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January 2018 Archives

January 2, 2018

Week in Review

By Eric Lanter
Edited by Elissa D. Hecker

William Barber: Trump's Terrible Choice for Judge

As an op-ed contributor, William Barber argues that Thomas Alvin Farr, one of President Trump's nominees for the judiciary, is unqualified to be a judge in the United States District Court for the Eastern District of North Carolina. He is allegedly a "product of the modern white supremacist machine" that has "incited hostility toward African-Americans" in North Carolina. One campaign with which he was involved distributed over 100,000 postcards to North Carolinians suggesting that blacks were "ineligible" to vote and "could be prosecuted for fraud if they tried to cast ballots." Barber calls on senators from both parties to condemn Farr and not approve his nomination.


President Trump, the Insurgent, Breaks with 70 Years of American Foreign Policy

After a year in office, President Trump "has transformed the world's view of the United States from a reliable anchor of the liberal, rules-based international order into something more inward-looking and unpredictable." He has cozied up to the strongmen leaders in the world, including President Xi Jinping of China and President Vladimir Putin of Russia. He has confronted Kim Jong-un of North Korea, deriding him with personal insults, and denounced the nuclear deal with Iran, which many supposed was a deal likely to secure peace in the Middle East. His advisers insist that his approach is one that is fresh and is constantly being informed by the "realities of the world," but close allies like Germany, France, and Britain are left to wonder their positions of priority in the Trump era. President Trump, thus far, has not allayed those fears, instead deeming the postwar international order as "not working at all."


President Trump Says Russia Inquiry Makes U.S. 'Look Very Bad'

In an interview with The New York Times, President Trump said that the investigation by special counsel Robert S. Mueller III makes the U.S. look "very bad," given that there was no collusion between the Trump campaign (or administration) and the Russian government. He also insisted that he is entitled to direct the trajectory and scope of investigations at the Justice Department. He attempted to bolster his reputation by claiming that he knows more about "the big bills" in Congress "than any president that has ever been in office."


Alabama Certifies Doug Jones Win, Brushing Aside Challenge from Roy Moore

Officials in Alabama pushed aside Roy Moore's challenge of the U.S. Senate special election and certified its results, confirming that Doug Jones is the winner. That move was the last in seating Jones in the Senate, but the confirmation runs in contravention to Moore's claims that Jones' victory was secured with voter fraud. There is no evidence of fraud or improprieties with the Alabama election, but Moore still refuses to concede the race.


Martin Shkreli's Ex-Lawyer is Convicted of Fraud

Attorney Evan Greebel, who previously represented Martin Shkreli, a former drug company executive, was convicted of helping Shkreli to defraud a pharmaceutical company. A Brooklyn jury found him guilty of conspiracy to commit wire fraud and securities fraud, after finding that Greebel was involved in paying investors of Shkreli's hedge funds with fraudulent funds obtained through "settlement and sham consulting agreements" procured with Shkreli's pharmaceutical company Retrophin.


Australian Fake News Site Gains Popularity

Two men, known as Clancy Overell and Errol Parker, started a fake web-newspaper called the Betoota Advocate in Australia, which has become known for its satirical and provocative fake headlines. The two men started the website together, and within three months, had a readership sufficient to make the site's revenues their primary source of income. Since then, the site has consistently grown, even leading to the two men (actually named Archer Hamilton and Charles Single) to host fake press conferences with real journalists. The site has duped several real news organizations and mocked celebrities and institutions alike.


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


Songwriters, Streaming Companies Strike Landmark Deal on Music Licensing

Songwriters and music streaming companies are working together on federal legislation that would streamline the licensing and royalty process for copyright owners. The goal is to ease the burden of acquiring licenses and also to eliminate liability within the industry. The end result will likely be that streaming companies will more easily be able to license songs, and songwriters and publishers will see an increase in revenue from digital downloads and streaming.



Second Circuit Strikes Down Department Of Justice Ban on 'Fractional' Licensing

"The Second Circuit on Tuesday shot down a U.S. Department of Justice rule barring music licensing groups BMI and ASCAP from so-called fractional licensing, saying the agency must formally modify long-standing antitrust settlements if it wants to ban the practice."


BMI Wins Legal Battle with the Justice Department Over Music Licensing

BMI, a music rights organization, won in the Second Circuit Court of Appeals after a long fight against the Department of Justice (DOJ) as to the issue of licensing music. The DOJ instituted a 100% licensing rule, which requires that all owners of a song consent to its licensing, which BMI and ASCAP said would affect the Nashville songwriting model characterized by a "handful of owners" working together with organizations. The Court's ruling eliminates the requirement, but there is the potential that the DOJ appeals the decision to the United States Supreme Court.


Apple Hit with Class Action Lawsuit Over Unpaid Independent Artist Royalties

Independent songwriter Bryan Eich filed a suit against Apple Music asking for $30,000 for each song the company allegedly infringed, after Apple failed to license mechanical rights for the compositions played. Several streaming services have been the subject of lawsuits similar to this one, where it is alleged that the service did not obtain all of the mechanical licenses necessary to stream a musical work. In this case, even though Eich is not a well-known artist, it is irrelevant as the statutory damages for infringement are calculated on a per work basis. There is the potential for a class action in this suit for songwriters who have submitted material "through aggregators," which could include thousands of members in the class.



Jury Win for NYC Graffiti Artists 'Erroneous,' Court Told

"A real estate developer urged a New York federal court on Monday to reject a jury's finding that he violated an obscure federal statute when he demolished the famous New York City graffiti space known as 5Pointz, saying the court wrongly instructed the jury that whitewashing was a form of mutilation."


Clock is Ticking on $10 Million Reward in Gardner Art Heist

In 1990, thieves stole 13 works valued at $500 million dollars from the Isabella Stewart Gardner Museum, including works by Rembrandt, Vermeer, and Degas. The museum offered a $10 million award for information leading to the recovery of the works, which was set to expire on December 31, 2017 at midnight. After January 1, 2018, the reward was to be halved to $5 million. The museum, which is based in the Boston area, had determined that the criminals behind stealing the work may react to $10 million rather than $5 million as an award, but there were no significant leads as the year came to a close.



Vitaly Mutko Steps Down as Head of World Cup Organizing Committee

A top Russian official for organizing the 2018 World Cup stepped down and announced that he will be succeeded by Alexei Sorokin. His announcement comes as Russia is preparing to host the World Cup in the summer of 2018, and wants to deflect international criticism about its hosting the event. Mutko served as Russia's sports minister during the 2014 Winter Olympics in Sochi and has denied all doping allegations. While the International Olympic Committee did not accuse him of being involved in doping, his organization and Russian athletics in general demonstrated a "failure to respect" the antidoping rules.


Manuel Burga, Soccer Official From Peru, Acquitted in FIFA Trial

The former top soccer official in Peru, Manuel Burga, was acquitted in the Eastern District of New York after a trial involving three global soccer leaders accused of corruption involving bribes and kickbacks. He had been charged with racketeering conspiracy and soliciting $4.4 million in bribes, but prosecutors acknowledged that he did not collect the money, unlike others whom juries have convicted in relation to bribery and corruption.



U.S. Copyright Office Requires Reregistration of DMCA Agents

"Retailers that allow website users to generate and post content on their websites are required to reregister their Digital Millennium Copyright Act (DMCA) agents with the US Copyright Office by the end of the year in order to continue receiving protection under the DMCA's safe harbor provision."


Unions Are Gaining a Foothold at Digital Media Companies

Vox Media announced that it will form a union, joining several other digital publishers that have organized unions in recent months. Many publishers have opted to affiliate with the Writers Guild of America East, citing the likelihood of increasing wages and benefits after joining. Employees have increasingly unionized as a result of the industry having upstart sites with poor treatment of employees. Sites like BuzzFeed have avoided unionization, despite having a "liberal editorial voice."


Myanmar Court Extends Detention of Reuters Journalists

A Myanmar court has extended the detention of two Reuters journalists for two weeks, even in light of the international condemnation surrounding their detention. The journalists were covering the Rakhine State, where Rohingya Muslims have been fleeing into neighboring Bangladesh. This is not the first detention in recent weeks: two other foreign journalists, an interpreter, and driver received two months in prison for filming with a drone without permission. It is expected that those four will be released in January.


Tibetan Filmmaker Flees to U.S. After Escape from China

Dhondup Wangchen, a prominent Tibetan filmmaker, has fled to the U.S., according to his supporters. He reunited with his wife and children, who received political asylum in 2012. Wangchen gained notoriety after documenting Tibetans living under Chinese rule and police surveillance, which was released in his documentary, "Leaving Fear Behind". He was arrested and sentenced to six years in prison for "inciting subversion." Wangchen's experience is increasingly common under President Xi Jinping's rule, as activists are persecuted for revealing the Chinese government's crackdowns on human rights and "civil society."


Facebook Removes Chechen Strongman's Accounts, Raising Policy Questions

Facebook removed the Facebook and Instagram accounts of Ramzan Kadyrov, the strongman leader of the Chechen Republic, which is an autonomous region under the control of Russia. He has reportedly been involved in "acts of torture, kidnapping and murder, among other human rights abuses," and his name was added to the U.S. list of sanctioned individuals and companies. Facebook does not have a comprehensive set of rules for removing accounts of posts, relying on a set of "community standards," an algorithm, and users' reports of offensive content. The Russian government and Kadyrov are seeking answers from Facebook as to the rationale for the removal, but Kadyrov has already taken to focusing his social media use on a Russian social media platform known as VKontakte.


January 4, 2018

Second Circuit Declares Business Named "Wandering Dago" Protected by Matal v. Tam

By Cynthia Arato

The Second Circuit yesterday applied Matal v. Tam to hold that a New York business entitled "Wandering Dago" could not be deprived of state benefits because of its name.

From the opening paragraphs:

Plaintiff‐appellant Wandering Dago, Inc., ("WD") operates a food truck and 3 brands itself and the food it sells with language generally viewed as ethnic slurs. Defendants‐appellees ("defendants") are officials within the New York State Office of General Services ("OGS") who played a part in twice denying WD's applications to participate as a food vendor in the Summer Outdoor Lunch Program ("Lunch Program"), an activity that is organized by OGS and takes place in Albany's Empire State Plaza annually in the summer months. WD contends that defendants violated its rights to free speech and equal protection under the United States Constitution and the New York State Constitution by denying WD's application because of its branding practices.

We conclude that the District Court erred in granting summary judgment in defendants' favor, and should instead have awarded judgment to WD. It is undisputed that defendants denied WD's applications solely because of its ethnic‐slur branding. The Supreme Court's recent decision in Matal v. Tam, 137 S. Ct. 1744 (2017), clarifies that this action amounts to viewpoint discrimination and, if not government speech or otherwise protected, is prohibited by the First Amendment. That the action violates the First Amendment leads directly to the conclusion that defendants also violated WD's equal protection rights and its rights under the New York State Constitution.

wandering dago.pdf

California Decision Undercutting Copyright in Video Games

By Barry Werbin

On this stormy wintry day, what better to cheer one up than an odd decision from the CD Cal. In a December 11th decision, the court ruled on a motion to dismiss by EA based on copyright preemption tied to right of publicity claims by college athletes whose avatars appeared in Madden video games. EA argued that the case, which was filed in Cal. state court and then removed, should be dismissed based on the 9th Circuit's decision last April in Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017), holding that state law claims for right of publicity brought by student athletes was preempted under the Copyright Act (the athletes' images did not appear in advertising or marketing materials).

However, rather than granting the motion based on Maloney, this District Court, while agreeing that video games generally were copyrightable (EA held registrations for the subject games), ruled that the changing game play that was controllable by players did not meet the "fixation" test, which seems really bizarre:

Here, game play in the Madden games is dynamic, interactive, variable, and in the hands of the consumer. Plaintiffs contend the avatars allegedly representing their likenesses even have performance characteristics representing plaintiffs' own capabilities in their time as active NFL players. While recordings of actual football games are subject to copyright notwithstanding the independent actions of players during the course of the games, such recordings satisfy the requirement of copyright that the work be "fixed" in a tangible medium of expression. See Dryer v. Nat'l Football League, 814 F.3d 938, 942 (8th Cir. 2016) ("Although courts have recognized that the initial performance of a game is an 'athletic event' outside the subject matter of copyright. . . the Copyright Act specifically includes within its purview fixed recordings of such live performances."); 17 U.S.C. § 101. The Madden games, in contrast, allow game play that is not fixed in a tangible medium of expression, and part of plaintiffs' claims is that their identities are reflected in that game play. Thus, Maloney, which involved fixed photographs, does not govern here and the motion to dismiss must be denied. [Emphasis added]

Yes Maloney did involve reproductions of player photographs that could be downloaded by end users. Yet to rule that changing video game screen displays and output are not sufficiently fixed -- when whatever appears on-screen is the direct product of software and is thus limited in the visual iterations that can be displayed -- seems off base.

A copy of the decision is available here: https://dlbjbjzgnk95t.cloudfront.net/0993000/993656/https-ecf-cand-uscourts-gov-doc1-035116175407.pdf

January 7, 2018

Week in Review

By Nick Crudele
Edited by Elissa D. Hecker

President Trump Disbands Voter Fraud Commission

President Trump shut down a White House commission investigating voter fraud despite what he claims is "substantial evidence of voter fraud." In a tweet following his decision, Trump called for voter identification requirements for the country's "rigged" voting system, and cited states' refusals to cooperate with the commission as the reason for its end. The President did not address the commission's inability to find any evidence of fraud.


Trump Ordered White House Lawyers to Stop Sessions Recusal

The New York Times reported that President Trump ordered White House lawyers to stop Attorney General Jeff Sessions from recusing himself from the Russia investigation. According to the newspaper, Trump expected the Attorney General to protect him like he believed Robert Kennedy protected John F. Kennedy and Eric Holder protected Barack Obama, and was furious when Sessions recused himself.


Utah's Orrin Hatch's Retirement Sets Path for Trump Critic Romney

Despite personal pleas from President Trump, Orrin Hatch, the longest serving Republican in the Senate, announced his retirement. Hatch's retirement clears the path for former Massachusetts governor and presidential candidate Mitt Romney to fill his seat. Romney, now a Utah resident, has been an outspoken critic of President Trump and could pose a significant challenge to the President's agenda, if elected.


Sessions Names New U.S. Attorneys for Manhattan and Brooklyn

Attorney General Jeff Sessions named interim U.S. Attorneys for Manhattan and Brooklyn. Sessions named Geoffrey Berman to the Southern District and Richard Donoghue to the Eastern District. The appointments last for 120 days.


Ex-Securities and Exchange Commission Official Khuzami Named interim U.S. Attorney in Manhattan

Ex-Securities and Exchange Commission (SEC) official Robert Khuzami was named as the deputy U.S. Attorney in Manhattan by interim U.S. attorney Geoffrey Berman. Khuzami led the enforcement division of the SEC for four years under the Obama administration.


Republican Senate Edge Cut After Two Democrats Sworn In

Democrats Doug Jones of Alabama and Tina Smith of Minnesota were sworn into the Senate this week. Republicans now hold a one vote majority of 51-49.


Justice Department Shift Brings Uncertainty to Legal Marijuana Industry

In what he called a "return to the rule of law," Attorney General Jeff Sessions rescinded an Obama administration policy to not interfere with state laws regarding medical and recreational marijuana use. In a statement, Sessions said that the previous guidance by the Obama administration "undermines the rule of law." In a one-page memo, Session wrote that Congress already determined that marijuana is a dangerous drug, and related activities are serious crimes and federal prosecutors should weigh the seriousness of the crime and priorities set by the Attorney General when deciding on which cases to prosecute. Despite President Trump's campaign comments that marijuana was an issue for the states, the White House said that the president supported the Justice Department's action.



Control of Virginia's House of Delegates Decided by Random Drawing

Republican David Yancey won a seat in Virginia's House of Delegates after his name was picked from a bowl. Yancey and Democrat Shelly Simonds tied in the general election. The random drawing was needed to break the tie. Yancey's win gives the Republicans a narrow control of the
state's House of Delegates. By law, Simonds can ask for a recount, She said that "all options are still on the table."


Republican Senators Formally Recommend Author of Anti-Trump Dossier for Federal Investigation

Republican Senators Chuck Grassley and Lindsey Graham formally recommended that the Justice Department and FBI investigate the author of an anti-Trump dossier. The dossier was authored by former British intelligence agent Christopher Steele, who was hired by an opposition research firm GPS for the Clinton Campaign and the Democratic National Committee. The Senators told the Justice Department that they had reason to believe Steele had lied to federal authorities investigating his contacts and information regarding the dossier.


Mail Problems Impacted the Applications of More 1,900 Immigrants

More than 1,900 immigrants' applications were wrongly rejected due to delays with the mail, according to the U.S. Citizenship and Immigration Services. Many rejected applicants have already lost their work permits, and others are scrambling to overcome the error. The immigration agency has given applicants 33 days to resubmit their renewal forms.


Notorious Ethiopian Prison to Close

The prime minister of Ethiopia announced the closing of Maekelawi prison and release of some prisoners across the country, including political prisoners.


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


Disney Deal Solves Family Problems for Murdoch

21st Century Fox's proposed sale to Disney may not only solve a business problem for Fox's Chairman Rupert Murdoch, it might also solve some family dysfunction. The Disney deal allows Fox to focus on its news holdings instead of trying to compete in the changing landscape of the entertainment industry. It also puts Murdoch's oldest son, Lachlan, co-chairman of Fox, squarely in line to take over for his father. However, Murdoch's other son James, who is the current CEO of Fox, will have to find another role at Disney or Fox, or strike out on his own.


Prominent Hollywood Women Come Together to Fight Harassment

300 of Hollywood's most prominent female actresses, agents, writers, directors, producers, and executives formed an initiative to fight sexual harassment in Hollywood and blue-collar workplaces nationwide. Called "Time's Up", the initiative includes a legal defense fund to protect less privileged women from sexual misconduct in the workplace, legislation to penalize companies that tolerate persistent harassment, and a drive for gender parity in the entertainment industry.


Gretchen Carlson to Lead Miss America Pageant

Former Fox News anchor, Miss America contestant, and outspoken opponent of sexual harassment Gretchen Carlson was picked to lead the Miss America Pageant as the organization deals with fallout from its own harassment scandal. Several executives and board members recently resigned after it was revealed that leadership derided and made misogynistic remarks towards former contestants. Carlson, who accused former Fox chairman Roger Ailes of sexual harassment.


Apology from YouTube Star for Video of Suicide Victim

YouTube star Logan Paul, who rose to fame with his juvenile and physical humor, apologized for a video he posted of a body hanging from a tree in Japan's "Suicide Forest." Amid widespread criticism, Paul released a statement apologizing to anyone who saw the video, anyone affected or touch by mental illness or depression, and the victim's family.


Hoda Kotb To Replace Matt Lauer

Hoda Kotb will replace Matt Lauer as co-anchor of NBC's "Today" show. Kotb will co-anchor the first hour of the program with Savannah Guthrie and remain co-host of the 10:00 a.m. hour of the show with Kathie Lee Gifford.


Spotify Plans To Go Public with Direct Listing

Spotify, the on-demand music service with 140 million active users, has filed paperwork with the Securities and Exchange Commission to direct list its shares on the New York Stock Exchange. A direct listing is an unusual method for a company to go public: Typically, companies undergo an initial public offering to raise money and work with underwriters to help set up and increase the value of the shares. In a direct listing, the company's shares will be transferred to the exchange without underwriting activity, and it is unclear how the market will value the shares. Based on a recent valuation in connection with a share swap between Spotify and Tencent Holdings Ltd. (China), Spotify may turn out to be one of the largest technology companies to become listed on an American exchange. If successful, other highly valued startups, such as Airbnb Inc., may follow Spotify's lead and opt for direct listing. Of concern to Spotify may be a recent string of copyright infringement lawsuits by songwriters and music publishers.


Fighting Back Wearing Black

As a show of solidarity with sexual misconduct victims, Hollywood women were asked to wear black for the Golden Globes. Some critics however, said silently posturing in black will achieve nothing; staying home would be a better gesture.


YouTube White Noise Video Hit With Copyright Claims

The creator of a 10 hour YouTube video of continuous white noise was hit with five copyright infringement claims. The video by musician Sebastian Tomczak is an indistinct electronic hissing. The claimants include publishers of sleep therapy white noise. They are not demanding the removal of the video, but want the advertising revenue.


Japanese Blackface Comedian Faces Criticism

Japanese comedian Masatoshi Hamada faces backlash for his New Year's Eve show in which he performed in blackface while attempting to imitate Eddie Murphy in "Beverly Hills Cop". Hamada appeared in a Detroit Lions football jacket, curly wig, and dark makeup. The Twitter hashtag #StopBlackfaceJapan was started by outraged viewers.



New York City Ballet Chief Retires Amid Sexual Harassment, Abuse Accusations

New York City Ballet (City Ballet) Chief Peter Martins decided to retire amid sexual harassment and physical and verbal abuse allegations. Martins, who has been on leave from City Ballet as the accusations are being investigated, has denied all such accusations. In a statement, City Ballet Chairman Charles Scharf thanked Martins for his contributions, but said the investigation into the allegations will continue.


Looted Antiques Seized From Billionaire's Home

New York investigators raided the office and home of billionaire hedge fund manager Michael Steinhardt and carried out several ancient works. The raid is part of Manhattan District Attorney Cyrus Vance Jr.'s effort to repatriate looted antiquities. Last month, Vance formed an Antiquities-Trafficking Bureau. Among the pieces seized was a fifth century Greek oil vessel worth at least $380,000 and a seventh century B.C. Proto-Corinthian figure worth about $250,000.


Columbia Photography Professor Accused of Sexual Misconduct

Thomas Roma, the director of the photography program at Columbia's School of Arts, is accused by five former students of sexual misconduct. The accusations, which mostly occurred in the 1990's, depict a pattern of sexual relationships with his students. One incident was investigated by the school in 2000, when it found both parties complicit in the incident. A statement by Roma said that he was "shocked" by the other accusations. Columbia said that it has a policy forbidding faculty-student relationships and will investigate the recent accusations against Roma.


The Met To Charge Non-New Yorkers Entrance Fee

Starting in March, the Metropolitan Museum of Art will change its longstanding admission policy of pay-what-you-wish and start charging adult out-of-towners $25. New York State residents will still be able to pay what they wish.


Public Art Project Image of Female Empowerment

A sculpture of a white neon outline of a uterus with boxing gloves in place of the ovaries outside of The Standard hotel in West Hollywood is another sign of female empowerment amid widespread sexual harassment claims. Artist Zoe Buckman hopes the sculpture "offers a completely different view of femininity" in contrast to the advertisements and billboards objectifying young women which line the Sunset Strip.


"Movie-Worthy" Heist Nets Sheikh's Jewels

In what the Italian media has dubbed a "movie-worthy heist," thieves made off with a gold brooch and earrings from an exhibit in Venice. The two thieves were able to disarm a sophisticated alarm system and steal the pieces in plain view of the closed-circuit cameras before disappearing into the crowd of tourists. The brooch and earrings belonged to a Qatari Skeikh, and are said to be worth millions of euros.


Toronto Theater Director Resigns Over Sexual Misconduct Claims

Prominent Toronto theater director Albert Schultz resigned as leader of the Soulpepper Theater Company amid allegations of sexual assault and harassment. During a news conference, four actresses claimed that Schultz harassed, groped, touch, and propositioned them repeatedly over 13 years. Four other actors, three men and one women, joined the accusers and announced that they would not work for Soulpepper until Schultz left. Schultz plans to "vigorously defend himself against the allegations."



Rich Rodriguez Fired as Arizona's Football Coach

The University of Arizona fired Rich Rodriguez as its football coach after an investigation over workplace misconduct. In October, the university conducted an investigation into sexual harassment allegations by a former athletic department employee. The accuser refused to cooperate, but the university become aware of other information during the investigation. A statement by the university explained that Rodriguez's firing was "based on several factors, including the direction and climate of our football program." The University of Arizona will pay Rodriguez $7 million as a buy-out of his contract.


FIFA Accused of Stalling Doping Inquiry Into Russia's Doping Program

Anti-doping leaders are criticizing FIFA for its failure to aggressively investigate whether Russia covered up positive doping tests of the country's top soccer players. This comes on the heels of Russia's ban from the Olympics for its doping program. With the Russia's World Cup just six months away, the U.S. Anti-Doping Agency called FIFA's inaction "exasperating". FIFA released a statement saying that "FIFA will continue its investigation."


Donovan McNabb and Eric Davis Fired By ESPN

ESPN hosts Donovan McNabb and Eric Davis were fired after a lawsuit was filed detailing sexual misconduct at NFL Network. McNabb and Davis were two players named in a lawsuit filed by former wardrobe stylist Jami Cantor. Cantor accuses McNabb of sending inappropriate text messages, lewd comments and rubbing his body against hers. She accuses Davis of asking her to have "rough sex" with him.


University of Minnesota Suspends Star Reggie Lynch Amid Sex Assault Claims

University of Minnesota basketball player Reggie Lynch was banned from playing in any games while he appeals his suspension and ban from campus over findings of sexual misconduct. The findings stem from a complaint from a woman who claimed that Lynch sexually assaulted her in April 2016. Prior to coming to Minnesota, Lynch was arrested on allegations of assault on another woman, but charges were never filed. Lynch will be allowed to practice with the team while he appeals.



Big Tech to Fight Net Neutrality Repeal

Big technology companies such as Facebook, Google, and Netflix vowed to fight the Federal Communications Commission's repeal of its net neutrality rules. The group Internet Association will use its reputation and financial clout for a legal battle seeking to block the policy.


Twitter Will Not Block World Leaders

Twitter says that it will not block or remove tweets from world leaders even if the tweets violate its rules. Twitter said censoring leaders "would hide important information people should be able to see and debate", and removing tweets would "silence that leader, but it would certainly hamper necessary discussion around their words and actions."


Vice Execs Put On Leave Over Harassment Claims

Vice Media put its president Andrew Creighton and chief digital officer Mike Germano on leave after the New York Times published an article detailing misconduct and misogyny claims at Vice and four settlements reached by the company regarding allegations of sexual harassment and defamation. Germano acknowledged and apologized for one incident, but said it was resolved internally.


L.A. Times Newsroom Cast Ballots on Unionization

L.A. Times newsroom employees began a vote on whether to unionize. The vote is believed to be the first time that journalists have held a union vote in the newspaper's 136-year history. Workers are calling for competitive salaries, equal pay for women and minorities, more generous benefits, and improved working conditions.


"The Circus" to Continue Without Halperin

Showtime's political series "The Circus" will return in April without star Mark Halperin. Halperin, who was removed from the show after allegations of sexual harassment and assault were made against him, will be replaced with CBS News anchor Alex Wagner. The show has not decided whether it will address Halperin's absence on air.


Chinese Internet Users Want More Privacy

Fueled by widespread internet fraud and personal information theft, Chinese internet users are calling for more privacy when it comes to their internet activity. Chinese culture does not emphasize personal privacy and internet companies and the Chinese government itself regularly gathers data on internet users. However, users are starting to get a sense of personal privacy. Ant Financial, an affiliate of Alibaba, apologized for automatically enrolling users in its social credit program that tracks personal relationships and behavior patterns.


Iran Authorities Block Protesters' Social Media Tools

The Iranian government blocked social media tools and internet access throughout the country in the hopes of quelling widespread anti-government protests. Social media sites such as Twitter, Facebook, and Telegram have become crucial tools for protesters to organize and share information. The government claims that social networks are "causing violence and fear." Some cybersecurity experts believe the sanctions imposed on Iran by the U.S. government has made it easier for the Iranian government to crack down on social media use by protesters because encryption tools, readily available throughout the world, are not available in Iran.


German Lawmaker Suspended from Twitter Under New Hate Speech Law

A member of the German Parliament had her Twitter account suspended under Germany's new hate speech law after she posted an anti-Muslim message. In a New Year's Eve tweet, Beatrix von Storch accused police of appeasing "barbaric gang-raping Muslims." Under the new law, social media companies can be fined up to $60 million for failing to quickly remove hate speech and fakes news posts from their sites.


New Jersey Woman Jailed In Zimbabwean For Twitter Post Freed

A New Jersey woman arrested in Zimbabwe for calling the country's president a "sick man" on Twitter was released from prison after prosecutors failed to prepare their case. Martha O'Donovan could have faced 20 years in prison for the charges of subverting the government and undermining the authority of the president.


Vienna's New Year's Baby Is Welcomed With Hate and Racism

The announcement of Vienna, Austria's "New Year's Baby" was greeted with racism and hate filled social media messages. The public announcement of the birth of babies on New Year's Day is usually met with well wishes. However, the announcement of the birth of Asel Tamga, to Muslim parents, was met with racist and hate filled social media posts. One wrote: "I'm hoping for a crib death". Another wrote: "Deport the scum immediately". The newspaper where the racist posts were made removed them and is examining whether any broke laws against hate speech.


China Tries Tibetan Businessman With Inciting Separatism

China tried Tibetan businessman Tashi Wangchuk on charges of inciting separatism, after Wangchuk appeared in a 2015 New York Times report and video documentary in which Wangchuk visited Beijing in an attempt to win support for the Tibetan language. In the video, Wangchuk said, "if one nation wants to eliminate another nation, first they need to eliminate their spoken and written language. If effect, there is a systematic slaughter of our culture." Wangchuk faces 15 years in prison if convicted.


January 8, 2018

Net Neutrality Update

By Barry Skidelsky

On January 4, 2018, the Federal Communications Commission (FCC) released the formal text of its "Restoring Internet Freedom" Order, previously approved by a 3 to 2 vote along political party lines on December 14, 2017 (http://transition.fcc.gov/Daily_Releases/Daily_Business/2018/db0105/FCC-17-166A1.pdf). The 524 page tome (supplemented by statements from each of the FCC Commissioners) spells out details relating to the expected roll-back of the prior administration's net neutrality rules and policies, and it includes language obviously intended to defend against likely challenges.

In short, the FCC re-classified all broadband internet access services (BIAS) as "information" services, rather than as more heavily regulated "telecommunications" services -- regardless of whether service providers own or lease their facilities, and regardless of what technology platforms are employed, including without limit, wired (such as DSL, cable and fiber), fixed and mobile wireless (using licensed or unlicensed spectrum), and satellite services.

This de- or re- regulatory change affects, inter alia, consumers and those in entertainment who do not own or control digital distribution channels. Many fear that it enhances both the incentive and ability of vertically integrated companies to raise prices or unfairly compete.

As my recent EASL Journal article and blog post elaborate, given the absence of relevant federal legislative action, administrative and judicial challenges are likely to be made by various parties and amici -- including technology titans, such as Facebook, Amazon, Netflix, and Google (collectively, FANG), New York and other state attorney generals, and ad hoc coalitions that may be organized to address common concerns.

For more information, please contact me directly.

Barry Skidelsky is an attorney, consultant, arbitrator and mediator, who provides diverse legal and business services nationwide, focused on individuals and entities directly or indirectly involved with entertainment, media, technology and telecommunications (including inter alia lenders, investors, other lawyers and law firms). Currently co-chair of EASL's Television & Radio Committee and previous chair of the NY Chapter of the Federal Communications Bar Association (whose members' practices in part involve work before the FCC in Washington DC), Barry's background also includes being a broadcaster, bankruptcy trustee and in-house General Counsel. Contact Barry at bskidelsky@mindspring.com or 212-832-4800.

January 9, 2018

Copyright Registration vs Application

By Cynthia Arato

The plaintiff in Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, where the Eleventh Circuit held that a copyright plaintiff cannot get into federal court merely upon filing an application for registration, has sought cert. from the U.S. Supreme Court. The Court just called for the view of the Solicitor General on the issue.

In its petition asking for Supreme Court review, the plaintiff said that the "question presented not only recurs repeatedly in copyright infringement cases but also frequently leads to wasteful litigation... Worse, the interpretation adopted by the Eleventh Circuit can deprive the owner of a valid copyright of statutory remedies for infringement."

The defendant responded that "registration, not simply application, is necessary," and that "Petitioner asks for an end-run around that legislative judgment, an invitation the Eleventh Circuit correctly declined."

January 14, 2018

Week in Review

By Leslie Berman

Edited by Elissa D. Hecker

Supreme Court Weighs Purge of Ohio Voting Rolls

The plaintiff was struck from Ohio's voting rolls after he failed to vote for a few years and did not respond to a state communique. The Justice Department previously opined that failure to vote was not a valid reason for purging a voter. However, it has now reversed that position. "The Supreme Court appeared deeply divided over whether Ohio may kick people off the voting rolls if they skip a few elections and fail to respond to a notice from state officials." Justice Sonia Sotomayor said that Ohio's approach effectively disenfranchised minority and homeless voters in the state's major cities and was part of a broader effort to suppress voting. She said that: '"All of these impediments result in large numbers of people not voting in certain parts of the state."

Yet Justices Anthony M. Kennedy and Stephen G. Breyer expressed concern about maintaining the integrity of the state's list of eligible voters. '"The reason they're purging them," Justice Kennedy said, "is they want to protect the voter rolls from people that have moved."

'The Justice Department for decades took the position that failing to vote should not lead to disenfranchisement.

'After the last presidential election, the department switched sides in the case, Husted v. A. Philip Randolph Institute, No. 16-980.

'Questioning Solicitor General Noel J. Francisco, Justice Sotomayor said that it "seems quite unusual that your office would change its position so dramatically," particularly where the new stance had "a negative impact on certain groups in this society."


President Trump's Most Recent Unpresidential Statement

Despite the Twitter bombs and counter-reportage on the usual range of topics, for sheer volume of opinionated weigh-ins, it was hard to top the story of the President's "vulgar insult to immigrants," perpetrated and reported widely over the last week, even by the newspaper of record, which printed the scatological term "shithole" for what may be the first time the word has been seen in that outlet. Not surprisingly, Trump finding pushback and outrage from many quarters, later claimed that what he said was "tough" and "not derogatory."

Across Long Island, Vulgarity Attributed to Trump Draws Denunciations

Long Island Republican Congressman Peter King, who is usually a Trump supporter, called the President's comments "wrong". Democratic Congressman Thomas Suozzi posted "Awful, Inappropriate, Unpresidential" in a social media tweet. Many others also called out the President for his racist anti-immigrant slurs. Trump apologist and Republican Lee Zeldin seemed to give the president the benefit of the doubt, saying that he isn't going "to call for the President's mouth to be washed out w soap."


However, not everyone disagreed with Trump. Some analysts see the rise of crude, dehumanizing and racist language emerging in the mainstream as a signal that racism is becoming an acceptable part of political discourse.

Trump's Immigration Remarks Outrage Many, but Others Quietly Agree

'LONDON -- The Czech president has called Muslim immigrants criminals. The head of Poland's governing party has said refugees are riddled with disease. The leader of Hungary has described migrants as a poison.

'This week, Austria's new far-right interior minister suggested "concentrating" migrants in asylum centers -- with all its obvious and odious echoes of World War II.

'So when President Trump said he did not want immigrants from "shithole" countries, there was ringing silence across broad parts of the European Union, especially in the east, and certainly no chorus of condemnation.'


Porn Star Was Reportedly Paid to Stay Quiet About Affair with Donald Trump

President Trump's lawyer allegedly made a payoff to a porn star known as Stormy Daniels, to keep her mum about her claimed pre-election affair with Trump. "A lawyer for President Trump orchestrated a $130,000 payment to a pornographic-film actress in October 2016 to prevent her from going public with claims of a consensual sexual encounter with Mr. Trump, The Wall Street Journal reported on Friday.

"The reported payment came shortly before the presidential election and as the actress, Stephanie Clifford, 38, was discussing sharing her account with ABC's "Good Morning America" and the online magazine Slate, according to interviews, notes and text messages reviewed by The New York Times.


Google Memo Author Sues, Claiming Bias Against White Conservative Men

"James Damore was fired from his engineering job at Google last year after he wrote a memo that criticized the company's diversity efforts and argued that the low number of women in engineering positions was a result of biological differences.

'Now he is suing his former employer for workplace discrimination, claiming that Google is biased against white men with conservative views.

'The lawsuit, filed Monday by Mr. Damore and another former Google employee with California Superior Court of Santa Clara County, also claims that the company uses illegal quotas in order to hire women and minorities.


H&M Apologizes for 'Monkey' Image Featuring Black Child

"The clothing retailer H&M apologized on Monday for an image appearing in its online store that showed a black child model wearing a hooded sweatshirt that said "coolest monkey in the jungle." The company removed the image on Monday and said it would also pull the shirt from its stores worldwide.

'The image was widely criticized online for its reference to a monkey, an animal that has long featured in racial and ethnic slurs. The Weeknd, a Canadian pop star of Ethiopian descent, was one of those who criticized the clothing giant, writing on Twitter that he would decline to work with the company in the future.'


The following stories of note fall into Entertainment, Arts, Sports, and Media categories:


Live Nation Settles Suit With Ticketing Start-Up, Buying Its Assets

"Two years ago, Songkick, a ticketing start-up that operated out of a loft in Brooklyn, filed an antitrust suit against Live Nation Entertainment, the colossus of the concert business.

'The David-and-Goliath suit included accusations of abuse of market power by Live Nation and its Ticketmaster subsidiary.

'But on Friday, less than two weeks before the start of a trial, Live Nation announced that it had settled the suit for $110 million and an additional undisclosed sum to acquire some of Songkick's remaining technology assets and patents."


Radiohead Denies Suing Lana Del Rey Over Copyright (but Still Wants Credit)

Warner/Chappell confirmed that it was seeking credit for Lana Del Rey's "Get Free" from her album "Lust For Life". The story refers to the '"Blurred Lines" effect: a new song accused of stealing from an old one by borrowing chords, texture or "feel," the kind of generic elements that have long been considered fair game.'


Broadway San Diego Moves to End Ties With Ben Vereen

'Broadway San Diego, a touring production group, announced that it cut ties to the actor Ben Vereen, whose name was on an awards program rewarding outstanding local high school performers. . . . 'The New York Daily News reported that multiple women were accusing Mr. Vereen of sexual misconduct connected to a 2015 community theater production of the musical "Hair" in Florida.

'"Effective immediately, Broadway San Diego is ending its association with Mr. Ben Vereen," the company said in a statement reported by The San Diego Union Tribune.'"




Purge of Kevin Spacey Gives 'All the Money in the World' a Pay Problem

"The kidnapping drama "All the Money in the World" became a new flash point in the debate over gender equality in Hollywood.

'Ridley Scott, who directed the movie, and Imperative Entertainment, the company that produced and financed it, were lauded in December for purging the disgraced actor Kevin Spacey from the film. After multiple men accused Mr. Spacey of unwanted sexual advances, the "All the Money in the World" team replaced him with Christopher Plummer and hastily reassembled much of the cast and crew in London for reshoots.

'But the movie... now finds itself embroiled in a new scandal. And it involves the reshoots made necessary by the attempt to release the movie with a clear conscience.

'The film's female star, Michelle Williams, was paid a per diem of $80, a bit above the union minimum, for 10 days of added work. Her male counterpart, Mark Wahlberg, received the same per diem -- plus $1.5 million.'


Mark Wahlberg and Agency Will Donate $2 Million to Time's Up After Outcry Over Pay

Wahlberg and his agency, William Morris, will share in the payment to Time's Up.


Cairo's Self-Appointed Lawsuit King Sues Actors, Belly Dancers, and Even Puppet Shows

In Egypt, a self-appointed watchdog of Egyptian morality files suit against entertainment figures, human and puppet, who "promote debauchery, "insult the nation" or commit other alleged offensive acts. In Egypt, an individual can sue another for these crimes, and though many of his suits are dismissed as frivolous, those that have succeeded have "stifled free speech, hobbled the arts and even swayed national politics."



The Authenticity of Modigliani Paintings Questioned Once Again

"The tormented artist Amedeo Modigliani is beloved both by art aficionados and forgers.

'Now, an art expert has written a report, leaked by the Italian news media, for state prosecutors that says a third of the works in a popular Modigliani exhibition last year in Genoa, Italy, are fakes.

'The expert, Isabella Quattrocchi, said that seven drawings and eight oil paintings by Modigliani, as well as six oil paintings attributed to his friend and sometime collaborator, Moise Kisling, were not authentic. The art works were lent by private collectors and museums in Italy, Switzerland, Israel, Argentina and the United States."

Quattrocchi said in the report that the works had been "crudely forged," "both in terms of style and pigments," according to the news agency ANSA. She also wrote that the frames came from Eastern Europe and the United States, and had little to do with Modigliani in terms of context and historical period.


Inside the Battle for Arthur Miller's Archive

Arthur Miller's literary remains have been in limbo since his death in 2005. One hundred and sixty boxes of archival materials have been at the Harry Ransom Center at the University of Texas at Austin for decades, uncatalogued and inaccessible to scholars, while other documents, including 8,000 pages of private journals, have remained at his home in rural Connecticut. Yale University tried to buy the archive, including the holdings at the Ransom Center plus 70 boxes held privately by the estate - a treasure trove containing 332 feet of material including an unpublished essay about Marilyn Monroe that Miller began writing following her death - but after a tussle, the Ransom Center paid what Yale offered, as the Texas archive asserted that it had a right of first refusal.


Charles Dutoit, Conductor Accused of Sexual Assault, Leaves Royal Philharmonic

The reckoning over sexual misconduct is international in scope, as evidenced by the departure of Royal Philharmonic artistic director and principal conductor Charles Dutoit, who was also dropped by other orchestras.

"Charles Dutoit is stepping down from his post as artistic director and principal conductor of the Royal Philharmonic Orchestra in London following accusations that he sexually assaulted several women between 1985 and 2010, the orchestra announced Tuesday.

'Mr. Dutoit, 81, had originally planned to retire from the orchestra nearly two years from now, in October 2019, when he was to be named its "honorary conductor for life."" However, after several women publicly accused him last month of sexual misconduct, the orchestra's board held an emergency meeting, consulted with Dutoit and, the orchestra said in a statement Tuesday, "together decided to bring forward his resignation" to take immediate effect.


Male Models Say That Mario Testino and Bruce Weber Sexually Exploited Them

"Fifteen current and former male models who worked with Bruce Weber, whose racy advertisements for companies like Calvin Klein and Abercrombie & Fitch helped turn him into one of the foremost commercial and fine art photographers, have described to The New York Times a pattern of what they said was unnecessary nudity and coercive sexual behavior, often during photo shoots."


The #MeToo Moment: Art Inspired by the Reckoning

Feminist political artworks have shown the state of the status of women since Judy Chicago called women together to collectively make "The Dinner Party" (which is permanently installed at the Brooklyn Museum). Two decades later, "[t]he Guerrilla Girls forced attention to the fine art world's gender and racial disparity with their gorilla masks and guerrilla-style stunts. ("Guerrilla Girls' definition of a hypocrite?" read one poster. "An art collector who buys white male art at benefits for liberal causes, but never buys art by women or artists of color."). The New York Times has collected some works by contemporary artists inspired by #MeToo.



Russian Doping

Whistleblower Grigory Rodchenkov will testify, but his life is under 'serious threat'.


After Pledging Reform, FIFA Pays Millions to Ruling Council

"Despite promises of reform and mounting losses, FIFA, world soccer's governing body, paid members of its ruling council nearly $10 million last year.

'According to three people with direct knowledge of the payments, FIFA, a nonprofit organization, paid each of the elected representatives on its 37-member council $250,000 salaries, plus tens of thousands of dollars more in travel expenses, in 2017. The people asked not to be identified because they were not authorized to disclose the information before FIFA officially releases it in March.

'That level of compensation -- for a council that is scheduled to meet only three times this year -- far exceeds payments for similar work at some of the world's largest for-profit companies. It also appears to contradict the pledges, made repeatedly by FIFA's president, Gianni Infantino, since his election in 2016, to restore the organization's credibility by implementing fiscal discipline."


Gymnast Maggie Nichols Wants 'Everyone to Know' About Larry Nassar's Abuse

"Maggie Nichols announced Tuesday that she, too, was sexually abused by the former U.S.A. Gymnastics team physician Dr. Lawrence G. Nassar, and that she was the first to report the abuse to the sport's national governing body."


He Helped Ex-Players Get Benefits, But His Family Is Still Waiting

Mike Webster's diagnosis of "chronic traumatic encephalopathy" - the degenerative brain disease linked to repeated hits to the head - has led to a substantial settlement for disability benefits, but his family might be unable to share in those funds which could be five million dollars ($5,000.000) per player. The National Football League insisted on a provision in the settlement that could prevent players who died before 2006 from receiving compensation.


Vegas Golden Knights, Named to Avoid Trademark Dispute, Face Trademark Dispute

"[The owner of the Vegas Golden Knights hockey team,] Bill Foley, is a graduate of the United States Military Academy, whose athletic teams have long competed as the Army Black Knights. Mr. Foley had initially hoped to call his new hockey team the Black Knights but encountered resistance, including some from West Point.

'So he went with Golden Knights instead -- but now, it seems, that wasn't enough.

'The Army, it turns out, has a parachute team known as the Golden Knights. And when the hockey franchise unveiled its name in November 2016, West Point officials took note, saying they were "reviewing the situation and figuring out what the way ahead would be."


Yankees Announce Details of Extended Netting at Stadium

In September, "when a toddler was severely injured when she was hit in the head by a line drive behind the third-base dugout at Yankee Stadium, left players for the Yankees and the visiting Minnesota Twins shaken, and drew widespread attention. It prompted at least five other teams to make announcements that they would add netting. The Yankees joined them on the final day of the regular season.

'On Wednesday came the details: nets that will extend nine feet above the dugout roofs and five and a half feet above the short walls that extend down the foul lines."


Tonya Harding Would Like Her Apology Now

In the wake of the new biopic, "I, Tonya," Tonya [Harding] Price is interviewed about her life before and after, and of course, about, the event for which she will forever be known - the attack on competitor figure skater Nancy Kerrigan - in which she tries to set the record straight, and to describe life after being banned forever from the national organization for professional figure skating.


New Sound at Saudi Soccer Game: Women Cheering From the Stands

In the soccer-obsessed but ultraconservative Islamic kingdom, the match between the local teams Al-Ahli and Al-Batin in Jidda was the first time that women were allowed to attend a game at a public stadium, a new step in the government's efforts to loosen gender restrictions.



Steve Bannon Steps Down From Breitbart Post

Stephen K. Bannon's fortunes having waxed him into the White House, and waning, waltzed him out just as unceremoniously, are now melting away. In extensive interviews with author Michael Wolff for Fire and Fury: Inside the Trump White House, Bannon questioned the President's fitness for office and disparaged Donald Trump, Jr., bringing down tweet storms in rebuttals that had him soon backpedaling from those statements. Yet it was only the most recent attack by the President that has caused conservatives, including Breibart funders, to abandon Bannon, leading to his decision to step down from his post as Executive Chairman of Breitbart News. SiriusXM, on which he hosted a radio program, cancelled him as well.


'Media Men' List Creator Outs Herself, Fearing That She Would Be Named

According to a tweet stream, essayist Katie Roiphe was about to expose the author of a Google spreadsheet listing "Shitty Media Men" - 70 men who were known or rumored to be sexual predators - in her upcoming story to be published in Harper's magazine in March. Although Roiphe says that she did not name the author, that rumor triggered a number of other authors of upcoming Harper's articles to pull their stories, hoping to pressure Harper's to protect the confidentiality of the author of the list. Then the author of the list outed herself in a story published online on New York magazine's website 'The Cut', with the headline "I Started the Media Men List: My Name Is Moira Donegan."



Condé Nast Crafts Rules to Protect Models From Harassment

"Prompted by the sexual harassment outcry that has enveloped fashion and other industries, Condé Nast said it began working in late October on a code of conduct that will go into effect this month...

Separately, in response to allegations of sexual harassment and abuse of power from numerous male models against the photographers Bruce Weber and Mario Testino, the media company said in a statement on Friday [January 12] that it would stop working with the two men, at least for now."


Tech Backlash Grows as Investors Press Apple to Act on Children's Use

'"A creator of the iPhone called the device "addictive." A Twitter founder said the "internet is broken." An early Facebook investor raised questions about the social network's impact on children's brains.'

'Barry Rosenstein, managing partner of Jana Partners, an investment firm that wrote an open letter to Apple this weekend pushing it to look at its products' health effects, especially on children [said that companies have a role to play to help address such issues.] "As more and more founders of the biggest tech companies are acknowledging today, the days of just throwing technology out there and washing your hands of the potential impact are over." . . . Jana, an activist hedge fund, wrote its letter with Calstrs, the California State Teachers' Retirement System, which manages the pensions of California's public-school teachers."


January 16, 2018

Drafting a Lactation Break Policy to Accommodate Nursing Mothers

By Kristine A. Sova

Federal and New York law both require covered employers to provide reasonable unpaid break time to nursing mothers to express breast milk. Federal law mandates that the breaks be provided for one year following child birth, and New York law mandates that the breaks be provided for three years following child birth.

These requirements beg the question: How much lactation break time is sufficient to be considered reasonable and actually accommodate a nursing mother?

Under New York law, breaks must be a minimum of 20 minutes in duration, or a minimum of 30 minutes when the lactation room is not in close proximity to the employee's work area. However, the number and frequency of breaks needed to express milk as well as the duration of each break will vary depending on the amount of time the employee is separated from the nursing infant and the mother's physical needs.

In most circumstances, it would be reasonable for an employer to provide unpaid break time at least once every three hours if requested by the employee. With a very young infant, though, the mother may need to express milk more frequently.

Further, since the break time includes not only the time actually spent expressing milk, but also set up, clean up and storage of milk, employers should be amenable to providing breaks longer than 20 minutes (or 30 minutes, as the case may be) if the mother's needs necessitate it. For example, mothers who must spend 20 minutes expressing milk may not have sufficient time to do so with a 30-minute break once one factors in the time needed to set up, clean up and store breast milk. The total length of the break will depend on additional factors, such as:

-How long it takes for the employee to express breast milk;
-How long it takes the employee to walk to and from the lactation space and whether she needs to wait to use the space;
-Whether the employee needs to get her pump and other supplies from another location (such as a locker room);
-Whether the employee needs time to set up her pump and how long the set up takes;
-The efficiency of the pump used;
-How long it takes the employee to clean the pump and other supplies and the location of the sink she can use for this purpose; and
-How long it takes the employee to walk to and from the location where she can store her expressed milk.

January 19, 2018

WYWH: "Inside Auction Houses" [By lawyers for lawyers]

By Laura B. Richardson

On October 26, 2017, the EASL Section hosted a panel discussion, "Inside Auction Houses: The Legal Issues", at the New York City offices of Arent Fox, LLP. The program was attended by approximately 30 attendees. The panelists included Sherri Cohen (Bonhams), Mari-Claudia Jiménez (Sotheby's), Jonathan Illari (Phillips Auctioneers), Margaret J. Hoag (Christie's), and Daniel H. Weiner (Hughes Hubbard & Reed LLP). The discussion, moderated by Lena Saltos and Elizabeth Urstadt, offered experienced insights on the inner workings of auction houses and the legal issues specific to their unique business models, which entails regularly acting as trusted agent of clients looking to sell high-value artwork, objects, or collections to buyers at auction or through private sale. The panelists described the exciting, challenging and varied legal work they do, both as in house counsel at auction houses and in their capacity as external counsel to auction houses.

Mari-Claudia Jiménez, formerly with Herrick, who is now Senior Vice President and Managing Director of Trusts & Estates and Valuations, introduced and explained the auction sale process from consignment to post-sale. She included in her discussion common sources of consigned objects - private collectors, estates of deceased collectors, museums, and dealers - as well as the frequent challenge that auction houses face when collecting sale funds due from successful bidders for their lots. She also explained the procedure an auction house may follow when it does not wish to accept an object or has a conflict of interest, but may wish to refer it to another regional or specialized auction house that would be a more appropriate venue to sell a certain object or price point.

Sherri Cohen, Director of Bonhams' Trust and Estates Department and an expert on title insurance with years of work at ARIS, laid out the process of obtaining appraisals for purposes including insurance and estate tax liability, as well as how auction houses evaluate and use different types of appraisals and valuations, such as insurance valuations, tax valuations, and fair market value appraisals. She also highlighted the difference between appraisals and auction estimates, which unlike a valuation, are given ranges of what an auction house expects property to fetch at auction based on various factors such as dimensions, provenance, past sales history, expected appreciation, comparable sales, and prevailing market conditions. Sherri elaborated on the protocol followed when auction houses receive or realize they have a fake offered for sale. There is an expectation of extensive due diligence and research on provenance that the auction houses undertake to mitigate any sort of risk or liability from these threats of in-authenticity. She also described the terms regarding rescission included in buyers' conditions of sale. For example, one term reads:

"If within one year from the date of sale, the original purchaser (a) gives written notice to us alleging that the identification of Authorship of such lot as set forth in the... catalog description of such lot...is not substantially correct based on a fair reading of the catalog, and (b) within 10 days after such notice returns the lot to us in the same condition as at the time of sale, and (c) establishes the allegation in the notice to our satisfaction (including by providing one or more written opinions by recognized experts in the field, as we may reasonably require), then the sale of such lot will be rescinded and, unless we have already paid to the consignor monies owed him in connection with the sale, the original purchase price will be refunded." (Bonhams Conditions of Sale, Limited Right of Rescission)

To illustrate how seriously auction houses take safeguarding against fraud, Mari-Claudia Jiménez noted that Sotheby's even employs scientific forensic testing for purposes of art authentication.

Jonathan Illari, who has worked with both brick and mortar auction houses (Bonhams and Phillips) as well as online auctions, described common financial and legal consignment terms found in the industry. For example, the auction house (as consignee) agrees to take possession of the property and act as agent of the consignor in the sale of the property; the consignor must warrant that he is the sole owner of the property, that there are no other encumbrances on the property, and that the property is genuine and as described in the agreement; the consignor will agree to pay a seller's fee that can be calculated in a number of different ways; a reserve amount may be specified, under which the consignee may not sell the property; while the property is in the consignee's possession, it will be insured (at consignee's expense) for the estimated value listed in the agreement; the consignee will obtain the right to market and promote the property for sale. He also examined how online sales have altered the auction house business, which pieces are better suited to online sales (such as lower value items, or pieces such as rare or fine wine, or watches), and how he thinks in certain situations online auctions allow a wider reach to a broader audience of potential buyers while taking in a broader range of property. He also discussed the ad-hoc determinations auction houses make to broker a private sale of high-value pieces as opposed to selling an object at public auction. Some considerations include the wishes of the seller, whether that be privacy, urgent liquidity, or to shelter the work from the risk of not selling at auction.

Maggie Hoag described the important application of the laws of agency in the auction house business. Auction houses predominantly play the role of agent of a seller and represent their interests as they endeavor to sell the property. This inevitably creates important considerations of fiduciary duties. This clear agency relationship between auction houses and sellers was contrasted with the uncertain roles art dealers or galleries can at times play in the art world, as Dan H. Weiner commented. He warned of the complexities of having several "middle men" and unknown players involved in art sale transactions, as is common for the art world. Maggie and Dan went on to discuss the challenges of collecting sale proceeds from successful auction bidders, the significance of third party guarantees for auctions, and the steps taken prior to potential litigation.

Auction houses that handle art and fine objects have a special allure, and the legal work that is done on behalf of these businesses connect sellers and buyers of these luxury goods. EASL succeeded in bringing together an array of experiences and experts from the leading auction houses, who were all knowledgeable and experienced on the topic. The time-pressures and competition between auction houses to obtain the best lots for upcoming sales was secondary to the stimulating work attorneys receive at Bonhams, Phillips, Sotheby's, and Christie's, as was made apparent through colorful examples and the collegiality shown in the panel setting. Their command of the legal and commercial issues for auction houses allowed for an interesting and informative afternoon of discussion.

Cases involving auction houses for further reading:

Mitchel Gray v. Jeff Koons et al.,(S.D.N.Y. Docket No. 15-cv-9727)

Phillips Auctioneers LLC v. Zhang Chang (NY Supreme Court Index No. 652901/2017)

JP Morgan Chase Bank, N.A. v. Comm'r (In re Estate of Newberger), T.C. Memo 2015-246
Estate of Kollsman v. Comm'r, T.C. Memo 2017-40

January 21, 2018

Week in Review

By Jana Slavina Farmer
Edited by Elissa D. Hecker

U.S. Government Shutdown

Democrats and Republicans traded blame for the government shutdown, as the House and Senate reconvened this past weekend to discuss the stopgap spending measures. Republican Representatives attempted to use the extension of Children's Health Insurance Program (CHIP), which provides coverage for nearly nine million children, as an incentive in their bid to secure Democratic votes for the spending measures. Democrats insisted that the measures must address the plight of young undocumented immigrants known as the Dreamers. To reopen the government, the votes of about a dozen Democratic Senators are needed.



Supreme Court Appears to Side With a Death Row Inmate

In McCoy v. Louisiana, No. 16-8255, a case argued on Wednesday, the Supreme Court appeared inclined to agree with Robert McCoy that his lawyer acted improperly when he disregarded McCoy's explicit instruction not to admit guilt for three murders. McCoy's counsel believed that admission of guilt gave McCoy better chances during the trial's sentencing phases. This strategy ultimately failed, and McCoy was sentenced to death in Louisiana. During the argument, several justices said a decision as fundamental as admitting guilt in a capital case belonged to the client rather than the lawyer. Formal decision to follow.


Supreme Court Temporarily Blocks Ruling on North Carolina Gerrymandering

The Supreme Court on Thursday granted a stay of an order of a North Carolina court, which required the state's legislators to draw up a new congressional voting map by January 24th. The trial court previously held that the existing voting map violated the Constitution and hurt the electoral chances of Democratic candidates. Representative David Lewis admitted that the congressional map was originally drawn up with a specific purpose of affording Republicans an advantage over Democrats. The Supreme Court has never held partisan gerrymandering to be unconstitutional.


Battle Over Net Neutrality Regulations Continues

Multiple lawsuits were filed against the Federal Communications Commission in connection with the recent repeal of net neutrality regulations. Plaintiffs include 21 state attorneys general, Mozilla, the Open Technology Institute, Free Press and Public Knowledge public interest groups.


Former Department of Energy Photographer Seeking Whistle-Blower Protections

Last year, Simon Edelman, a former photographer for the Department of Energy, shared with journalists a photograph of Secretary of Energy, Rick Perry, which he took for official purposes. In one of the photographs, Senator Perry is depicted giving a bear hug to Robert E. Murray, the head of one of the country's largest coal mining companies, Murray Energy. Another showed a photo of a cover of a confidential "action plan" that Murray brought to the meeting, calling for changes benefiting coal industry. Edelman said in an interview that he wanted to expose the close relationship between the two men. He lost his job and is now seeking whistle-blower protections.


Justice Department Appeals the Deferred Action for Childhood Arrivals Ruling to the Ninth Circuit

The Department of Justice (DOJ) appealed the decision in The Regents of the University of California and Janet Napolitano v. U.S. Department of Homeland Security and Elaine Duke, seeking review before the U.S. Court of Appeals for the Ninth Circuit. The DOJ is also expected to file a petition for a writ of certiorari before judgment, seeking direct review in the Supreme Court. This is an unusual step, which will allow the Supreme Court to hear the case prior to the Ninth Circuit. The DOJ maintains that Elaine Duke, the acting homeland security secretary, was within her discretion to rescind the Deferred Action for Childhood Arrivals (DACA) program.



The Woman Who Started the French Equivalent of #MeToo is Sued for Defamation

Sandra Muller, a French journalist working in New York, was sued for defamation by Eric Brion, a former television executive, whom she accused of sexual harassment. On October 2017, Muller started a hashtag #BalanceTonPorc (ExposeYourPig), similar to #MeToo in the U.S., in a series of Twitter posts encouraging women to speak out against sexual harassment. Tens of thousands of French women used the hashtag to tell their own stories. Unlike many, however, Muller named Brion in her tweets. Brion is not denying the advances, but takes issue with their characterization as sexual harassment.


Prominent Activist Detained In China After Making An Appeal To Change the Constitution

Yu Wensheng, a prominent lawyer and political activists in China, was taken into police custody on Friday after posting an appeal to change China's Constitution, including the procedure of election of China's President.


Writer Accuses Yale of Blocking Misconduct Complaint

Naomi Wolf, author of the Beauty Myth, claims that Yale University officials blocked her from filing a complaint against Harold Bloom, English professor and literary critic, who she claims had groped her while she was a college student.


Felony Conviction Does Not Preclude Bar Admission

Washington State's attorney licensing panel voted to block a candidate with felony convictions and a bankruptcy from taking the bar licensing exam. The candidate successfully appealed the ruling.


Representative Meehan Settles Sexual Misconduct Claim

Representative Patrick Meehan (R-Pennsylvania), who took a leading role in combating sexual harassment in Congress, settled a complaint for sexual misconduct made against him by a former aide.


Thousands Participate in Women's March 2018

Thousands of demonstrators marched on Saturday in cities across the U.S. in protest against the policies of the Trump administration. More than 200,000 protesters attended the march in New York.


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


Will More Accusers Be Able to Testify at Bill Cosby's Retrial?

Last year, Bill Cosby's sexual assault trial ended with a hung jury. Cosby will face a retrial in April. Has the #MeToo movement effected a cultural shift that it would lead to a different result this time? While that remains to be seen, the prosecutors filed a motion asking Judge O'Neill of the Montgomery County Court of Common Pleas in Norristown, Pennsylvania, to reconsider the previously set limitations on the testimony of other women allegedly assaulted by Cosby to help support the accusations of Andrea Constand. In Pennsylvania, evidence of prior bad acts may be admitted to show intent or similar conduct inferring a common scheme or plan. It is expected that Cosby's counsel will vehemently object to the inclusion of additional accusers.


Actress Accuses Stuntman of Sexual Assault

Actress Eliza Dushku accused Hollywood stuntman Joel Kramer of sexually abusing her during the filming of "True Lies" when she was 12. Kramer denied the accusation in an email to the New York Times on Tuesday. He also disputed two other accusations of sexual misconduct, both involving women who were not named. James Cameron, who directed the movie, reportedly said Dushku was "brave" for speaking up.


Continuing Support to Time's Up

Actor Timothee Chalamet will donate his entire salary from the upcoming Woody Allen film, "A Rainy Day in New York," to Time's Up, the LGBT Center in New York and the Rape, Abuse and Incest National Network. His co-star, Rebecca Hall, earlier announced that she would donate her salary from the movie to the Time's Up legal defense fund. Woody Allen was previously accused of sexually abusing his adoptive daughter, Dylan Farrow.



Early Banksy Work Saved From Destruction

Over 18 years ago, Banksy, a renown street artist whose identity has still not been officially confirmed, painted a bird with a gas plump handle for a beak on a derelict container at a beach in protest against the oil industry. During recent beach cleanup efforts, the artist's work was salvaged and restored by Brandler Galleries.


UNESCO Partners Holocaust Memorial In Commemorating International Holocaust Remembrance Day

UNESCO is organizing a series of events in partnership with the Holocaust Memorial, to take place between January 22nd and 25th, in advance of the International Holocaust Remembrance Day, commemorated each year on January 27th.


Russian Court Extends Artistic Director's House Arrest

Kirill S. Serebrennikov, the artistic director of the Gogol Center in Russia, is accused of embezzling the ruble equivalent of $2.3 million in government funds allocated for one of his theatrical projects. He claims that he was falsely accused by his former accountant, who turned state's witness in the case. Serebrennikov's case has raised concerns of repression of artistic freedom and return of censorship to the arts in Russia, as he has staged plays that featured nude actors and touched on socially-divisive topics in his productions. Last week, his house arrest was extended another three months while he is awaiting trial. President Putin commented that the Bolshoi Theater recently staged "Nureyev," a ballet directed by Serebrennikov, suggesting that this production is evidence that the latter is not being persecuted.


Costa Rica Exhibits Artifacts Recovered from Venezuela

The National Museum of Costa Rica's exhibition of 196 pre-Columbian artifacts recovered from Venezuela represents a major victory in an ongoing battle for repatriation of cultural artifacts in Latin America.


Stolen Furniture of an Egyptian Monarch Resurfaces in the U.S.

A mahogany and mercury-gilded bedroom suite of Egypt's late King Farouk disappeared from the royal rest house in Giza Zoo in 2013, replaced by a cheap replica. The suite was originally crafted by Antoine Krieger, a top Parisian cabinet-maker of the 19th century. Internet users have recently discovered the furniture for sale on an American antiques website. Egypt's attorney-general is investigating.


Anonymous Collector Puts a Possible El Greco Painting on Public Display

The Visitation, a large canvas depicting the Virgin Mary greeting her cousin Elizabeth, was revealed to the public in 2014 as the possible work of the artist Doménikos Theotokópoulos, or El Greco. The painting is owned by an anonymous private collector, who has not yet allowed any experts to examine its authenticity. It was recently put on display at the Oballe Chapel in San Vincente, Toledo. The available records suggest that the painting was completed after 1608, including the contract commissioning the El Greco with the work. Several versions of the painting were allegedly created. Another example of the Visitation paintings is located in Washington. While some experts believe it very probable that the newly revealed painting is authentic, others are not convinced.



Assault Victims Testify at Dr. Nassar's Sentencing; Michigan State University President Under Pressure to Resign

Dr. Lawrence G. Nassar, a former doctor at Michigan State University, pleaded guilty in November to several sexual assault charges after being accused of molesting over 150 former female patients while he worked as a physician for the Olympic gymnastics team. Last week, almost 100 women, including several Olympic medalists, testified at his sentencing. Meanwhile, there are growing calls for the Michigan State University president, Lou Anna K. Simon, to resign over how much she knew about the abuses.







Koreas Agree to Cooperate on Olympics

North and South Korea agreed on Wednesday that their athletes will march under one flag at the Winter Olympics next month. North Korea is also sending its 140-member pop orchestra to perform. Furthermore, South Korea proposed that it fields a joint women's hockey team with North Korea. While South Korea seeks to thus deescalate the tensions on the Korean Peninsula, the U.S. is concerned that Kim Jong-un will unify the Koreas under one flag.




400 Russian Athletes Are Clear To Compete at the Winter Olympics

While Russia remains barred, the International Olympic Committee provisionally cleared nearly 400 Russian athletes to compete at the 2018 Winter Games. The International Paralympic Committee is still expected to announce whether Russia can compete in Pyeongchang.


Russian Investigators Claim To Have Found Evidence Rebutting Doping Allegations

Russia's Investigative Committee claims to have found evidence rebutting the accusations of systematic doping during the 2014 Winter Olympics in Sochi. Specifically, the Committee apparently obtained documents relating to the chain of custody of the doping samples of 15 Russian athletes, who were recently banned for life from the Olympic Games. Grigory Rodchenkov, the head of the Sochi laboratory during the 2014 Winter Olympics, previously came forward with a description of a scheme he allegedly carried out at the direction of Russian sports officials, which involved replacing steroid-laced urine with clean urine, collected months earlier, on each evening of the Games. Russian officials have vehemently denied Rodchenkov's allegations and the existence of a state-sponsored doping program.


New Rules Appear To Reduce Withdrawal Rate at Austrian Open

Fewer players were scratched from competition during this year's Australian Open, following the adoption of a new rule allowing injured players to withdraw before taking the court and still receive half of their first-round prize money.



Senator Jeff Flake Condemns President Trump's Attacks on the Press

This past Wednesday, Senator Flake (R-Arizona) took to the Senate floor to defend the news media on the same day Trump's "fake news awards" were to be announced. Flake compared Trump's language to that of Joseph Stalin, and said that the president's attacks on the press are "a source of great shame".


Journalists Arrested in Sudan After Covering Protests

Several reporters for Reuters and Agence France-Presse were arrested by Sudan's National Intelligence and Security Service as they covered economic protests in Sudan last week. There is no information as to why the reporters where arrested and when they are to be released. These arrests raise concerns of the increasing censorship of the media in Sudan.


Reporters at the Los Angeles Times Form A Union

248 out of 293 journalists of the Los Angeles Times, one of the largest newspapers in the country, voted to join the NewsGuild, which represents 25,000 workers at news organizations across the United States. The union will now negotiate a collective bargaining agreement with management.


Condé Nast to Adopt Rules Protecting Models From Harassment

In light of the sexual harassment outcry in fashion, entertainment and other industries, Condé Nast is working on a new code of conduct, scheduled to go into effect this month. Under the new rules, the publisher will not work with underage models, alcohol will be prohibited on sets, and any shoots involving nudity will be detailed and agreed upon by the models beforehand.


YouTube's New Monetization Policy Disfavors Small Accounts

YouTube raised the minimum threshold for which videos can accept advertisements in addition to promising human oversight over most viewed videos amid concerns that ads appear alongside extremist videos. Only channels with over 1,000 subscribes and whose videos have over 4,000 watch hours in the last 12 months will be able to accept advertisements.



January 28, 2018

Who Pays the Price for "My Other Bag"?

By Cheryl L. Davis
This blog updates the article "All's Fair (Use) in Love and Trademarks", EASL Journal, Fall/Winter 2017, Vol.28, No.3

In Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 156 F.Supp.3d 425, (S.D.N.Y. 2016), the Southern District found that the defendant My Other Bag's (MOB's) parodic mimicking of Louis Vuitton's famous mark on MOB's canvas totes neither constituted trademark or copyright infringement, nor was it trademark dilution. This decision was affirmed by the Second Circuit (774 Fed. Appx. 16 (2nd Cir. 2016)), and the plaintiff's petition for certiorari was denied (138 S. Ct. 221 (2017).

Having won, MOB could have taken its bag and gone home. Instead, it moved to recover its attorneys' fees and costs, as it was entitled to do under both the Lanham and Copyright Acts. The Southern District, however, refused to award attorneys' fees. With respect to the trademark claims (infringement and dilution), the court stated: "although the Court (and, by all appearances, the Second Circuit) did not find this case to be a particularly close call, it cannot say that Louis Vuitton's arguments were so objectively unreasonable (as either a legal or factual matter) that no party 'could see an opening...through which the argument[s] could be squeezed. [citation omitted]" Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 2018 U.S. Dist. LEXIS 3035 (S.D.N.Y. 1/8/18) at *4. The court also found that "the use of a mark as parody does not necessarily resolve either a [trademark] dilution or an infringement claim" (Id. At *6), and cited to a prior decision in Louis Vuitton's favor (Louis Vuitton Malletier S.A. v. Hyundai Motor Am., No. 10-CV-1611, 2012 U.S. Dist. LEXIS 42795 (S.D.N.Y. 2012)).

The court was equally unpersuaded to award damages for the copyright infringement claim, finding that "[t]he analysis and conclusions above with respect to MOB's application under the Lanham Act all but compel denial of its application under the Copyright Act." 2018 U.S. Dist. LEXIS at *13. The court summed up the situation (and explained its decision to split the litigation baby) as follows: "As this Court's decision granting summary judgment to MOB made clear, Louis Vuitton certainly needs to learn how to take a joke. [citation and quotation omitted.] Its lack of a refined sense of humor, however is not a reason to pile on further by awarding MOB - however sympathetic its cause may be - attorney's fees and costs." Id. At *15.

January 29, 2018

Week in Review

By Angela Peco
Edited by Elissa D. Hecker

Below is general news from the week, followed by EASL-related news:

President Trump Ordered Mueller's Firing Last June

Following reports that special counsel Mueller was examining a possible obstruction case, President Trump argued that Mueller had conflicts of interest that disqualified him from overseeing the investigation and ordered his firing last June.

The news came to light as investigators interviewed current and former White House officials into whether the president obstructed justice.

It was reported that the president ultimately backed down, after White House counsel Donald F. McGahn refused to ask the Justice Department to dismiss the special counsel and threatened to resign.


Lawsuit on Emoluments Gains Traction in Court

A lawsuit filed in Maryland by the District of Columbia and the State of Maryland appeared to inch forward last week. The lawsuit claims that President Trump is violating the Constitution by failing to divorce himself from his businesses. The complaint says in part that the Trump International Hotel in Washington diverts customers from businesses that D.C. or Maryland license, tax or own, thereby depriving them of revenue.

Judge Messitte seemed more sympathetic to claims that the president had created an unfair playing field for facilities that compete against Trump-owned properties, stating that there was some evidence that the president is unduly attracting business. He also expressed skepticism about the Justice Department's arguments that he should dismiss the lawsuit on the grounds that Trump's continued ownership of his businesses was a political issue, not a legal one.

Judge Daniels of the U.S. District Court in Manhattan threw out a similar lawsuit last month, although the Maryland court is not bound by that ruling.


Casino Mogul Wynn Accused of Sexual Misconduct

The Wall Street Journal reported allegations that billionaire casino magnate and prominent political donor Steve Wynn engaged in a decades-long pattern of sexual misconduct with employees of his casino. Some employees described being pressured into performing sex acts with him.

Wynn Resorts stock plunged more than 10% following the report. In light of the allegations, a planned casino near Boston has come under renewed scrutiny, with the Massachusetts Gaming Commission noting that ensuring the suitability and integrity of its gaming licensees is an active and ongoing process.

Wynn also resigned as finance chairman of the Republication Nation Committee, a position he held since 2016.



Trump Immigration Plan Demands Tough Concessions from Democrats

President Trump proposed legislation that would provide a path to citizenship for young undocumented immigrants, including the 690,000 individuals signed up for protection under the Deferred Action for Childhood Arrivals (DACA), and another 1.1 million undocumented workers. In exchange, the plan calls for an end to family-based migration policies, a $25 billion trust fund to pay for a border wall, and a crackdown on other illegal immigrants.

Democrats already rejected the proposal, while senators work on a narrower bipartisan plan focused on legal status for DACA recipients. The DACA program is set to expire on March 5th, when recipients will no longer be able to work legally and face the threat of deportation. The proposed plan would put DACA recipients on a 10-to-12-year path to citizenship plan.


Manhattan D.A. No Longer Accepts Donations From Lawyers With Pending Cases

Cyrus R. Vance Jr. faced significant criticism over his decision not to prosecute high-profile individuals whose lawyers had made large contributions to his campaign. Vance will no longer be accepting contributions from lawyers with celebrity clients under investigation by his office. The ban is meant to counter the public impression that donations could sway a D.A.'s decisions.

Donations to candidates running for district attorney from defense lawyers are legal in New York. Individual contribution limits are based on the number of voters in a county and are capped at $50,000 in Manhattan.

A think-tank at Columbia Law School recently issued a report aimed at limiting the influence of donations on the criminal justice system. It recommends that D.A.s never accept donations from people under investigation or indictment; and that prosecutors enforce a strict separation between their campaign and office staffs.


Difficult for Chinese Women to Organize #MeToo Movement

Government censors have been deleting online petitions demanding investigations into sexual harassment and blocked certain phrases that render it difficult for women to organize social media campaigns.

Campaigns have primarily targeted universities for failing to investigate harassment complaints, but have also sparked a larger debate about the government's role in preventing a resurgence of sexism and workplace discrimination.


Legal Scholar Geoffrey C. Hazard Jr. Dies at 88

Geoffrey C. Hazard Jr., a leading scholar and teacher of civil procedure and legal ethics, died on January 10, 2018. He co-authored leading treatises and casebooks on civil procedure and professional ethics, and was a faculty member at Yale Law School for 23 years.


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


Russell Simmons Sued Over Rape Accusation

Jennifer Jarosik, a Los Angeles a documentary filmmaker, accused music mogul Russell Simmons of sexual battery and rape in a civil lawsuit filed in federal court. Jarosik had expressed interest in interviewing Simmons for a documentary that Simmons had allegedly agreed to help produce and finance. Jarosik claims that she was raped in 2016 during a visit to Simmons's home in L.A.

The lawsuit asks for $5 million in damages from the Def Jam Recordings co-founder, who has also been accused of sexual misconduct, assault or rape by at least 10 other women. Simmons denied any wrongdoing.


Connecticut Theater Cancels Woody Allen Musical

Goodspeed Musicals, the theater that gave "Annie" its start, cancelled a planned production of Allen's 1994 film "Bullets Over Broadway". The theater's executive director pointed to the current dialogue on sexual harassment and ongoing media reports as the reasons behind the decision. Allen's daughter, Dylan Farrow, has repeatedly claimed that Allen molested her as a child, and Allen has always denied the accusation.


Long Wharf Theater's Artistic Director Fired Over Misconduct Allegations

Four women accuse Gordon Edelstein of groping or other forms of unwanted touching. Several former employees also allege that Edelstein used sexually explicit language toward and about women in the workplace. The board acknowledges having knowing about three of the complaints, and will launch an independent review of the theater's procedures for reporting misconduct.


Grandma the Clown Resigns from Big Apple Circus

Barry Lubin resigned from the world-renowned circus after it was revealed that in 2004 he pressured Zoey Dunne, then a 16-year-old aerialist, to pose for pornographic pictures. He claimed that the photos were part of a modeling job for a tattoo company, and warned Dunne not to tell the circus, as their activities would be considered outside work.

Dunne went to the police in 2011/12, but was told that the statute of limitations for pursuing child pornography charges had expired. Lubin was no longer employed at Big Apple when she contacted the circus that same year, and she was surprised to learn of his return in 2017. He has acknowledged the reports and apologized.


Casey Affleck to Skip Oscars

Ending months of speculation and breaking from tradition, last year's best actor winner will not attend the Oscars and present the award for best actress. Many wondered whether Affleck would be a disruptive presence at the ceremony during a season marked by revelations of widespread sexual harassment and defined by the #MeToo movement.

Two women sued Affleck for sexual harassment during the production of the 2010 film "I'm Still Here," which Affleck directed. The actor denied any wrongdoing and settled with both.


Latinos Seek Their Hollywood Moment

Latinos make up 18% of the US population and 23% of frequent moviegoers. Yet only 3% of speaking characters in films during the last decade were Latino, according to a study at the University of Southern California.

The glaring absence of Latino nominees in the four acting categories for this year's Oscars underscores the group's under-representation in film, though Latino directors have recently received recognition for films like "Gravity", "Birdman" and "The Revenant".

Some activists point to the diversity of Hispanics themselves as one of the reasons they find it difficult to rally uniform support for Latino-focused projects. Activists hope that diversity efforts at talent agencies will also help change Hollywood practices from the bottom up. As for the academy, which is currently 72% male and 87% white, it has pledged to double female and minority membership by 2020.


Contentious Bollywood Film Hits Theaters in India

The movie "Padmaavat" hit theaters following days of protests in India. Rajput activists claimed that the movie is historically inaccurate and disrespectful to the Rajputs, traditionally a caste of warriors. The story is based on an epic about a legendary Hindu queen said to have committed suicide rather than submit to a Muslim ruler.

Critics cite questionable clothing choices and inappropriate scenes among their complaints. Hindu extremists had previously attacked the crew while the film was in production and offered a bounty to behead the lead actress and director. India's Supreme Court overturned all bans and ordered the film's release; however, many cinema owners are refusing to show it, citing safety concerns. The movie has not garnered positive reviews.



Russia Pulls Stalin Comedy from Theaters

Russia's Culture Ministry withdrew the film's distribution license, banning it on grounds of "extremism" based on its unfavorable portrayal of national heroes responsible for defeating Fascist forces. Russia's Culture minister had previously denied claims of an impending ban as his ministry continues to bankroll patriotic films that portray Russia's past in a positive light.



National Gallery of Art Cancels Chuck Close Exhibition Over Accusations of Sexual Misconduct

Following an earlier cancellation of a photographs exhibit by Columbia professor Thomas Roma, the gallery cancelled the Chuck Close exhibition after a New York Times report that Close had asked women who visited his studio to undress and made unwelcome explicit comments.
Meanwhile, the Metropolitan Museum of Art is not reconsidering its decision to hang a Close painting on view in its galleries, and the National Portrait Gallery has not received any inquiries about Close's portrait of Bill Clinton, which remains on loan there.


New York City Names Four Artists to Tackle Social Issues

The city named four new public artists in residence who will receive $40,000 to develop projects with city agencies in 2018. The artists will spend the first three months of their residency researching and interacting with their communities so as to better tailor their projects.


Jeff Koons Concept is Criticized in France

Prominent figures have called on the City of Paris to abandon plans to install a sculpture by American contemporary artist Jeff Koons donated in honor of Paris terror victims. Koons's donation consisted of the concept for the commemorative sculpture only; the funds for its production were raised separately.

The "Bouquet of Tulips" is intended to evoke the hand of the Statue of Liberty holding a bouquet of multi-color flowers. The chosen location across the river from the Eiffel Tower is also criticized for providing "such strong visibility and recognition [that it] would amount to advertising or product placement."


Museum Curators Object to Rebekah Mercer as Trustee

Tenured curators at the American Museum of Natural History expressed profound concern about Mercer's alliances with and donations to organizations that they say "challenge and politicize climate change science". In their letter, they note that Mercer, a leading Trump donor, supports groups that "directly contradict the museum's mission and impede our ongoing efforts to educate the public about the science of past and future climate change."


Prisons' Banned Books Under Review

Prompted by state ACLU affiliates, North Carolina and New Jersey will remove "The New Jim Crow" for their list of prohibited books. The best-selling book by civil rights lawyer Michelle Alexander discusses race-related issues and mass incarceration.


Harvard Theater Troupe Will Cast Women

Harvard's Hasty Pudding theater troupe says it has committed to casting women in its annual production next year. The Hasty Pudding Theatricals calls itself the world's third-oldest theater organization, and boasts Franklin D. Roosevelt and Jack Lemon as alumni.

The troupe is known for comedic revues that feature men in drag playing female characters, keeping its cast all-male since it began staging productions in 1844. Women have only been able to work behind the scenes.

The decision comes amid years of debate over the fate of Harvard's single-gender organizations and exclusive social clubs. Last year, the university considered banning exclusive clubs but decided to continue a policy of sanctions instead, according to which students who participate in single-gender clubs cannot hold on-campus leadership positions.


Chinese Police Seize Book Publisher on Train

Hong Kong-based book publisher and Swiss national Gui Minhai was snatched from a Beijing-bound train under the eyes of two Swedish diplomats as he traveled to a medical appointment. It is alleged that plainclothes police officers boarded the train and led him away. This is the second time Gui has disappeared. In 2015, he was accused by Chinese state news media outlets of publishing books that slurred Communist Party leaders, and was later jailed for two years for a drunk driving offense.

Supporters call the detention a campaign by the Chinese government to shut down publishers of books critical of the party elite. This incident is expected to rekindle strains between China and European nations, as well as magnify worries that China has grown dismissive of legal guarantees that protect Hong Kong from mainland interference.


Dutch Museum Cancels Sottsass Retrospective After Museum and Estate Clash

The Stedelijk Museum cancelled the show after a clash with the architect and designer's estate over the show's content and the "museum's role in presenting art".

Sottsass's widow and heir withdrew her art and threatened to speak publicly against the show. She was joined by the estate manager, who also withdrew his own collection of Sottsass works, citing the curator's "refus[al] to detail her curatorial outline of the exhibition and her choice of works until a late date."



Disgraced Gymnastics Team Doctor Larry Nassar Sentenced to Up to 175 Years

Dr. Lawrence Nassar was sentenced to 40 to 175 years in prison for multiple sex crimes, following a seven-day hearing, where more than 150 women, with the encouragement of a judge, described the abuse they had endured.

"I just signed your death warrant," Judge Rosemarie Aquilina said as she imposed the sentence.

Last November, Nassar pleaded guilty to sexually abusing seven girls and had already been sentenced to 60 years in federal prison for child pornography convictions.


Entire USA Gymnastics Board Steps Down

Moments after Dr. Nassar's sentencing hearing came to a close, the U.S. Olympic Committee called on the entire USA Gymnastics board to resign, threatening to decertify the sport's national governing body if members refused.

The organization has since released a statement that it will comply with all USOC requirements, including seating an interim board by the end of February.

USA Gymnastics also came under fire after McKayla Maroney said she was forced to agree to a nondisparagement clause and confidentiality provision as part of an earlier settlement. The organization later said that it would not penalize the gymnast for breaking the confidentiality agreement to speak out against Dr. Nassar.


Michigan State President and Athletic Director Resign

President Lou Anna Simon resigned under pressure over the way she handled the scandal involving Dr. Nassar, who had spent years on the faculty and was the team physician for two female varsity squads.

A lawyer for Michigan State said an inquiry had found no evidence that high-ranking university administrators knew about Dr. Nassar's conduct before a newspaper report in 2016. The Detroit News reported that Dr. Simon knew of a Title IX investigation against an unnamed sports medicine doctor in 2014. Public records show that he continued to treat patients at Michigan State for 16 months after university police began a criminal investigation.

Athletic Director Mark Hollis announced his resignation two days later and pledged to cooperate with any investigations.



State Authorities and NCAA Launch Investigations

In the latest fallout from the widespread sexual abuse scandal involving MSU athletic physician Larry Nassar, Michigan State is facing several investigations, including ones from the state's attorney general and the NCAA.

A recent ESPN investigation argues that Michigan State's troubles go beyond Nassar and extend to a pattern in which sexual assault complaints involving prominent athletes were handled by the athletic department and not through regular university channels.

The investigations have also sparked debate about the proper role of the NCAA, especially in light of arguments that it overstepped its authority in managing the Sandusky scandal at Penn State. Donald M. Remy, the NCAA's chief legal officer, acknowledged that he was aware of the context in which people would view this latest action. In a letter to Michigan State, the NCAA cited as grounds for the inquiry the principle that member schools are obliged to safeguard their athletes' well-being.




Bill Reintroduced in New York State to Ban Tackle Football for Children

Sponsored by state assemblyman Michael Benedetto, the bill would prevent organized youth football leagues and schools from offering tackle football to children under 12.

In recent years, youth sports organizations introduced safety initiatives to raise awareness of the dangers associated with head hits, especially as research increasingly shows a correlation between brain disease and the age at which children begin playing and sustaining hits to the head.


Guilty Verdict in Killing of Former Jet

Ronald Gasser, who fatally shot former Jets running back Joe McKnight in a December 2016 road-rage confrontation in New Orleans, was found guilty of manslaughter. The offense carries a sentence of up to 40 years and sentencing is set for March 15th.

McKnight played three seasons for the Jets, one with the Kansas City Chiefs, and spent a season in the Canadian Football League.


"Passionate Kissing" Defense Clears Sprinter Accused of Doping

Olympic sprinter Gil Roberts had his 'passionate kissing' defense upheld by the Court of Arbitration for Sport (CAS). Roberts was suspended last May for testing positive to probenecid, a masking agent prohibited by sports regulators for its ability to disguise other drugs.

Ruling against the World Anti-Doping Agency's appeal, CAS arbitrators deemed it more likely than not that the presence of probenecid in the athlete's system resulted from kissing his girlfriend, who had been taking an antibiotic with traces of the prohibited probenecid to fight a sinus infection and had kept her sickness hidden at the time.

Testifying at the hearing was Dr. Pascal Kintz, whose expert testimony figured into the first precedent-setting kissing case. Tennis player Richard Gasquet escaped a lengthy doping ban in 2009 when the International Tennis Federation ruled that he inadvertently took cocaine by kissing a woman.

Athletes are strictly liable for any substance in their systems, even if a substance is ingested unintentionally, but will avoid a ban where they can show that they took reasonable precaution.


Ex-Athlete Accused of Killing Chiropractor

Former all-state athlete Owen Morris is accused of first degree murder in the killing of Clive Bridgham, a sports medicine specialist and chiropractor who worked at the Rio and Salt Lake City Olympics. Bridgham had voluntarily surrendered his license to practice in November 2017. Police confirmed that Morris was the patient who made the complaint about the chiropractor's professional conduct.



Montana Governor Signs Order to Force Net Neutrality

Gov. Bullock signed an executive order that prohibits any internet service provider that does business with the state from blocking or charging more for faster delivery of websites to any customer in Montana. The requirements apply to new and renewed contracts signed after July 1, 2018. Similarly, bills in New York and Rhode Island reflect state attempts to regulate the practices of internet service providers through their procurement power.


More Light on Allegations Against Radio Personality Garrison Keillor

In a letter addressing concerns and questions from listeners, Minnesota Public Radio disclosed that it had received substantial and detailed allegations of inappropriate behavior by Keillor prior to opening an investigation and ultimately severing ties with him late last year.

Keillor continues to dispute the network's position that he was informed of the claims and able to respond to them with counsel present.


Sudan Frees Journalists

Sudan released two Sudanese journalists working for Reuters and Agence France-Presse. They were among the last of 15 detained last week for covering protests about rising prices in Khartoum. Authorities provided no explanation or information on what charges they may have faced. Press restrictions in Sudan have intensified over the last few years, according to the press-advocacy group Reporters Without Borders.


BBC, Criticized Over Pay Gap, Cuts Salaries of Some Male Journalists

Britain's publicly funded broadcaster reduced salaries of several prominent male journalists following the departure of its China editor, Carrie Gracie, in protest of pay inequity at the organization. She returned to the BBC newsroom in London, where, she said, she would be "paid equally".

BBC published salaries last summer, revealing a startling gap in pay between its most senior male and female journalists. A report commissioned by the BBC found the gender pay gap was 9.35, half that of the national average.


British Competition Regulator Rules Against 21 Century Fox's Sky Bid

In provisional findings, the regulator said that 21 Century Fox's bid to take control of the 61% of Sky it does not already own would give Murdoch "too much control over news providers in the UK across all media platforms and therefore too much influence over public opinion and the political agenda".

The competition authority then set out possible remedies addressing their media plurality concerns: (1) halt the deal entirely; (2) require Sky News to be spun off or sold; or (3) insulate Sky News from the rest of the Murdoch media empire. The decision could also affect Disney's planned $52.4 billion acquisition of 21 Century Fox, including Murdoch's 39% stake in Sky. Britain's culture minister is expected to rule by May 1st.


Britain's Presidents Club Charity to Shut Down

The Presidents Club Charitable Trust will hand out its remaining funds and shut down, following an undercover investigation that reveals that female staff at an all-male charity dinner for prominent men in business and media had been groped, harassed and propositioned. The women were encouraged to drink and required to sign nondisclosure agreements. Two beneficiaries of the fundraiser, including a children's hospital, will be returning the money.


About January 2018

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in January 2018. They are listed from oldest to newest.

December 2017 is the previous archive.

February 2018 is the next archive.

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