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February 2018 Archives

February 2, 2018

Center for Art Law Case Law Updates

The following case selection first appeared in this week's Center for Art Law newsletter:
Edited by Elissa D. Hecker

Berkshire Museum Lawsuits (Mass. App. Ct. Jan. 16, 2018) After the Massachusetts Appeals Court granted a 30 day injunction to halt the sale of 40 works from the Berkshire Museum, appellate briefs were filed on behalf of the heirs of Norman Rockwell (https://cdn2.hubspot.net/hubfs/878449/17-P-1548%20-%20Appellant%20Brief%20-%20to%20file(B2239282).pdf?t=1516804118800&mc_cid=18d2d325e7&mc_eid=8a2eda70d8) and the Berkshire Museum trustees (https://cdn2.hubspot.net/hubfs/878449/17-P-1548%20-%20Appellant%20Brief%20-%20to%20file(B2239282).pdf?t=1516804118800&mc_cid=18d2d325e7&mc_eid=8a2eda70d8). Both filings contested the Superior Court's decision to allow the sale of the Museum's artworks to proceed, and reiterated the arguments put before the trial court. As part of the ongoing saga, the Massachusetts Attorney General's Office ("AGO") has been investigating the Museums' planned sale. The AGO recently filed a motion to extend the injunction and have further time to review the plan. On February 1st, the Appeals Court granted the AGO's motion, and continued the injunction until February 5th (http://www.ma-appellatecourts.org/display_docket.php?dno=2017-J-0510&mc_cid=18d2d325e7&mc_eid=8a2eda70d8).

Estate of Chu v. Jacquet, 161429 (N.Y. Sup. Ct. Dec. 27, 2017) The plaintiff brought several claims on behalf of her sister's estate against her sister's estranged husband. The plaintiff claims that her sister never meant for her art to remain with the defendant, but passed away before she could update her will. Further, the plaintiff claims that the defendant denied the plaintiff's family access to her artwork for eight months while he improperly stored the artwork in a storage container behind a gas station. As a result, the artwork was "severely damaged." The plaintiff alleges negligence, fraudulent concealment (and, in the alternative, negligent misrepresentation), breach of contract, that she is entitled to an inventory of her sister's artwork in the defendant's possession, as well as an accounting of previously-undisclosed gifts or sales of her sister's artwork by the Defendant. Plaintiff also claims entitlement to damages of at least $500,000. The Answer was filed on January 18, 2018. The Complaint is available here (https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=PTxIR_PLUS_RX1uXPk7hsw9bzYw==&system=prod&mc_cid=18d2d325e7&mc_eid=8a2eda70d8), and the Answer is available here (https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=XevQE/WYkqva9q0u6wa28g==&system=prod&mc_cid=18d2d325e7&mc_eid=8a2eda70d8).

De Pury v. Staechlin, High Court (UK, Eng. 2017) Simon de Pury and Michaela de Pury won their legal battle against Ruedi Staechlin over the commission for the sale of Gauguin's "Nafea faa Ipoipo". Justice Morgan of the High Court in London ruled that the de Pury couple was entitled to a $10 million commission fee as a result of the $210 million sale.

Hearty v. The Bonfoey Company, 1:18-cv-00015 (N.D. Ohio Jan. 3, 2018) Plaintiffs, a married couple, filed suit against the Bonfoey Gallery, the Bonfoey Company's president, and an art dealer in Florida to whom Bonfoey sold the painting at issue. The plaintiffs stored their painting, "Shades of Evening", by George Inness, at their 94-year-old mother's home, after defendant Bonfoey failed to sell the painting under a consignment agreement. Four years later, Bonfoey's president approached the mother, without informing the plaintiffs, had her sign a new consignment agreement, and sent the painting to the defendant art dealer in Florida. The defendant art dealer allegedly had a buyer for the painting when the plaintiffs demanded its return. Consequently, the plaintiffs brought this suit alleging replevin, conversion, intentional infliction of emotional distress, fraud, breach of bailment, civil theft, and civil conspiracy. The plaintiffs seek to enjoin and restrain the defendants from transferring the painting to a third party, and request return of the painting, damages, attorney's fees, and costs of this action. The Complaint is available here (https://www.courthousenews.com/wp-content/uploads/2018/01/Richard-Hearty.pdf?mc_cid=18d2d325e7&mc_eid=8a2eda70d8).

Hayden v. 2K Games, Inc., 1:17-cv-02635 (N.D. Ohio Dec. 18, 2017) Artist James Hayden filed suit in district court for copyright infringement, violation of the Visual Artists Rights Act, and unjust enrichment under Ohio common law against the creators of the popular video games NBA 2K16, NBA 2K17, and NBA 2K18. Hayden is an Ohio-based tattoo artists who creates original tattoos for high-profile NBA players. He alleges that six of his copyrighted tattoo designs are depicted in the games on the player avatars for LeBron James, Kyrie Irving, Danny Green, and Tristan Thompson. The plaintiff seeks damages and enjoinment of the defendant's further use of his tattoo designs. The Complaint is available here (https://www.courthousenews.com/wp-content/uploads/2017/12/James-Hayden.pdf?mc_cid=18d2d325e7&mc_eid=8a2eda70d8).

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

February 7, 2018

Defamation, Right of Publicity and Sovereign Immunity

By Barry Skidelsky
Edited by Elissa D. Hecker

The above issues and more were implicated in a recent case involving a photograph of a woman. The photo was licensed by Getty Images ("Getty") to the New York State Division of Human Rights ("DHR"), in connection with DHR's public service announcement ("PSA") campaign intended to enhance public awareness that HIV-positive New Yorkers should not be the targets of discrimination.

The photographer, who originally took the woman's picture in connection with an online magazine article about New Yorkers' music interests, later sold the photograph to Getty without the woman's knowledge or consent. The photographer had also neglected to obtain a release from the woman, and in turn Getty mistakenly led DHR to believe that she had signed one.

Failures by each of those involved to conduct proper due diligence, if not to consult with counsel before the you-know-what hit the fan, obviously contributed to the creation of a messy situation. A friend of the woman saw the advertisement in print, and alerted her to its existence (including the implication that the woman had AIDS). The woman then commenced litigation against New York State in the NY Court of Claims. That court granted her motion for summary judgment on the issue of liability on her defamation "per se" and Civil Rights Law §50 and §51 claims.

New York State then appealed. On appeal, the First Department modified to deny the Claimant summary judgment on her Civil Rights Law claims, to grant New York State summary judgment dismissing those claims, and to grant New York State summary judgment dismissing the standard defamation claim. In part, the appellate court held that the State of New York is entitled to sovereign immunity against the Civil Rights Law claims asserted.

The case is interesting for this and other reasons, including additional matters of interpretation regarding New York State's Right of Publicity as embodied in the Civil Rights Law (a proposed modification of which is currently pending before the New York State legislature), differences between per se and standard defamation, and whether people with HIV or AIDS have a "loathsome disease."

See Nolan v. State of New York, 2018 NY Slip Op 00269 (decided January 16, 2018): http://nycourts.gov/reporter/3dseries/2018/2018_00269.htm

February 10, 2018

Week in Review (week ending in 2/4)

By Eric Lanter
Edited by Elissa D. Hecker

When a T-Shirt Gets You in Trouble at the Voting Booth

The Supreme Court is scheduled to hear a case this month involving a law in Minnesota that prohibits voters from wearing any T-shirts, hats, or buttons that may have a political message. The law's proponents suggest that it is designed to create a "contemplative" atmosphere for voting, free of pressure to support one issue over another. Critics of the law claim that it is a violation of the First Amendment's free speech protection and amounts to nothing more than blatant censorship.


New Scrutiny Coming for Refugees from "High-Risk" Nations

The Trump administration announced that it is resuming the admittance of refugees from 11 "high-risk" nations but with additional screening measures, after having conducted a 90-day review of procedures. While officials did not name which nations will be labeled "high-risk," the list is "widely reported to be Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen." Those countries account for "more than 40 percent of all refugee admissions in recent years," and the additional screening measures are expected to make it harder for Muslims to qualify for approval for entry into the United States. Critics of the policy allege that the new screening measures, including more "in-depth" interviews and "deep-dive" background checks, will not serve as an effective barrier to those who want to commit acts of terrorism within the United States but instead delay or bar those who have no such intentions.


Federal Government Does Not Like Cuomo's 'I Heart NY' Signs

Governor Andrew Cuomo's project of installing blue "I ♥ NY" signs beside the state's highways has drawn federal scrutiny as a violation of highway rules and a distraction to drivers. While they had an initial cost of $8 million, the Federal Highway Administration gave the state until September 30, 2018 to bring the signs into compliance by changing the font and removing unapproved images for highway signs or face a $14 million cut in federal funding for roads and highways in the following fiscal year.


Justice Department Office to Make Legal Aid More Accessible is Quietly Closed

During the Obama administration, the Justice Department, led by then-Attorney General Eric Holder, created a division called the Office for Access to Justice, which sought to direct resources to indigent litigants in "civil, criminal, and tribal courts." That program, which did not draw much publicity or scrutiny, has come to an end under the Trump administration with Attorney General Jeff Sessions. While civil rights groups objected to the closure of the office, which was effectuated by depriving it of funding, the Justice Department did not respond to The New York Times' "repeated requests for comment."


Activists Try to Recall Judge for Stanford Sex Attack Case

Judge Aaron Persky in California received intense scrutiny approximately two years ago when he sentenced Brock Turner, a Stanford University swimmer accused of sexual assault, to only six months in jail. That scrutiny recently further intensified as activists and victims' rights advocates are leading an effort to petition removal of the judge for a June ballot. While some have supported the effort, others are concerned that it could influence judges who might otherwise show leniency in sentencing and ultimately lead to a higher imprisonment rate.


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


In Canada, a #MeToo Movement Emerges

Canada's House of Commons is debating a bill regarding sexual harassment, serving as a reflection of the #MeToo movement emanating from the United States. The reflection is not mirror-like, however, as Canadian politicians from all political parties are "strongly calling for changes and supporting victims who are increasingly coming forward." Its institutions have seen several leaders and ministers resign in recent weeks amidst allegations of sexual harassment, and many in Canada see the moment as "a perfect storm for reform."


Canceled Lorde Concert Prompts First Use of Israel's Anti-Boycott Law

Two New Zealand activists were named as defendants in an Israeli lawsuit seeking damages for their role in the singer Lorde's decision to cancel a Tel Aviv concert. The lawsuit seeks to be the first to apply a new Israeli law against "calling for boycotts of Israel or the territory it controls." The lawsuit seeks damages of approximately $13,200 on behalf of three Israeli teenagers who bought tickets for the concert prior to its cancellation. If the lawsuit succeeds, analysts see it having broader implications for the "growing movement in the United States, Europe and elsewhere to boycott, divest from and sanction Israel, primarily in protest against its settlement and security practices in the West Bank."



Should Chuck Close's Works Carry an Asterisk?

Amidst allegations that the acclaimed artist Chuck Close engaged in sexual harassment with several women he was photographing, a debate rages as to how to treat Close's works, which until the allegations surfaced, were revered. The Pennsylvania Academy of the Fine Arts announced that it will continue showing its display of Close's work, but also add a nearby gallery that examines gender power imbalances. Other institutions, like Seattle University, have removed Close's works or moved them to less prominent areas, largely as a result of pressure from others in the arts community.


Metropolitan Opera Fires Stage Director, Citing 'Inappropriate Behavior'

John Copley, the veteran British stage director, was fired from his role as director of the Metropolitan ("Met") Opera. His termination comes as the Met Opera received a complaint about what the company called "inappropriate behavior in the rehearsal room." Several British critics and singers who have worked with Copley expressed outrage at the firing and called it an "overreaction."



Justice Department Escalates Inquiry on Global Sports Corruption

The United States Department of Justice has escalated its inquiry into international sports corruption by issuing grand jury subpoenas to explore possible racketeering, money laundering, and fraud within FIFA, the International Olympic Committee, and the United States Olympic Committee. One target of the investigation is Helios Partners, a firm that has been involved in lobbying global sports officials and helped Russia secure the 2014 Winter Olympics and 2018 World Cup.


FIFA Issues Integrity Warning for 2026 World Cup Vote

FIFA issued a warning letter, signed by its secretary general, Fatma Samoura, warning its 211 member federations not to accept any inducements from World Cup bid committees ahead of this summer's vote to pick the site for the 2026 World Cup. Investigations, including a prominent one by the United States Department of Justice, have revealed widespread corruption and bribing in the World Cup bidding competitions in recent decades. While there have been institutional changes within FIFA, such as opening voting to its membership rather than the 24-member executive board, there is still fear that the bribery and corruption will instead target a vast swath of member federations rather than members of the board.


North Korea Cancels Pre-Olympic Event, Blaming South Korean Media

Ahead of the Olympics' opening in South Korea, North Korea cancelled a joint cultural event that was planned as a show of unity between the two Koreas. North Korea's reason for cancellation: "insulting" South Korean news media coverage of North Korea's participation in the Winter Olympics. Nonetheless, North Korea proceeded with sending its delegation of 22 athletes, to the Games as well as a group of performers and dancers.


Russia is Banned from Paralympics for Doping but 28 Athletes Win Appeals of Doping Bans

The International Paralympic Committee announced that it is banning Russia from the 2018 Paralympic Games for "an insufficient recovery from the Russian doping scandal." However, the International Olympic Committee has had 28 bans handed to Russian athletes overturned by the sport's top court just days before the start of the Winter Games in South Korea. The Court of Arbitration for Sport ruled that there was insufficient proof that the athletes breached antidoping regulations at the 2014 Olympics in Sochi, Russia. These developments tarnish the reputation of the International Olympic Committee, which has struggled with determining how to deal with Russia's state-sponsored doping program and its implications for Russian athletes, clean and dirty.


Cleveland Indians Will Abandon Chief Logo Next Year, Following University of Illinois

The Cleveland Indians announced that the team will no longer use the "cartoonish Chief Wahoo logo" on its uniforms, following a trend in recent years of sports teams (professional and collegiate) ending the use of Native American imagery. Several teams remove the imagery for fear that it perpetuates racist or offensive stereotypes surrounding Native Americans, but these decisions often prompt outrage from fans that see the mascots or logos as being an honoring of indigenous people. For those at the University of Illinois, Chief Illiniwek was retired years ago, but it does not stop its fans from appearing at games dressed as Chief Illiniwek and parading the Native American imagery, raising a question as to whether removing the imagery is effective in protecting Native Americans from stereotyping.


A Soccer Tournament Breaks Through the Boycott of Qatar

When the United Arab Emirates ('U.A.E.") and Saudi Arabia led a boycott of Qatar, accusing it of "cozying up to Iran" and "harboring fugitive dissidents," there were questions raised as to how Qatar would manage to host soccer, the region's most popular sport. A regional championship tournament had to be moved from Qatar to Kuwait, as Saudi Arabia, the U.A.E. and Bahrain refused to go to Qatar. However, the Asian Football Confederation announced that when Qatari clubs play in the Confederation's Champions League, the games will not be moved out of Qatar, and teams from Saudi Arabia and the U.A.E. will have no choice but to travel and play within Qatar.


Texas Police Will Investigate Sexual Assault Allegations at Karolyi Ranch

Allegations have emerged that the Karolyi Ranch, a former national gymnastics training center near Houston, Texas, was a site of Dr. Lawrence Nassar's sexual assault of scores of women, which has prompted Governor Greg Abbott to recommend the Texas Rangers to investigate the accusations. U.S.A. Gymnastics only cut ties with the ranch in January after it came to be widely known that Dr. Nassar sexually assaulted victims at the ranch. There is still an outstanding question of who knew about the sexual assault and may have facilitated its perpetuation over the course of many years.


Football's True Believers Circle the Wagons and Insist the Sport is Just Fine

At the annual conference of USA Football, former National Football League ("NFL") coaches and players spoke to a receptive audience with a "stern warning: Football is under attack and your job is to change the narrative." With the ongoing revelations that the sport causes the fatal brain disease CTE, there has been a decline in viewership over the past two seasons that have caused concern about the viability of the sport. The president of the Pro Football Hall of Fame, David Baker, announced to the crowd: "If we lose football, we lose a lot in America. I don't know if America can survive."


NFL Players' Union Says That It Will 'Prepare for War' Over New Contract

The NFL Players Association announced that it is preparing for war in its contract negotiations with the NFL over the collective bargaining agreement, set to expire after the 2020 season. The players are set to focus on the "commissioner's right to suspend players, rookie contracts, and health care coverage."



New York Attorney General to Investigate Firm that Sells Fake Followers

Eric Schneiderman, the New York Attorney General, and his staff are investigating firms that sell fake followers on Twitter, as federal and state authorities begin to crack down on fraudulent social media engagement. Already, more than one million followers have disappeared from accounts of prominent Twitter users. Companies like Devumi promise to deliver customers active, English-speaking followers to those who pay for followers, but The New York Times found that "virtually all of the followers" are fake. Twitter explicitly prohibits buying followers.


Tronc Names New Editors at The New York Daily News and Los Angeles Times

Newspaper company Tronc is combating rising tensions at the Los Angeles Times and the New York Daily News and has named new editors for both papers, in an effort to quell the turmoil in both newsrooms, with the Los Angeles' newsroom having recently attempting to unionize and put out aggressive coverage of the sexual harassment in the entertainment industry.


Federal 5G Network Proposal is Panned by Federal Communications Commission and Industry

While the Trump administration has expressed an interest in having the government control the next-generation mobile broadband network, known as 5G, because of security concerns emanating from China, federal regulators and telecommunications companies have pushed back against this idea. The chairman of the Federal Communications Commission ("FCC"), Ajit Pai, has come out against the idea, saying it may hurt the private sector and overall economy. The White House has since said that the idea is in a preliminary stage and could take months before reaching the president's desk for consideration.


Vice Media's Digital Chief Loses Job After Sexual Harassment Investigation

Mike Germany, the chief digital officer for Vice Media, announced that he will not return to the company after sexual harassment allegations surfaced, prompting an internal investigation. He was placed on leave in December 2017 for telling an employee that he hired her to have sex with her and putting another employee onto his lap. He declined to comment on the allegations.


Kenya's Government Goes After Journalists Then Defies Court Order

The Kenyan government defied a court order to "put four private television stations back on the air," raising questions about the government's dedication to the rule of law. The government disconnected four stations when they began showing an opposition rally in Nairobi, and the Milimani High Court ruled that the Kenyan government must immediately restore the stations. The director of the Kenya Human Rights Commission called the moment an "absolutely unprecedented" one in the history of Kenya, but President Uhuru Kenyatta appears to be behind the effort as he won two elections recently, one being tossed out for fraud.


BBC Managers Face Barrage of Criticism in Gender Pay Dispute

A former BBC editor "blasted managers for operating a 'caste' system," and lawmakers in Britain's Parliament "described the organization as being in crisis." The source of the tension is BBC's pay structure, which has prompted grievances and resignations over its pay disparities, paying male journalists more than women. Many lawmakers have questioned the BBC's commitment to equal pay, despite the director general noting that the network wanted to be "an exemplar on gender pay, and equal pay."


February 11, 2018

TufAmerica v. Diamond

By Mike Steger

In a recent Southern District of New York decision, Judge Nathan reduced the attorneys' fee award she had previously granted to the prevailing defendants in TufAmerica v. Diamond. Plaintiff TufAmerica had requested a reduction in the fee award from approximately $850,000 to $50,000 because of (1) its claimed lack of assets, (2) that its prior attorney had failed to properly investigate the faulty chain of title of the copyright on which it filed its claim, and (3) the Supreme Court's decision on attorney's fees in Kirtsaeng v. John Wiley & Sons ("Kirtsaeng II"). After reviewing all of the relevant factors, Judge Nathan found that TufAmerica's positions in the case were objectively unreasonable, and that a substantial attorney's fee award was necessary to deter such actions in the future. Given the evidence of TufAmerica's financial position, however, she did reduce the attorney fee award to $450,000.


Week in Review

By Nick Crudele
Edited by Elissa D. Hecker

Judges Slowing Deportations

Federal judges are slowing the deportation process for thousands of illegal immigrants, even though they lack jurisdiction to decide the immigration cases themselves. Several district courts are giving the immigrants time to fight in immigration courts, insisting that the immigrants have a right to due process despite that fact that they had known for years they could be expelled.


U.S. Spies Paid Russian Peddling Trump Secrets

A shady Russian bilked at least $100,000 from U.S. spies seeking information about stolen cyberweapons, but instead received unverified and fabricated information involving President Trump. The payment was part of a $1 million deal to try and recover stolen NSA material.


John Kelley Willing to Resign Amid Criticism

According to officials in the White House, Chief of Staff John Kelley offered his resignation over his handling of spousal abuse against staff secretary Rob Porter. Kelley denied that claim.


Trump Blocks Democratic Memo Release

President Trump will not release a Democratic memo rebutting a Republican intelligence memo alleging FBI abuse. He sent the memo back for changes to "properly classified and especially sensitive passages".


Climate Change Skeptic Dropped as Environmental Advisor

President Trump withdrew the nomination of Kathleen Hartnett White to be the chair of the Council of Environmental Quality after it became known that she was a climate change skeptic with ties to the fossil fuel industry. In a contentious Senate hearing in November, White defended her statement that particulate pollution released by burning fuels is not harmful unless a person were to suck on a car's tailpipe.


Trump Lawyers Advise Against Mueller Interview

Lawyers for President Trump advised him against sitting down for a wide-ranging interview with special counsel Robert Mueller. Their concern stemmed from Trump's history of false statements and contradictions that could put him in danger of being charged with lying to investigators. President Trump has said publicly that he is eager to speak with Mueller regarding the Russia election interference.


Trump-Managed Hotel Seeks a $6 Million Tax Break

A hotel under construction in the Mississippi Delta with the Trump name, which is expected to be managed by the Trump Organization, is seeking $6 million in tax breaks to offset the $20 million is costs for the hotel. The developers requested the break to improve cash flow.


Lululemon's CEO Resigns Over Conduct Issues

Lululemon CEO Laurent Potdevin resigned after complaints about behavior issues. The company didn't provide specifics about the issues, but said it expects its employees to "exemplify the highest level of integrity and respect for one another."


Lawyer Agrees He is the Least Qualified to Defend Terror Case

Lawyer Alaric Piette agrees with his critics - he is not qualified to defend the alleged mastermind of the bombing of American destroyer Cole in 2000. After the legal team defending Abd al-Rahim al-Nashiri quit, following a courtroom dispute involving classified snooping, Piette was left as the sole defense attorney in the case. The former Navy Seal with just six years of legal experience has never tried a capital case. Military tribunal rules require a learned counsel who have tried capital cases before. Despite this, the judge decided to move forward.


Wynn Resigns from Company Amid Sexual Misconduct Allegations

Casino mogul Steve Wynn resigned as chairman and CEO of his company, Wynn Resorts, after multiple allegations of sexual misconduct. In a statement, Wynn said "an avalanche of negative publicity" created an environment in a rush to judgement came before facts. Last month, the Wall Street Journal published an in-depth investigation, which found that Wynn had harassed female employees and coerced them into sex for decades. The focus now turns to the survival of the company without its chief visionary. Wynn's casinos from Macau to Massachusetts face scrutiny from regulators trying to find out how much the company knew about Wynn's alleged misconduct.



SpaceX Rocket Launch Brings It One Step Closer to Mars

The launch of SpaceX's Falcon Heavy rocket from the launch pad at Kennedy Space Center brings Elon Musk one step closer to realizing his dream of putting humans on Mars. The launch, which carried a playful payload of Musk's personal Tesla Roadster accompanied by a test dummy wearing a SpaceX space suit, was the first time a private rocket this powerful was sent into space by a private company. The Falcon Heavy's success brings Musk one step closer to realizing his dream of developing his B.F.R. (Big Falcon Rocker or playfully Big F*** Rocket) generation of rockets powerful enough to bring human to space, and possibly Mars.


Bribery Scandal Kept Corporate Sponsors Away from Olympics

Corruption scandals, including those of Samsung chairman and South Korea's former president, have made South Korean big name sponsors reluctant to sponsor the Pyeongchang Olympic Winter Games. The scandals, which mostly involved bribery via sports sponsorship, had a financial impact on the usually sponsorship laden Olympics. While big corporations have done their part in paying for and sponsoring the games, they are doing so less aggressively then in the past.


Russian, North Korean Hackers Likely Targeting the Olympics

The Department of Homeland Security warned Americans attending the Olympics that cybercriminals will likely target the games. Experts believe that North Korean hackers, who have probed South Korean networks for years, and Russian cybercriminals angry about Russia's ban from the games, will try and target athletes and visitors, searching for embarrassing information or simply looking to cause trouble. More than 300 Olympic-related systems have already been hit and a second wave of attacks is underway.


Polish President Signs Controversial Death Camp Legislation into Law

Poland enacted a law making it illegal to accuse the Polish nation of being complicit in the Holocaust and Nazi atrocities. The law outlaws the phrase "Polish death camps", which historical scholars agree is misleading, since the Nazis erected and controlled the camps. However, the law also makes any accusation that the Polish nation was complicit in the Holocaust and other atrocities punishable by a fine and three years in prison. Critics say the Polish government is trying to whitewash the role the Poles played during the war and Holocaust. Many Poles, however, feel that Poland's wartime experience and suffering has not been properly told.


Bermuda Revokes Same-Sex Marriages

In what is believed to the first jurisdiction to do so, Bermuda has reversed its law legalizing same-sex marriage. Instead, Bermuda will allow same-sex couples to enter into domestic partnerships, but not marry. In May 2017, Bermuda's Supreme Court legalized same-sex marriage. Bermuda's Senate and House of Assembly passed legislation to overturning the Court's decision in December. Most voters on the socially conservative island opposed same-sex marriage.


Cambodian Opposition Challenges Facebook in U.S. Court of 'Likes'

A Cambodian opposition leader has asked a U.S. court to compel Facebook to release records of advertising purchases by Cambodian's authoritarian prime minister Hun Sen. The opposition argues that the prime minister and his allies use the platform to manipulate public opinion and strengthen his hold on power through the spread of false news and death threats directed at political opponents.


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


Federal Copyright Board Raises Streaming Royalties by More Than 40%

The Copyright Royalty Board raised the music streaming royalties for songwriters and music publishers by more than 40% to narrow the financial divide separating them from recording labels. The decision stems from a dispute between the artists and popular streaming services like Spotify and Apple. While hailed by music publishers as a win, streaming services will still be receiving around $3.82 for every $1 paid to the artists.


Recording Artists Ask Congress to Protect Their Rights

Recording artists Aloe Blacc and Booker T. Jones testified in front of the House Judiciary Committee asking the members to support legislation that protects the rights of artists. The Music Act would establish a performance right for artists, including paying those whose songs are played on the radio, establish rights for producers to receive royalties, and create a blanket license for royalties when songs are reproduced in various formats.


11 Years After His Death, James Brown's Estate Still Not Settled

James Brown's estate remains unsettled 11 years after his death. More than a dozen lawsuits have mired the process and delayed all distributions. One case claims that Brown's widow made illegal back-room agreements with the estate; another case is challenging whether Brown's wife was actually his wife (a lower court said that she was). All the litigation has held up disbursements of money set aside for scholarships and his grandchildren.


Top Female Music Executives to Recording Academy: Organization "Woefully out of Touch"

A joint letter from six top female music executives to the Recording Academy's board of trustees called the organization "woefully out of touch with today's music, the music business, and...society", and called for more transparency and inclusiveness. The six executives also note that they write not only on behalf of themselves, but also their companies, adding more weight to the message. This comes on the heels of Recording Academy President Neil Portnow's remarks that women need to "step up" to get ahead in the music business. The letter stops short of asking for Portnow's resignation.


Hispanic Group Protest for Inclusion Outside of Oscars Luncheon

Seven dozen protestors picketed outside a lunch held for Academy Award nominees at the Beverly Hilton, demanding more Hispanic/Latino characters on movie screens. Hispanics make up 18% of the U.S. population, but only 3% of speaking characters in films.


Tarantino Says Uma Thurman Car Stunt is His Biggest Regret

A car stunt on the set of "Kill Bill Vol. 2" nearly 15 years ago, which resulted in an accident that severely injured actress Uma Thurman, was the biggest mistake of director Quentin Tarantino's life. Thurman's account of the accident stemmed from an article that centered around Harvey Weinstein's sexual assault of Thurman on the set of the film. Thurman recalls that she wanted a stunt person to do the scene, expressing doubt about the car's safety, but that she was forced to do the scene after Tarantino became furious with her.


Fembots Taking the Internet by Storm

Fembots, or Female Robots, are no longer a thing of fantasy - at least on the internet. These creations of artificial intelligence persuasively mimic the female physical form, which can be constantly resized and reshaped to a viewer's liking. Fembots like Poppy, an android-themed pop star, has 257 million YouTube views and is in the middle of a U.S. concert tour, and Lil Miquela, a life-like computer animated Instagram model with her own merchandise, have captivated their online audiences. While their images may be that of the "perfect" physical form, they are mentally deficient.



The Metropolitan Museum of Art Can Keep Picasso's "The Actor"

U.S. District Judge Loretta Preska dismissed a lawsuit against the Metropolitan Museum of Art by the great-grandniece of a German Jewish businessman who claimed that a Pablo Picasso piece, "The Actor", was sold at an artificially low price to fund an escape from the Nazis. The judge said the great-grandniece of Paul Leffman, who once owned the piece, could not show that the painting was sold under "duress" under New York law.


Berkshire Museum Gets Approval to Sell its Art

The financially struggling Berkshire Museum was given approval by the state of Massachusetts to sell dozens of its artworks. The museum announced this past summer it would sell up to 40 pieces, but the plan immediately drew criticism from the state and the heirs of Norman Rockwell, who said that the plan violated various trust provisions of the artwork. The museum's famous Rockwell painting "Shuffleton's Barbershop" will be sold to another museum, and will remain open to public view.


Looted Art Gets New Space at Louvre

The 31 paintings of all different shapes, styles, and subjects have one thing in common - they were all looted by the Nazis and returned to France. While tens of thousands of looted artworks have been returned to their rightful owners, many, including 807 entrusted to the Louvre, have not found their rightful home. Now, these 31, which depicted Roman ruins, small children, German portraits, and Dutch landscapes, will be exhibited in one space. Critics say that the exhibit does nothing to help find the rightful owners, while the museum has said it has done its best to find them.


Louboutin Loses Sole Battle

An advisor to a court in The Netherlands said that French designer Christian Louboutin did not have an exclusive right to the famous red soles. An advocate general at the European Court of Justice advised The Netherland court that Louboutin's trademark protection on the shade of red used might be invalid. The advocate general told the court that the red color is not considered apart from the soles' shapes, which is not usually protected under trademark law. The judge usually heeds the advice of the advocate.



Olympic "Ban" on Russians Allows Many Athletes to Still Compete

The International Olympic Committee (IOC) in December banned Russia from competing in this year's Winter Olympics. Despite the ban, the IOC still allowed about 400 Russian athletes to compete under a neutral flag, if they could prove they did not violate antidoping protocols. Russia has named 170 athletes to it Olympic "team", even though it was banned from having a team, with 150 of them being cleared to compete. Another 47 athletes appealed to the Court of Arbitration for Sport in the hopes of a last-minute reprieve, some even traveling to South Korea. The appeals, however, failed.




Nassar Gets Another 40 to 125 Years in Final Sex Abuse Case

Sexual predator Larry Nassar was sentenced to up to 125 years in prison for molesting 265 girls and women in the final case stemming from his sexual abuses in the guise of medical treatment. Nassar was previously sentenced to up to 175 years in jail for molesting seven girls and 60 years in prison for possession of child pornography.


Former Gymnastics Coach Under Investigation

Former U.S. Olympic gymnastics coach John Geddert is under investigation. Complaints against Geddert, who ran a gym with convicted child molester Larry Nassar, were filed in Michigan. The nature of the complaints are unknown.


Senators Call for Investigation Into U.S.A Gymnastics

A bipartisan group of Senators have called for a special committee to investigate the handling of sexual abuse of athletes by U.S.A. Gymnastics and the U.S. Olympic Committee. The committee would determine the extent to which U.S.A. Gymnastics and Olympic Committee were complicit or negligent in allowing its employees to abuse athletes.


Former U.S. Olympic Swimmer Accuses Ex-Coach of Sex Abuse

Former U.S. Olympic Swimmer Ariana Kukors accused her ex-coach, Sean Hutchison, of sexually abusing her when she was 16. Kukors said that Hutchison began "grooming" her for a sexual relationship when she was only 13. Hutchison denies the accusations of sexual abuse or "grooming" Kukors, but did admit to having a sexual or romantic relationship when she "was old enough to legally make those decisions".



North Korea Sends Delegation to Winter Olympics

North Korea said it would send a high-level government delegation to the opening ceremony of the Winter Olympics. The delegation will meet with South Korean President Moon Jae-in. The delegation will be the highest level North Korean official visit since 2014.


Olympic Diplomacy Made Tricky by Sanctions

Are hockey sticks luxury goods? Can South Korea provide fuel to ferry carrying North Korean athletes after it ran out in the South? These are some of the many questions facing South Korea and the international community as the Winter Olympics get underway with a contingent of North Korean athletes. Normally, athletes are showered with free gifts and equipment from sponsors of the games. However, North Korea's participation has some wondering what can and can't be provided to North Korean athletes for fear of breaking the sanctions. To get around any potential violations, North Korean athletes are borrowing uniforms and equipment that will be returned after the games. Further, their athletes will not enjoy the SWAG, including Samsung phones, the other athletes will get. As for the Ferry, the South is still deciding whether to give it fuel.



Cox Communications Forfeited Copyright Safe Harbor

The Fourth Circuit ruled that Cox Communications forfeited its protections under the Digital Millennium Copyright Act's ("DMCA") safe harbor, which shields providers from infringement liability linked to users, when it failed to terminate users who repeatedly pirated music. The Court found that Cox failed to terminate users in "any consistent or meaningful way" thus losing the safe harbor provided for under the DMCA. The Court however, vacated a $25 million verdict.


Fox News Removes a Top Exececutive Over Column

John Moody, an executive vice president and executive editor of Fox News, was removed after his op-ed caused a social media uproar. The article mocked American Olympic officials who emphasized diversity in this year's team of athletes. The column sarcastically suggested that the U.S. Olympic Committee adopt a new motto: "Darker, Gayer, Different".


Democracy in Jeopardy as Kenya Government Silences Critics

The Kenyan government blacked out television stations against court orders, arrested politicians and journalists, and designated some of its opponents "an organized criminal group" in its latest democracy crisis. All of this comes mere months after Kenya's historic presidential election, which saw the Supreme Court overturn the election and order a new one. Opponents of President Kenyatta, who ran unopposed in the new election after his opponents claimed the process was unfair, fear the President's actions are sliding the country away from democracy.

The Kenyan government utimately ended the blackout of some television stations after a court ordered the immediate restoration.



February 13, 2018

5Pointz Decision

By Barry Werbin

Yesterday's decision by Judge Block (51 pages plus images of all the art) awarded the 5Pointz aerosol artists maximum statutory damages of $150,000 for all 45 works in issue. Judge Block was clearly perturbed by developer Gerald Wolkoff's attitude, emphasizing: "If not for Wolkoff's insolence, these damages would not have been assessed."

It will be interesting to see how this fares before the Second Circuit, which has never ruled on a VARA case substantively as to the test and required evidence for a "recognized work", and of course on damages.


February 19, 2018

Goldman v. Breitbart, et al. (Photographer v. News Media)

By Cristopher Beall

Judge Forrest of the SDNY issued a decision last week in a photographer case against various news media. Judge Forrest rejected the so-called "server test" as a defense to a claim of infringement arising from the news organizations' use of an "embed" feature to allow recipients of a news feed to see the photographer's shot of Tom Brady, even though the copy of the photo did not reside on the news organizations' servers. Judge Forrest's decision suggests that the "server test" interpretation of the standard of liability for a violation of the display right is not a correct reading of the Copyright Act. If she is correct, her ruling will dramatically alter the manner in which content is shared on the internet.

Goldman v. Breitbart, et al - Opinion & Order, 2-15-2018-C3.pdf

Week In Review

By Leslie Berman
Edited by Elissa D. Hecker

White House Proposes $4.4 Trillion Budget That Adds $7 Trillion to Deficits

The President's budget proposal outlines steep cuts to domestic programs, large increases in military spending and a ballooning federal deficit. The budget request adds $984 billion to the federal deficit next year, despite proposed cuts to programs like Medicare and food stamps, and leaner budgets across federal agencies, including the Environmental Protection Agency. Previously, President Trump signed a two-year deal struck by congressional leaders largely without his involvement, to boost both domestic and military spending by $300 billion.


Senators Strike Bipartisan Deal on Immigration Despite Veto Threat

A bipartisan measure by Senators calling themselves the Common Sense Coalition would appropriate $25 billion for border security, including construction of the president's proposed Mexican border wall, while offering a path to citizenship for the "Dreamers," those who were brought to the U.S. as children by undocumented immigrant parents. President Trump, however, suggested he would veto a plan if it does not take his harder line approach to immigration issues.


Senate Rejects Immigration Plans, Leaving Fate of Dreamers Uncertain

Three different plans were rejected by the Senate, leaving the so-called "Dreamers" in limbo. President Trump's plan failed through bipartisan rejection - Democrats will not pay for his "get tough" approach, and Republicans will not sign on for what they derided as "amnesty." Two bi-partisan measures - one mooted by a group called Common Sense Coalition, and the other headed by John McCain - had already been shot down before the vote on the President's bill.


Second Federal Judge Issues Injunction to Keep Deferred Action for Childhood Arrivals in Place

Judge Nicholas G. Garaufis of Federal District Court in Brooklyn ruled that the Trump administration must spare spare Deferred Action for Childhood Arrivals ("DACA"). Judge William Alsup of Federal District Court in San Francisco issued a similar ruling last month. On September 5, 2017, Attorney General Jeff Sessions announced that the Trump administration planned to end DACA gradually. The Department of Homeland Security is still considering pending DACA applications and renewals filed by October 5, 2017, but plans to reject all applications after that. After the announcement, a coalition of immigration lawyers and a group of 16 Democratic state attorneys general, led by Eric Schneiderman of New York, filed separate but linked lawsuits in Brooklyn, claiming that the repeal of DACA was "arbitrary and capricious" and largely motivated by a "racial animus" against Latinos.


Intelligence Chiefs Warn That Russia Sees Midterm Elections as Chance to Sow Fresh Discord

Russia is using fake accounts on social media to spread disinformation in order to disrupt American and European elections, to worsen political and social divisions through digital means. "We expect Russia to continue using propaganda, social media, false-flag personas, sympathetic spokespeople and other means of influence to try to exacerbate social and political fissures in the United States," said Dan Coats, the director of national intelligence, to the Senate Intelligence Committee at its annual hearing on worldwide threats.


White House Let Rob Porter Keep Job Even After Receiving Final F.B.I. Report

Rob Porter, who had been given an interim security clearance - a standard practice in the White House until it was halted by President Trump's Chief of Staff last fall - was allowed to continue serving in the West Wing long after officials had received word of accusations of domestic abuse.


Abuse Case Exposes Fissures in a White House in Turmoil

White House Staff Secretary Rob Porter's resignation in light of allegations of domestic abuse by two ex-wives is considered to have been mishandled by Chief of Staff John F. Kelly, who offered to step down if President Trump wished it. So far, he is holding onto his job, despite the President's advisors urging that someone should be held accountable, and with turmoil within the White House staff over this and other issues, including the President's informal search for Kelly's replacement.


Michael D. Cohen, Trump's Longtime Lawyer, Says He Paid Stormy Daniels Out of His Own Pocket

Cohen claims that he personally paid $130,000 to Stephanie Clifford, professionally known as Stormy Daniels, and was not reimbursed directly or indirectly by the Trump campaign or Trump organization. The watchdog group Common Cause filed a complaint to determine whether the Trump campaign or an individual had made the payment to the actress who claimed to have had an affair with Mr. Trump while Melania Trump was pregnant with their son Baron.


How Much Is Your Privacy Worth? A Lot, if You've Won $560 Million

New Hampshire's requirement that a lottery winner discloses her identity or forfeit the prize has drawn offers from strangers to help her collect while retaining her privacy, as well as outright demands for assistance. The State claims that it has an overriding interest in disclosing the names of lottery winners to avoid corruption. The prizewinner's lawyers made a host of arguments for allowing the winner to retain anonymity, including to prevent "violence, threats, harassment, scams and constant unwanted solicitation" that have plagued previous lottery winners.


Planners of Deadly Charlottesville Rally Are Tested in Court

The planners of last Summer's white power rally in Charlottesville, Virginia, in which 30 protesters were injured, and Heather Heyer was killed, defended their actions as an exercise of their right to self-expression under the First Amendment, and claimed that they did not cause any injuries. This narrative of blamelessness became a campaign and rallying cry for the so-called "alt-right," made up of white supremacists, neo-Nazis, and their supporters, and was carried on in the media and vociferously on social media in the aftermath of the rally.

In response, a lawsuit against 15 individual defendants and the groups they represent was filed in U.S. District Court in Charlottesville (Sines v. Kessler, Civil Action No.: 3:17-cv-00072-NKM, U.S. District Court for the Western District of Virginia, Charlottesville Division) by nine named plaintiffs, who say they were hurt in Charlottesville. The plaintiffs claim that the event's leaders plotted to deprive them of their civil rights.


Nikolas Cruz, Florida Shooting Suspect, Showed 'Every Red Flag'

Nikolas Cruz had emotional problems and may have been diagnosed with autism. Patrol cars were often in the driveway of his mother's house. He was expelled from school. He showed pictures of dead animals and guns on social media. He acted out. He posted a comment on YouTube: "I wish to be a professional school shooter." Who missed all these signs?


Julian Assange's Arrest Warrant Is Again Upheld by U.K. Judge

Stating that Julian Assange only wants justice when it's in his favor, an English Senior District Judge upheld an arrest warrant for the second time in a week for the WikiLeak-er, who has been living in the Ecuadorian embassy in London for more than five years, most recently, as an Ecuadoran citizen.


Following are stories divided into Entertainment, Arts, Sports, and Media categories:


Weinstein Company Fires David Glasser, Its President

David Glasser was removed "for cause," though the Weinstein Company did not indicate what the "cause" has been.


Weinstein Company Sale Delayed by N.Y. Attorney General Lawsuit

New York State Attorney General Eric T. Schneiderman filed a lawsuit against the Weinstein Brothers company, alleging that it repeatedly violated New York State and City laws barring gender discrimination, sexual harassment, sexual abuse and coercion. The suit is expected to delay the sale of the company, which has scrambled to offload about $225 million dollars in debt, and to realize about $275 million from an investor group led by Maria Contreras-Sweet, who is best known for running the Small Business Administration under President Obama. That group also agreed to create a multi-million-dollar settlement fund (in addition to the insurance funds available) to compensate victims of Harvey Weinstein. Schneiderman has said that if the sale goes through, there might be no funds available to compensate Weinstein's victims.


Does a Lawsuit Now Help the Weinstein Victims?

The Attorney General's lawsuit may backfire on Weinstein's victims. If the company goes bankrupt, Harvey Weinstein's victims would be treated as all other unsecured creditors, and there might not be enough money to compensate them.


Former Employee Sues Vice Media, Claiming That It Pays Women Less

Vice Media was sued by a former employee in Los Angeles Superior Court who is seeking class action status and claiming systematic discrimination against women employees, marginalizing them, and paying them less than men. The lawsuit comes after a New York Times investigation revealed four financial settlements involving allegations of defamation or sexual abuse, and more than two dozen women said they experienced or witnessed sexual misconduct at the edgy millennial-focused entertainment company.


Artist Says Kendrick Lamar Video for "Black Panther" Song Stole Her Work

"Black Panther", the film featuring the first black superhero to appear in mainstream comics, has all the positive buzz this week. However, one negative side issue emerged; the team that put the film together is facing allegations by a British-Liberian artist that her work was used without permission in the music video for "All the Stars," a song from the film's soundtrack. Artist Lina Iris Viktor's lawyer sent a letter to Top Dawg Entertainment alleging copyright infringement of the 24-karat gold, patterned artworks in Viktor's "Constellations" series. Viktor had been contacted twice by the film's creators for permission to feature her work, the letter says, but she decided not to participate. She asks, at a minimum, that she receive a public apology and a licensing fee.


Beyoncé Songs Come to the Olympics. But Who Pays for the Rights?

Music performed during the Olympics, even though watched on tape delay, is considered live performance, so the performance rights organizations (PROs) will collect royalties for their uses. This year is the first in which music that includes lyrics has been allowed to be used for performances by ice athletes.


Amazon Moves On Without 'Transparent' Actor Jeffrey Tambor

Following months of waffling about the likelihood that Jeffrey Tambor would return to "Transparent," Amazon has now made it clear that although he is out, the show will continue without him. Tambor was accused of inappropriate workplace behavior by a former personal assistant and a "Transparent" cast member.



Graffiti Artists Awarded $6.7 Million for Destroyed 5Pointz Murals

A federal judge in Brooklyn ruled that graffiti -- a typically transient form of art -- was of sufficient stature to be protected by the law, awarding a judgment of $6.7 million to 21 graffiti artists whose works were destroyed in 2013 at the 5Pointz complex in Long Island City, Queens. A civil jury deciding the case last November found that Jerry Wolkoff, a real estate developer who owned 5Pointz, broke the law when he whitewashed what a lawyer for the artists had called "the world's largest open-air aerosol museum." Wolkoff's lawyers had argued that the buildings were his to treat as he pleased, however, the jury found that he violated the Visual Artists Rights Act, which protects public art of "recognized stature" created on someone's else property.


Inquiry Results State That Abuse Accusations Against Peter Martins Are Not Corroborated

Allegations of sexual harassment or physical abuse made by former dancers and others against the recently retired chief of New York City Ballet and its school by former dancers and others have not been corroborated, according to the results of a two month internal investigation. The ballet and school announced new policies to assure that dancers "feel safe, respected and able to voice their opinions and concerns freely."


Children's Book Industry Has Its #MeToo Moment

The children's publishing industry suffered a major upheaval as trade groups, literary agents and a publisher broke with several best-selling authors over allegations of inappropriate sexual behavior. Random House announced that it would not publish any future books by James Dashner, author of the dystopian science fiction series, "The Maze Runner," that was turned into a film trilogy. Jay Asher, whose novel Thirteen Reasons Why was turned into a Netflix series, was also accused. The industry's sudden reckoning with the #MeToo movement primarily involved complaints that a long list of prominent writers and editors exploited their power and position at keystone industry events to make sexual advances, particularly toward female authors hoping to further their careers.



Americans won the following medals last week in the Winter Olympics at Pyeong Chang, South Korea:

U.S. Olympic Medalists

Jamie Anderson, women's snowboard slopestyle
Red Gerard, men's snowboard slopestyle
Chloe Kim, women's snowboard halfpipe
Mikaela Shiffrin, women's giant slalom
Shaun White, men's snowboard halfpipe

Nick Goepper, men's freestyle skiing slopestyle
John-Henry Krueger, men's 1,000-meter short-track speedskating
Chris Mazdzer, men's luge

Arielle Gold, women's snowboard halfpipe
Team USA Figure Skating

Notre Dame President Rips NCAA's Denial of Notre Dame Appeal

Notre Dame's appeal to the NCAA to restore 21 vacated football victories was denied, which punishment included removal of all 12 wins of the school's 2012 national championship run under coach Brian Kelly. The NCAA's decision to deny the school's appeal from an academic misconduct violation infuriated the school's president, who said in a letter to alumni that the NCAA "perverted" the notion that universities determine how they police academics, and compared Notre Dame's treatment to that of North Carolina, which was not punished for its athletes taking irregular courses.


South Korea Got the Winter Games. Then It Needed More Olympians.

South Korea has experienced limited Olympic success in winter sports, so it followed a familiar strategy for host nations that do not excel at winter sports: It hired foreign coaches and granted citizenship to 19 of its total of 144 athletes from other countries.


Ex-Coach for English Soccer Teams Convicted of Molesting Child Players

Barry Bennell was convicted of 36 counts of sexually assaulting boys aged eight to 15, from 1979 to 1990. Bennell worked as a scout and coach for several popular teams, including Manchester City, for the clubs' youth programs, which gave him access to children who lived away from their parents while playing soccer.


First Blood Test to Detect Concussions and Other Brain Injuries Is Approved

The Food and Drug Administration ("FDA") approved Banyan Biomarkers' Brain Trauma Indicator, a new blood test to detect concussions and other brain injuries. The test, which may take the place, in part, of CT scans used to detect brain lesions that indicate injuries, will reduce brain injured victims' exposure to radiation. The FDAsaid that the Banyan test proved able to predict the presence of intracranial lesions on a CT scan 97.5% of the time, and those who did not have lesions, 99.6% of the time. Concussions and other brain injuries have become a major public health concern in sports involving players of all ages, which has led to a decline in children participating in tackle sports. The blood test was developed to assist medics in combat areas determine which head injury victims are in need of higher levels of care, and was intended to be used on adults, however a new clinical trial that will focus on children is planned to start soon.


Mirai Nagasu Lands Triple Axel, a First by an American Woman at an Olympics


White Apologizes for Comments on Sexual Misconduct Lawsuit

Shaun White apologized after dismissing the sexual misconduct allegations made against him in a 2016 lawsuit by a former drummer in his band as "gossip" shortly after winning his third Olympic gold medal in the men's halfpipe. The suit was settled for an undisclosed amount.



Federal Communications Commission Watchdog Looks Into Changes That Benefited Sinclair

Last April, the Federal Communications Commission("FCC") approved rules allowing television broadcasters to greatly increase the number of stations they own. A few weeks later, the new rules made it possible for Sinclair Broadcasting to announce a deal to buy Tribune Media for $3.9 billion. However, by the end of the year, the top internal watchdog for the FCC opened an investigation into whether FCC Chair Ajit Pai and his aides had improperly pushed for the rule changes and timed them to benefit Sinclair. The extent of the inspector general's investigation spotlights Mr. Pai's decisions and whether there had been coordination with the company. The inquiry could also add ammunition to arguments against the Sinclair-Tribune deal. Public interest groups and Democratic lawmakers are strongly opposed to the deal, arguing that it would reduce the number of voices in media and diminish coverage of local news.


To Stir Discord in 2016, Russians Turned Most Often to Facebook

Facebook, more than any other technology tool, was singled out by the Justice Department when prosecutors charged 13 Russians and three companies for executing a scheme to subvert the 2016 election and support Donald J. Trump's presidential campaign. The indictment detailed how the Russians repeatedly turned to Facebook and Instagram, often using stolen identities to pose as Americans, to sow discord among the electorate by creating Facebook groups, distributing divisive ads and posting inflammatory images.


Brazil Looks to Crack Down on Fake News Ahead of Bitter Election

Brazil is cracking down now on organized efforts to intentionally mislead voters, ahead of a critical election, with a "fake news task force" that is strategizing prevention of fake news production, and halting its dissemination. Luiz Fux, a Supreme Court Justice who runs the operations of the Supreme Electoral Tribunal, said that the right to free speech cannot come at the expense of an illegitimate outcome in an election.


February 25, 2018

Week in Review

By Jana Slavina Farmer
Edited by Elissa D. Hecker

States Still Wondering How To Protect the Voting Process in the Next Election

State election officials say that they have not received any information from the federal government as to specific threats to registered voter databases, voting machines, and communications networks more than a year after the general election was tainted by the Russian interference scandal. Federal officials promise to do better in the future.


Twitter Accounts with Suspected Russian Links Weigh In On Gun Violence

Within an hour after the Parkland shooting, automated Twitter accounts with suspected links to Russia posted hundreds of comments addressing gun violence and gun control. These accounts appear to target controversial topics in the U.S. social discourse, often jumping on breaking news and attempting to introduce fringe ideas into the mainstream.


Politics Among Factors Affecting Supreme Court Justices' Decisions as to When to Retire

The Supreme Court does not consider party politics when deciding cases, but the justices acknowledge that they try to time their retirements to coincide with the terms of politically like-minded presidents. Justice Kennedy, 81, may retire during this Presidential term, potentially allowing President Trump and the Republican Congress to shift the highest court to the right politically. Justices Ginsburg and Breyer could have retired under President Obama, but continue to serve. Justice Ginsburg previously commented that if she were to resign in the latter part of President Obama's term, he could not have appointed a justice to be a suitable replacement.


Lawyer Admits to Lying to Prosecutors

Alex van der Zwaan, a Dutch citizen and former lawyer at Skadden, Arps, Slate, Meagher & Flom, admitted to lying to investigators about his communications with a former Trump campaign aide and to deleting emails sought by the investigators. He faces up to five years in prison.


Hotel to Be Managed by the Trump Organization is Awarded a Tax Break

The State of Mississippi awarded a tourism tax rebate worth up to a $6 Million to a new hotel that is to be branded and managed by the Trump Organization.


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


Congressman Goodlatte to Introduce Umbrella Music Copyright Reform Bill

U.S. Representative Goodlatte (R-Va.), plans to introduce an umbrella music licensing bill in March, which will include the Music Modernization Act, which will change the digital mechanical licensing process and lead to better payouts for songwriters; the Classics Act, which addresses payment of royalties for songs recorded prior to 1972; and the Allow Music Producers ("AMP") Act, which would codify the existing practice of paying music producers compensation stemming from digital royalties earned by artists. The bill may also include the Copyright Alternative in Small-Claims Enforcement ("CASE") Act, which would create a copyright small claims court for disputes under $15,000. Most music industry advocacy group announced their support for the Music Modernization Act, the AMP Act and the Classics Act.



Oscar-Nominated Documentary Filmmakers Fear Russian Interference

Filmmakers of two Academy Awards-nominated documentaries, the "Last Man in Aleppo" and "Ikarus", are afraid of repercussions from Russia beyond negative publicity in Russian media. The "Last Man in Aleppo" illustrates the work of the White Helmets, the volunteer Syrian emergency medical workers, in their search for bombing survivors. "Ikarus" details the doping scandal at the Sochi Olympics in Russia.


Fewer Women Were Portrayed in Film in 2017, Study Finds

According to the study by San Diego State University, there was a five percent decrease in female protagonists in the 100 top-grossing domestic films of 2017, as compared to the year before. On the other hand, two percent more women had speaking roles in those films.


Lebanese Comedian Faces Charges Over Jokes On A Television Show

Hiccham Haddad, the host of a popular TV show in Lebanon, made a joke about the crown prince of Saudi Arabia on air. Lebanon's public prosecutor filed charges against Haddad for defamation of the foreign leader. When Haddad next appeared on air in prison garb and singing about the prosecutor, a council of judges called for further charges of insulting the judiciary. Several other recent cases against entertainers, journalists and activists in Lebanon raise concerns that tolerance is drying up in the former oasis of free speech in the Middle East.


#MeToo in South Korea

Lee Youn-taek, a former artistic director of the National Theater of Korea, apologized for his sexual abuse of actresses after last week's Facebook post by a former actress resulted in a stream of accusations against him.



SCOTUS Rules That Terror Victims Cannot Seize Iranian Antiquities As Compensation

In 2003, American victims of the 1997 Iran-sponsored terrorist bombing in Jerusalem won a $71 million court judgment against Iran. To satisfy this judgment, the victims sought to seize about 30,000 Iranian clay tablets and fragments - known as the Persepolis collection - on loan to the University of Chicago. Under the Foreign Sovereign Immunities Act ("FSIA"), a foreign nation is immune from lawsuit in the U.S., except that victims of terrorism can sue any country that sponsored the attack. The U.S. Supreme Court unanimously ruled in Rubin v. Islamic Republic of Iran, No. 16-534, that this FSIA exception did not apply to seizure of antiquities, but only to clearly commercial assets. The U.S. had filed a brief supporting Iran's position in this lawsuit, stating that "[e]xecution against such unique cultural artifacts could cause affront and reciprocity problems."



The Flight of the Purse Experts

In a dispute between two auction houses concerning poaching luxury handbag experts - which are in high demand in the industry - a Manhattan judge allowed breach of contract and tortious interference claims to proceed to trial. Heritage Auctions (Dallas, TX) sued Christie's in 2014, claiming that the latter induced several of Heritage's employees to jump ship, breaching their employment agreements and engaging in unfair business practices.


State Seeks Book Sale Proceeds of Incarcerated Author

Curtis Dawkins is serving a life sentence for murder in Michigan. While in prison, he wrote a collection of short stories, titled The Graybar Hotel, which casts light on the lives of prisoners. In 2016, his agent secured a book deal for Dawkins with a top literary publisher for $150,000. The Michigan Department of Treasury filed a complaint seeking 90% of Dawkins' assets to pay for his incarceration, including not only the book proceeds, but also about $200 to $300 that his family adds to his account monthly to pay for incidentals, such as writing paper. Dawkins, who is representing himself, argues that he has a moral and legal obligation to support his three children and help pay for their education. The laws of over 40 states allow inmates to be forced to pay for their incarceration.


Commission to Investigate Russian Avant-Garde Art Show In Ghent Disbands, Art Returned To Owners

Earlier this year, 10 specialist curators and dealers signed an open letter questioning the authenticity of the avant-garde artworks exhibited at the Museum voor Schone Kunsten ("MSK") in Ghent, Belgium, on loan from the Dieleghem Foundation. At the behest of the culture minister Sven Gatz, an expert commission was appointed to assess whether the MSK had acted with due diligence, and whether doubts about the works' authenticity justified the decision to withdraw them. When the commission first convened on Monday last week, lawyers for MSK's director and for the city of Ghent insisted that the commission should not begin its work until the artworks had been scientifically examined and "reasonable doubts" as to their authenticity established. Ghent's alderwoman for culture, Annelies Storms, announced that the loan was being cancelled and the works returned to the Dieleghem Foundation.


Terra-Cotta Warrior Loses Thumb to a Selfie-Seeking Thief

A man attending an Ugly Christmas Sweater party at the Franklin Institute in Philadelphia this past December snuck into the terra-cotta warrior exhibition room for a selfie and a souvenir -- a thumb of one of the terra-cotta warriors. The FBI apprehended the thief, who returned the stolen thumb. China's authorities reacted with a demand that the thief be given a harsh penalty.


Tate is Called On To Remove Dealer From Its Program Amidst Sexual Harassment Allegations

The campaign group called We Are Not Surprised is demanding that the Tate remove London-based art dealer Anthony d'Offay, 78, from its program. In January 2018, the Observer reported allegations from three women of sexual harassment against d'Offay. The Metropolitan police received a complaint from a fourth woman over his allegedly sending malicious messages.


Stolen Degas Found on a Bus

Nine years after it was stolen from a museum in Marseille, where it was on loan, French customs officials found Edgar Degas' painting from 1877 entitled "Les Choristes" in the luggage compartment on a bus near Paris, in an unclaimed suitcase bearing the name "Degas.". The Musée d'Orsay confirmed the painting's authenticity.




Social Media Assists in Recovery of Stolen Prayer Items

Twelve prayer lamps, Nataraja, Shiva and Murugan statues were stolen from the Shree Sathi Velayuthan Kadaval Alayam, a landmark Hindu temple in Northdene, South Africa. After the details of the robbery began circulating on social media, a scrapyard owner came forward, returning the artifacts and claiming that he did not know they were Hindu prayer items. He was not charged.


U.S. and Libya Sign Cultural Property Protection Agreement

On February 23, 2018, the U.S. and Libya signed a landmark bilateral Memorandum of Understanding on cultural property protection. As part of the agreement, the United States will impose import restrictions on specified categories of archaeological material representing Libya's cultural heritage dating from 12,000 B.C. through 1750 A.D., and Ottoman ethnological material from Libya dating from 1551 A.D. to 1911 A.D. The United States has also entered into similar bilateral agreements with 17 other countries around the world, and has placed emergency import restrictions on cultural property from Iraq and Syria.


Art Thief Gets Job Offer

A woman stole a photograph from a gallery in Zagreb, Croatia. The heist was caught on camera. The institution's directer opted not to prosecute and instead offered employment to the thief, described as a "legitimate, highly motivated lover of contemporary art."


Turkey Recovers Ancient Artifacts

Istanbul police recovered a 2,200-year-old crown and other ancient gold artifacts during an anti-smuggling operation.


Controversial Artwork Was Removed From Art Fair In Spain

On Wednesday, Madrid's main exhibition center, IFEMA, ordered removal of the artwork "Contemporary Spanish Political Prisoners," by the artist Santiago Sierra, from ARCO, Spain's foremost contemporary art fair, before the fair opened to the public. The work labels Catalonia's separatist leaders as political prisoners. The removal may have added to the artwork's appeal, however: It has already been sold for €80,000 (about $98,000) despite the quick deinstallation.



Newly Discovered 65,000-Year-Old Cave Art Offers a Perspective On Our Humanity

Symbolic and cultural expressions such as art and language have always been thought to distinguish humans from other species. The recently discovered 65,000-year-old drawings in three caves in Spain were confirmed to have be created by Neanderthals, suggesting that modern humans did not invent creative expression, as previously thought. The archaeologists were able to determine through a type of carbon-dating involving uranium-thorium, that the paintings of lines, geometric shapes and hand prints were made by Neanderthals, because the drawings were created 20,000 years before the earliest known modern humans had migrated to Spain.



U.S. Olympic Medalists

Jamie Anderson, women's snowboard slopestyle
Jessica Diggins and Kikkan Randall, women's cross-country skiing
Red Gerard, men's snowboard slopestyle
Chloe Kim, women's snowboard halfpipe
Mikaela Shiffrin, women's giant slalom
David Wise, men's halfpipe
Shaun White, men's snowboard halfpipe
Team USA, women's hockey
Team USA, men's curling

Jamie Anderson, women's snowboarding big air
Alex Ferreira, men's halfpipe
Lauren Gibbs and Elana Meyers Taylor, women's bobsled
Nick Goepper, men's freestyle skiing slopestyle
John-Henry Krueger, men's 1,000-meter short-track speedskating
Chris Mazdzer, men's luge
Mikaela Shiffrin, women's Alpine combined
Kyle Mack, big air snowboarding

Arielle Gold, women's snowboard halfpipe
Maia and Alex Shibutani, ice dance figure skating
Brita Sigourney, women's freestyle skiing halfpipe
Lindsey Vonn, women's downhill skiing
Team USA, figure skating team event
Team USA, women's speedskating team pursuit

USA Finally Breaks Canada's 20-Year Winning Streak in Women's Hockey

On Thursday, the United States women's hockey team secured a 3-2 overtime, shootout victory against Canada, the four-time defending Olympic champion. Last year, this team battled for better pay and work conditions and secured a contract similar to that of the men's national team.



Olympic Athlete from Russia's Curler Returns Medal Amid New Doping Scandal

To the dismay of many, and especially Russian athletes hoping for the country's reinstatement by IOC, Olympic Athlete from Russia's ("OAR's") Alexander Krushelnytsky failed a doping test after winning a bronze medal in a mixed curling event with his wife. The athlete denied wrongdoing but admitted to the "formal breach of the current anti-doping rules." Russian officials claim that the athlete's food or drink may have been spiked by jealous rivals or Russia's political enemies. On Thursday, the Court of Arbitration for Sport ("CAS") held that Krushelnytsky was guilty of doping, disqualifying him from the Games and stripping him and his wife of their medals. Krushelnytsky withdrew his appeal but is expected to continue fighting to clear his name after the Games. The Russian Federation opened a criminal investigation into the case. While there have been cases of doping in curling, this sport is not usually involved in a high profile doping scandal. People outside the sport may ask, is curling so taxing on the stamina for athletes to be tempted to try doping? In fact, sweeping a broom round after round is a feat of endurance, and fatigue interferes with the precision required to make the shots.





Another OAR's Athlete Tests Positive For Doping, But The Jury Is Still Out

OAR's female bobsledder Nadezhda Sergeeva tested positive last Friday for an unspecified performance-enhancing drug. The process of evaluating the sample and confirming it contained a banned substance is not yet complete. Furthermore, it is reported that the athlete may have mitigating reasons for taking the substance. Such mitigating reasons may include a medical condition. A Japanese speedskater and a Slovenian hockey player also tested positive for doping at these Olympic Games.


Women Push For Equality At the Bobsled Track

Male athletes are able to compete in a "two-man" and "four-man" bobsled competition. Female athletes only have the two person event available to them. Top female bobsleders are pushing for the inclusion of the four-person bobsled event in the Olympics. International officials are reportedly concerned that there are not enough female bobsleders for two events, and that a second event would limit the opportunities for male bobsled athletes.


On the Other Hand, IOC Is Seeking Female Participants For Nordic Combined, But Not Much Luck So Far

The IOC, which goal is to achieve equality of participation by gender, is seeking female participants for the event known as Nordic combined, which requires athletes to ski jump and cross-country ski. There are, however, not that many takers. The first U.S. national championship in Nordic combined had only two participants. Men's Nordic combined dates to the first Winter Games in 1924. Perhaps female skiers could take a leaf out of Esther Ledecka's book (see story below) and go for gold in two sports?


Olympic Gold in Two Sports

Last week, Czech Republic' Ester Ledecka surprised everyone (including herself) when she won Olympic gold in women's snowboarding parallel slalom. Ledecka's primary sport is skiing, and she was not even close to being a favorite to win the event. Ledecka also won gold in the women's super-G Alpine skiing event. Prior to Ledecka, Jorien ter Mors medaled in two different sports in the single Olympics: gold in long-track speedskating and bronze in a short-track relay.


Eugenie Bouchard Settles Suit Against the United States Tennis Association

Eugenie Bouchard, former top-five female tennis player from Canada, sued the United States Tennis Association ("USTA") after her slip and fall in the locker room at the U.S. Open. The case went to trial in a federal court in Brooklyn this past week. The jury found USTA 75% liable for the accident during the liability phase of trial. A confidential settlement was reached on Friday.





Philadelphia Eagles Filed a Trademark For the Phrase "Philly Special"

The Super Bowl champions are seeking trademark registration for the phrase "Philly Special," referencing a trick play used against the New England Patriots in Super Bowl LII.



NCAA Upholds Penalties Against Louisville

On Tuesday, NCAA upheld penalties levied against Louisville men's basketball program related to the sex scandal involving players and prostitutes. Louisville must vacate every game won between 2011 and 2015, including its 2013 national championship.


Mavericks Owner Fined for Remarks on Tanking

Mark Cuban, owner of the Dallas Mavericks, was fined $600,000 for a public statement that losing was in the Mavericks' best interest to improve their chances of landing a higher draft pick.


Former National Football League Player Detained After Ambiguous Post On Instagram About Gun Violence

Jonathan Martin, the former National Football League ("NFL") offensive lineman for the Miami Dolphins, was detained by the police on Friday after posting a photograph of a shotgun on Instagram with a comment: "When you're a bully victim & a coward, your options are suicide, or revenge". The post included a hashtag with the name of the private high school Martin attended in Los Angeles, which resulted in this school's closure on Friday.


Russian Whistle-blower Is Being Sued For Defamation

Mikhail D. Prokhorov, owner of the Brooklyn Nets, is reportedly helping to finance a defamation lawsuit by three now-retired Olympic athletes against Dr. Grigory Rodchenkov, the whistle-blower who implicated them in the alleged state-controlled doping scheme during the last Winter Olympics in Sochi, Russia.



New York Judge Holds That Embedding a Tweet in a Blog Post May Violate Copyright

Based on a recent ruling of the federal court for the Southern District of New York, linking to a Tweet on one's website may constitute an infringement of the exclusive right to display a copyrighted image. In Goldman v. Breitbart News Network, et al., No 17-cv-3114 (S.D.N.Y. Feb. 15, 2018), photographer Justin Goldman shared his photograph of NFL star Tom Brady in his Snapchat Story. The photograph went viral, and was shared by several users on Twitter, after which news media outlets, including Time, Vox, Breitbart and the Boston Globe, published articles that embedded the Tweets with the subject photograph. Judge Katherine Forrest held that the news media outlets' actions violated the plaintiff's exclusive display right.



U.S. Decides to Stay Out of Mexico's Spyware Investigation

In June of 2017, the New York Times revealed that surveillance technology acquired by the Mexican Government to investigate criminals and terrorists was used to target prominent human rights lawyers, journalists and anti-corruption activists. Mexico's president, Enrique Peña Nieto, vowed to investigate any misuse, and requested the FBI's assistance. After reviewing the request, American officials decided not to get involved.



Kashmir Photographer Is Now a Prisoner and A Cause For Other Journalists

Photographer Kamran Yousuf, 21, has been jailed since September, allegedly for throwing stones at the Indian security forces in Kashmir and being part of a militant network supported by Pakistan. Journalists have rallied around Yousuf's case, claiming that he is in fact being jailed for covering antigovernment protests and militant activity, and that the intent of Yousuf's incarceration is to intimidate journalists. The Indian authorities counter that Yousuf is not a real journalist, as he has never photographed newsworthy items, such as inaugurations of bridges, schools or hospitals.


National Public Radio Top Editor Was Repeatedly Warned To Stop Harassment

According to an independent investigation report, Michael Oreskes, the former National Public Radio news executive who resigned last November amid sexual harassment allegations, was repeatedly warned about his behavior.


Facebook and YouTube Work To Put An End To Posts Perpetuating Misinformation

Facebook and YouTube vowed to remove the posts and videos falsely claiming that survivors of the Parkland shooting were paid actors. However, while many posts were deleted, multiple others still remain, perpetuating misinformation that the shooting was a hoax. Some posts are using slightly tweaked terminology to avoid automatic detection.


Bahrain Activist Jailed for Insulting Tweets

Nabeel Rajab, 53, president of the Bahrain Center for Human Rights, was sentenced to five years in prison for "insulting national institutions" by Tweeting about prison torture and "insulting a neighboring country," Saudi Arabia, for its involvement in the war in Yemen. He is also facing charges related to an Op-Ed published in The New York Times in 2016, "Letter From a Bahraini Jail."


Second Circuit's Decision in John Wiley & Sons

By Christopher Beall

Here is the Second Circuit's decision in a long-pending copyright case against John Wiley & Sons that addresses the question of standing based on an assignment of claims, and amounts to an endorsement of the continuing validity of the proposition that a copyright infringement plaintiff has no standing if all that the plaintiff owns is an assignment of a "bare right to sue." Wiley v DRK Photo, 2d Cir.pdf

This decision is in line with the doctrine announced more than a decade ago by an en banc panel of the Ninth Circuit in the well-known Silvers decision. Judge Parker's dissent here adopts the reasoning of the dissenters from the Ninth Circuit in the Silvers case, to the point that Congress legislated against the backdrop of common law principles and the general common law of torts allows for the assignability of tort claims. The end result here is that the Second Circuit has reaffirmed the rule that an assignee may not pursue a copyright infringement suit if the assignee has received only a bare right to sue as opposed to an assignment of a Section 106 right.

February 26, 2018

New Decisions Affecting the Participation of the Russian Athletes in the Pyeongchang 2018 Winter Olympic Games: Are the Strongest Sporting Sanctions Still To Come?

By Sergey Yurlov


The recent decisions of the International Olympic Committee ("IOC") and World Anti-Doping Agency ("WADA"), with regard to the participation of the Russian national team in the Pyeongchang 2018 Winter Olympic Games triggered a new flurry of discussions as to the legality of sporting sanctions being imposed by sporting organizations. On November 16, 2017, WADA decided not to reinstate the Russian national anti-doping agency ("RUSADA") until the government publicly accepted the conclusions of the McLaren Investigation, and provided access for appropriate entities to the stored samples and electronic data in the Moscow Laboratory. On December 5, 2017, the IOC suspended the Russian Olympic Committee.

WADA Decision

According to WADA, to be reinstated and compliant with the World Anti-Doping Code ("WADC"), RUSADA must accept the main finding of the McLaren Investigation that a state-backed doping system covered up positive doping samples. More importantly, RUSADA must provide access to the samples stored and electronic database of the Moscow laboratory.

From a legal perspective, the McLaren Investigation's core conclusion cannot be seriously considered without being proven by reliable evidence.

The Investigation was based on unproven allegations, assumptions, hearsay evidence and passing references to the Russian government officials. The key whistleblower, who already fled the country, was Grigory Rodchenkov. Other individuals are supporting his claim of systematic doping, including filmmaker Bryan Fogel, who suggested in his documentary "Icarus" that the Russian doping system harked back to Soviet times. However, Fogel does not introduce any reliable evidence.

The IP Evidence Disclosure Package (the "Disclosure Package"), publicly available at https://www.ipevidencedisclosurepackage.net, is no more than a set of unrelated documents the bulk of which are e-mails. From a legal perspective, this bundle of data appears to be inflated, and would not succeed in an independent court of law. Having reviewed those "documents" and not having any other data (for example, adverse analytical findings, doping samples, and forms), to this author, it is impossible to associate them with any particular athlete, and/or review any of the athlete's doping records. More importantly, no one can determine whether the emails are authentic, and from which source the McLaren team acquired them.

Upon reviewing the Disclosure Package, one may conclude that Russian anti-doping officials were corresponding between each other with regard to doping control issues. However, it does not prove that any athlete committed an anti-doping rules violation by taking a prohibited substance.

One can argue that admissible evidence is not always necessary in doping cases. However, the WADC stipulates that "the Code has been drafted giving consideration to the principles of proportionality and human rights". (https://www.wada-ama.org/sites/default/files/resources/files/wada-2015-world-anti-doping-code.pdf.) More importantly, Article 8 of the WADC presupposes that all hearings should be fair. If WADA takes into account human rights, then it should conduct its proceedings and sanction athletes fairly based on reliable evidence. Otherwise such a procedure cannot be deemed as legally valid and fair with regard to athletes.

It appears that the McLaren Investigation understands the frailty of evidence collected, which is why many documents (for example, laboratory data, documents relating to collected samples, doping control forms, statements, correspondence certified by a notary etc.) prepared by McLaren have not been disclosed. However, the IOC and WADA are satisfied with the results of the McLaren Investigation. It is clear that if one party to a dispute adduces certain evidence, the other should, at the latest, have the right to review this evidence and provide its own. Why, then, do they not disclose all documents relating to doping records of the Russian athletes?

Given the existing state of things, it appears that the McLaren Investigation's conclusions will stand in the Court of Arbitration for Sport ("CAS") if any Russian athlete files an appeal against the WADA and/or IOC decision. However, this evidence would be inadmissible if the case was considered by an independent and impartial state court of law, where the standards of proof are higher than those being employed by private sports tribunals.

Article 3.2 of the WADC prescribes that "facts related to anti-doping rule violations may be established by any reliable means, including admissions".

Pursuant to the comment to Article 3.2 of the WADC "for example, an Anti-Doping Organization may establish an anti-doping rule violation under Article 2.2 based on the Athlete's admissions, the credible testimony of third Persons, reliable documentary evidence, reliable analytical data from either an A or B Sample as provided in the Comments to Article 2.2, or conclusions drawn from the profile of a series of the Athlete's blood or urine Samples, such as data from the Athlete Biological Passport". (emphasis added)

Here, the issue is contrary to how evidence is handled in court, where evidence is analyzed and estimated collectively. For example, why does the McLaren Investigation do not refer to reliable analytical data from either A or B samples, athletes' blood, and/or urine samples, or to their biological passports?

Only reliable evidence could confirm the use of prohibited substances and/or methods by athletes (i.e. adverse analytical findings, any documents related to review those findings in order to determine whether a particular athlete had a therapeutic use exemption, any notifications and/or forms). However, in this situation, all charges are based on allegations and assumptions. The circumstantial evidence should be confirmed by reliable evidence.

IOC Decision

The IOC decision is based on the IOC's Disciplinary Commission's Report ("Report") from December 2, 2017. Before reviewing the IOC Decision, we will briefly comment on the Report.

The Report is a document consisting of 30 pages that describe systemic manipulation of the anti-doping rules and system in Russia. In reviewing the Report, the following should be noted: Paragraph 1.1 contains the following statement: "it was decided to reverse the rule of the presumption of innocence for the Russian athletes." Can the IOC, a non-governmental organization, do this? Does this actually mean that athletes are treated less favorably than hardcore criminals who enjoy legal protection and are innocent until proven guilty in a court of law?
Pursuant to Article 3.1 of the WADC, it is usually WADA that proves when an anti-doping rules violation occurred. Although the same Article prescribes that in some cases an athlete should rebut a presumption of guilt, the issue is whether such a provision is lawful and/or needs to be amended.

Since WADA binds itself with the basic principles of law (as proscribed by the WADC provisions), all WADA proceedings should be based on them. It appears illogical that criminals have more rights than athletes. In this author's opinion, an athlete may be considered guilty of doping when his or her guilt is established in due course and decided by a respective authorized legal body.

The WADC's provisions cannot contradict the basic principles of law, and should be in strict compliance with the provisions of well-known international treaties, declarations, and conventions containing explanations of human rights. Any investigation conducted in violation of those provisions is unlawful, and its findings should not be taken into account when taking the decision to sanction any athlete.

Paragraph 1.2 reads as follows: "the IOC DC reminds that is has no investigation power similar the one of the law enforcement agencies. Thus, it is dependent on the information available in the public domain, the elements published by the IP and the information shared voluntarily by the persons concerned." Having read the above text fragment, one could conclude that the Report is based exclusively on (i) publicly available information; (ii) certain information and documents provided by the McLaren Investigation; and (iii) information obtained from certain whistleblowers and former sports officials. It must be noted that there is no information as to whether such evidence was verified by independent experts and officials.

In Paragraphs 1.2 and 2.2.6, continues: "the IOC DC also interviewed orally/or in writing some of these main actors involved in order to better understand their respective involvement...after having conducted a number of witness interviews..."

It does not contain a named list of those "main actors". More importantly, the Report is unclear as to whether anyone was keeping records when interviewing those actors. Even if it was the case, such records, or at least their transcriptions, are not attached to the Report.

Given the above it is impossible to define whether information obtained from those "main actors" is true or false. In any case, such information cannot be presented as evidence in proceedings based on the rule of law and conducted by an impartial and independent body, as the sources of this information are not defined.

The Report refers to many documents as "written affidavit" (Paragraph 2.2.9), "report" (Paragraph 2.3.1), "all the independent and impartial evidence" (Paragraph 3.1). Notwithstanding that the Report refers to the affidavit provided by Rodchenkov, it does not contain any list of documents.

Now to take a closer look at the IOC decision, which is headlined as follows: "IOC suspends Russian NOC and creates a path for clean individual athletes to compete in Pyeongchang 2018 under the Olympic flag." The first sentence reads as follows: "the conclusions of the Schmid Report, on both factual and legal aspects, confirmed the systemic manipulation of the anti-doping rules and system in Russia". However, it must be noted that the Schmid Report's findings were based on the McLaren Investigation, which, at the latest, is unpersuasive. In addition, the Schmid commission failed to find "any documented, independent and impartial evidence confirming the support or the knowledge of this system by the highest State authority".

Thus, the IOC believes in the existence of so-called state-backed doping system has been proven by reliable evidence. As a result, the IOC suspended the Russian NOC with immediate effect. According to the IOC decision, the Olympic door may be theoretically opened for those Russian athletes who meet the following requirements:

 an athlete should be eligible pursuant to rules of a particular sport;
 an athlete should have not been committed any anti-doping rules violations;
 an athlete should have been tested and should meet all testing requirements as defined by respective sporting organizations.

This decision clearly points out that the IOC reserves the right to take any measures aimed at sanctioning athletes who participated in the so-called state backed doping system. Although Russian athletes have the right to file entry forms for the IOC's consideration, the IOC decision precisely stipulates that a final list of the athletes having the right to participate in the Olympic Games will be determined exclusively by an IOC panel chaired by Valerie Fourneyron.

Having reviewed the requirements prescribed by the IOC decision, many disputes may arise with regard to the enforceability of the requirement relating to "clean" athletes' doping records, especially because this requirement was declared invalid last year by CAS violating athletes' right of natural justice. (Any athlete who has been convicted of a prior ADRV is not allowed by the Russian Olympic Committee to be entered for the Rio Games. It is therefore difficult to reconcile this paragraph with the stated aim to provide the athletes with an opportunity to rebut the presumption of guilt and to recognize the right to natural justice. As a consequence, the CAS Panel found that Paragraph 3 of the IOC Decision is unenforceable, as it does not respect the athletes' right of natural justice. (The press release is available at: http://www.tas-cas.org/fileadmin/user_upload/Media_Release__English__Karabelshikova_final.pdf.) The existence of the requirement means that athletes are punished twice for one violation.

The third requirement is too broad and unclear. It appears that before applying it, it should be clarified.

It must also be noted that any requirements imposed by the IOC cannot be stronger than those being applied to other athletes. Otherwise, this would contradict the principle of equal treatment.

The IOC already announced that every eligible Russian athlete must undergo anti-doping tests with higher benchmarks than for athletes from other countries in the period leading up to the Pyeongchang 2018 Winter Olympics. (http://www.sportsintegrityinitiative.com/wada-warned-ifs-insufficiency-mclaren-report-evidence/.) This means that higher standards are being applied, even to those innocent athletes who have never been found guilty of doping.


The existing "evidence" relating to the use of prohibited substances and/or methods by the Russian athletes would be deemed insufficient in a court of law. However, given the existence of decreased standards of proof, the IOC, WADA, and most international sporting federations are satisfied with such evidence, and already sanction athletes.

The existing situation highlights the following issues: To what extent are sports governing bodies entitled to define the procedure for resolving sport related disputes? Is it lawful to sanction athletes based on weak and actually unproven evidence? Is it possible not to apply the basic principles of law?

Finally, fortunately for some athletes, there are a few, federations that do look further into doping matters, and therefore disagree with the IOC's decision regarding sanctioning athletes. Thus, on January 2, 2018, the Disciplinary Commission of the International Luge Federation refused to sanction Tatyana Ivanova and Albert Demcehnko. (http://www.fil-luge.org/en/news/disciplinary-commission-of-the-fil-to-proceedings-against-ivanova-and-demchenko.)

Hopefully, there will be a light at the end of the tunnel soon.

February 27, 2018

Fox New Network, LLC. v. TVEyes, Inc. Decision Regarding Redistribution of Content

Defendant TVEyes, Inc. ("TVEyes") is a media company that continuously records the audiovisual content of more than 1,400 television and radio channels, imports that content into a database, and enables its clients, for $500 per month, to view, archive, download, and email to others ten‐minute clips. TVEyes also copies the closed‐captioned text of the content it imports, allowing its clients to search for the clips that they want by keyword, as well as by date and time.

Plaintiff Fox News Network, LLC ("Fox") sued TVEyes for copyright infringement in the United States District Court for the Southern District of New York. The principal question on appeal is whether TVEyes's enabling of its clients to watch Fox's programming is protected by the fair use doctrine.

TVEyes's re‐distribution of Fox's content serves a transformative purpose insofar as it enables TVEyes's clients to isolate from the vast corpus of Fox's content the material that is responsive to their interests, and to access that material in a convenient manner. But because that re‐distribution makes available to TVEyes's clients virtually all of Fox's copyrighted content that the clients wish to see and hear, and because it deprives Fox of revenue that properly belongs to the copyright holder, TVEyes has failed to show that the product it offers to its clients can be justified as a fair use.

Accordingly, we reverse the order of the district court to the extent that it found fair use. Our holding does not encompass the copying of Fox's closed‐captioned text into a text‐searchable database, which Fox does not challenge on appeal. tv eyes.pdf

About February 2018

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

January 2018 is the previous archive.

March 2018 is the next archive.

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