union filed a federal lawsuit in Texas to preemptively nullify the NFL arbitrator's anticipated decision of Elliott's appeal of his recent suspension. Elliott received a six-game suspension from Roger Goodell, the NFL commissioner, due to allegations of domestic violence. Elliott appealed the suspension, and a "league-appointed arbitrator" is expected to issue a decision on the appeal this week. The players' union is calling the NFL's case into question because the arbitrator, Harold Henderson, "denied a request to have testimony from the woman whom Mr. Elliott is accused of assaulting," and the lead investigator who concluded that there was not enough evidence against Elliott to warrant the suspension was not allowed to provide her views to the commissioner.

Last Tuesday, NFL arbitrator Harold Henderson denied Elliott's appeal of his six-game suspension. However, Elliott was able to play in the September 10th season opener, because the decision came too late in the day for it to be enforced. After that, United States District Judge Amos Mazzant granted an injunction to halt Elliott's suspension for domestic abuse allegations. Elliott will be able to play while Judge Mazzant hears the case. The NFL asked the judge to affirm its suspension.




Paris Saint-Germain Signings Prompt an Investigation

The governing body of European soccer, UEFA, is launching a formal investigation of the recent transactions of Paris Saint-Germain (PSG). Scrutiny was raised on PSG's latest transfer activity because of the level of spending to acquire players. The fee to sign Barcelona's Neymar for $262 million is a world record, and the commitment to pay $216 million for Monaco's Kylian Mbappe is unusually high for a one-season loan. These transactions suggest that PSG may again be violating "rules designed to control excessive spending" by the soccer clubs.



Bolling Out at Fox News After Inquiry On Messages

Eric Bolling, the Fox News host recently suspended pending investigation of sexual misconduct allegations was fired. Bolling was accused by three female colleagues of sending unsolicited photos of male genitalia. Fox News, who used the law firm Paul, Weiss, Rifkind, Wharton & Garrison to conduct the investigation, confirmed on Friday that "Fox News Channel is canceling 'The Specialists'" and that it had parted ways with Bolling, who had joined the company about 10 years ago and had recently renewed his contract with the network. Bolling brought a $50 million defamation lawsuit against HuffPost for publishing the initial article exposing the allegations.


Google Female Workers Receive Lower Wages, Data Suggests

Google remains under scrutiny for its gender pay inequity. According to informal data compiled internally by Google employees, female employees are paid less than male employees. This data is sure to heighten concerns over gender disparities in Silicon Valley, seen as the "boys club" of the West, not unlike Wall Street, the "boys club" of the East, according to Natasha Lamb of the firm Arjuna Capital. The "wealth management firm that takes activist positions on issues such as gender pay" proposed at an Alphabet (Google's parent company) shareholder meeting, for Alphabet to disclose salary information based on gender. At the urging of Alphabet directors, the shareholders voted against disclosing the gender based information. The self-reported Google salary spreadsheet shows that of the six job levels reported, women are paid less than men in five of the job levels, in some levels making 4% less than men and increasing to 6% less at the mid-range levels. Google has at least 9 job levels, not including vice presidents and above. Google's vice president of operations, Eileen Naughton, cautions that the internal spreadsheet "is not a representative sample", as it does not take into account geography, job performance, job role, tenure and level. Google is currently in a dispute over what it pays men versus women with the Labor Department that began a routine audit of Google's federal contract and its pay practices. According to James Finberg, a partner at Altshuler Berzon L.L.P., over 90 current and former female employees have joined a soon to be filed class action lawsuit for "substantial gender disparities".


Shkreli Faces New Trouble for Post on Clinton

Martin Shkreli, a pharmaceutical executive who was convicted this summer on three counts of fraud and currently out on bail, continues to garner the attention of authorities. Federal prosecutors are now seeking to revoke his bail because his social media post about Hillary Clinton poses a danger to the community. Concerned that his followers would carry out his Facebook post of "On HRC's book tour, try to grab a hair from her," the secret service launched an investigation, and federal prosecutors asked Judge Kiyo A. Matsumoto to return Shkreli to jail. He may have also violated other laws with his posts, and faces up to 20 years in prison on the fraud charges.


Fake Russian Facebook Accounts Planted $100,000 in Political Ads

Facebook disclosed that it identified at least 3,000 ads that were run during the 2016 presidential election cycle paid for by Internet Research Agency, a Russian company, totaling over $100,000. The ads highlighted "divisive social issues such as race, gay rights, gun control and immigration" and "were designed to damage Hillary Clinton and boost Donald Trump during the election." Facebook is cooperating with special counsel Robert Mueller, who is investigating Russia's role in last year's election, adding more fuel to the firestorm surrounding possible collusion between the Trump campaign and Russia. The social media giant has not made the ads public, but reported it has "also found an additional 2,200 ads, costing $50,000, that had less certain indications of a Russian connection." Federal law prohibits foreigners from election campaign spending. With this new revelation, it is more likely that the crimes Mueller is investigating will include foreign companies and individuals.


To Sway Vote, Russia Used Army of Fake Americans

An investigation by the New York Times and FireEye, a cybersecurity firm, revealed that Russia used several strategies on social media to influence the American presidential election. Russia used automated Twitter accounts, or bots, to send out fake posts, some with the hashtag #WarAgainstDemocrats. Facebook already reported thousands of posts during the 2016 presidential campaign attributed to a Russian company. The most nefarious tactic was the creation of fake Facebook profiles to simulate Americans. One such bogus profile was Melvin Redick, who supposedly lived in Pennsylvania and only posted news articles reflecting a pro-Russian worldview. No records of the actual existence of Melvin Redick could be found. It s important to understand Russia's methods of influence, as the 2018 congressional campaigns and 2020 presidential election could be impacted again.


Two Politicians Chatted Online With Staten Island Social Media Troll

Political campaign social media trolls are gaining prevalence: first, Russia used thousands of phony accounts, and now there is an issue on Staten Island. Two candidates, Kamillah Hanks, a Democrat for City Council, and Ron Castorina Jr., a Republican assemblyman, hired Richard L. Luthmann, a campaign operative, who specializes in creating fake news on social media. For Hanks, he set up a fake Facebook page to attack her opponent. For Castorina, Luthmann altered images of a female opponent to make her look like she had been photographed during sex, and posted the images on the internet. An investigation of the candidates' Facebook Messenger conversations revealed the shenanigans. Castorina stated that he merely placated Luthmann to avoid setting off disputes. Hanks denied knowledge of the social media pages. As for the fake news creator, Luthmann claimed to be "the victim of a criminal act in the intrusion on his Messenger exchanges." He had no regret for the fake social media pages; offering only a warning that political campaigns can expect more of the same.


Google and Sex Traffickers

One author proposed that perhaps copyright could be used against online services that offer child pornography, especially as Google finds itself in the odd position of allying with Backpage.com, where "the most American victims of human trafficking are sold," to kill legislation that would crack down on sex trafficking on websites. Specifically, Google is lobbying to quash the Stop Enabling Sex Traffickers Act, a bipartisan bill targeting those who intentionally engage in trafficking children. Google's concern is that the legislation will impact Section 230 of the Communications Decency Act, which protects internet companies from lawsuits. The problem is that Section 230 also protects Backpage.com, "which is involved in 73% of the cases of suspected child sex trafficking." The new legislation was narrowly drafted to address only those bad-actor websites. Google's concern that closing the loophole in Section 230 will inadvertently expose it to frivolous lawsuits seems to rings hollow in the face of protecting websites that "advertised a 13 year old whose pimp had tattooed his name on her eyelids."


Sports Radio Co-Host Is Charged with Fraudulent Ticket Reselling Scheme

Carton, of the Boomer & Carton sports-radio program, was charged in a fraudulent ticket-reselling scheme. Craig Carton, 48, who began as a host on "The Jersey Guys," became co-host of the WFAN radio show with retired quarterback Boomer Esiason, replacing Don Imus in 2007. The FBI charged Carton in Federal District Court in Manhattan of securities fraud, wire fraud, and conspiring to commit those offenses. According to the complaint, Carton, along with a cohort, Michael Wright, solicited investments in enterprises that he falsely claimed had access to millions of dollars' worth of concert tickets for such acts as Katy Perry and Justin Bieber, and would resell large blocks of tickets for substantial profits. By providing fake documents, the two raised together over $5 million and used the funds to cover gambling debts and earlier investors. Federal magistrate judge Andrew J. Peck ordered Carton and Wright each released on a $500,000 bond.


Indian Journalist Critical of Government Is Killed

Gauri Lankesh, a journalist in India most known for her outspoken critique of the Indian government, was shot down in front of her home last Tuesday. She is the fourth assassination in recent years of intellectuals who publicly criticized India's governing party and its Hindu agenda. Many close to Lankesh said that she received daily death threats for her position as a "rationalist," a term for Indians who "stand against superstition and the use of religion in politics." She was the editor of a magazine focused on feminist politics called Gauri Lankesh. There were many protests in response to her death.


Persistent Reporter Will Not Face Charges

Dan Heyman, a reporter for the Public News Services who was arrested in West Virginia in May for aggressively questioning the secretary of the Department of Health and Human Services, will not be prosecuted. Heyman was facing six months for continuing to question Tom Price about "health care legislation the House had passed earlier that month to replace the Affordable Care Act." At the time he was arrested, he spent eight hours in jail until his company paid his $5,000 bail. A joint statement by the Kanawha County prosecutor's office and Heyman's legal team said that a careful review determined that Heyman "had not acted unlawfully."


Advertisers Beware: Analyst Says Social Media Network Is Exaggerating Its Reach

A Pivotal Research analyst, Brian Wieser, noted that some of Facebook's claims regarding its reach with American young adults is exaggerated. Specifically, Facebook claims that it can "potentially reach 41 million 18-to-24-year-olds and 60 million 25-to-35-year-olds." The problem with these claims is that according to U.S. Census records, 18- to 24-year-olds number only 31 million, and there are only 45 million 25- to 34-year-olds. Facebook responded that its numbers are self-reported by users and include non-residents, and that their estimates "are based on Facebook user behaviors, user demographics, location data from devices, and other factors." Publishers and advertisers have been asking for better accountability; and this latest disclosure supports their concerns.


Facebook, Despite Ban, Seeks Foothold in China

Facebook, whose social media app is blocked in China, is seeking to open office space in Shanghai. The office, called Building 8, would be used by employees working on Facebook's new hardware effort. For the last three years, Facebook has been courting the Chinese government to gain approval for its network. Its recent effort was releasing Colorful Balloons--a Chinese-language version of its photo-managing app, Momentum. The executive director of Colorful Balloons was seen meeting with Shanghai officials. The site has not been shut down, a significant feat in the heavily regulated country. Being able to open an office would be another indication that the relationship between China and the social media giant is strengthening.


The Daily News Finds a Buyer with Echoes from Its Past

The Daily News, a 100-year old tabloid, was acquired by Tronc, the current publisher of The Los Angeles Times and The Chicago Tribune. The Daily News, a New York institution known for its gossip, sports, and city coverage, has been worn down over the years due to the internet age and an ongoing tabloid war with the New York Post. There have been recent layoffs, and circulation has eroded from over two million in its 1940s heyday to its current number in the low hundred thousands. According to The Chicago Tribune, Tronc, which was formerly Tribune Publishing before it was spun off from The Tribune Company that owned The Daily News, purchased the newspaper for just $1 plus the assumption of liabilities, including its pension liabilities, and its Jersey City printing plant. With The Daily News, Tronc now has newspapers in New York, Los Angeles, and Chicago, three of the country's biggest media markets.


Superstar Adjusts to a Streaming World

The release of Taylor Swift's new album, Reputation, is a textbook case model in marketing in the streaming world. It has been three years since Swift's last album, and much has changed. Many are watching to see if she can reach her 1989 sales record of 1,287,000 copies sold. Streaming is currently 63% of the market--a 40% growth from 12 years ago. With Reputation, Swift partnered with UPS to plaster her face on trucks, and Target to carry special edition albums that will include magazines with her poetry and artwork. For tour support, she is using Verified Fan--the new Ticketmaster system customized to tie music, merchandise, and ticket sales--a strategy some are criticizing as exploitative. Whether the new album will be available on Spotify is still in speculation, given the public feud Swift had with the company. However, her distribution company's licensing deal with Spotify that allows it to "restrict new music to Spotify's paid tier for two weeks" may be what Swift needs to use the streaming service. Love it or hate it, Swift knows how to make sure that everyone is watching her.


Think Tank, Funded by Google, Is Stung by Backlash after Firing a Google Critic

New America Foundation, a think tank that receives funding from Google, is being criticized for the recent firing of one its scholars. Anne-Marie Slaughter banished an entire 10-person initiative called Open Markets and fired its leader, Barry Lynn, a prominent critic of Google. Slaughter is under fire herself for taking this action. A group of the think tank's scholars and former fellows voiced dismay in the handling of the matter. At issue is the influence of New America's donors over the think tank's scholarship. Open Markets has been pushing for more rigorous antitrust enforcement against Google and other tech giants. Slaughter told the New York Times that her conflict with Lynn was not over his criticism of Google, but over his violation of the organization's unwritten policy to inform the think tank when doing something that may jeopardize funding for other fellows. One example of such a violation was in 2016, when Lynn organized a conference "at which influential liberals warned of damaging effects from market consolidation in tech." Lynn should have provided a heads-up that he would be criticizing an institution that others rely on for funding. Lynn asserts that he alerted New America's officials, and asserted that the unwritten policy is further evidence that the organization is afraid of upsetting Google. Slaughter's response to the incident is to spin off Open Markets into a separate nonprofit, and she has been working towards that end. Lynn publicly revealing the internal discord was the final straw. However, former employees of New America are more sympathetic to Lynn, citing other incidents where it is apparent that Slaughter sides more with donors over the organization's work. Slaughter admits there is often a tension between the work of a think tank and additional funders in today's climate, where foundation funding alone is not enough to support organizations whose executive directors make over $500,000 annually.


September 13, 2017

Update on the "Monkey Selfie" Litigation

By Barry Werbin

A settlement was reached and the parties filed a joint motion to dismiss the pending a Ninth Circuit appeal. Part of the settlement requires Slater, the photographer, to donate 25% of any future proceeds from the monkey selfie pictures to organizations that protect macaque monkey habitats in Indonesia.

However, the really interesting provision is a joint request that the Ninth Circuit vacate the District Court's ruling, which dismissed the claim based on lack of standing because animals cannot copyright works they create. The rationale, as expressed in the motion, is that Naruto-- the selfie photogenic macaque at center stage--was not a party to the case (which PETA brought on Naruto's behalf) and therefore, as PETA urges, "it would be just and proper to not bind Plaintiff Naruto by the judgment...." and that "Naruto should not be 'forced to acquiesce' to the district court's judgment that he lacks standing under the Copyright Act where the appeal will be mooted by an agreement by PETA and PETA's Next Friend Case status is contested and undecided." Therefore, the Ninth Circuit will need to buy in to monkeys having legal standing to sue to protect some enforceable interest.

Of course PETA doesn't want the negative precedent to remain of record. Yet "forced to acquiesce" takes it a bit far (in my opinion).

Here is a copy of the parties' joint motion to dismiss the appeal and vacate the judgement: Naruto-Settlement.pdf

September 14, 2017

Charles Oakley Files Lawsuit Against President James Dolan of the New York Knicks and Madison Square Garden Company

By Michael Kusi

Former NBA power forward Charles Oakley, who played for the New York Knicks from 1988-1998, filed a complaint in the Southern District of New York against James Dolan and Madison Square Garden (MSG). Oakley demanded a jury trial, and alleged that defendant James Dolan had always displayed animus toward Oakley from the beginning of Dolan's tenure as president of the Knicks.

Oakley claims that on February 8, 2017, he was watching a Knicks game, when Madison Square Garden security approached him and asked him to leave. Oakley began to argue and tried to go back to his seat. A scuffle ensued, and Oakley was escorted out of the MSG arena.

Oakley's complaint alleges 10 different causes of action, including defamation per se (for the Dolan's accusations against Oakley), libel (for statements made by MSG Networks on Twitter), slander (for accusing Oakley of assault and alcoholism), assault (for removing Oakley from the MSG arena), battery (for harmful and offensive contact sustained while at MSG), false imprisonment (for unlawful detention after the security asked him to leave), abuse of process (for causing Oakley to receive criminal charges), denial of a public accommodation under the ADA, for removing him under the pretense of alcoholism, and denial of a public accommodation in violation of New York State Human Rights Law.

In the Prayer for Relief, Oakley asks for a declaratory judgment and an injunction against the defendants. However, the complaint requests that the amount of damages would be awarded at trial.

As part of Oakley's plea deal with New York prosecutors in August stemming from this incident, he was barred from coming to MSG for one year under a trespass order. He also had an adjournment in contemplation in dismissal, which means that the charges against Oakley would be dismissed in six months if there are no additional criminal charges against him.

September 15, 2017

"Ripped From the Headlines"- Depicting Lawyers and Judges on TV: Truth or Fake Law?

Actor's Temple | 339 W 47th Street | New York, NY 10036

Cost to Attend: $30 for EASL and IP Section Members | $50 for NYSBA Members | $75 for Non-Members


Cheryl L. Davis, Esq., Menaker & Herrmann LLP, Moderator
Hon. Barbara Jaffe, Supreme Court of the State of New York
Warren Leight, Former Showrunner, "Law and Order- SVU," Tony-award winning playwright, screenwriter
Anne Milgrim, Special Legal Consultant, Law and Order

Many people (including most lawyers) are first exposed to the New York court system through shows like Law & Order. But unless you are in court on a regular basis, you may not know how close to "reality" the action and story actually are. Some, however,
possess an intimate knowledge of the New York courts, and while huge fans of such programs, specifically instruct their juries to ignore points of law that they may have seen on TV. How and why these differences and inconsistencies exist is the subject of a lively and informative discussion by our panelists who are from both sides of the camera - i.e., the real courtroom and the "fake" one.

Reception and Q&A to follow.

This program does not carry MCLE

Register Today!www.nysba.org/store/events/registration.aspx?event=EA1200OC17>

September 18, 2017

Week In Review

By Tiombe Tallie Carter

Trump Backs Plan to Stop Deportation of Dreamers

After meeting with Senator Chuck Schumer and Representative Nancy Pelosi for dinner at the White House, President Trump announced he could support a deal to protect young, undocumented immigrants brought to the county as children if it is paired with enhanced border security legislation. Not all Republicans are in agreement with the deal, primarily because it was struck with Democrats. Some of the points discussed over the dinner included "sensors to beef up border monitoring, rebuilding roads along the border, drones and air support for border enforcement" measures drawn mainly from President Trump's budget request. Many from the political left and Hispanics have misgivings, as the talks which were to be about DACA are now including increased border security. Meanwhile, the House of Representatives passed a "get-tough measure called the Criminal Alien Gang Member Removal Act, aimed at MS-13 and other immigrant gangs." Opponents say that the act will codify racial profiling.


New Battlefield in a War Over Judicial Appointments

With the huge number of judicial vacancies, President Trump may have one of the largest election spoils of any administration in political history. There are 144 federal court vacancies, which include 21 on the appeals court and 115 at the district court level. With the current Republican majority, it is nearly impossible for a minority party (in this case, the Democrats) to block an appointment except for the little-known power in the "blue slip." Individual senators can block a nomination in their home states by refusing to sign the blue slips. One candidate to the U.S. Court of Appeals for the Eighth Circuit experienced the blue slip's influence. David R. Stras from Minnesota had his nomination blocked by Senator Al Franken, a Democrat from Minnesota and a member of the Judiciary Committee. Ninth Circuit nominee Ryan Bounds from Oregon encountered the same obstacle from Senators Ron Wyden and Jeff Merkley. Senate Majority leader Mitch McConnell is now advocating "that the blue slip be made strictly advisory when it comes to appeals court nominees." The blue strip practice is at the prerogative of the Judiciary Committee chairman. Democratic leaders are seeking to meet with Senator McConnell and top members of the Judiciary Committee to dissuade from weakening the blue slip practice, citing that "both parties should remember that they could find themselves back in the minority." Interestingly, Senator McConnell wanted to repeal use of blue slips when the Democrats held a majority.


Whistle-Blower Suit Discloses Inquiry into Practices of For-Profit Law School

Professor Barbara Bernier's whistle-blower lawsuit against her former employer, Charlotte School of Law, revealed fraud practices by the now-defunct school. Originally kept sealed under the False Claims Act, the whistle-blower suit was unsealed under motion by the U.S. attorney's office in Charlotte, North Carolina, noting that it was not intervening in Professor Bernier's lawsuit. Bernier will be able to continue her federal claim that InfiLaw Corporation, the for-profit owner of Charlotte School of Law, "defrauded taxpayers of $285 million over a five-year period." According to Bernier, she quit her tenured position after discovering that the school "shored up student numbers and performance metrics through unusual means . . . telephoned graduates the night before the bar exam to dissuade them from taking the exam the next day . . . to reduce the number of first-time bar exam takers who might fail it." The school then instituted a mandatory bar preparation course, requiring students to add another semester to their education and resulting in additional student loans. By targeting military veterans and African-Americans, it boosted its enrollment numbers, a factor of great importance to the school's investors. The school asked for additional time to respond to the lawsuit. It closed its doors last month, after the Department of Education withdrew its eligibility for federal student loans in response to the American Bar Association's placing it on probation, due to "deficiencies in several areas."


Ban on Refugees Stands as Court Considers Case

Last week, the U.S. Supreme Court temporarily re-instituted one aspect of the Trump administration's ban on immigrants from six Muslim countries. Nearly 24,000 refugees will be stopped from entering the U.S. until the court considers the lawfulness of the travel ban on October 10th. The travel ban is limited to people "without a credible claim of a bona fide relationship with a person or entity in the U.S." The definition of a "bona fide relationship" is still contested, but the court stated that spouses and mothers-in-law count. To qualify as "an entity," the court said "the relationship must be formal, documented, and formed in the ordinary course, such as students admitted to American universities, workers with job offers from American companies, rather than entities formed for the purpose of evading" the travel ban.


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


Rebel Wilson Prevails in Defamation Suit

"Pitch Perfect" star Rebel Wilson was awarded $3.6 million in damages for her Australian defamation suit against Bauer Media. The publisher of the Australian publications Woman's Day and Women's Weekly painted Wilson as a "serial liar and opportunist who assumed a false name, age and biography to advance her career." Justice John Dixon agreed that the articles cost her work and personal distress, citing in his opinion that the publisher "did not care whether the plaintiff suffered reputational damage as it pursued its own corporate interests."



Still on View: A Lingering Cloud

The Walker Art Center (the Walker) continues to swirl in a cloud of controversy after dismantling Sam Durant's, "Scaffold". The piece, which "evoked the macabre setting of seven executions including the hanging of 38 Dakota Indian men in Minnesota after the US-Dakota war in 1862," was denounced by Native American leaders. After several weeks of deliberation, the Walker ultimately decided to demolish and bury the sculpture. The board of directors hired a law firm to review its handling of the artwork, as many are dismayed that the Walker not only decided to display the piece on former Dakota land without consulting the native community, but also brought in a Jimmie Durham exhibition when his self-identification as Cherokee has not yet been validated. In addition to the legal review of its actions, staff members have left the museum, sparking speculation on mismanagement. Executive director Olga Viso acquiesced that the museum some "rocky terrain," but she remains optimistic.


Brazilian Art Show Sets Off Dispute That Mirrors Politics

Funders of an art show in Porto Alegre, Brazil, suddenly closed an exhibit on gender and sexual diversity. Queermuseu, or Queer Museum, which was curated by Gaudencio Fidelis and included over 263 works of art from 85 artists, was funded by Santander Bank. It is a common practice in Brazil for banks to finance museums. Queermuseu, which went on exhibition at the bank's cultural center on August 15th, came under heavy criticism from conservative groups who said that the work promoted pedophilia and child pornography. Two images "included a baby monkey snuggling in the Virgin Mary's arms, sacramental wafers with the words 'vagina' and 'tongue' written on them, and naïve-style portraits of smiling children spray-painted with tags like 'transvestite' and 'gay child.'" Julio Almeida, the regional district attorney for children's issues, did not find pedophilia when he saw the exhibit. He stated: "There are some images that could be characterized as sexually explicit. But from a criminal viewpoint, there is nothing." The protesters called it a victory when they heard Santander Bank's statement for canceling the show: "We heard the protests and we understand that some of the works at the Queermuseu disrespected symbols, beliefs and people, which is not in line with our vision of the world." Exhibit supporters formed their own protest outside the cultural center, demanding that the show be reopened, and gathered more than 60,000 signatures denouncing censorship. In the meantime, the show may move to the city of Belo Horizonte, where censorship is not welcomed.


Lawsuits and High Costs Sink Billionaire's Plan for Arts Pier

Barry Diller, the billionaire chairman of IAC/InterActiveCorp, decided to pull the plug on the Hudson River project called Pier 55. He stated that his reasons for ending the $250 million project along the Hudson River shoreline were "because of the huge escalating costs and the fact it would have been a continuing controversy over the next three years." The Hudson River Park Trust, which was overseeing the project, introduced the idea of the pier to Diller in the fall of 2011. It was widely supported by the community and public officials, and expected to benefit millions for their enjoyment. The futuristic pier evolved from a $35 million project "with a few trees" to a quarter of a billion dollar performance destination, including an amphitheater and two landscaped areas for staging musical and theatrical performances. Opposition came eight months after it was formally announced in 2014 from the City Club; Douglas Durst of the large Manhattan real estate family; and two activists, Tom Fox and Rob Buchanan. City Club protested that the project would negatively impact the protected estuary. Diller accused Durst of bankrolling the opposition's lawsuits, but in the end relented to his family's concerns that other causes were being overlooked while continuing with the project.


Foam, Armor, and Nights at the Museum: Protecting Florida's Art from Irma

Floridian arts and cultural organizations took precautions to brace for Hurricane Irma. Thankfully, arts groups were in the strongest buildings, according to Quincy Perkins, director of development of the Key West Film Festival. Many organizations prepared for hurricanes during their building phases by advising architects to build in a contingency for hurricanes into the planned structures. The Perez Art Museum Miami was designed with Miami's "mercurial weather in mind," and the new Dali Museum in St. Petersburg has 18-inch thick walls. As a result of water damage, some buildings, like the Wortham Theater Center in Houston, have to find alternative venues for upcoming exhibitions and performances. Irma's route twisting left some areas not as affected as predicted and others walloped by its blasts. In Sarasota, many artists weathered the storm in nearby hotels, while several in Naples had to evacuate. Protecting the art by moving pieces inside or upstairs, taking works off the walls, and packaging pieces in foam and storing in bins, was the order of the day.


Vandals Mar Christopher Columbus Statue, Leaving a Warning

An 1892 bronze sculpture of Christopher Columbus mounted in Central Park was vandalized. Its hands were painted red, pedestal graffitied with "#somethingscoming," and "Hate will not be tolerated" written in white spray paint. Nationwide, statues have been removed in response to the white supremacists' violence last month in Charlottesville. Mayor Bill de Blasio convened a commission to study the possible removal of statues across the city. One suggestion is to keep the statues in place, but add plaques that explain "issues surrounding them." Several Central Park visitors stated that it was good to have the city presenting both sides of history. According to a spokesperson for Mayor de Blasio, there are no plans to increase police protection to the statues at this time.


Got a Warhol? An Insurer May Arrive at Your Door Before a Flood

Property and casualty insurers who cater to high-net-worth individuals will extend extraordinary levels of service to help art collectors protect their holdings during natural disasters. Such companies as AIG Private Client Group, Chubb, Cincinnati Insurance, and Pure Insurance, not only advise in advance of a potential disaster, but will also call on the aid of specialists to determine the steps to protect the artwork. They will send an art preservationist and a team of movers to move the art out of harm's way, send plumbing professionals to install seismic shut-off valves in earthquake-prone homes, offer wildfire protection or remediate services, and provide a complimentary risk-minimization service for the new construction of homes budgeted at $5 million or more. They will even find space to have yachts pulled out of the water and into secure, dry dock storage in advance of mother nature's wrath. The insurers try to cover every scenario.



International Olympic Committee Investigation of Russian Doping Could Lead to Sanctioning of Athletes

It is expected that the investigation into Russia's elaborate doping program at the 2014 Sochi Games will soon yield Russian athletes who will be formally disciplined. According to Denis Oswald, a member of the International Olympic Committee's executive board, the investigation should conclude by the end of this year. The investigation suffered initially due to inadequacy of its urine sample testing method. It has since been able to overcome its examination challenges, and will have the results on the first set of 50 urine samples in less than a week. Those athletes found to have participated in the doping program could be stripped of their medals and barred from future games.


Son of Sandusky Pleads Guilty to Sex Abuse Charges

Jeffrey Sandusky, the son of former Penn State University assistant football coach Jerry Sandusky, plead guilty to 14 counts of sexual abuse. Two teenage girls accused the younger Sandusky of pressuring them to send him naked photos and to perform oral sex. He plead guilty to all charges, including solicitation of statutory sexual assault and solicitation of involuntary deviant sexual intercourse, and will receive a six-year jail sentence, although a longer sentence could be imposed. By pleading the charges, the young girls will avoid suffering through a trial. Sandusky was a loyal supporter of his adopted father Jerry Sandusky, who is now serving an over 40 year prison sentence for the sexual abuse of 10 boys.


Red Sox Are Fined over Theft of Signals

Major League Baseball (MLB) Commissioner Rob Manfred issued a fine against the Boston Red Sox for the use of electronic devices to steal signs during games. At issue was a complaint from Red Sox archrival, the New York Yankees, for the use of an Apple Watch by an assistant trainer in the dugout during a game at Fenway Park in August. The Yankees submitted video they shot of the Red Sox trainer "Jon Jochim looking at his Apple Watch and then apparently passing information along to outfielder Brock Holt and second baseman Dustin Pedroia, who is seen passing information to outfielder Chris Young." The goal of this "game of telephone" style of information passing is to alert the batter as to what pitch is coming. The information chain sped quicker with use of the advanced technology, an upgrade from the use of video replay. The Red Sox did not deny the allegation. The MLB hopes that the penalty will be a deterrent to future use of the prohibited action.


It's Official for Paris and Los Angeles

The 2024 Summer Olympics will be held in Paris, and the 2028 Summer Olympics will be held in Los Angeles. Establishing two Summer Games at once is an unprecedented decision by the International Olympic Committee.


Randolph Sentenced to Community Service

Zack Randolph, the Sacramento Kings forward, entered a no-contest plea to marijuana possession and resisting arrest charges on August 9th. He was recently sentenced to 150 hours of community service. After one year, he may petition the court to vacate the charges if he stays out of trouble.


Former FIFA Official's Testimony Could Raise New Ethics

A former FIFA governance committee member has little hope that the association will be able to clean up its act under its current leadership. Joseph Weiler, a New York University law professor, filed an ethics complaint against FIFA's top leadership. Filed days after Miguel Maduro, the former chairman of FIFA's governance committee, testified before a British parliamentary hearing that FIFA's president Gianni Infantino tried to block scrutiny of senior soccer executives, Weiler's complaint covers many of Maduro's allegations. Specifically, Maduro testified that Infantino "bowed to pressure from senior soccer figures rather than uphold FIFA's regulations" and highlighted cases of "electoral abuses in regional confederations." Maduro was fired eight months after he was hired to help reform FIFA's image. The top ethics investigator and the adjudicatory chamber judge were also fired after a second ethics probe commenced into Infantino's conduct, who had since been cleared of his first complaint about his misuse of FIFA's resources.


Brain-Damaged Boxer to Receive $22 Million

A settlement was reached in a lawsuit stemming from a 2013 boxing match between Russian boxer Magomed Abdusalamov and Mike Perez. During the match held at Madison Square Garden, Abdusalamov sustained injuries to his head early on. In round one, "he took an errant forearm to the cheek," and although he told his handlers that it might be broken, the fight continued through the 10 rounds. The lawsuit pertains to what occurred after the fight, when instead of being directed to two ambulances stationed at the garden, Abdusalamov was ushered to Eighth Avenue and 33rd Street to hail a cab. Improper interpretive services appear to be the cause of delay in medical services. Abdusalamov, age 38 and married with children, suffered brain damage and remains unable to walk or to speak in complete sentences. Judge Jeanette Rodriguez-Morick in New York City Civil Court awarded a $22 million settlement. Another lawsuit is pending against the ringside doctors Anthony Curreri, Osric King, and Gerard Varlotta.


At US Open, Women Surprise and New Rules Get Trial Run

The world of tennis is undergoing a season of change--some welcomed and some with resistance. The US Open's experiment with serve clocks, warm-up clocks, and in-match coaching met mixed reviews. Allowing coaches to communicate directly with their players during the qualifying and junior events was met with skepticism. The chair umpires were pleased with the change, because it allowed them to avoid having to police the usual entourage of coaches trying to get a word to their players on the sly. However, Wimbledon officials are concerned that "tennis's appeal" will be negatively impacted. Watching high-level players handle the stress of problem-solving when six million people are watching them is the essence of the sport. CEO of the WTA Steve Simon's proposal to restructure the women's tour by creating more mandatory tournaments for the leading players, has met opposition from tournament directors. Some change is inevitable. The serve and warm-up clocks during the US Open were well received, according to Stacey Allaster, the CEO of the US Tennis Association. The new clocks, meant to help with "pace-of-play" concerns, had few hiccups on the field. They will likely be adopted. The ATP is considering reviving its World Team Cup in 2019, which would add to an already full slate of men's events.


Some Chafe at Rules Meant to Protect Youngest Girls

American women of all ages did very well at this year's US Open. Sloane Stephens won the all-American women's final, and Amanda Anisimova beat Cori Gauff in the girls' final. The shocker was that Cori Gauff is only 13 years old, making her "the youngest player to ever reach the US Open girls' final," with the youngest being Martina Hingis, who won at age 12 the 1993 French Open, followed by Jennifer Capriati who won at age 13 the 1989 French Open. Under too much pressure at such a young age, Capriati burned out, and the WTA "restricted the number of professional tournaments that teenagers could play at each age." Female players 13 and younger cannot play at any professional tournaments. Some feel that the rule is unfair because there are no such restrictions for the men's tour, and it prevents girls from competing with better players.


Oakley Sues, Continuing Feud with Knicks

Charles Oakley filed a lawsuit against Knicks owner James Dolan, Madison Square Garden (MSG), and two other companies owned by Dolan. The lawsuit stemmed from his February 8th incident with Dolan, when Oakley was ejected from MSG during a game. A month ago, Oakley agreed to a deal with the Manhattan district attorney's office on charges relating to the incident. He vowed to pursue civil remedies against Dolan. In Oakley's suit, he alleges assault, battery, and false imprisonment against MSG, MSG Networks, and MSG Sports & Entertainment, plus defamation against Dolan for statements he made after Oakley's arrest, inferring that OaMSGkley has a drinking problem. The defendants are also accused of violating the Americans with Disabilities Act and state and city human rights statues for the Garden's perception of his alcoholism as a disability and subsequent ban.


95 Russian Athletes Are Cleared in Doping Plot

Out of the first 96 doping cases brought after the discovery that Russia had a year's long program of doping, 95 were dropped due to insufficient evidence, according to Olivier Niggli, director general of the World Anti-Doping Agency (WADA). The identities of the 96 athletes under review were not revealed. The cases stem from a tell-all account by whistleblower Dr. Grigory Rodchenkov, the Russian antidoping lab chief who is now living in hiding in the U.S. According to Dr. Rodchenkov, Russia has a very well-organized system of cheating that extended all the way to the Olympics. A two-year investigation implicated 1,000 athletes. However, it has been difficult to bring the cases forward, due to Russia's practice of destroying evidence, impeding investigations by making it a crime for investigators to enter certain storage areas of the lab, and the unavailability of Dr. Rodchenkov, which he disputes. His lawyer, Jim Walden, stated that only one investigator requested an interview. The 95 cases were derived from an evaluation of the 1,000 athlete pool through a process of scrutiny and punishment by governing sports bodies for each sport, whose decisions were then reviewed by WADA. Conflicts of interest in the leaders of the individual governing sports bodies who may want to protect their own athletes are a concern, as well as the conflict of Craig Reedie's position as head of the WADA and serving on the International Olympic Committee. Investigations of the other athletes are ongoing. Exoneration of the 95 athletes may be seen to vindicate Russia. However, Niggli cautions that although there may not be enough evidence against individual athletes, the investigator has established a Russian system of doping, and the International Olympic Committee is considering blanket sanctions against the country ahead of the 2018 Games.


Show of Unity in Anthem Demonstration in Cleveland

At games across the National Football League (NFL), players continue to demonstrate protests during the national anthem, with the latest at a Cleveland Browns game where players--united with police, firefighters, and emergency rescue workers--locked arms before the season opener. The protests stem from Colin Kaepernick kneeling during his former team's anthems last season. Formerly a San Francisco 49ers quarterback, Kaepernick is now a free agent who has yet to be picked up, spurring speculation that his politics may be affecting his future in football. There have been several "Standing 4 Kaepernick" protests, and boycotts by bar owners who will not show NFL games. Recent demonstrations include Michael Bennett of the Seattle Seahawks sitting during the anthem while his teammate Justin Britt kept his hand on Bennett's shoulder. Other teammates shook his hand, and Jimmy Graham wore "liberty" and "justice for all" inscribed on his cleats. Martellus Bennett, who plays for the Packers and brother to Michael Bennet, raised his right fist, along with Robert Quinn of the Los Angeles Rams and Malcolm Jenkins of the Philadelphia Eagles. Marshawn Lynch of the Oakland Raiders sat during the anthem, and Marcus Peters of the Kansas City Chiefs did not stand.


Battling the Scourge of Doping with Patience and Candor

Gary Wadler, the antidoping pioneer, died last week. He was 78. "His articulate explanations about steroids and human-growth hormones made him a frequent voice in the news media, at medical conferences, before congressional panels and at trials as an expert witness." It was his approachability that became his greatest asset on top of being a distinguished physician. Don Hooton--the father of Taylor Hooton who, as a teenager, committed suicide after he stopped using steroids--spoke highly of Dr. Wadler as being the unofficial translator on the subject of performance-enhancing drugs. Hooton stated that "he was able to put things in a way that I could understand, and was so compassionate." Dr. Wadler was a founding member of the World Anti-Doping Agency, testified before Congress on steroid use in MLB, and was an advisor to the National Basketball Association. He began his career in sports and medicine as a tournament physician at the US Open in 1980, and co-authored the seminal textbook Drugs and the Athlete in 1989.




White House Calls ESPN Host's Remarks a "Fireable Offense"

ESPN's SportsCenter co-host Jemele Hill is under fire from the White House for calling President Trump a white supremacist on Twitter. Her comments included that "Trump is the most ignorant, offensive president of my lifetime. His rise is a direct result of white supremacy. Period." ESPN gave a public statement that Hill's comments "do not represent the position of ESPN" and have addressed the matter with Hill. White House Press Secretary Sarah Huckabee Sanders called the comments "a fireable offense." ESPN stated that Hill recognizes her actions were inappropriate. She continues to co-host the show and has not addressed her tweets on the air. As the company gives its employees "wider latitude in talking about politics when they intersect with sports," it continues to struggle with the line between "what is considered inappropriate commentary from its writers and TV personalities."


Connecticut Law May Shield Anchor from Discipline

A Connecticut law may shield ESPN host Jemele Hill from being discharged or disciplined for her comments disparaging President Trump. General Statute 31-51q states that an employer may be liable for damages if it "subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution." One attorney with the New Haven Legal Assistance Association said that the statute was intended to protect people who say things about an important issue of public concern. In Trusz v. UBS Realty Investors, the Connecticut Supreme Court ruled that "people who work in Connecticut who comment on matters of 'public concern' are protected by state law, extending some speech protection for those employees even beyond the First Amendment." Remarks about the president's beliefs and fitness for office are considered highly protected matters of public concern. What constitutes protected "public concern" is important to understand, as not all public concern speech is shielded. Under the statute, employees can be disciplined or discharged when the activity "substantially or materially interferes with the employee's bona fide job performance or the working relationship between the employee and the employer." Some legal experts are of the view that ESPN may discipline Hill, as her comments may have impacted her ability to attract sponsors and viewers, and thereby may materially interfere with her performance. ESPN's greater challenge may be in meting out its discipline in a balanced manner. Last year, it fired baseball analyst Curt Schilling for sharing a Facebook post about North Carolina's controversial "bathroom bill."


Major Sites Face Rebuke for Ads Tied to Racism

Reports from ProPublica and BuzzFeed expose that Facebook and Google enable advertisers to tailor groups of people based on hate speech and racism. According to ProPublica, it tested Facebook advertising categories to see whether they could purchase ads based on anti-Semitic topics, such as "Jew hater" and "How to burn Jews," among others. Facebook approved the ad in a matter of minutes, reaching about 2,300 people with a $30 ad boost. Facebook said that it is discontinuing such fields until it has "the right processes in place to help prevent this issue." The social media giant continues to be under fire since last fall when ProPublica reported that the platform was being used for civil rights discrimination by allowing advertisers to exclude "ethnic affinities," defined as certain races, from housing and employment ads. Facebook no longer allows the term to be used in ads for credit, housing, and employment, the typical industries most often used to discriminate based on race. Google, it was reported, not only allowed advertisements tied to racist keywords, but it also "automatically suggested more offensive terms" as part of its customer service. In response to the BuzzFeed article, Google promised to work harder to stop offensive ads. These reports support the imperative for increased disclosure of the funding behind political ads, especially in light of Facebook's revelation that its platform had been used by Russia to influence the U.S. presidential election. The Federal Communications Commission will be seeking public comment on disclosure requirements for online political ads.


Search Giant Sued by Three Female Ex-employees Who Cite Pay Discrimination

Three former female Google employees filed suit against the tech giant for employment discrimination. The plaintiffs alleged that "Google knew or should have known about the pay disparity between men and women at the company, but failed to take action to rectify it." One plaintiff who worked as a software engineer claims that she was hired at Level 3, where entry-level software engineers begin, although she already had four years of work experience. Shortly after she began, Google hired a male software engineer with duplicate credentials, but placed him at Level 4, which gave him not only a higher salary but also raises, stock options, and additional chances for bonuses. The lawsuit filed in the California Superior Court in San Francisco states that other men of equal or lower qualification started at Level 4. Women at the company make up 31% of the workforce but hold only 20% of the higher-paying engineering jobs. The suit cites a 2015 Labor Department review of Google's entire workforce at its headquarters (21,000 employees) that found significant pay disparity between men and women. The Labor Department and Google continue to battle over its pay practices.


Kaspersky Lab Software Is Ordered Wiped from Government Computers

On Wednesday, Elaine C. Duke, the acting secretary of Homeland Security, ordered the removal of Kaspersky Lab Software from all federal government computer systems. Kaspersky Lab was founded by Eugene V. Kaspersky, who wrote software for the Soviet Army after being trained at a high school for spies. He started his company in 1997 and led it to become the prominent cybersecurity firm in the world, boasting over 400 million users globally. The firm is currently under federal investigation for possible links to Russian intelligence agencies, an accusation Kaspersky denies. The FBI, CIA, and other security officials have warned private companies to stop using Kaspersky software, including its antivirus products, and testified they are not comfortable with the software on their federal agencies' systems. Homeland Security has asked for the software to be removed from all federal agencies within the next 90 days.


Tracing Photos in Fake Facebook Profile

An unsuspecting Brazilian found himself the subject of a media puzzle. The Russian-created fake profile discovered by Facebook included several biographical details and photos. Discovering the actual identity of the made-up "Melvin Redick" profile required the help of crowdsourcing after Google's image search function did not find anyone. The New York Times noted that one of the photos depicted "Redick" at a bar in Brazil. Readers of the Brazilian media outlet Globo shared the photo, and one recognized "Redick" to be her son-in-law, Charles David Costacurta. Costacurta had no idea that his 2014 photos of him with his then three-year-old daughter had been stolen, and was particularly disturbed, because he used Facebook's privacy setting.


Shkreli Is Jailed for Seeking a Strand of Clinton's Hair

Martin Shkreli, the former pharmaceutical executive convicted of fraud this summer, had his bail revoked on Wednesday. He was free on $5 million bail while waiting for his January 16, 2018, sentencing for his fraud conviction of a pharmaceutical company he ran. However, his recent Facebook posts landed him back in jail. He has an apparent infatuation with Hillary Rodham Clinton's hair. In his posts, he offered $5,000 for a strand of her hair, requesting that the strand include a follicle. According to Shkreli's attorney, Benjamin Brafman, Shkreli shows "immaturity, satire, a warped sense of humor" and deserved a second chance. Brooklyn Federal District Court Judge Kiyo A. Matsumoto did not see the humor. At the hearing, Judge Matsumoto revoked Shkreli's bail and said, "That is a solicitation to assault in exchange for money that is not protected by the First Amendment." He is now being held at a federal jail in Brooklyn.


Feeling Heat from Top Brands, Facebook Blocks Ads from Noxious Content

In response to the heightened scrutiny by its advertisers, Facebook established new rules on the types of videos and articles that it will bar from running ads. Seeking to assure its major brands that they will not inadvertently appear next to noxious content, Facebook will also disclose where their messages will be placed on its vast ecosystem of apps, websites, and platform. The new rules, which replicate Google's YouTube guidelines, "restrict ads from content that depicts, among other topics, real-world tragedies, debatable social issues, misappropriation of children's show characters, violence, nudity, gore, drug use and derogatory language." Facebook's vice president of global marketing, Carolyn Everson, said: "We want to do everything we can to ensure that we are providing the safest environment for publishers, advertisers and for people that utilize the platform." In addition to a preview of where the ads may appear, marketers will also receive a report on where the ads actually run. The company will be hiring an additional workforce to police the new advertising program and will institute "an appeals process for content deemed ineligible for ads."


Fake Facebook Account with Ties to the Kremlin Posed as U.S. Activists

Facebook disclosed additional but limited details on a fake Facebook account created by Internet Research Agency, a St. Petersburg firm that posts material in support of Russian government policies. Facebook stated that it discovered 470 fake accounts linked to Russia between June 2015 and May of this year. One such account, called Secured Borders, posted a notice to citizens of Twin Falls, Idaho to attend a town meeting. The meeting was fake, as well as the agenda item to discuss the "huge upsurge of violence toward American citizens by Muslim refugees who had settled there." The fact that the $100,000 in advertising is low, compared to Facebook's advertising income of more than a billion dollars quarterly, should not be dismissed. Jason Kint, CEO of Digital Content Next, explained that microtargeting allows a small budget to "go a lot further than most realize." What's most alarming is Russia's ability to destabilize American democracy, according to Jonathan Morgan, former State Department advisor, whose company New Knowledge studies Russian online activity. Former FBI agent, Clinton Watts, stated that the online campaign gives Russian president Vladimir Putin leverage in negotiations and Russian influence on the American public. "If he's successful, it gives him (Putin) an indigenous U.S. audience in support of his policies . . . It also gives him leverage in talking to President Trump: 'Why don't you stop interfering in Ukraine, and we'll leave your domestic audience alone.'" Facebook has not released the actual posts, something its own employees are requesting. According to the company's security chief, Facebook is unable to release more information due to legal issues.


Political Feud Stifles Network As Millions Feel the Effects

beIN, a broadcaster with one of the world's largest arsenal of sports rights, has found itself in a fallout between Saudi Arabia and Qatar, the latter being a country that financed the company. Saudi Arabia and several Arabic-speaking countries have severed ties with Qatar, "accusing its rulers of destabilizing the region and supporting terrorism." The political feud is starting to affect beIN's business: viewers had their signals blocked, reporters have been blocked from stadiums, and players and coaches have boycotted interviews with the channel. In some instances, another sports rights agency had to "step in to ensure that crucial games such as World Cup qualification games and Asian Champions League matches could be broadcast." Until Qatar meets the Saudi Arabian-led demands, including closing the pan-Arab news network Al Jazeera, beIN will be unable to fulfill its role as a global host broadcaster. This situation jeopardizes the viewing of Asian World Cup qualifier games and games in the MENA region of the Confederation of African Football where, among other regions, it is the sole authorized broadcaster.


September 24, 2017

Week in Review

By Eric Lanter

For Puerto Ricans Off the Island, a Struggle to Contact After Hurricane Maria

With approximately five million Puerto Ricans living on the mainland and their families in Puerto Rico, the magnitude of Hurricane Maria brought tremendous concern. After the hurricane passed, however, the concern increased, as the assurances of safety and health were not forthcoming from the island: approximately 95% of communications equipment was not operational. By the end of the week, some services, such as limited texting, were somewhat available. The American Red Cross, as well as other organizations, opened services to allow family members to post notices about whom they are searching, and for Puerto Rican families to post that they are okay.


Skadden Faces Questions on Work with Paul Manafort

Approximately five years ago, Paul Manafort contacted the prestigious law firm Skadden, Arps, Slate, Meagher & Flom to draft a report for Manafort's client Viktor Yanukovych, who was the pro-Russian president of Ukraine at the time and used the report to jail a political rival, Yulia Tymoshenko. The Department of Justice recently asked the firm for information and documents in relation to that work, and it is unknown whether the request concerns Robert Mueller's inquiry regarding Russian interference with the 2016 presidential election. However, even if the request is unrelated to Mueller's inquiry, it illustrates the risks that high-profile firms face in entering the lucrative business of advising foreign governments.


State Department to Tighten Visa Entry Rules for U.S.

Secretary of State Rex Tillerson sent a cable to American embassies around the world informing them of a policy change: those visitors who require visas must stick to their plans reported to the Embassy when acquiring the visas for the first three months after entry into the U.S. If they do anything that is not in their stated plans, such as go to school, get a job, or get married to an American citizen, there will be a presumption that they deliberately lied in obtaining the visa, which would make it extraordinarily difficult to renew it, obtain a new one, or change the status from visitor. This rule will not apply to citizens of 38 countries, including most of Europe, Australia, New Zealand, and Japan.


Judge Rules That Videographers Cannot Cite Religious Beliefs to Refuse Same-Sex Clients

A Minnesota couple who posted on their media production business' website that they would not make films celebrating same-sex marriages filed suit against the Minnesota State Department of Human Rights and the state's attorney general, arguing that they had a free speech right to refuse business. The United States District Court heard the case, and this week, Judge John Tunheim held that the couple cannot keep the statement, as it is the equivalent of posting a sign stating, "White Applicants Only." This holding comes as the Supreme Court is set to hear a case soon about a baker in Colorado who refused to bake a cake for a same-sex wedding on the basis of his Christian faith and free expression.


Syrian Activist and Daughter Found Stabbed in Turkey

Orouba Barakat, a Syrian activist, and her daughter, Halla Barakat, were found stabbed in their Istanbul apartment this week. The elder Barakat was a prominent activist against Syrian President Bashar al-Assad's regime and his father's regime as well, but after the civil war broke out in Syria, she moved to Istanbul with her daughter and continued her activism. She was part of an opposing party in Syria, which has prompted many to speculate whether Assad's government was behind the assassination. The party released a statement indicating it believed the "hand of terrorism and tyranny is the prime suspect in this heinous crime of assassination."


Japan's Dennis Rodman: 32-Time Visitor to North Korea and Former Wrestler

A Japanese former professional wrestler and member of Parliament, Antonio Inoki, has visited North Korea 32 times since 1995 and become a liaison between North Korea's government and the rest of the world, which has particularly drawn interest as tensions have flared among North Korea, Japan, and the U.S. Following a recent visit to North Korea, he opined that its government simply wants to have a dialogue with the U.S. and deescalate the situation. Neither the Japanese government nor the American government has pursued a serious dialogue with North Korea.


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


Saudi Textbook Withdrawn Because of Picture of Yoda with King

Saudi Arabian high school students were issued a textbook that depicted King Faisal at the United Nations with Yoda, a Star Wars character, seated next to him. The unlikely meeting never occurred; in fact, an artist named Abdullah Al Shehri created the work. However, he does not know how the art made its way into the book. The Saudi education minister apologized for the mistake and formed a legal committee to "determine the source of the error and to take the proper measures." It is unclear as to what extent the committee will investigate the intellectual property issues of using Yoda's image and publishing it in a textbook, or whether Lucasfilm intends to pursue this infringement. Regardless, the ministry is issuing corrected copies of the textbook.


KB Home to Cut CEO's Bonus After Sexist, Homophobic Outburst Against Kathy Griffin

Following a verbal tirade by Jeffrey Mezger, the chief executive of homebuilding company KB Home, the company announced that he will only receive a portion of his annual bonus. The specific amount of the bonus, and the portion that he will receive are unknown, but last year he earned $9 million total from his role as chief executive. The confrontation was recorded at Kathy Griffin's home when she and her boyfriend, Randy Bick, were targeted after calling the police to complain about noise from Mezger's backyard.


Expecting Hero's Welcome, Lebanese Director Charged with Treason

Lebanese film director Ziad Doueiri returned this month to Beirut to celebrate the debut of his new movie "The Insult." When he arrived at the airport, he faced an unexpected surprise: arrest and appearance before a military court the next day facing accusations of treason. He shot his previous movie in Israel, which is an enemy state for Lebanon. He was released after a few hours of questioning, but it is unclear what will happen in the future, given the fact that he had visited Lebanon more than a dozen times since the offending film was released.



If You Shame Them, Will They Pay?

There have been numerous instances of Forever 21, the fashion retailer, releasing articles of clothing that are eerily similar to ones that independent artists or smaller brands created. One example was when two women joined together with one's husband to create a shirt with the word "woman" written in several languages, and released it on social media for friends and family to buy. The proceeds were meant to go to Planned Parenthood. However, they soon found that Forever 21 was also selling a shirt with "woman" spelled in different languages. One expert has said that brands like H&M, Zara, and Forever 21 interpret trends and change designs just enough to avoid liability, but sending a cease-and-desist letter to those companies may net a settlement. Others have taken to shaming the brands on social media and raising awareness that taking designs from lesser known artists or companies prevents those startups from gaining traction in the marketplace.


Ambitious Art Show Faces Debt

Germany has hosted an exhibition of contemporary art every five years called Documenta, which is in its fourteenth edition, and this edition is creating controversy after centering on the financial state of Greece and Germany. The exhibition was set up in both Kassel, Germany and Athens, Greece, and its cost appears to have put the organization into financial distress. There is a dispute as to whether the artistic director, Adam Szymczyk, is to blame for the financial shortfall, or whether the economic plan in place before his appointment is the cause. Regardless, analysts point out that the exhibition's success or failure has a direct impact on the well being of Kassel, Germany, and for that reason, it is likely there will be further investigation.


Painting Emerges as Cautionary Tale

Leon Hanssen, a Piet Mondrian biographer, visited the Bozar Center for the Arts in Brussels, Belgium when he saw a painting that appeared to be an untitled 1923 Mondrian that the Nazis displayed in 1937 as an example of "degenerate art." It was believed to have been destroyed in the Berlin air raids at the end of World War II, and Hanssen asked to have a closer inspection of the painting. The Stedelijk Museum in Amsterdam was set to receive the work next, and Hanssen approached it to get more information about the owner of the painting, who had lent it to three art institutions. Hanssen's research revealed that the painting had been rejected multiple times, with its authenticity in question, but nonetheless, the institutions had accepted it from the owner for exhibition. One industry expert says that this is an example of where institutions are not equipped with the experts to ensure that works are properly vetted before being brought in for display.


Upheaval at Bach Festival

The Bach Festival is centered in Eugene, Oregon and brings world-class artists together from around the globe. However, the festival fired its artistic director, Matthew Halls, which raised questions about the stability of the institution. His style of smaller, historically-informed performances as opposed to the big-symphony performances of his predecessor may be one reason for his firing. However, some wonder whether it has anything to do with his faking a Southern accent with an African-American colleague and making racially insensitive jokes. Given the fact that he was fired a few months into his new four-year contract, and the festival has only cited "personnel issues" for the firing, those in the industry are inclined to conclude that his firing was not solely because of the change in performance style.


Holocaust Museum, Seeking Lessons on Syria, Gets Backlash Instead

The United States Holocaust Memorial Museum commissioned a study about whether alternative strategies could have lessened the bloodshed in Syria, which is now in its sixth year. The study concluded that no American action was guaranteed to significantly reduce the violence in Syria, which has set off a strong reaction. Many have attacked the institution for the study, which some interpret as exonerating President Barack Obama for any fault for the killings that occurred under his watch. The museum has since pulled the report, and some board members admitted that they did not expect such a furor to result.


As 'Diller Island' Sinks, Whitney Plans Artwork on Hudson

Last week, Barry Diller announced that after numerous setbacks, there would in fact not be a floating park in the Hudson River. The Whitney Museum of American Art, which is in the Meatpacking District, has plans for a permanent art installation on land and water by the artist David Hammons. The installation is expected to feature a ghostlike image of the pier building on the site, and Whitney Museum officials are quick to point out that they followed the obstacles that the Diller Island installation faced. The project is to be presented to the local community board on October 4, 2017 for review.



Aaron Hernandez Had Severe CTE at Time of Death, But Legal Hurdles Impede Suit Against NFL

Researchers determined that the late New England Patriots star Aaron Hernandez had a severe form of the degenerative brain disease CTE that is tied to repeated head hits. There are questions now as to whether his behavior, and the killing of a friend and himself, were tied to the brain disease. His relatives sued the National Football League (NFL) and the Patriots organization for failing to protect him, despite knowing that the game was dangerous and could lead to brain damage. The family will face difficulty having its case heard, given the NFL's past success in arguing that matters between it and players should exclusively be resolved in arbitration, not in the courts. Further, the NFL is expected to argue that its players know the risks of injury when they agree to play, and that Hernandez's actions were not directly linked to any brain disease.


The Home Run Explosion is Not Beyond Suspicion

Earlier this week, a record-setting 5,694th home run was hit in Toronto, raising the question of what has changed in the sport to cause more home runs this year. While in 2014, only 11 players hit 30 or more home runs, this season will bring 32 players to clear the 30-home run mark. Coaches and players have insisted that the increase results from is the launch angles and revelations as to the physics of hitting the baseball. Michael Powell of the New York Times remembers back to 1998, when Sammy Sosa and Mark McGwire were setting home run records and the same reasons were given, only to later be revealed as being steroid-induced. While Powell does not conclude that there are inevitably steroids involved in the records being broken this year, he does note that there are steroids on the market now that are virtually undetectable given the current testing that players undergo.


Stronger Calls for Netting in Baseball After Latest Bloody Incident

Last week at Yankee Stadium, a young girl was struck by a 105-mile-per-hour line drive, which left her seriously injured. Incidents like this have caused many baseball teams to put protective netting to prevent line drives from hitting fans and causing injuries. The Yankees' chief operating officer, Lonn Trost, rather than announce the installation of netting as many other teams have done, announced that the Yankees would investigate the installation of netting and cautioned that it would not be a three-day job to install netting in the stadium. While Major Leage Baseball (MLB) does not require netting to be installed throughout the stadium, some teams, like the New York Mets, have installed netting all the way through to the outfield to protect fans. The Yankees have suggested in the past that doing so would interfere with the views that its fans pay good money to enjoy.


U.S. Women's Soccer Faces Old Foe: Artificial Turf

The U.S. women's national soccer team has a continuing dispute with its federation: artificial turf. The players are scheduled to have four of their final nine matches on artificial turf, which is known to be less desirable than natural turf. The topic was raised in their negotiation of the new collective bargaining agreement, which provides that matches were preferred to be played on natural turf. While the collective bargaining agreement was centered on a dispute over equal pay with the men's team, the deal also reflected that the women wanted to be more involved with the team's day-to-day issues, such as turf selection. The players are accusing the federation of ignoring preferences like turf and other scheduling concerns.


Officer Defends Takedown of Tennis Star

New York police officer James Frascatore charged across East 42nd Street and tackled a man that he thought to be a suspect in a credit card fraud ring who might have been armed. In fact, it was James Blake, the retired professional tennis player. The Civilian Complaint Review Board investigates accusations of misconduct for the NYPD's police officers, and a Police Department judge will decide the case as to whether the police officer used excessive force. The attorney for the officer indicated that it is only going to a trial because Blake was a celebrity and that the officer was acting on the information that he had in his possession at the time.


Judge Rules Against NFL in Ezekiel Elliott Case

A federal judge in Texas denied the NFL's request to suspend Ezekiel Elliott's six-game suspension. The NFL had also filed with the Fifth Circuit Court of Appeals in New Orleans with the same request. The judge criticized the NFL for not waiting for a decision, and the NFL filed a request for an emergency stay with the appeals court on Friday, which contain essentially the same arguments as the case filed in the Texas District Court.


Lawyers Say Players in Concussion Settlement May Have Been Swindled

In the context of settling the federal litigation in the Eastern District of Pennsylvania regarding ex-NFL players being exposed to concussions during their time playing for the NFL, lawyers claim that many players signed dubious contracts with lenders and lawyers that placed them in impossible positions for repayment. Some players signed agreements where they received $10,000 from the lender, but were required to pay back $17,310 from the settlement payout in one year; another one stated that after receiving $312,000 from a lender, he would have to pay back $568,000 upon receiving the settlement. This is not the first instance of companies targeting retired players: New York Attorney General Eric Schneiderman and the Consumer Finance Protection Bureau sued a New Jersey company after it lured retired players into costly advances on settlement payouts with deceptive terms in the contracts. The attorneys for the players have asked the judge to pursue criminal claims against lawyers and advisers who filed false claims, because their actions are endangering the administration of the settlement.


Princess Quietly Helps FIFA Investigation

The Jordanian princess Haya bint al-Hussein is married to the billionaire ruler of Dubai, Sheikh Mohammed bin Rashid al-Maktoum, and has been working with British private investigators for over a year to collect evidence of corruption in the global soccer arena. She has brought investigators to meet with current and former FIFA officials, as well as those in the underworld of soccer politics at a time where there is intense scrutiny of the sport. There were indictments and arrests of top officials in 2015 in the United States, which sent shock waves throughout FIFA. It is known that Princess Haya previously shared information with American investigators, and she may be providing information to investigators about FIFA's controversial decision to award the 2018 and 2022 World Cups to Russia and Qatar respectively.


Tackle Football Before Age 12 Tied to Brain Problems Later

A new study revealed that athletes who begin to play tackle football before the age of 12 have developed behavioral and cognitive problems later in life. The findings come from a study at Boston University at a time when parents are considering when is appropriate for children to play football, if at all. The study was conducted through telephone interviews and online surveys and found a twofold increase in behavioral problems and a threefold risk of "clinically elevated depression scores." One author of the study cites the ages of 10 to 12 as being an "incredible time of growth" in the brain, which would be impeded through repeated hits to the head.


NCAA Finds Rutgers Failed to Monitor Football Program

The NCAA punished Rutgers for what it called "a failure to monitor its football program" during a five-year period, as the university ignored rules related to recruiting and drug testing. The sanctions include two years of probation and recruiting restrictions, which will only compound the problems the school has faced, as its athletics have been known for losses and red ink in the past couple of years. The NCAA also found that 14 players were allowed to compete after violating the drug testing policies of the school, which should have been penalized.



Facebook Vows More Human Oversight of Advertisements

Facebook's advertisements came under scrutiny this week. The chief operating officer, Sheryl Sanderg, announced that Facebook will have "more human review and oversight" to its automated systems to prevent ads to be directed at users who used racist comments or hate speech in their profiles. This comes after a report revealed that Facebook's "online ad tools had allowed advertisers to target self-described 'Jew haters' or people who had used terms like 'how to burn Jews.'" Second, Facebook announced that it is disclosing information and documents to congressional committees investigating the Russian meddling in the 2016 presidential election. This turnover of documents is in relation to hundreds of accounts that are thought to be linked to the Russian government and were designed to promote the candidacy of Donald Trump over that of Hillary Clinton, to influence the outcome of the election.


Leading the Legal War Against Fox: Wigdor

Douglas Wigdor, a conservative Republican, filed 11 suits against Fox News for defamation, sexual harassment, and racial discrimination just this year alone. Altogether, the lawsuits he filed for his clients seek damages in excess of $100 million, which is the most sustained attack on Fox mounted by a single private lawyer. While other suits, like those in relation to Bill O'Reilly and the late Roger Ailes, were brought by larger firms, Wigdor has had a monopoly on the other suits against the news organization. He earned a reputation for being an aggressive employment lawyer when he filed gender discrimination suits against Deutsche Bank and Citigroup, as well as an age and racial bias suit against the New York Times. His critics contend that those suits have left him ill-prepared for taking on Fox, with its vast resources, despite the fact that Wigdor's clients have strong cases against the organization.


Fox News Guest Sues, Claiming Organization Banned Her After Accusing Charles Payne of Rape

In Douglas Wigdor's latest filing against Fox News, he is representing commentator Scottie Nell Hughes, who claimed that she was raped by longtime anchor Charles Payne and then faced retaliation from the network when she came forward with her allegation. Payne is the host of "Making Money" on Fox Business and returned to the air in July after being suspended pending an investigation into his conduct. Hughes alleges that he pressured his way into her hotel room in 2013 and coerced her into having sexual intercourse with him despite her saying "no" and "stop." She did not immediately report it as she was "shocked and ashamed" but has alleged gender motivated violence, gender discrimination, retaliation, and defamation against Payne, Fox News, and 21st Century Fox in her lawsuit filed in the Southern District of New York.


Fox Presses for Arbitration or Dismissal in Suit Over Seth Rich Article

In the context of the lawsuit against Fox News for defamation and racial discrimination for its publication of an article about the death of a young Democratic aide named Seth Rich, Fox filed a motion to move the case from federal court to arbitration, given the plaintiff Rod Wheeler's agreement with the network. The plaintiff was a private detective who Rich's family hired after his death, and a Fox News story fabricated quotes from the detective, causing the organization to retract the piece. Wheeler's attorney, Douglas Wigdor, sought to keep the case in federal court and viewed the motion as nothing more than an effort to keep "people in the dark on what now is a matter of serious public concern."


Preorders Sag for Bill O'Reilly's Latest Book

Bill O'Reilly published a book in the fall of each of the last six years that soars to the top of the nonfiction best-seller list. This year's version, "Killing England: The Brutal Struggle for American Independence," may be the first year where it does not become a best-seller, given its low preorders. Due to the accusations from five women of sexual harassment or verbal abuse, as well as his ouster from Fox, where he had an audience of four million viewers every night, some analysts wonder whether he can regain the energy that he once enjoyed with each book he published. Nonetheless, his book will be displayed prominently in Barnes and Noble and on Amazon's website.


Wenner Media Puts Rolling Stone Magazine Up For Sale

Jann Wenner, the founder of Rolling Stone Magazine in 1967 and the controlling stakeholder in the company, put his shares up for sale. This announcement comes three years after the magazine botched a story about an unproven gang rape on the campus of University of Virginia that bruised the magazine's journalistic integrity. The potential sale of the magazine, which was a counterculture icon, illustrates the difficulty of print advertising and media in the current market. Both Wenner and his son Gus Wenner have said that they intend to stay on at the magazine, if the new owner allows it.


Rolling Stone Magazine Facing Revived Suit Regarding Campus Rape

A matter of days after announcing that Rolling Stone's owner was selling his controlling share in the magazine, the Second Circuit Court of Appeals ruled that the lower court erred in dismissing the defamation lawsuit in relation to the magazine's publication of an alleged gang rape at the University of Virginia. The lower court judge ruled that three men who were part of a fraternity had not shown that the article was "of and concerning" them apart from their fraternity and dismissed the action. The Court of Appeals sent the action back down to district court for further proceedings. This comes after Rolling Stone settled with the fraternity for $1.65 million and with the associate dean at the university for $3 million in damages.


Dr. Seuss Parody Wins in Lawsuit

Matthew Lombardo's theatrical parody titled, "Who's Holiday!" is a dark sequel to the Dr. Seuss classic, "How the Grinch Stole Christmas!" A judge recently ruled that the parody does not violate the copyright of the original story. Dr. Seuss Enterprises brought suit against the company after sending cease-and-desist letters and forcing the cancellation of the production. Lombardo filed a suit in the Southern District of New York and argued that the parody was protected under the First Amendment, and the Seuss estate countersued that the play was derivative and "a blatant infringement" of the copyright. Judge Alvin Hellerstein found that there was no possibility that consumers would see the play in lieu of reading the book or watching an authorized derivative work, noting that the themes for the play were "teenage pregnancy, drug and alcohol abuse, murder and prison culture."


After Star Turn, Spicer Says He Regrets Berating Reporters over Inauguration Crowd

Former White House press secretary Sean Spicer made a surprise appearance at the Emmy Awards and announced that he regrets criticizing accurate news reports that the inauguration crowd size was bigger for President Donald Trump's inauguration than President Barack Obama's. After his resignation from the White House this summer, his appearance was intended to attract a television audience that he seeks for speaking engagements and other television appearances.


Tumult After AIDS Fundraiser Supports Harvey Weinstein Production

In May 2015, film producer Harvey Weinstein arranged for an auction of goods and services for a fundraiser for amfAR, a charity that seeks a cure for AIDS. The auction included tickets to awards events and parties, but they came with a condition: that $600,000 of the money raised would go to the American Repertory Theater, a nonprofit playhouse that was doing a trial run of "Finding Neverland," which Weinstein produced. amfAR's board of directors is questioning whether the arrangement was disclosed prior to the deal being finalized, and New York Attorney General Eric Schneiderman is investigating the corporate governance of the charity as a whole. Weinstein said in an interview that he thought "we were doing something fantastic for both sides. We get money, they get money, and it's all our money." A prominent law firm, Gibson, Dunn & Cutcher reviewed the transaction and found it to be legitimate and lawful for amfAR's board of directors, but another reviewing lawyer found that the arrangement may put the financial integrity of the charity at risk, as the show's 24 investors would be reimbursed if they brought in third-party charitable contributions to the private benefit of Weinstein and other commercial investors.


September 25, 2017

Aaron Hernandez's Estate Sues the National Football League for Lack of Parental Consortium

By Michael Kusi

Aaron Hernandez was a tight end who played for the New England Patriots of the National Football League (NFL) from 2010 to 2013. He was arrested on June 26, 2013 for the murder of Odin Lloyd, who was a semi-professional football player. The New England Patriots released Hernandez from the team after this arrest.

Hernandez was convicted on April 15, 2015 of first-degree murder for Lloyd's death, and was sentenced to life without the possibility of parole. He was also charged in the murders of Safiro Furtado and Daniel De'abreu. On April 14, 2017, Hernandez was found not guilty of those murders. On April 19, Hernandez was found dead in his prison cell. On May 9, Massachusetts Superior Court Judge Susan Garsh vacated Hernandez's murder conviction on the grounds of abatement ab initio, which is a legal doctrine that mandates dismissal of a conviction when the defendant has not finished his appeal when he dies.

On September 21, Hernandez's estate sued the NFL and the New England Patriots for Lack of Parental Consortium on behalf of his daughter, Avielle Hernandez. In the Complaint, filed with the United States District Court for State of Massachusetts, the plaintiff requests a jury demand and states that Aaron Hernandez had severe Chronic Traumatic Encephalopathy (CTE) as a result of playing in the NFL. The CTE was diagnosed by the School of Medicine at Boston University.

The Complaint states that there is a correlation between Aaron Hernandez's CTE and his actions leading up to his death. It also alleges that the NFL did not take sufficient remedial measures to combat the potential for CTE in its athletes. The Complaint asserts that the NFL was negligent in managing existing CTE cases, and that it knew the dangers of football, but misled the public and its athletes.

The plaintiff alleges that because of Aaron Hernandez's death, his daughter suffers from a loss of parental consortium, which is when a child suffers from a lack of parental relationship and injury occurs as a result. The Complaint states that the NFL should have stopped Aaron Hernandez from playing football due to its dangerous nature, and that because of his playing football, he was subjected to head trauma, which gave him CTE. The Complaint also depicts the link between the CTE and Aaron Hernandez's erratic behavior leading up to his death.

The Complaint requests a judgment against the defendants, compensatory and punitive damages, and attorney's fees and costs.

Continue reading "Aaron Hernandez's Estate Sues the National Football League for Lack of Parental Consortium" »

September 28, 2017

Designated Agent Deadline re DMCA Safe-Harbor

By Barry Skidelsky

The United States Copyright Office (CO) released a reminder that previous paper filings designating agents for the receipt of take-down notices from copyright owners will only continue to be valid until December 31, 2017 (see https://www.copyright.gov/newsnet/2017/683.html).

By that date, existing agent designations must be updated using the CO's new online registration system. New registrations of designated agents also must be made online. The DMCA Designated Agent Directory's homepage is at www.copyright.gov/dmca-directory/.

Any blogger, website or other online service provider who/that hosts content posted by third parties (e.g., User Generated Content or UGC) that might possibly infringe someone else's copyrights must electronically file an agent designation as a condition of receiving safe harbor protection against copyright infringement claims under Section 512 of the Digital Millennium Copyright Act. The current filing fee is six dollars, a pittance compared to statutory and other damages available in copyright infringement cases. Of course, registering a designated agent to receive take-down notices is just one necessary step to limit liability for materials online (e.g., see 17 USC 512).

About September 2017

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

August 2017 is the previous archive.

October 2017 is the next archive.

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