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December 2017 Archives

December 2, 2017

Center for Art Law Case Law Updates

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

Chowaika & Co. Fine Arts Ltd., Case No. 17-13228 (MKV) [Carpenter Fine Violins and Collectibles, LLC v. Ezra Chowaiki and David E.R. Danger, 65929/2017 (Sup. Ct. NY Cnty. Nov. 15, 2017), RH9 Group, LLC et al v. Chowaiki, 656930/2017, Sup. Ct. NY Cnty. Nov. 15, 2017, Leser v. Chowaiki & Co. Fine Art Ltd. et al, 656870/2017 (Sup. Ct. NY Cnty Nov. 12, 2017)]

Three lawsuits filed against Chowaiki & Co. Fine Art corporation precipitated the filing for bankruptcy by the private gallery and art advisory service that was founded in 2004 by Ezra Chowaiki, who is now accused of defrauding clients. The cases are stayed pending the U.S. Bankruptcy Court for SDNY.

Joshua Liner Gallery v. Kagan, 656849/2017 (Sup. Ct. NY Cnty. Nov. 9, 2017) -- The plaintiff, a New York gallery, alleges fraudulent concealment of sales of paintings directly through the defendant's studio in violation of the artist-gallery agreement, as well as a failure to create and deliver a painting to the Gallery in consideration of certain sale goals, and other grievances. The complaint reveals that the Gallery was acting as Kagan's exclusive agent for the sale of artworks produced since 2014, and was entitled to a commission of 50% on any artwork Kagan sold. Kagan's art is slated for exhibit at the Virginia Museum of Contemporary Art in 2019.

Berkshire Museum Lawsuits: Two groups of plaintiffs -- members and heirs of Norman Rockwell -- filed two lawsuits in an attempt to enjoin the deaccessioning of 50 artworks in a November 13th Sotheby's auction. The heirs of Norman Rockwell filed a complaint, arguing that the deaccession "violates the museum's establishing statute, promises made to donors and the fiduciary obligations of its trustees." The Massachusetts Attorney General, Maura Healey, supported the Rockwell plaintiffs in a filing. The second complaint, brought by members of the Museum, argues that the museum has reneged on its obligations to its supporters by putting the works up for auction. The theory is that because, under Massachusetts law, members of a nonprofit are treated like shareholders in a corporation, the relationship between the corporation and its governing charters and bylaws must be treated like a contract. A hearing was held on November 1, 2017, and the papers (https://cdn2.hubspot.net/hubfs/878449/Memo%20of%20Law%20in%20Support%20of%20Ps'%20Emergency%20Mtn%20for%20Ex%20Parte%20Temp%20Rest%20Order%20%20%20Prelim%20Injunction%20After%20Notice%20Agst%20BM'sSale%20of%20Art(B2211764).pdf?t=1510241925709&mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8) in support can be (https://cdn2.hubspot.net/hubfs/878449/Affidavit%20of%20Stephen%20C.%20Sheppard(B2211547).pdf?t=1510241925709&mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8)found here (https://cdn2.hubspot.net/hubfs/878449/Affidavit%20of%20Dan%20L.%20Monroe(B2211546).pdf?t=1510241925709&mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8). The Court denied the request for an injunction, allowing the planned November 13th sale to proceed (http://blog.timesunion.com/localarts/files/2017/11/Rockwell-Berkshire-Museum-Injunction1.pdf?mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8).

Schmitt v. Artforum International Magazine Inc. et al, 159464-2017 (Sup. Ct. NY Cnty. Oct. 25, 2017) -- Curator and Art Fair Director Amanda Schmitt, along with eight other women, sued Artforum and Knight Landesman over his alleged sexual harassment (https://www.law360.com/articles/978587/artforum-sued-for-sex-harassment-as-co-publisher-resigns?mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8). The complaint accuses the publication of allowing Landesman's sexually abusive behavior toward multiple women to occur without consequence. It also claims that the defendant slandered Schmitt and threatened retaliation against current and former employees who might speak about the harassment to the authorities or the press. The plaintiff seeks compensatory damages of $500,000 plus attorneys' fees and punitive damages.

Mugrabi v. Mana Contemporary, 159407/2017 (Sup. Ct. NY Cnty. Oct 23, 2017) The Mugrabi family sued Mana Contemporary, which stores works for the dealer family, for preventing the removal of art works from its facility due to unpaid fees (https://www.bloomberg.com/news/articles/2017-10-23/big-warhol-collector-says-art-is-held-hostage-by-storage-firm?mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8). Since the filing of the complaint, the court ordered Mana to release some of the works in exchange for a $1 million payment by the Mugrabis (http://theartnewspaper.com/news/new-york-supreme-court-negotiates-release-of-mugrabi-familys-art-from-new-jersey-storage-site?mc_cid=b7b5c56ca4&mc_eid=8a2eda70d8).

Bauer v. Toll, TGI Paris, 7 nov. 2017, n° 17/58735 - The High Court in Paris ruled to restitute a Pissarro painting, "Picking Peas", to the heirs of a Jewish art collector whose art was looted by the French Vichy government. According to the holding, an American couple, Bruce and Robbi Toll, who lent "Picking Peas" to an exhibition in France at the Musée Marmottan Monet in Paris, did not act in bad faith when they bought the painting from Christie's auction house. In addition, the court did not award the Tolls any compensation for their loss. The painting will continue to be held in escrow in the D'Orsay, pending appeal. Insurance values the painting at over $1 million dollars. (https://www.dalloz-actualite.fr/sites/dalloz-actualite.fr/files/resources/2017/11/doc171117-17112017093540.pdf)

The Center for Art Law strives to create a coherent community for all those interested in law and the arts. Positioned as a centralized resource for art and cultural heritage law, it serves as a portal to connect artists and students, academics and legal practitioners, collectors and dealers, government officials and others in the field. In addition to the weekly newsletter (http://cardozo.us2.list-manage.com/subscribe?u=78692bfa901c588ea1fe5e801&id=022731d685), the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog (http://itsartlaw.com/blog/)and calendar of events (http://itsartlaw.com/events/). The Center for Art Law welcomes inquiries and announcements from firms, universities and student organizations about recent publications, pending cases, upcoming events, current research and job and externship opportunities. To contact the Center for Art Law, visit our website at: www.itsartlaw.com or write to itsartlaw@gmail.com.

December 4, 2017

Week in Review

By Tiombe Tallie Carter, Esq.

U.S. Supreme Court Allows Trump Administration's Third Travel Ban Attempt to Proceed

The Supreme Court allowed the third iteration of the Travel Ban to continue, pending resolution of the issues that challengers raised in circuit courts. The Justices encouraged the appellate courts to quickly determine if it is lawful.

https://www.supremecourt.gov/orders/courtorders/120417zr_4gd5.pdf

https://www.nytimes.com/2017/12/04/us/politics/trump-travel-ban-supreme-court.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news

GOP Scrambles to Push Tax Bill Through Senate

The Senate passed the most sweeping tax bill overhaul in recent history. With a vote of 51-49, Republicans approved the bill early Saturday morning. Last month, the House of Representatives passed its own tax bill. The 500-page House bill was quickly passed, with little reflection by lawmakers and included many handwritten revisions in the margins. Pitched as a middle-class tax cut, the new bill overlooks the many reports that reveal how the new plan will cause even greater federal debt. It is expected that President Trump will sign the bill as early as next week.

https://www.nytimes.com/2017/12/01/us/politics/senate-tax-bill.html

Flynn Pleads Guilty; Will Aid Inquiry

Michael Flynn, long-time friend and advisor to President Trump who was once a top contender to be vice president and eventually became national security advisor, pleaded guilty to lying to the FBI about conversations with a Russian ambassador. Flynn, who resigned several months ago amid the Russian scandal, made a deal with Robert S. Mueller III, special counsel to the Russian investigation. There is growing speculation as to how much President Trump was aware of Flynn's action, and if the president's son-in-law, Jared Kushner, was involved.

https://www.nytimes.com/2017/12/01/todayspaper/quotation-of-the-day-flynn-pleads-guilty-will-aid-inquiry.html

Delayed DACA Requests Grow to More Than 900

Over 900 applications from immigrants seeking to renew work permits under Deferred Actions for Children Arrivals, or DACA, have been rejected by the U.S. Citizenship and Immigration Services due to mail problems. Those with work permits expiring before March 2018 had until October 5th of this year to renew for a two-year extension. The 900 applicants whose paperwork was received by the post office by the deadline but not by the agency will receive rejection letters with instructions to resubmit within 33 days.

https://www.nytimes.com/2017/11/30/nyregion/daca-applications-immigrants.html

Comedian Is Subpoenaed in Inquiry on Russia Meddling

Randy Credico, a comedian who has run for public office, has been subpoenaed to appear before the House Intelligence Committee to testify regarding Russian meddling in the 2016 presidential elections. Credico, who hosts a radio show and performs street theater (once appearing at a New York State Senate meeting dressed as the Greek philosopher Diogenes the Cynic), is seen as an intermediary between Roger J. Stone Jr., an advisor to Donald J. Trump "who appears to have had advance knowledge about hacked emails related to Hillary Clinton's presidential campaign," and Julian Assange, the founder of WikiLeaks, who Credico once interviewed.

https://www.nytimes.com/2017/11/29/us/politics/comedian-is-subpoenaed-in-inquiry-on-russia-meddling.html

Calls and Insults Pour In Over Net Neutrality Plan

Ajit Pai, chair of the Federal Communications Commission (FCC), released his plan to strip away existing rules of net neutrality and to allow "telecom companies to charge websites to deliver their data at higher speeds." Under the current Obama era rules, telecoms prohibit such charges. Many argue--including big web companies, consumers, lawmakers, startups, public interest groups, and celebrities--that the proposed plan not only hurts innovation and the economy but also creates a negative impact on the distribution of information based on wealth. In addition to the protests of the conservative plan, it has been discovered that over 400,000 public comments on the FCC website originated from St. Petersburg, Russia.

https://www.nytimes.com/2017/11/28/technology/net-neutrality-reaction.html

Two Acting Directors and One Skeptical Judge

The Consumer Financial Protection Bureau has two acting directors, Leandra English and Mick Mulvaney. English was appointed by then-director Richard Cordray (an Obama appointee) on November 24th, before his departure. In apparent retaliation, the Trump administration announced Mulvaney, who is currently the director of the White House Office of Budget and Management, as acting director until President Trump decided on a permanent appointment. English filed for an emergency restraining order to block Mulvaney's appointment late Sunday evening. English and Mulvaney both showed up to work on Monday, with Mulvaney instructing the bureau's employees to disregard any communications from English and to report them to the White House general counsel. The matter was heard by Judge Timothy J. Kelly of the Federal District Court in Washington, DC, who ruled that President Trump's appointment was valid. English is challenging that decision. In the meantime, Mulvaney said that he would like for English to serve as the Deputy Director.

https://www.nytimes.com/2017/11/27/us/politics/cfpb-leandra-english-mulvaney.html

https://www.reuters.com/article/us-usa-trump-cfpb-mulvaney/mulvaney-says-no-plans-to-fire-u-s-consumer-bureaus-english-idUSKBN1DY2KP?feedType=RSS&feedName=topNews&rpc=69

Justices Take Up Digital Privacy in Case with Roots in a Robbery

The United States Supreme Court heard Carpenter v. United States, No. 16-402, a privacy law case involving a Radio Shack robbery. Considered to be a seminal case in the application of the Fourth Amendment on digital privacy, lawyers, policymakers, and watch dog groups are weighing in on the issues before the Court.

The Supreme Court argument in the Carpenter case was lively and lengthy, lasting 20 minutes longer than allotted. The attorney for Timothy Ivory Carpenter, Nathan Freed Wessler, argued that prosecutors violated the Fourth Amendment by failing to get a warrant for the records from his cellular carrier. The Justices are wrestling with whether the problem is that "the level of detail in Mr. Carpenter's phone records violated his reasonable expectation of privacy" or whether it was that "the records were his property and should not have been disclosed without his consent or a warrant." The Stored Communications Act requires prosecutors to go to the court to obtain tracking data. Under that federal law, they must only demonstrate that there were "specific and articulable facts showing that there are reasonable grounds to believe" that the records sought are relevant and material to an ongoing criminal investigation, which does not meet the probable cause standard needed for a warrant. It appears that five Justices are leaning to limit the government's power to obtain the records. A decision detailing its rationale for that decision is expected next June.

https://www.nytimes.com/2017/11/29/us/politics/supreme-court-digital-privacy.html

https://www.nytimes.com/2017/11/27/us/politics/supreme-court-fourth-amendment-privacy-cellphones.html

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

Entertainment

Peter Martins, head of New York City Ballet, Under Investigation For Sexual Harrassment

Peter Martins, long-time head of City Ballet, has been removed from his teaching duties at the School of American Ballet pending investigation of sexual harassment. Martins had a reputation of sleeping with ballet dancers.

https://www.nytimes.com/2017/12/04/arts/dance/peter-martins-new-york-city-ballet.html?_r=0

DMX Pleads Guilty to Fraud, Dodging $1.7 Million in Taxes

Earl Simmons, the rapper and actor DMX, pleaded guilty for tax evasion. At the Manhattan federal court, he pleaded to avoiding the payment of $1.7 million in taxes from 2002 to 2005, when his albumns topped the charts. DMX faces up to five years in prison and will be sentenced in March 2018 after completing his drug rehabilitation.

https://apnews.com/70f1681de7c145eebcafe1628a36ae18

A Bitter Plagiarism Case with Sex, Lies, and Spyware

The 2016 best seller The Girls has been the center of a legal dispute that includes copyright infringement, physical and emotional abuse, digital spying, and invasion of privacy. Chaz Reetz-Laiolo, once the boyfriend of the best-selling author Emma Cline, claims that Ms. Cline used spyware to plagiarize phrases and scene structures from his emails and other personal documents. Ms. Cline has countersued alleging that Mr. Reetz-Laiolo's claims are "ludicrous," as the phrases called into question include "heavy rear and "Doomsville." She used spyware because she suspected him of infidelity and that he physically abused her. Both parties are represented by high-powered attorneys. The legal team most recently known for representing Harvey Weinstein, Boies Schiller Flexner, is representing Mr. Reetz-Laiolo and for Ms. Cline, attorney Carrie Goldberg, who "specializes in representing women who have been victims of harassment and revenge porn." We can expect many plot twists in this legal drama.

https://www.nytimes.com/2017/12/01/books/emme-cline-lawsuit-boies.html

After Accusations, A Founder of Def Jam Will Resign

Russell Simmons, founder of Def Jam Records, a yoga lifestyle brand, and owner of multiple media properties, has resigned from his companies following accusations of sexual assault. Screenwriter Jenny Lumet of The Mummy and model Keri Claussen Khalighi have accused Mr. Simmons of forcing them to have sexual relations on separate occasions in the early 1990s. Mr. Simmons has denied the allegations but stepped down from leadership of his empire.

https://www.nytimes.com/2017/11/30/arts/russell-simmons-sexual-harassment.html

"Nightmarish Mentor": Nine Women Accuse Playwright of Assault

Award-winning playwright Israel Horovitz was accused of sexual assault spanning decades by more than nine women, some of whom were in their teens. Horovitz, considered the most produced American playwright in French history, wrote over 70 plays and is the founding artistic director of Gloucester Stage, a respected regional theater. Many of the women worked for Horovitz at the Gloucester Stage, where his mentoring program allegedly included kissing, fondling, and intercourse, along with fostering theatrical careers. Thought by some as merely "too touchy," early claims in 1992 and 1993 were casually dismissed. Bolstered by the Weinstein revelations, the women are now coming forward.

https://www.nytimes.com/2017/11/30/theater/israel-horovitz-sexual-misconduct.html

Arts

The Arts and Opioids

The Sackler family, who has a long history of supporting arts and cultural institutions, have been linked to the opioid epidemic. Recent reports uncovered that several family members derived portions of their fortune from Purdue Pharma, the company that produces OxyContin, the powerful narcotic painkiller attributed to the growing number of overdose deaths in the nation. This new revelation has raised the question as to whether cultural institutions should be required to return the millions of dollars in donations from the Sackler family. To date, there are no Congressional requirements that donations from Purdue Pharma, which was indicted on federal fraud charges, be returned, so it would be a hard press for arts institutions to require more than for what the law calls.

https://www.nytimes.com/2017/12/01/arts/design/sackler-museum-donations-oxycontin-purdue-pharma.html?_r=0

Macron Pledges Return of African Artifacts

President Emmanuel Macron of France, while on a three-day trip to Burkina Faso, Ghana, and the Ivory Coast, vowed to return African artifacts to them. He pledged that in the next five years the "temporary or permanent restitution of African heritage to Africa" will be a top priority. Without going into much detail as to whether the restitution will include a plan for storage and curation in African cultural institutions, President Macron did announce his commitment to improving relations between France and African nations.

https://www.nytimes.com/2017/11/29/arts/emmanuel-macron-africa.html

$6 Million Effort Seeks Diverse Arts Leaders

In response to several studies reporting that American cultural institutions fail to reflect the demographics of the country, the Ford Foundation and the Walton Family Foundation are providing $6 million to diversify leadership at art museums. Twenty museums were selected from an application pool of 83 to receive funds to develop "innovative strategies to hire and advance the careers of underrepresented minorities." The Los Angeles County Museum of Art, the Andy Warhol Museum in Pittsburgh, and the Art Institute of Chicago are some of the few institutions chosen.

https://www.nytimes.com/2017/11/29/arts/design/initiative-to-diversify-museum-leadership.html

Who Owns Guantanamo Art? Not Prisoners, the U.S. Says

Guantanamo Bay, the Cuban detention center for prisoners with terrorist ties, has an art program. Until recently, for nearly a decade, detainees received art classes and often were allowed to give their creations to their lawyers as a "thank you or for safekeeping...with restrictions on what content went public." The ability to transfer art from the prison is now suspended and under review by the Defense Department in light of a recent exhibition held by the John Jay College of Criminal Justice that featured 36 paintings, drawings, and sculptures by former and current detainees. According to the Pentagon, anything produced by detainees remains the property of the United States government. It is unclear what the government will do with the art. The exhibition will be on display through January 26, 2018.

https://www.nytimes.com/2017/11/27/us/guantanamo-bay-art-exhibit.html?_r=0

Sports

U.S. Bobsled Hopeful Ryan Bailey Sees Olympic Dreams End after Court Reinstates Doping Ban

Ryan Bailey, a United States Olympics athlete, will be barred from competing for two years, according to the Court of Arbitration for Sport. Bailey was a member of the U.S. track and field team that won a silver medal at the 2012 London Games. He recently switched to bobsledding. Bailey used a supplement in January that included a banned stimulant. His explanation that the stimulant was not on the label was of little consolation, as another banned ingredient was listed and he still used the supplement. He served a 6-month suspension that the U.S. Anti-Doping Agency appealed as too lenient. The Court of Arbitration agreed.

https://www.washingtonpost.com/news/early-lead/wp/2017/12/01/u-s-bobsled-hopeful-ryan-bailey-sees-olympic-dreams-end-after-court-reinstates-doping-ban/?utm_term=.ea6e165f9775

Blue Jays Analyst Gregg Zaun Fired for Inappropriate Behavior to Female Co-Workers

Former catcher of the Toronto Blue Jays, Gregg Zaun, has been accused by female employees for inappropriate behavior and comments. Specific details have not been provided, but it is reported that his behavior does not include sexual or physical assault. Zaun was a catcher for 16 Major League seasons, including earning a World Series ring in 1997, when he played for the Florida Marlins.

https://www.washingtonpost.com/news/early-lead/wp/2017/11/30/blue-jays-analyst-gregg-zaun-fired-for-inappropriate-behavior-to-female-co-workers/?utm_term=.a8f601ae6c4a

Pitino Sues for $38.7 Million over Firing

Rick Pitino, former coach of the University of Louisville basketball team, filed a federal lawsuit in Louisville. Due to accusations that Pitino is the anonymous "Coach-2" in United States v. Gatto, the university placed Pitino on administrative leave for his alleged involvement in the corruption and bribery scheme with Adidas. Pitino was subsequently terminated by the university. He is suing the school for firing him without notice, proper process, or cause, as it had not conducted its own investigation. Pitino claims that he is entitled to $4.3 million per year through 2026 in liquidated damages.

https://www.courthousenews.com/rick-pitino-sues-university-of-louisville-over-firing/

An Iranian Wrestler Throws His Match to Avoid an Israeli

Alireza Karimi-Machiani, 23, of Iran, threw his wrestling match at the U23 World Senior Wrestling Championship held in Poland. Karimi-Machiani was wrestling Russian wrestler Alikhan Zhabrailov and was poised for an easy victory until the Iranian wrestler apparently stopped fighting suddenly after a shout from his coach. Video of the match indicates his coach shouted: "Alireza, lose." And after a momentary defiance, he complied with his coach's direction and purposely lost. He revealed in a news interview after the match that his coach was informed that an Israeli wrestler had won a recent match that would have positioned him against Karimi-Machiani in his next match. Under Iranian law, athletes are forbidden to compete with Israelis, even if it means forfeiting a match.

https://www.nytimes.com/2017/11/28/world/middleeast/iranian-wrestler-alireza-karimi-machiani.html?_r=0

Doping Diaries: Chemist's Notes Strengthen Case Against Russia

The diaries of Russian chemist Grigory Rodchenkov substantiate the involvement of Russia in the massive use of banned substances during the last Winter Games. The International Olympic Committee is taking the diaries, in conjunction with Dr. Rodchenkov's sworn statements implicating the then Russia sports minister, deputy sports minister, and the deputy director of the center of sports preparation, in the cheating scheme to determine the penalties it will issue against the country next week. Those penalties could include "barring Russia completely from the coming Winter Olympics in South Korea, keeping all Russian emblems out of the Games and Russian athletes would compete in neutral uniforms." Russian officials have threatened to boycott the 2018 Olympics.

https://www.nytimes.com/2017/11/28/sports/olympics/russia-doping.html

FIFA Cannot Fill Sponsor Slots for World Cup

The FIFA brand, tarnished with organizational-wide corruption scandals and its New York trial, is losing its popularity among corporate sponsors. Soccer still remains widely popular among its fans. However, the 2018 FIFA tournament is undersubscribed for sponsors. A top-tier sponsorship slot costs $150 million, with all slots unfilled both at this and the second-tier level. Only one slot is confirmed at the third-tier level. In 2015, key FIFA officials were arrested on corruption charges. The trial is underway in New York. Sanctions against prominent Russian business people and companies further complicate the 2018 World Cup to be held in Russia. Some experts suggest FIFA consider changing its name altogether as the "brand's association with corruption runs so deep."

https://www.nytimes.com/2017/11/28/sports/soccer/world-cup-sponsors-russia-2018.html

Media

Lauer Offers an Apology, and a Little Bit of a Denial

As heads continue to roll in the aftermath of sexual harassment and assault allegations throughout the media, entertainment, and political arenas, Matt Lauer offers an apology of sorts. Lauer, an NBC host of "Today", is a household name. The network has received at least three separate complaints, including one for sexual assault. Lauer's statement was read on "Today": "Some of what is being said about me is untrue or mischaracterized, but there is enough truth in these stories to make me feel embarrassed and ashamed....To the people I have hurt, I am truly sorry."

https://www.nytimes.com/2017/11/30/business/media/matt-lauer-nbc-statement.html

NBC Leaders on the Defensive in Handling of Lauer

Andrew Lack and Noah Oppenheim, chairman of NBC News and president of the News division, respectively, are being asked questions about when they became aware of the Matt Lauer allegations. Rival news outlets report that Lauer's antics were widely known. Lack issued a statement that NBCUniversal's top legal and human resources team will be conducting a thorough investigation.

https://www.nytimes.com/2017/12/01/business/media/matt-lauer-firing-nbc-news.html

For Trump and Russia, A Common Foe: U.S. News Media

The Justice Department recently registered RT, the state-run Russian news group formerly known as Russia Today, as a foreign agent. This United States designation is usually assigned to identify foreign lobbying groups. RT has been accused of serving as a propaganda outlet during the 2016 presidential campaign. In retaliation, Russia signed a law last week, requiring "certain American media outlets working in Russia to register with the government as foreign agents." However, under Russian law, foreign agents are essentially hostile entities, thereby "evoking Soviet counterintelligence efforts." Meanwhile, if not seemingly in concert, President Trump took to Twitter to share his opinion against CNN as a major source of "fake" news. His tweets continue to raise concern among champions of the free press.

https://www.nytimes.com/2017/11/27/business/media/cnn-donald-trump-russia.html

Three Vice Media Employees Fired After Complaints

Vice Media, the free-spirited media conglomerate based in Brooklyn, NY, recently installed a chief human resources officer to address corporate culture and employment policies. Susan Tohyama's first order of business was to announce the company's zero-tolerance policy toward inappropriate behavior, which includes "verbal and sexual harassment to other behavior that is inconsistent with Vice's policies, values and the way in which they believe colleagues should work together." Reportedly, there have been three firings from this policy: the head of its documentary division, a producer, and an editor. The company has also instituted an A-list advisory board, including Gloria Steinem, to review its corporate policies.

https://www.nytimes.com/2017/12/01/business/media/vice-media-harassment-fires-three-employees.html

The Washington Post Says It Spurned Offer of False Story about Moore

The Washington Post accused Project Veritas, a "conservative group that films undercover videos," of conspiring to dupe it into publishing false claims about Roy S. Moore, the Republican Senate candidate facing sexual harassment allegations, to discredit the newspaper. In a December 27th article, The Washington Post said that a woman named Jaime T. Phillips contacted the newspaper with a story claiming that in 1992 she became pregnant with Moore's child, but terminated the pregnancy. With its own investigation, the newspaper discovered the woman had ties with Project Veritas. When questioned about why she had contacted the paper and inconsistencies in her statements, she stated that she no longer wanted to participate in the story.

https://www.nytimes.com/2017/11/27/us/washington-post-roy-moore-project-veritas.html

Glittering Past, Edgy Present, Uneasy Future

After years of uncertainty over its fate, employees of publishing giant Times Inc. continue to experience unease after the announcement of its purchase by the Meredith Corporation. The $2.8 million deal includes an infusion of cash from the Koch brothers, who are known for using their wealth to promulgate their conservatism. The Meredith Corporation, based in Des Moines, has a publishing portfolio that includes lifestyle magazines such as Family Circle and Better Homes and Gardens. Time Inc., once considered the arbiter of American culture with titles such as Time, Fortune, Sports Illustrated, and Money, make Meredith "an unlikely caretaker." Speculation exists that several titles under the Time Inc. moniker will be sold off, possibly to Koch Industries. Spokespersons for Meredith and Koch state that Koch will have no influence over the magazines.

https://www.nytimes.com/2017/11/27/business/time-inc-meredith-koch-industries-magazines-sale.html

December 6, 2017

New York State Attorney General Slams FCC Regarding Net Neutrality Investigation

By Barry Skidelsky

The Office of the New York State Attorney General (NYS AG) is investigating whether any public comments filed at the FCC regarding net neutrality rules wrongfully used New Yorkers' identities without their consent.

As Tech Crunch put it: "If the FCC's refusal to acknowledge the vast public outcry against its plan to gut net neutrality isn't enough of an outrage, its total disinterest in investigating how that same comment system may have been gamed by fake users posing as real Americans adds a bit more insult to injury."

Reportedly, the NYS AG asked the FCC to cooperate with its investigation, but the federal agency has been uncooperative. Thus, the NYS AG not only released an open letter to FCC Chairman Pai, but also set up a dedicated web-page soliciting help from the general public.

You can read more about this recent development at https://techcrunch.com/2017/11/21/new-york-attorney-general-fcc-fake-net-neutrality-comments/, and you can access the NYS AG's dedicated web-page at https://ag.ny.gov/fakecomments.

December 10, 2017

Week in Review

By Michael Smith

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

U.S. Supreme Court Stays Deferred Action for Childhood Arrivals Disclosure

On Friday, the U.S. Supreme Court granted the Trump administration's application for a stay of the Northern District of California's order that the administration turn over internal documents concerning its reasons for canceling the Deferred Action for Childhood Arrivals (DACA) program, which protected young undocumented immigrants from deportation. The Court set an expedited briefing schedule for disposition of the government's petition for mandamus or certiorari.

https://www.nytimes.com/2017/12/08/us/politics/supreme-court-daca.html

U.S. Supreme Court Hears Argument in Gay Wedding Cake Case

On Tuesday, the U.S. Supreme Court heard almost 90 minutes of argument in the dispute between David Mullins and Charlie Craig, on the one hand, and Jack Phillips, the baker who refused to make their wedding cake, on the other. Mullins and Craig contend that Phillips's refusal violates Colorado's anti-discrimination law, whereas Phillips argues his decision to turn them away is protected by the First Amendment, as his cake decorations are his art.

https://www.nytimes.com/reuters/2017/12/05/us/05reuters-usa-court-baker.html

New York Supreme Court Considers Jurisdiction Over Trump (Sexual Misconduct)

Lawyers for Donald Trump and Summer Zervos, who is suing Trump for defamation, argued before Justice Jennifer Schecter over whether the New York State Supreme Court has jurisdiction over a sitting president. Zervos's lawyers rely primarily on the U.S. Supreme Court ruling that allowed Paula Jones to sue President Bill Clinton in federal court. Trump's lawyer, Marc Kasowitz, relies on the supremacy clause.

https://www.nytimes.com/2017/12/05/nyregion/zervos-trump-defamation-lawsuit.html

Polish Parliament Approves Drastic Changes to Judiciary

On Friday, the Polish Parliament passed two bills that will drastically change the composition of the judiciary. One, which lowers the retirement age for the Supreme Court from 70 to 65, will result in the removal of 40% of the over 80 justices. The other increases the vote needed to approve judges from a simple majority to 60%.

https://www.nytimes.com/2017/12/08/world/europe/poland-laws-courts.html

Chocolate Makers Reach Détente (Chocolate)

After several months of legal sparring with Mondelez International, the owner of chocolatier Toblerone, British discount chain Poundland is releasing its "Twin Peaks" chocolate bar. Toblerone kept Poundland's bar, which contains two "peaks" between each "valley", off the shelves until Poundland agreed to change the color of its wrapper (originally red over gold, like Toblerone's). Poundland also intends to modify the shape of its "peaks".

https://www.nytimes.com/2017/12/05/world/europe/poundland-toblerone-twin-peaks.html

Entertainment

Seventh Circuit Upholds Dassey Conviction (Murder)

Brendan Dassey, the subject of Netflix's documentary series "Making a Murderer," suffered a major setback in his effort to overturn his 2007 conviction for murder. Dassey confessed to helping his uncle kill a 25-year-old photographer, but later recanted his confession. The Eastern District of Wisconsin overturned the conviction, finding that Dassey's confession was coerced. A three-judge panel of the Seventh Circuit upheld the decision, but on Friday, in a 4-3 decision, that court, sitting en banc, ruled that the confession was voluntary. Dassey's lawyers say they will seek review by the U.S. Supreme Court.

https://www.nytimes.com/2017/12/08/arts/brendan-dassey-making-murderer.html

Bryan Singer Sued (Sexual Assault)

Cesar Sanchez-Guzman filed a lawsuit against director Bryan Singer in Washington state court, alleging that Singer sexually assaulted him on a yacht in 2003, when Sanchez-Guzman was 17 years old. Singer denies the allegations.

https://www.nytimes.com/2017/12/07/movies/bryan-singer-sexual-assault.html

Netflix Fires Danny Masterson (Rape)

Netflix fired actor Danny Masterson from its series "The Ranch." Masterson has been accused of rape by several women.

https://www.nytimes.com/2017/12/05/business/media/danny-masterson-fired-netflix.html

The Girls Author Counters Plagiarism Allegations (Domestic Violence)

Emma Cline, author of the best-selling novel The Girls, is involved in two litigations over her ex-boyfriend's accusations that Cline plagiarized and spied on him. Chaz Reetz-Laiolo sued Cline in the Northern District of California, and Cline fired back with her own lawsuit, which includes allegations of domestic violence, tortious interference, and conversion (of Cline's personal journal and other files).

https://www.nytimes.com/2017/12/01/books/emme-cline-lawsuit-boies.html

Illinois Will Not Charge Metropolitan Opera Conductor (Sexual Abuse)

Illinois law enforcement officials announced on Friday they would not charge Metropolitan Opera conductor James Levine in connection with his alleged sexual abuse of Ashok Pai, because Pai was 16 years old when the alleged sexual contact began. Sixteen was the age of consent in Illinois at the time. Four men, including Pai, have accused Levine of sexually abusing them. Levine denies the accusations.

https://www.nytimes.com/2017/12/08/arts/music/james-levine-met-opera.html

Head of New York City Ballet Takes Leave of Absence (Sexual Harassment)

Peter Martins, head of the New York City Ballet, took a leave of absence after being anonymously accused of sexual harassment. The Ballet has retained Kelley Drye partner Barbara Hoey to investigate the allegations.

https://www.nytimes.com/2017/12/07/arts/dance/city-ballets-peter-martins-takes-leave-of-absence-after-misconduct-accusation.html

Horovitz Plays Canceled (Sexual Misconduct)

Two plays by Israel Horovitz have been canceled since Horovitz was accused of sexual misconduct by nine women. Horovitz has apologized, but says he has "a different memory of some of these events."

https://www.nytimes.com/2017/12/01/theater/israel-horovitz-plays-canceled-after-sexual-misconduct-accusations.html

Casting Director Fired (Sexual Misconduct)

Casting agency Telsey + Company fired casting director Justin Huff after receiving reports of sexual misconduct toward actors.

https://www.nytimes.com/2017/12/01/theater/justin-huff-fired-sexual-misconduct.html

Art

Dusseldorf Cancels Max Stern Exhibition

The mayor of Düsseldorf canceled an exhibition about Jewish art dealer Max Stern, citing ongoing investigations into pieces currently held by German museums, which Stern's estate claims were looted by Nazis. Jewish groups and German government officials are among those vociferously criticizing the decision, especially in light of the Gurlitt exhibit.

https://www.nytimes.com/2017/12/02/arts/why-did-dusseldorf-cancel-an-art-show-honoring-a-victim-of-the-nazis.html

Saudis Say Prince did not buy da Vinci Painting

Speculation surrounding the identity of the buyer of "Salvator Mundi"--a painting by Leonardo da Vinci, which sold for $450.3 million at a Christie's auction last month--seemed to have been quelled by the New York Times' report that Saudi prince Bader bin Abdullah bin Mohammed bin Farhan al-Saud bought the piece. However, on Friday, the Saudi Embassy issued a statement that the ministry of culture of Abu Dhabi bought the painting, which will be hung in the Abu Dhabi branch of the Louvre. The statement is disputed by American officials and Arabs familiar with the details of the sale.

https://www.nytimes.com/2017/12/08/world/middleeast/saudi-arabia-salvator-mundi-crown-prince.html

Sports

International Olympic Committee Bans Russia from Winter Olympics

The International Olympic Committee (IOC) banned Russia from the 2018 Winter Games in Pyeongchang, South Korea, as a penalty for Russia's systematic state-sponsored doping program. President Putin said that Russia will not stop individual athletes from competing in the Olympics under a neutral flag, as permitted by the IOC. Olympics officials indicated they might permit Russia's flag during the closing ceremonies.

https://www.nytimes.com/2017/12/05/sports/olympics/ioc-russia-winter-olympics.html

https://www.nytimes.com/2017/12/06/world/europe/putin-olympic-ban.html

District Judge Voids National Football League Concussion Loans

Judge Anita Brody voided $1 billion in loans made to former professional football players with cognitive impairment who expect to receive payments pursuant to a settlement with the National Football League (NFL). Some of the loans have interest rates of up to 50%.

https://www.nytimes.com/2017/12/08/sports/football/nfl-concussion-loans-voided.html

Former Gymnastics Doctor Sentenced to 60 Years (Sexual Abuse)

Lawrence G. Nassar, former team doctor for U.S.A. Gymnastics was sentenced to 60 years in prison on child pornography charges. Nassar previously pleaded guilty to sexually abusing gymnasts.

https://www.nytimes.com/2017/12/07/sports/larry-nassar-sentence-gymnastics.html

FIFA Chief Ethics Investigator Hid Relationship with Bedoya

María Claudia Rojas, chief ethics investigator for FIFA, failed to disclose her friendship with Luis Bedoya, former president of Columbia's soccer federation, who pleaded guilty to fraud charges.

https://www.nytimes.com/2017/12/08/sports/soccer/fifa-ethics.html

Russian Whistleblower Apologizes for Indirectly Implicating Official

On the basis of an internal memo written by Grigory Rodchenkov suggesting that Swiss chemist Martial Saugy would be helpful in covering up the Russian national lab's systematic doping scheme, many sports officials and investigators believed Saugy was involved in the cover-up. Rodchenkov, who famously blew the whistle on Russia's scheme, publicly stated Saugy was not involved, and apologized for indirectly implicating him.

https://www.nytimes.com/2017/12/08/sports/olympics/russia-doping.html

Christie All-In on Sports Betting

Lame duck New Jersey governor Chris Christie has been playing up his role in a case now before the Supreme Court, which will decide whether New Jersey can decriminalize sports betting or whether, as the professional sports leagues suing the state contend, doing so violates the federal Professional and Amateur Sports Protection Act.

https://www.nytimes.com/2017/12/03/sports/sports-betting-supreme-court-chris-christie.html

Austria Investigating Allegations of Sexual Assault in Skiing

Several Austrian ski athletes have reported being sexually assaulted by coaches, supervisors, and teammates. The Austrian province of Tyrol announced that an independent commission will investigate the allegations.

https://www.nytimes.com/reuters/2017/12/05/sports/skiing/05reuters-austria-skiing-abuse.html

Jerry Sandusky's Son Sentenced for Child Sex Crimes

Jeffrey Sandusky, son of former Penn State University assistant football coach Jerry Sandusky, has been sentenced to from three-and-a-half to seven years in prison for soliciting two teenage sisters for sex. His father, convicted of sexually abusing young boys, is serving a
30- to 60-year prison sentence.

https://www.nytimes.com/reuters/2017/12/08/us/08reuters-pennsylvania-sandusky.html

Media

WNYC Puts Hosts on Leave

New York Public Radio's WNYC placed hosts Leonard Lopate and Jonathan Schwartz on leave while it investigates allegations of "inappropriate conduct."

https://www.nytimes.com/2017/12/06/business/media/wnyc-leonard-lopate-jonathan-schwartz.html

Alphabet Adding Humans to YouTube Review

As part of its response to advertisers' concerns about the videos with which they are being associated, YouTube will increase the number of humans who, along with automated software, work to identify hate speech, extremism, and other content deemed inappropriate. Content creators have complained the software is inaccurate and has flagged (and demonetized) videos without objectionable content.

https://www.nytimes.com/reuters/2017/12/05/technology/05reuters-alphabet-youtube.html

Russia Designates Additional Outlets "Foreign Agents"

On Tuesday, the Russian government declared Voice of America and Radio Free Europe/Radio Liberty "foreign agents", in retaliation for the U.S.
government's designation of Kremlin-financed television station RT America as a "foreign agent." The two outlets must now label all information they broadcast as the product of a "foreign agent" and submit extensive financial reports to the government. They can also be suspended at any time.

https://www.nytimes.com/2017/12/05/world/europe/russia-media-foreign-agents.html

December 14, 2017

More Mega Media Merger

By Barry Skidelsky

Disney has announced that it will buy Fox for 52.4 Billion Dollars. Here is a link to the BBC's initial report of this huge proposed deal:
http://www.bbc.com/news/business-42353545

Federal Courts Not Empowered to Cancel Copyright Registrations

By Barry Werbin

A new December 5, 2017, Southern District of New York (SDNY) decision by Judge Oetken holds that federal courts are not empowered by the Copyright Act or any other federal statute to cancel or nullify a copyright registration issued by the Copyright Office. The court held that: "Nothing in the Copyright Act, nor any other federal statute, grants federal courts the power to cancel or nullify a copyright registration." A copy of the decision is available here: Pastime decision.pdf. Pastime LLC v. Schreiber (S.D.N.Y. 12/5/17).

The case arose out of a copyright authorship/ownership dispute over a play entitled "Once Upon a Pastime." A registration was owned by defendant Schreiber listing him as "sole author," but Pastime argued that an employment agreement with Schreiber deemed the book to be a work made for hire for Pastime. Pastime filed a declaratory judgment action, alleging that "Schreiber intentionally falsified the writing and ownership information in his copyright registration application." Schreiber moved to dismiss the complaint for failure to state a claim under FRCP 12(b)(6) and for lack of subject matter jurisdiction.

The court adopted the reasoning of the Third Circuit:

As the Third Circuit explained in Brownstein v. Lindsay, "there is evidence that the statute does not give courts any such authority" because "[s]ection 701, which describes the functions of the Copyright Office, explicitly states that '[a]ll administrative functions and duties under this title, except as otherwise specified, are the responsibility of the Register of Copyrights.'" 742 F.3d 55, 75 (3d Cir. 2014) (alterations in original) (quoting 17 U.S.C. § 701(a)). Furthermore, it is significant that a separate section of the Copyright Act does grant federal courts the authority to cancel registrations for "original designs." See id. at 76; 17 U.S.C. § 1324. This Court joins the Brownstein court's conclusion that "§ 1324 would be superfluous if Congress intended for courts to already have the general authority to cancel copyright registrations," and that "[i]n carving out a specific power of cancellation, this provision only further suggests that courts have no general authority to cancel copyright registrations." Brownstein, 742 F.3d at 76.

Although Schreiber also argued that a "fraud on the Copyright Office" claim was alleged for which "there is no affirmative private right of action," Judge Oetken rejected that interpretation of the complaint because Pastime itself had waived it by characterizing its complaint as one "for a declaration of the parties' respective ownership rights in [the musical], and for cancellation of [Schreiber's] copyright registration." Judge Oetken observed: "As a result, the Court finds it unnecessary to opine at length on the existence of a cause of action that Pastime has explicitly waived. The Court notes, however, that the absence of a cause of action for fraud on the Copyright Office comports with the absence of a cause of action for cancellation of a copyright registration."

The complaint was dismissed as to the registration cancellation claim. The court emphasized, however, that courts have authority to invalidate underlying copyrights, including a "determination of ownership which does not disturb the registration of a copyright."

The other work for hire claim survived, as there was an actual controversy and such determination invoked the "interpretation and application of the Copyright Act's 'works made for hire' provision" to support subject matter jurisdiction.


December 15, 2017

FCC December Meeting on Net Neutrality and Television Ownership Rules

By Barry Skidelsky

This blog entry further supplements my article on "Television and Radio Law in the 21st Century", which was published in the Fall/Winter 2017 issue (vol. 28, no. 4) of the EASL Journal.

On December 14, 2017, the FCC formally considered and adopted several noteworthy items, including inter alia, to restore the classification of broadband internet access service (BIAS) as an "information service" rather than a more heavily regulated "telecommunications service" (https://www.fcc.gov/document/fcc-takes-action-restore-internet-freedom).

This expected roll-back of the prior administration's Open Internet Order is merely the latest turn of events in a long and ongoing fight over "net neutrality." This action -- which affects all Internet users, including those who create, own, license, distribute and consume entertainment content -- will surely be challenged at the FCC and/or in court by multiple parties and amici (including tech titans such as Google, Amazon, Facebook and Netflix, as well as New York's and several other state attorney generals).

Of less public notoriety, a Notice of Proposed Rulemaking (NPRM) was adopted by the FCC initiating a comprehensive review of the national television audience reach cap (which rule limits ownership and control of television stations to 39% of U.S. households), including the rule's relationship to the so-called UHF discount, which discounts "attributable interests" held in UHF television stations (https://www.fcc.gov/document/fcc-opens-review-national-ownership-cap).

The effect of these proposed rule changes (which solicit and are subject to public comments) will be to further liberalize legal limits on ownership and control of television stations, to open the door to yet more mergers and acquisitions, joint ventures and related transactional activities, and will likely lead to further media industry consolidation.

Entertainment lawyers should consider reminding their clients and friends that ad hoc coalitions are often organized to share the cost of preparing and submitting administrative and judicial filings addressing common concerns in these and other matters. For more information, please contact me at 212-832-4800 or bskidelsky@mindspring.com.


December 19, 2017

Week in Review

By Michael Smith

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

Federal Communications Commission Reverses Net Neutrality Rules

As expected, the Federal Communications Commission (FCC) reversed Obama-era regulations that prevented broadband providers from blocking or charging more for certain content, despite widespread public opposition. Critics warn that deregulation of the broadband service market (which has very limited competition) will drastically and negatively impact consumers' ability to use the Internet. The reversal is being challenged in court by several attorneys general.

https://www.nytimes.com/2017/12/14/technology/net-neutrality-repeal-vote.html

Doug Jones Wins Alabama Senate Race

Democrat Doug Jones beat out Republican Roy Moore in the closely-watched Alabama senate race between the once long-shot Jones and the scandal-ridden Moore, who has been accused of sexual abuse and child molestation. President Trump's controversial endorsement of Moore failed to carry the day.

https://www.nytimes.com/2017/12/12/us/politics/alabama-senate-race-winner.html

Texas Attorney General Aide Resigns After Mocking #MeToo

Associate Deputy Attorney General Andrew D. Leonie resigned on Thursday after mocking the #MeToo movement against sexual assault and harassment in a Facebook post.

https://www.nytimes.com/2017/12/14/us/andrew-leonie-texas-attorney-general.html

House Passes Tax Bill

The Republican's sweeping tax bill was approved by the House of Representatives, as expected, and will be voted on by the Senate Tuesday night.

https://www.nytimes.com/interactive/2017/12/19/us/politics/tax-bill-house-live-vote.html

Entertainment

Mouse Buys Fox

The Walt Disney Company reached a deal to buy most of 21st Century Fox in an all-stock transaction valued at over $52 billion. The deal still must receive approval from antitrust regulators.

https://www.nytimes.com/2017/12/14/business/dealbook/disney-fox-deal.html

Over Clerical Opposition, Saudi Prince Brings Back Movie Theaters

After a 35-year ban, as part of crown prince Mohammed bin Salman's effort to loosen social restrictions, the Culture and Information Ministry of Saudi Arabia announced that the government would be permitting movie theaters to operate in the country.

https://www.nytimes.com/2017/12/11/world/middleeast/saudi-arabia-movie-theaters.html

Batali Distances Himself from Properties After Accusations of Sexual Misconduct

Celebrity chef Mario Batali will be stepping away from daily operation of his restaurants and other businesses, as well as his ABC television show "The Chew." Four women have alleged that Batali touched them inappropriately. He acknowledged his behavior and offered no excuses.

https://www.nytimes.com/2017/12/11/dining/mario-batali-sexual-misconduct.html

Russell Simmons Accused of Rape

Four women have come forward with detailed accusations of inappropriate and violent sexual behavior by hip-hop legend Russell Simmons. Three of them say he raped them. Simmons, who recently stepped down from his companies, acknowledging "thoughtless and insensitive" behavior, vehemently denies the allegations. Police are investigating.

https://www.nytimes.com/2017/12/15/arts/music/russell-simmons-rape-investigation.html

Anita Hill to Head Hollywood Harassment Commission

Anita Hill will lead the Commission on Sexual Harassment and Advancing Equality in the Workplace, a new initiative whose mission is to "tackle the broad culture of abuse and power disparity" in the entertainment industry.

https://www.nytimes.com/2017/12/15/movies/anita-hill-hollywood-commission-sexual-harassment.html

Royal Court Theater Cancels Play about "Abuses of Power on Young Women"

London's Royal Court Theater canceled a scheduled run of the play "Rita, Sue and Bob Too," about the sexual relationship between two teenage girls and a married man. The Royal Court cited allegations of sexual harassment by the show's co-director, Max Stafford-Clark, and said it felt "highly conflictual" to stage a play with "themes of grooming and abuses of power on young women" given the theater's recent "day of action" in which 150 stories of sexual harassment and abuse were read onstage.

https://www.nytimes.com/2017/12/14/theater/london-theater-cancels-play-rita-sue-and-bob-too.html

Morgan Spurlock Steps Down, Admitting Sexual Misconduct

Documentary filmmaker Morgan Spurlock ("Super Size Me") announced that he is stepping down from his production company, Warrior Poets. The announcement came one day after Spurlock tweeted that he was "part of the problem," citing past sexual misconduct.

https://www.nytimes.com/2017/12/14/arts/morgan-spurlock-sexual-misconduct.html

Netflix Executive Fired for "Careless" Comments to Masterson Accuser

Netflix fired Andy Yeatman, formerly director of global children's content, after he told a woman, "[w]e don't believe" the women who have
accused actor Danny Masterson of rape. Yeatman did not know at the time that the woman was one of the accusers. Netflix, who has since fired Masterson, said Yeatman's comments "do not represent the views of the company."

https://www.nytimes.com/2017/12/13/business/media/netflix-executive-fired-danny-masterson.html

"Rotten Apples" Tags Shows with Bad Actors

This week saw the launch of the "Rotten Apples" website (https://therottenappl.es), which helps users identify films and television shows connected to cast members, screenwriters, executive producers, or directors accused of sexual misconduct.

https://www.nytimes.com/2017/12/13/business/media/rotten-apples-sexual-misconduct.html

Art

Painter Forced to Flee Beijing

Hua Yong, a painter in Beijing, published videos online in which he documented officials' campaign to tear down apartment buildings and evict migrants who have come to be known as the "low end population." Hua fled Beijing last week to avoid arrest.

https://www.nytimes.com/2017/12/12/world/asia/china-beijing-migrants-eviction.html

Sports

Panthers Investigating Allegations of Owner's Misconduct

The Carolina Panthers announced that they hired the law firm Quinn Emanuel to investigate "allegations of workplace misconduct" by the team's owner, Jerry Richardson. The investigation will be overseen by a minority owner of the team, Erskine Bowles.

https://www.nytimes.com/2017/12/15/sports/football/jerry-richardson-carolina-panthers-investigation.html

Inventor Accuses FIFA of Patent Infringement

Heine Allemagne, inventor of "9.15 Fair Play Limit", a foam spray used by soccer officials to demarcate the distance between a kicker and the nearest defenders on a free kick, sued soccer's governing body for patent infringement. Last week a Rio de Janeiro court ordered FIFA to stop using the spray or risk a fine of $15,000 per game. Allemagne is seeking $100 million in damages.

https://www.nytimes.com/2017/12/15/sports/soccer/fifa-foam-spray-lawsuit.html

FIFA Suspends Brazilian Soccer Official

FIFA suspended Marco Polo Del Nero, Brazil's top soccer official, for 90 days. This is the latest development in FIFA's two-year investigation into Del Nero's conduct. Del Nero is one of many soccer officials facing charges of corruption in the United States, has avoided extradition.

https://www.nytimes.com/2017/12/15/sports/soccer/marco-polo-del-nero-fifa-suspended.html

FIFA Trial Over

The trial of three former FIFA officials accused of racketeering, money laundering, and wire fraud ended with 54 pages of jury instructions. In their closings, defense counsel tried to shift blame away from their clients, arguing variously that they had been unfairly tainted by the "theory that everyone in soccer is dirty," and that the responsible party is actually Marco Polo Del Nero, Brazil's now-suspended top soccer official.

https://www.nytimes.com/2017/12/14/sports/soccer/fifa-trial.html

Tour de France Champion Tests Positive

Tests show that Chris Froome, four-time Tour de France winner, had twice the permitted level of asthma drug salbutamol in his urine during the Vuelta a España. Froome, who had asthma since childhood, claims that his asthma worsened during the Vuelta, and that a team doctor told him to take more salbutamol.

https://www.nytimes.com/2017/12/13/sports/cycling/chris-froome-doping.html

Former National Football League Network Stylist Sues for Sexual Harassment and Assault

Jami Cantor, who worked as a wardrobe stylist for NFL Network, filed a lawsuit in Los Angeles against six current and former NFL Network employees claiming they sexually harassed and assaulted her. Defendants Marshall Faulk, Heath Evans, and Ike Taylor have been suspended as NFL Network analysts pending an investigation into the allegations. ESPN also suspended defendants Donovan McNabb and Eric Davis from their shows on ESPN Radio. Defendant Eric Weinberger, president of the Bill Simmons Media Group, was suspended as well.

https://www.nytimes.com/2017/12/12/sports/nfl-network-marshall-faulk-donovan-mcnabb.html

Pistorius Popped over Prison Public Phone

Oscar Pistorius, former track star convicted of murdering his girlfriend, Reeva Steenkamp, reportedly suffered bruising in a fight over the use of a public telephone in prison. Pistorius is reportedly notorious for hogging the phone.

https://www.nytimes.com/2017/12/12/world/africa/pistorius-prison-south-africa.html

National Football League and Verizon Communications Announce Mobile Streaming Agreement

The National Football League (NFL) announced a new digital rights deal with Verizon Communications (Verizon). Verizon will pay over $2 billion over the next five years for the rights to stream NFL games to mobile devices, regardless of carrier.

https://www.nytimes.com/2017/12/11/sports/football/nfl-verizon-digital-rights.html

NFL May Strengthen Concussion Protocol

On Sunday, Houston Texas Quarterback Tom Savage showed signs of concussion after being tackled, but was back in the game minutes later. The NFL says that it is looking into how Savage was evaluated, and may strengthen the protocol used to assess possible concussion.

https://www.nytimes.com/2017/12/11/sports/football/tom-savage-houston-texans-concussion.html

USA Gymnastics Bans Coach for Sexual Misconduct

USA Gymnastics announced that it permanently banned one of the top Olympic gymnastic coaches in Illinois for having a sexual relationship with an athlete.

https://www.nytimes.com/aponline/2017/12/12/us/ap-gym-coach-sexual-misconduct.html

City Ballet Master Accused of Physical Abuse

Five dancers, including one who was 12 at the time, have accused Peter Martins, ballet master in chief of the New York City Ballet, of physical abuse going as far back as 1993. Martins already is on leave from the City Ballet pending investigations into a sexual harassment claim against him.

https://www.nytimes.com/2017/12/12/arts/dance/peter-martins-ballet-new-york-city-physical-abuse.html

Louisville Files Counterclaim Against Rick Pitino

The University of Louisville filed a counterclaim against former basketball coach Rick Pitino, who sued the university for breach of contract and seeks $38.7 million in damages. The counterclaim alleges that Pitino tarnished the school's reputation. The school fired Pitino after he was implicated in a scheme to funnel money from Adidas to high school prospects.

https://www.nytimes.com/aponline/2017/12/13/us/ap-bkc-college-corruption-pitino-lawsuit.html

New Golf Rules Rescind "Scorecard Penalty"

The United States Golf Association and R&A have promulgated a local rule pursuant to which a player no longer would be penalized two shots for an incorrect scorecard if he/she waa not aware of the inaccuracy when he/she signed the card. The rule also states that officials will not monitor or review calls from viewers.

https://www.nytimes.com/2017/12/11/sports/golf/rules-changes-tv-viewers.html

Media

Trump Attacks Accusers, Gillibrand on Twitter

Amidst the deluge of sexual misconduct accusations against powerful men, three women came forward to repeat their accusations that Donald Trump sexually assaulted them, prompting Democratic senator Kirsten Gillibrand to call for Trump's resignation. Trump responded with a tweet calling Gillibrand a "lightweight" who "would do anything" for campaign contributions. That tweet ignited a storm of criticism, and by Tuesday night dozens of Democratic women in Congress were demanding an inquiry into the allegations against the president.

https://www.nytimes.com/2017/12/12/us/politics/trump-blames-democrats-for-false-accusations-from-women.html

PBS Host Accused of Misconduct

PBS has stopped distributing Tavis Smiley's nightly talk show pending investigation of "credible allegations" of unspecified misconduct, which reportedly involved sexual relationships with co-workers. Shortly after PBS made the announcement, production company Mills Entertainment announced it was suspending production of a stage adaptation of Smiley's book about Martin Luther King, Jr., Death of a King. Walmart has pulled out as a sponsor of Smiley's shows, and Smiley's book publisher has put all smiley products "on hold."

https://www.nytimes.com/2017/12/13/business/media/tavis-smiley-misconduct-pbs.html

https://www.nbcnews.com/storyline/sexual-misconduct/walmart-book-distributor-suspend-ties-tavis-smiley-n830096

https://www.nytimes.com/2017/12/15/theater/smileys-martin-luther-king-stage-show-scuttled-after-misconduct-allegations.html

Autocrats Adopt Trump's "Fake News" Mantra

From Syria's Bashar al-Assad to Venezuela's Nicolás Maduro, from Myanmar to Russia, political leaders around the world -- particularly those whose regimes are less democratic -- have taken up President Trump's cry of "fake news" against speech they view as critical or threatening.

https://www.nytimes.com/2017/12/12/world/europe/trump-fake-news-dictators.html

Younger Sulzberger Takes Reins at New York Times

A. G. Sulzberger, son of Arthur Ochs Sulzberger Jr., will take over from his father as publisher of The New York Times on January 1, 2018.

https://www.nytimes.com/2017/12/14/business/media/a-g-sulzberger-new-york-times-publisher.html

December 30, 2017

Week in Review (12/23)

By Eric Lanter

Poor Vetting Sinks Trump's Nominees for Federal Judge

A nominee for federal judge, Matthew Petersen, appeared before a Senate panel for what was expected to be a routine confirmation hearing. Unfortunately, he was unable to answer basic questions about practicing law in federal court. Following the viral video of the hearing, he withdrew his nomination and joined two other nominees for Federal District Court to do so in recent weeks, as they generated controversy with a lack of experience for one and a defense of the Ku Klux Klan for the other. Thus far, even though President Trump nominated approximately three dozen judges for district courts, only six were appointed, as he often nominates unqualified candidates.

https://www.nytimes.com/2017/12/18/us/politics/matthew-petersen-judge-nominee-withdraws-trump.html

Poland Overhauls Courts, and Critics See Retreat from Democracy

Poland's government implemented legislation to overhaul the country's judicial system, placing it under the control of the right-wing governing party Law and Justice. This move is part of a broader trend in Poland of moving away from democratic values and toward right-wing populism. Given the exit of Britain from the European Union, a separatist movement building in Spain, and disagreement over how or whether to integrate immigrants, Poland's move toward right-wing populism only adds to Europe's tally of problems.

https://www.nytimes.com/2017/12/20/world/europe/eu-poland-law.html

Is There Champagne in the Sorbet? Prove It

The European Union Court of Justice ruled that retailers may sell a Champagne sorbet only if they can prove that the Champagne is a distinct part of the sorbet's flavor. In particular, the German retailer Aldi put Champagne-flavored sorbet in its stores, causing the Comite Interprofessional du Vin de Champagne to file suit against it. The European Union Court of Justice determined that Aldi did not take "undue advantage" of the reputation of Champagne, but that it must show a German appeals court that Champagne was "a core aroma or flavor in the product."

https://www.nytimes.com/2017/12/20/business/champagne-aldi-european-court.html?_r=0

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

Entertainment

Anita Hill to Lead Hollywood Commission on Sexual Harassment

Anita Hill was named to lead the Commission on Sexual Harassment and Advancing Equality in the Workplace, which is tasked with dealing with sexual abuse and harassment in the media and entertainment industries. It will "address the complex and interrelated causes of the problems of parity and power" in the industries, and Hill's experience testifying as a victim of sexual harassment in 1991 has made her role in the Commission part of her journey to justice.

https://www.nytimes.com/2017/12/15/movies/anita-hill-hollywood-commission-sexual-harassment.html

Three More Women Accuse Dustin Hoffman of Sexual Misconduct

Dustin Hoffman is facing detailed allegations of sexual misconduct from three women. One reported to Variety magazine that she was a 16-year-old when she met Hoffman, who appeared naked in front of her, then put on a robe, sat near her, and massaged her feet. In response to one of the accusers, Hoffman released a statement apologizing for doing anything that "could have put her in an uncomfortable situation," but his attorney labeled the accusations as "defamatory falsehoods."

https://www.nytimes.com/2017/12/15/us/dustin-hoffman-sexual-misconduct.html?_r=0

New York Police Investigate Rape Claims Against Russell Simmons

A pioneer in hip-hop, Russell Simmons, is facing an investigation by the New York Police Department as a result of an alleged history of violent sexual misconduct, including rape. The New York Times reported that there were three alleged rapes between 1988 and 1995, but Simmons denied all allegations of non-consensual sex and stated that he will cooperate with the police investigation, while expecting a "swift resolution" to it.

https://www.nytimes.com/2017/12/15/arts/music/russell-simmons-rape-investigation.html

Morgan Spurlock Steps Down After Admitting Sexual Misconduct

Documentary filmmaker Morgan Spurlock stepped down from his production company and announced that he had committed sexual misconduct in the past. He acknowledged that he cheated on his wives and girlfriends, as well as settled a harassment allegation. He disclosed that he experienced an encounter where he began having sex with a woman who pushed him off of her, saying that she did not want to have sex and began crying. His disclosure of this instance is novel in the wave of sexual harassment revelations, as Spurlock's announcement preceded any allegations of wrongdoing. It is not yet clear whether he plans a return to his production company at a later date.

https://www.nytimes.com/2017/12/14/arts/morgan-spurlock-sexual-misconduct.html

Arts

Ice Cream Salesman Turned Art Dealer Swindled Clients Out of Millions

New York art dealer Ezra Chowaiki was accused of wire fraud and transport of stolen goods after it came to light that he sold stakes in works of art that he did not own, including selling shares in works exceeding 100% of the works' values. He had "no formal education or expertise in art", but became involved in the art world and eventually came to receive millions of dollars from his clients, which he did not return. Chowaiki's lawyers insist that he "has an impeccable reputation in the art world and looks forward to restoring it."

https://news.artnet.com/art-world/sothebys-lawsuit-ezra-chowaiki-claiming-fraud-and-theft-1183643

Artist Who Filmed Beijing Crackdown is Reportedly Freed on Bail

Chinese artist Hua Yong, whom police detained after he posted videos detailing authorities' forcing thousands of people to leave Beijing, has been freed on bail. Patrick Poon of Amnesty International said that the videos "became important evidence about the human rights violations during the evictions" in the neighborhoods near Beijing. Yong had been incarcerated before over free speech issues, including a performance in Tienanmen Square. Following his most recent arrest, he insists that he will remain in China and exercise his freedom of speech and the press, as it is guaranteed in China's constitution.

https://www.nytimes.com/2017/12/18/world/asia/china-artist-videos-migrants-arrest.html

Royal Court Theater Reverses Decision to Cancel "Rita, Sue and Bob Too"

Following accusations of censorship, the Royal Court Theater reversed a decision to cancel a production of the play "Rita, Sue and Bob Too". The play deals with "themes of poverty and life in Margaret Thatcher's Britain" and faced cancellation after allegations of sexual harassment emerged regarding its co-director, Max Stafford-Clark. The organization released a statement regarding the reinstatement of the play, crediting "helpful public debate" for the reversal of decision.

https://www.nytimes.com/2017/12/18/theater/royal-court-reverses-decision-to-cancel-rita-sue-and-bob-too.html

Chuck Close Apologizes After Accusations of Sexual Harassment

Acclaimed artist Chuck Close is facing allegations from several women of sexual harassment after those women came to his studio to pose for him. Two women told the New York Times that he asked them to pose nude, which made them "feel exploited and uncomfortable," as he approached them and made lewd comments to them. He acknowledged that he made crude remarks, but only did so in the interest of evaluating the models, and he apologized if he made them feel uncomfortable. Close, a quadriplegic, also said that he "found that utter frankness is the only way to have a personal life", given his physical limitations.

https://www.nytimes.com/2017/12/20/arts/design/chuck-close-sexual-harassment.html

After 12 Years, Trove of Stolen Hans Hofmann Works Recovered

Several stolen paintings by Abstract Expressionist master Hans Hofmann were just recovered by Art Recovery International. The five paintings that were stolen over a decade ago are estimated to be worth a total of over $500,000 and it is supposed that the thefts were an inside job by a caretaker, John Rett, who used the storage facility at which the paintings were kept as a personal shopping center and sold them through various venues during the ensuing years.

https://news.artnet.com/art-world/stolen-hans-hofmann-paintings-recovered-1187327

Sports

FIFA in Hot Water Over Foam

Beginning in the 2014 World Cup, FIFA began using a white foam to mark the 10 yards between the ball and the closest defenders for a free kick play, which follows a foul. The foam's inventor, Heine Allemagne, alleges that FIFA stole his invention. A court in Rio de Janeiro
acknowledged his patent for the spray, and ordered FIFA to stop using it or risk a fine of $15,000 per game. The New York Times viewed documents that showed that FIFA attempted to pay Allemagne $500,000 for the patent, but did not consummate the deal. FIFA refused to comment on the case, given the fact that it is continuing.

https://www.nytimes.com/2017/12/15/sports/soccer/fifa-foam-spray-lawsuit.html

FIFA Suspends Brazilian Soccer Chief

FIFA provisionally suspended Brazil's top soccer official, Marco Polo Del Nero. The barring occurred two years after American authorities announced corruption charges against him and approximately 40 other individuals involved in global soccer. Prosecutors allege that he accepted $6.55 million in bribes during 2010-2016, in exchange for his vote to award business executives lucrative "media and marketing contracts." He is one of six defendants from Brazil, the most defendants from any one country, and prosecutors allege that he was coordinating the corruption scheme. Brazil only extradites its citizens for drug crimes, so it is unlikely that he will appear in an American court on charges, but he has limited his international travel, as authorities remain on alert.

https://www.nytimes.com/2017/12/15/sports/soccer/marco-polo-del-nero-fifa-suspended.html

Canadian Gymnastics Coach Charged with Sexual Offenses

Gymnastics Canada's women's national team director, Dave Brubaker, is now the subject of multiple sex-related charges, including sexual interference, sexual exploitation, and sexual assault. Gymnastics Canada placed Brubaker on administrative leave as a result of the allegations.

https://www.nytimes.com/aponline/2017/12/15/sports/ap-gym-canada-coach-charged.html

McKayla Maroney Says USA Gymnastics Forced Confidentiality in Settlement

Olympic gold medalist McKayla Maroney revealed that USA Gymnastics, the governing body for the sport in the U.S., required silence in a nondisclosure agreement regarding settling claims of sexual assault by its team doctor, Lawrence Nassar. The agreement required Maroney to pay $100,000 if she spoke "of her abuse or the settlement" of her claim. Her attorney called the confidentiality agreement "an immoral and illegal attempt to silence a victim of child sexual abuse," but USA Gymnastics did not comment on the substance of the agreement, instead referring to it as "confidential and privileged under California law."

https://www.nytimes.com/2017/12/20/sports/olympics/mckayla-maroney-usa-gymnastics-confidentiality-agreement.html

Jerry Richardson, Owner of Carolina Panthers, Selling Team Over Misconduct Allegations

In the wake of an article in Sports Illustrated alleging that Carolina Panthers' owner Jerry Richardson was sexually harassing employees and making racially charged statements for years, Richardson announced that he is selling the team. He has also turned over control of the team to Tina Becker, a longtime franchise employee. The National Football League (NFL) announced that it is going to conduct an inquiry into the allegations, but Richardson has said that he will not entertain bids for the team until the end of the season.

https://www.nytimes.com/2017/12/15/sports/football/jerry-richardson-carolina-panthers-investigation.html
https://www.nytimes.com/aponline/2017/12/17/sports/football/ap-fbn-panthers-owner-misconduct-allegations.html
https://www.nytimes.com/2017/12/18/sports/jerry-richardson-panthers.html

At ESPN, John Skipper Resigns as President, Citing Substance Addiction

62 year old John Skipper, ESPN's president, announced that he is stepping down, citing a "substance addiction" lasting "many years." ESPN, which is owned by Walt Disney Company, will have George Bodenheimer as acting chairman for 90 days, and will likely then name a permanent president. ESPN has faced rounds of layoffs and subscriber losses, which has drawn scrutiny and caused many to wonder whether Skipper was capable of rescuing the company. Regardless, the next president of ESPN faces a declining audience and contracts binding the network to spend $24 billion in the next four years for rights to sports programming.

https://www.nytimes.com/2017/12/18/sports/espn-john-skipper-resigns.html

NFL Network Executive Resigns After Reports of Sexually Explicit Tweets

A top executive at the NFL Network, David Eaton, resigned after facing allegations of a hostile work environment by female employees. He was the vice president and executive editor of NFL Media, and was supervising the news operations at the television channel and website for the network. His resignation came after screenshots of conversations emerged between Eaton and adult film actresses, prostitutes, and paid escorts.

https://www.nytimes.com/2017/12/20/sports/football/david-eaton-nfl-network-resigns.html

Venus Williams Cleared in Fatal Crash

The Palm Beach Gardens police announced that Venus Williams and another driver involved in a motor vehicle accident that fatally injured one man will not face charges in relation to the accident. The investigating police officer found that Williams legally entered the intersection from a road near her gated neighborhood with the benefit of a green light.

https://www.nytimes.com/aponline/2017/12/20/us/ap-ten-venus-williams-crash.html

Major League Baseball and the Chicago Cubs Move to Dismiss Fan's Foul Ball Blindness Action

Major League Baseball (MLB) and the Chicago Cubs moved to dismiss a lawsuit brought by a plaintiff claiming that they were negligent for failing to install sufficient netting behind home plate to prevent an injury leaving him blind in one eye. After several reconstructive surgeries to repair the facial bones, the vision in the other eye is at risk. The MLB argued that there was no obligation for it or the team to provide netting that prevents any such injury, particularly in light of the Baseball Act, which requires willful and wanton conduct or defective netting. Relatedly, reports have shown that as many as 1,700 fans are injured at MLB ballparks every year.

https://www.law360.com/articles/996012/mlb-cubs-want-out-of-fan-s-foul-ball-blindness-suit
https://sportslawinsider.com/mlb-chicago-cubs-ask-judge-to-toss-fans-foul-ball-blindness-suit/

NCAA Places Sanctions on Northern Colorado Basketball

The NCAA placed the University of Northern Colorado men's basketball program on probation for three years. The probation comes after it was revealed that ex-coach B.J. Hill and eight members of his staff completed coursework for prospects over a four-year period, paying for classes that were needed for academic eligibility, and arranging practice sessions with an ineligible athlete. The team also faces a financial penalty, restrictions on scholarships and recruiting, as well as a one-year postseason ban.

http://collegebasketball.nbcsports.com/2017/12/16/northern-colorado-basketball-placed-on-probation-by-ncaa/

Media

Tavis Smiley Responds to PBS Suspension of Talk Show After Sexual Misconduct Allegations

PBS has indefinitely stopped distributing Tavis Smiley's talk show, after "credible allegations" of sexual misconduct surfaced against him. The network farmed out the investigation to a law firm and has not disclosed the nature of the allegations, but Variety magazine has reported that the allegations involve sexual relationships with Smiley's co-workers. Smiley, in a statement to the New York Times, said that the investigation is unfair and is not providing him due process to defend himself.

https://www.nytimes.com/2017/12/13/business/media/tavis-smiley-misconduct-pbs.html

Two Women Who Settled with O'Reilly For Sexual Harassment Sue for Defamation

Two women who previously accused Bill O'Reilly of sexual harassment have joined a defamation lawsuit against O'Reilly and Fox News, asserting that O'Reilly's statements and the organization depicted them as lying "political operatives and extortionists." The two women, a former host on Fox Business Network and a former producer on Fox News, settled claims of sexual harassment against O'Reilly. The lawsuit was filed in the United States District Court for the Southern District of New York, and their lawyer said that the women "are tired of being smeared with lies by a bully who thinks that his victims are afraid to answer to them."

https://www.nytimes.com/2017/12/20/business/media/oreilly-sexual-harassment-defamation.html

Glenn Thrush, Suspended New York Times Reporter, to Resume Work

The New York Times reporter Glenn Thrush, one of the most prominent political reporters, will return to work in January 2018 after allegations of inappropriate sexual behavior emerged in November. After an investigation, a lawyer for The New York Times concluded that while Thrush acted "in ways that we do not condone," the newspaper "decided that he does not deserve to be fired."

https://www.nytimes.com/2017/12/20/business/media/glenn-thrush-suspension-white-house.html

Facebook Job Ads Raise Concerns About Age Discrimination

Companies like Verizon, Target, Goldman Sachs, and Amazon have placed recruitment ads with Facebook limited to particular age groups, according to ProPublica and the New York Times. Facebook permits advertisers to select which age group to target, and there is record that Verizon targeted recruitment ads for those who have visited or live in Washington, DC and are between the ages of 25-36 years old. A Washington employment lawyer who represents victims of discrimination concluded that the practice is "blatantly unlawful" as it aids or abets age discrimination by prohibiting those 40 or older from even seeing the job opportunity.

https://www.nytimes.com/2017/12/20/business/facebook-job-ads.html

December 31, 2017

Center for Art Law Case Updates

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

Halperin v. Gfoeller, 657184/2017 (Sup. Ct. NY Cnty. Dec. 3, 2017) -- after the defendant refused to refund the sale price, a complaint was filed on behalf of an Israeli resident alleging breaches of contract and express warranty based on a 2008 sale of a painted wooden mask attributed by Juan Gris.

Catlin, The Estate of Thomas Lopresti and William Beauty v. Hogan and Christie's, Inc., 160370/2017 (Sup. Ct. NY Cnty. Nov. 21, 2017) -- The plaintiffs allege tortious activities on behalf of the defendants with regard to a unique numbered Andy Warhol screen print "Electric Chair." Whereas Hogan was a co-owner of the artwork, he consigned the work to Christie's without notifying other owners. The work was sold in May of 2006. According to the complaint, the other joint owners of the work learned of the sale in 2016.

Tobin v. The Rector, Church Wardens, and Vestrymen of Trinity Church, in the City of New York, 17 Civ. 2622 (LGS) (S.D.N.Y. Nov. 14, 2017) -- J.Schofield dismissed the Visual Arts Rights Act (VARA) violation complaint brought by an artist against the Trinity Church and others, because in 2004 the artist transferred all of his rights, including copyright in the contested work, to Trinity. The court found that "simply relocating The Trinity Root does not by itself constitute distortion, mutilation or modification under VARA." As to the site-specific nature of the art, the court applied the 7th Circuit decision in Kelly v. Chicago Park Dist., 635 F.3d 290 (2011) to find that unless gross negligence can be established site-specific work is not protected under VARA.

Chowaika & Co. Fine Arts Ltd., Case No. 17-13228 (MKV) [Carpenter Fine Violins and Collectibles, LLC v. Ezra Chowaiki and David E.R. Danger, 65929/2017 (Sup. Ct. NY Cnty. Nov. 15, 2017), RH9 Group, LLC et al v. Chowaiki, 656930/2017, Sup. Ct. NY Cnty. Nov. 15, 2017, Leser v. Chowaiki & Co. Fine Art Ltd. et al, 656870/2017 (Sup. Ct. NY Cnty Nov. 12, 2017)]
Three lawsuits filed agains Chowaiki & Co. Fine Art corporation have precipitated the filing for bankruptcy by the private gallery and art advisory service founded in 2004 by Ezra Chowaiki, who is now accused of defrauding clients. The cases are stayed pending the U.S. Bankruptcy Court for SDNY decision.

Joshua Liner Gallery v. Kagan, 656849/2017 (Sup. Ct. NY Cnty. Nov. 9, 2017) -- The plaintiff, a New York gallery, alleges fraudulent concealment of sales of paintings directly through the defendant's studio in violation of the artist-gallery agreement, as well as a failure to create and deliver a painting to the Joshua Liner Gallery (Gallery) in consideration of certain sail goals, and other grievances. The complaint reveals that the Gallery was acting as the Artist's exclusive agent for the sale of artworks produced since 2014, and was entitled to a commission of 50% on any artwork Kagan sold. Kagan's art is slated for exhibit on at the Virginia Museum of Contemporary Art in 2019.

Berkshire Museum Lawsuits: Two groups of plaintiffs -- members and heirs of Norman Rockwell -- filed two lawsuits in an attempt to enjoin the deaccessioning of 50 artworks in a planned November 13th Sotheby's auction. The heirs of Norman Rockwell filed a complaint arguing that the deaccession "violates the museum's establishing statute, promises made to donors and the fiduciary obligations of its trustees." The Massachusetts Attorney General, Maura Healey, supported the Rockwell plaintiffs in a filing. The second complaint, brought by members of the Museum, argues that the museum reneged on its obligations to its supporters by putting the works up for auction. The theory is that because, under Massachusetts law, members of a nonprofit are treated like shareholders in a corporation, the relationship between the corporation and its governing charters and bylaws must be treated like a contract. A hearing was held on November 1, 2017. The Court denied the request for an injunction, allowing the planned November 13th sale to proceed.

Schmitt v. Artforum International Magazine Inc. et al, 159464-2017 (Sup. Ct. NY Cnty. Oct. 25, 2017) -- Curator and Art Fair Director Amanda Schmitt, along with eight other women, sued Artforum and Knight Landesman over his alleged sexual harassment. The complaint accuses the publication of allowing Landesman's sexually abusive behavior toward multiple women to occur without consequence. It also claims that the defendant slandered Schmitt and threatened retaliation against current and former employees who might speak out against the harassment to the authorities or the press. The plaintiff seeks compensatory damages of $500,000 plus attorneys' fees and punitive damages.

Mugrabi v. Mana Contemporary, 159407/2017 (Sup. Ct. NY Cnty. Oct 23, 2017) The Mugrabi family sued Mana Contemporary, which stores works for the dealer family, for preventing the removal of art works from its facility due to unpaid fees. Since the filing of the complaint, the court ordered Mana to release some of the works in exchange for a $1 million payment by the Mugrabis.

The Center for Art Law strives to create a coherent community for all those interested in law and the arts. Positioned as a centralized resource for art and cultural heritage law, it serves as a portal to connect artists and students, academics and legal practitioners, collectors and dealers, government officials and others in the field. In addition to the weekly newsletter (http://cardozo.us2.list-manage.com/subscribe?u=78692bfa901c588ea1fe5e801&id=022731d685), the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog (http://itsartlaw.com/blog/)and calendar of events (http://itsartlaw.com/events/). The Center for Art Law welcomes inquiries and announcements from firms, universities and student organizations about recent publications, pending cases, upcoming events, current research and job and externship opportunities. To contact the Center for Art Law, visit our website at: www.itsartlaw.com or write to itsartlaw@gmail.com.

2017 Week in Review Highlights

Thank you to our amazing 2017 Week in Review bloggers: Tiombe Tallie Carter, Anna Stowe DeNicola, Eric Lanter, and Michael Smith.

Below are some "Best Of 2017" from our bloggers:

ENTERTAINMENT

Soviet Soviet and South by Southwest

A spot to perform at South by Southwest (SXSW) is coveted by national bands as well as international groups. So one can imagine the anguish that members of Soviet Soviet experienced when they were deported from Seattle last March before arriving at the Austin megafestival. The three-member Italian postpunk band was booked to play at SXSW, as well as in Los Angeles and Long Beach. However, their Department of Homeland Security Visa Waiver authorizations (ESTAs) were deemed insufficient for travel. Under President Trump's newly instituted immigration enforcement, the intricacies of the Visa Waiver program proved troublesome. The trio had authorized ESTAs, in addition to an invitation from SXSW organizers, and a letter from the U.S. record label Felte Records, which is usually enough documentation to allow international bands to travel. Yet there was one small glitch. The band had stipulated on its application that its performances were promotional only, as it would be performing in the U.S. for free. Since SXSW doesn't pay bands to perform at the festival, the ESTA application was authorized. However, it was discovered that at some of Soviet Soviet's other U.S. performances, attendees would be charged. U.S. Customs and Border Patrol arrested the trio, interrogated them individually for four hours, and took them to jail without phone privileges before they were deported. This was the first prominent detainment and deportation incident affecting international performers, and illustrated the far-reaching effects of the newly minted immigration policies. Independent artists and small labels will be faced with the burden of navigating the new rules.

Fyre, Fire!

The Fyre Festival is one for the books. Many are still trying to fathom how Billy McFarland, Ja Rule, and the rest of the festival organizers thought it could work. There are fast talkers in the world of entertainment, but Frye goes beyond a typical overhyped concert. We're talking about bringing hundreds of people to an island with no potable water, sewer lines, or reasonable transportation. Six weeks before the festival was scheduled, the lauded beautiful beach was infested with sharks and swarms of sand flies. According to Chloe Gordon, an event producer, "the festival site was a development lot covered over in gravel with a few tractors scattered around...No vendors had been secured, no stages rented, no transportation was arranged...There was not enough space to build all the tents and green rooms necessary. Plus, the billed artists were complaining of not receiving their typical deposit payments." Yet the decision was made to proceed, allowing hundreds of festivalgoers to fly to the ill-prepared island of Exumas. Less than a week after, lawsuits were filed. One was by personal injury attorney John Girardi, for breach of contract, fraud, and negligent misrepresentation on behalf of festivalgoers. The first multi-million dollar class action lawsuit was filed by attorney Mark Geragos, for his client Daniel Jung. That suit accused the organizers of fraud, citing the festival's "lack of adequate food, water, shelter, and medical care created a dangerous and panicked situation among attendees--suddenly finding themselves stranded on a remote island without basic provisions." A second class action suit defined the class into three categories of harm: those who bought tickets or packages but did not attend after being made aware of the conditions, those who bought tickets and tried to go to the festival but didn't make it to Exuma because flights were canceled, and those who made it to the festival and were confined on the island for any amount of time. Finally, there is the criminal wire fraud case against McFarland for producing fake documents to induce investors. At least two investors invested $1.2 million in his companies, in addition to reports of more than 80 investors. No crisis management public relations company will be able to erase the infamous aftermath of the Fyre Festival.

Rapper Meek Mill (whose legal name is Robert Rahmeek Williams) has seen his share of legal troubles. The Philadelphian native was convicted of guns and drugs possession in 2008. After serving eight months in prison, he was placed on five years' probation. Judge Genece Brinkley, who has overseen Williams' case, sentenced the rapper to two to four years in prison due to various violations, including two arrests for an airport fight and reckless driving, plus scheduling concerts in barred locations. These types of cases are not altogether uncommon, although the sentence may be heavy-handed. However, it is atypical that the overseeing judge would request to be put in an artist's song. According to Williams' attorney, Joe Tacopina, Judge Brinkley not only asked Meek Mill to add her name to one of his songs, but also gave him unsolicited career advice on who he should hire as his manager. Tacopina is appealing the decision on Williams' behalf.

For Diehard Fans, Iran's Zumba Ban Will Not Stop Them

The Iranian government issued an edict: Zumba was illegal and contrary to Islamic precepts. The country recently went through a fitness revolution, with both men and women flocking to the gym to exercise. Women in particular were participating in group fitness classes, and Zumba quickly took off and gained a cult following. The Zumba craze highlighted the tension between leaders of Iran and its evolving middle-class. Shiite Muslim clerics codified hundreds of regulations that are meant to deter sinful activity, which they believe undermines families. Though punishment can be harsh, the laws are seldom enforced, and in many cases are tolerated as long as the "sins" are committed out of the public eye. Zumba has been taught and practiced for years in Iran, and it was a surprise to many that suddenly Sports for All Federations issued a letter stating that Zumba was not an accepted sport, and citing the ban on dancing as the basis. The instructors who have built the Zumba craze are passionate and dedicated, and despite the ban, vow to return to the gym and proceed with their scheduled classes.

https://www.nytimes.com/2017/06/17/world/middleeast/iran-zumba-haram.html

ARTS

Trove From Nazi Era Art Dealer To Go On Display in Bern and Bonn

In November, sister exhibits in Bern, Switzerland and Bonn, Germany will feature works from the collection of Cornelius Gurlitt, the son of a Nazi-era art dealer who had concealed a collection of 1,200 - 1,500 works in his apartment in Munich and house in Salzburg for decades. The exhibits are scheduled in the wake of a Munich court ruling that held that Gurlitt had been of sound mind when he bequeathed the collection to the Kunstmuseum Bern. No works with an unknown or incomplete provenance will be included. A German-lead task force, created after the discovery of the works, continues to investigate the provenance of the works in the collection, and along with the Kunstmuseum is committed to returning any looted works to their rightful owners.

https://www.nytimes.com/2017/02/16/arts/works-stashed-by-nazi-era-art-dealer-to-go-on-view-in-switzerland-and-germany.html

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

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

https://www.nytimes.com/2017/01/25/arts/design/christo-protest-donald-trump-colorado-artwork.html?rref=collection%2Fsectioncollection%2Farts&action=click&contentCollection=arts®ion=rank&module=package&version=highlights&contentPlacement=5&pgtype=sectionfront

Gaping Gender Gap in Leadership Roles at Top Museums

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

https://www.nytimes.com/2017/03/22/arts/design/gender-gap-persists-at-largest-museums.html

Philanthropist Agnes Gund Establishes a Criminal Justice Fund, Seed Funding From the Sale of a Lichtenstein

At an event this week at the Museum of Modern Art (MOMA), the new Art for Justice Fund was announced by Agnes Gund. Gund, a prominent arts philanthropist and president emerita of MOMA, started the fund with $100 million of the proceeds from the January sale of Lichtenstein's "Masterpiece." The sale netted $165 million and was sold specifically to start this fund, which will be administered by the Ford Foundation. Gund is hoping that the fund will inspire other arts philanthropists to follow suit - and she has challenged the philanthropic community to match her $100 million over the course of the next several years. The idea of using art collections to "advance social justice" is new in arts philanthropic circles. Already committed to the cause are Laurie M. Tisch, Kenneth and Kathryn Chenault, Jo Carole Lauder, Daniel S. Loeb, and Brooke Neidich. The Art for Justice Fund will give grants to leaders and organizations that have an established record in criminal justice reform. The inspiration for the Fund came from within Gund's family - six of her grandchildren are African-American. Michelle Alexander's book on mass incarceration of African-Americans and Ava DuVernay's documentary, "13th," inspired her to take steps to impact change in the criminal justice system. Many people, including Bryan Stevenson, founder and executive director of the Equal Justice Initiative, hope this fund will "energize" support over criminal justice reform and the role philanthropists can play in effecting change.

https://www.nytimes.com/2017/06/11/arts/design/agnes-gund-sells-a-lichtenstein-to-start-criminal-justice-fund.html

In a Rare Showing, Members of Venezuela's El Systema Movement Take to the Streets in Protest

Venezuela's El Systema program has been celebrated world-wide as an incredible system that has transformed the country, and has given hundreds of thousands of children the opportunity to learn an instrument and become global ambassadors. Despite years of growing unrest in Venezuela, the program and its members have maintained a neutral façade and refrain from expressing political viewpoints. However, a young violist named Armando Cañizales was recently killed in the middle of a protest, and musicians trained in the program are speaking out en masse, instruments in hands, and denouncing the increasing violence. Many people protest under cover, but others bring their instruments and play amidst the fighting. El Systema has been Venezuela's pride and joy for four decades. After the 2013 death of Venezuelan President Hugo Chavez, the country faced serious inflation and lack of basic resources that are now affecting the program, from drops in teacher salaries, to concert halls and instruments that are not properly maintained. The death of Mr. Cañizales shocked the El Systema community, which now is showing a greater willingness to take a public stand against the current Venezuelan government.

https://www.nytimes.com/2017/06/10/world/americas/venezuela-protests-musicians-nicolas-maduro.html

Remembering David Rockefeller's Arts Philanthropy

Besides being the head of Chase Manhattan Bank, an internationally revered businessman, a stalwart in New York black tie gala social circle, and the last surviving grandson of John D. Rockefeller, David Rockefeller was a prominent arts philanthropist with a legendary art collection of about 15,000 works. He served as Chair of the Museum of Modern Art and used his influential role in the business community to encourage corporations to purchase and display art in their buildings and offices, and to subsidize local museums. Rockefeller joined the Board of the Museum of Modern Art in 1940, replacing his mother, who had helped found the museum in the 1920s. He spent time wooing art dealers, and coordinated a syndicate to buy Gertrude Stein's modern art collection. Works from his own collection remains on permanent loan to the Museum.
In addition to his arts philanthropy, Rockefeller was a strong voice in the development of lower Manhattan. He founded and served as Chair of the Downtown-Lower Manhattan Association. He recommended the construction of the World Trade Center and established Chase's headquarters in the Wall Street area, providing financial stability and leverage to complete the World Trade Center project. When the city began defaulting on loans and bonds in the mid-1970s, he was instrumental in pulling city leaders together with federal and state officials to compose an economic plan for the city. Two presidents offered him the position of Treasury Secretary, but he turned the job down both times.

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

https://www.nytimes.com/2017/03/20/business/david-rockefeller-dead-chase-manhattan-banker.html

SPORTS

In Spain, A Surprising Boost for Girls Soccer

A Spanish soccer team comprised of 13- and 14-year old girls recently clinched the championship in a league comprised mainly of boy's teams. Efforts in Spain to promote women's and girl's soccer lag behind other countries, and clubs that include girls' rosters often focus their time and resources nurturing the boys. One club, AEM Lleida, has been focusing on girls for a decade, and recently capitalized on a Spanish soccer federation rule that allows clubs to put both boys and girls at play - including mixed teams - for junior league competition. Parents were reluctant in the early years, but have united behind the effort, as they experienced the girls' success. The club believes a large part of the that success is discipline - players absorb feedback from their coaches and do what is asked of them. The club is currently raising money specifically for the coaching program, as sponsors are slow to get behind girls' and women's teams, and their success has increased female membership in the club by 25%.

https://www.nytimes.com/2017/05/11/sports/soccer/girls-soccer-team-won-boys-league-spain.html

Hyperandrogenism Again in the Forefront at the Court of Arbitration for Sport

In 2015, the Court of Arbitration for Sport temporarily suspended an international track and field rule that prohibited women with naturally-elevated testosterone levels from competing against other women. The rational was that it presented an unfair advantage - and in order to compete with women, they had to take hormone-suppressing drugs or have surgery to limit testosterone production. In the wake of the temporary suspension, female athletes, like Indian track and field star Dutee Chand, could compete freely and without having to undergo therapy or surgery. The International Association of Athletics Federations (IAAF), the governing body for track and field, spent the past two years compiling data about competitive advantage and naturally-elevated testosterone levels in women. Its report, due to the Court of Arbitration for Sport, shows that the competition advantage associated with elevated testosterone varies according to the event. The largest advantage was in the hammer throw, where a 4.53% advantage was shown. Other events where elevated testosterone created an advantage include the pole vault, 400-meter hurdles, and the 400-meter and 800-meter sprints. However, all were well below the 10-12% threshold generally recognized as the natural performance difference between men and women. Furthermore, the Court said in 2015 that the IAAF should reconsider its ban on women with hyperandrogenism if the advantage was found to be "well below" 12%. Experts in the 1990s suggested that women with hyperandrogenism should compete as women if they were raised as women - and that it should be considered a natural genetic advantage, like Usain Bolt's long stride or Michael Phelp's large feet. This issue, however, will continue to challenge the sports world as gender continues to become a more fluid concept with "nuanced distinctions."

https://www.nytimes.com/2017/08/04/sports/olympics/gender-dutee-chand-india.html

Medal Reallocation Ceremonies - Attempting to Right a Wrong in Track and Field

Track and Field is riddled with doping scandals, to the point that fans and athletes are no longer shocked by doping revelations. Retroactive testing of samples, now with better technology to detect banned substances, has caused many athletes to be stripped of their medals. In an effort to make things right, the IAAF has been conducting medal reallocation ceremonies to finally recognize the achievements of those athletes who engaged in clean competition. Many athletes that are just now receiving medals described the ceremonies as "awkward and bittersweet." Athletes are grateful for the recognition, but note that the ceremonies serve as a reminder of doping's pervasiveness throughout the sport. In addition to these ceremonies serving to bring the doping conversation back to the forefront, sprinter Justin Gatlin's surprise win over Usain Bolt also sparked debate. Gatlin served two suspensions for doping violations and has been seen (perhaps unfairly) as an athlete representative of the problem. As for addressing the systemic problem, the IAAF has been firm in its resolve to address the problem and enforce suspensions.

https://www.nytimes.com/2017/08/06/sports/track-and-field-medalists-.html

MEDIA

In Effort to Wire Rural Communities, Microsoft Attempting to Harness Unused Television Channels

10 years in the making, Microsoft announced its plans to tap into "white space," or unused television channels, as a vehicle to provide Internet access to rural parts of the country that are without access to broadband service. Called "super Wi-Fi," the technology behaves like Wi-Fi but instead of using broadband technology, it uses low-powered TV channels. Super Wi-Fi is more powerful than traditional wireless access because the vehicle, TV channels, cover greater distances than wireless hot spots. It also is more powerful than cellular technology because it can penetrate concrete barriers and other obstacles. Over 24 million people in rural areas are currently without Internet access, and Microsoft believes this is an untapped market ripe for development. There are many barriers to this effort, including the current prohibitive cost of white-space technology. Devices compatible with white-space technology cost upwards of $1,000. Rural areas don't provide economies of scale to incentivize device makers to find ways to reduce costs. Microsoft has four devices it believes can be produced at a cost to consumers of $200 each. The bigger hurdle, however, may be regulatory. Microsoft is seeking approval from federal and state regulators to guarantee the use of the unused television channels. Television broadcasters are fighting back against white-space technology, which they argue causes interference with broadcasts being run on neighboring channels.

https://www.nytimes.com/2017/07/11/technology/to-close-digital-divide-microsoft-to-harness-unused-television-channels.html

About December 2017

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

November 2017 is the previous archive.

January 2018 is the next archive.

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