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March 2018 Archives

March 3, 2018

Center for Art Law Case Law Updates

Edited by Elissa D. Hecker

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

Equinox Gallery Ltd. v. Dorfman (S.D.N.Y. Jan. 25, 2018). The Southern District of New York ruled in favor of the Equinox Gallery in Vancouver, Canada, against Fred Dorfman, famous New York art dealer, who is facing civil charges for selling stolen works by Jasper Johns. (https://www.theartnewspaper.com/news/dealer-of-works-stolen-by-jasper-johns-s-assistant-may-be-held-liable-under-racketeering-charges-says-court?mc_cid=3775e3bebc&mc_eid=8a2eda70d8)

Cenedella v. Metro. Museum of Art (S.D.N.Y. Feb. 6, 2018). Artist Robert Cenedella filed a $100 million antitrust class action in Manhattan federal court against the giants of the New York art world, namely the Metropolitan Museum of Art ("the Met"), the Whitney Museum of American Art, the Museum of Modern Art, the Guggenheim Museum, and the New Museum of Contemporary Art. On behalf of himself and "innumerable other deserving artists", he claimed that the museums violated antitrust laws by showing artists represented by five galleries merely because of close financial ties between the museums and the galleries. (https://www.courthousenews.com/wp-content/uploads/2018/02/Cenedella.pdf?mc_cid=3775e3bebc&mc_eid=8a2eda70d8)

Native Am. Church of N. Am. v. Transp. Sec'y Admin. (W.D. Tex. Jan. 26, 2018). A settlement agreement was reached on January 26, 2018 between the Native American Church of North America (NACNA) and the Department of Homeland Security, namely the Transportation Security Administration (TSA). The TSA mishandled religious artifacts while the NACNA was traveling.

Cohen v. G&M Realty L.L.P. (E.D.N.Y. Feb. 12, 2018). In 100 page decision, Judge Frederick Block of the Eastern District ruled in favor of the group of street artists who painted the "art mecca of the 5Pointz", a highly decorated building in Long Island City. Artists sued Gerald Wolckoff, a developer, who whitewashed the building without warning to make condos. This is a big win, worth $6.7 million, for street art and for moral rights. (https://news.artnet.com/art-world/judge-awards-6-million-5pointz-lawsuit-1222394?utm_content=from_artnetnews&utm_source=Sailthru&utm_medium=email&utm_campaign=US%20Morning%20Newsletter%202.13&utm_term=New%20US%20Newsletter%20List&mc_cid=3775e3bebc&mc_eid=8a2eda70d8)

Zuckerman v. Metro. Museum of Art (S.D.N.Y. Feb. 7, 2018). The Southern District of New York ruled that the Met does not have to give back a Picasso painting back to previous Jewish owners, who sold it in 1938, for a price below market value in an attempt to flee Italian Fascism, because the sale "occurred between private individuals, not at the command of the Fascist or Nazi governments." (https://www.courthousenews.com/wp-content/uploads/2018/02/Picasso.pdf?mc_cid=3775e3bebc&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.

March 4, 2018

Week In Review

By Angela Peco
Edited by Elissa D. Hecker

SCOTUS Refuses White House Bid in Dreamers Case

The Supreme Court declined a White House request that it immediately decide whether the Trump administration can shut down the Deferred Action for Childhood Arrivals (DACA) program. No appeals court has yet ruled on the issue.

President Trump ended the program last September, calling it an unconstitutional use of executive powers, and called on Congress to give the young immigrants legal status and an eventual path to citizenship before the program expires on March 5th. Two federal judges ordered the administration to maintain major pieces of the program while legal challenges move forward, by requiring that the federal government allow people enrolled in DACA to renew their protected status, shielding immigrants from immediate deportation and allowing them to work legally in the U.S.


Second Circuit Rules Civil Rights Act Offers Shield for Gay Workers

The Court ruled that the 1964 Civil Rights Act, which outlaws bias in the workplace on the basis of "race, color, religion, sex or national origin," should be extended to include sexual orientation. The case involved Donald Zarda, a gay Long Island skydiving instructor fired in 2010.

In 2014, the Equal Employment Opportunity Commission issued a ruling in a separate matter, finding for the first time that "sexual orientation is inherently a 'sex-based consideration'" and should be protected by the law. The Justice Department intervened in the Zarda case in 2017, arguing that protections did not extend to sexual orientation and that the EEOC was "not speaking for the United States".


Trump to Impose Steel and Aluminum Tariffs

President Trump announced that he will impose tariffs of 25% on steel and 10% on aluminum. He is also opposed to targeted tariffs and has stated that no country should be exempt from the order.

The president's authority to impose these sweeping tariffs stems from a Commerce Department investigation that concluded that imported metal threatened national security by degrading the American industrial base. The administration has said that it wants to combat cheap metal flooding into the U.S., particularly from China, currently the 10th largest source of steel imports.


National Security Agency Chief: White House Has Given No Order to Counter Russian Meddling

During his testimony before the Senate Armed Services Committee, the departing head of the National Security Agency acknowledged that the White House had not asked his agencies to find ways to counter Moscow, or granted them new authority to disrupt Russian attacks "where they originate".


Kroger, Walmart, and Dick's Sporting Goods Raise Age Limits on Gun Sales

Customers will not be able to buy either guns or ammunition without undergoing a background check that verifies they are at least 21 years of age. Dick's will also end sales of all assault-style rifles and high-capacity magazines.


Vancouver-based Mountain Equipment Co-op Drops Brands Linked to U.S. Gun Maker

Following an online petition with over 50,000 signatures, outdoor-gear retailer Mountain Equipment Co-op ("MEC") cut ties with brands owned by Vista Outdoor, a Utah company that also makes assault rifles and ammunition.

While retailers such as Dick's Sporting Goods announced that they will stop selling assault rifles, MEC went a step further by deciding to stop carrying popular products whose corporate owner was in the firearms business.


Delta Tax Cut Imperiled After Airline Distances Itself from NRA

Georgia's lieutenant governor threatened to kill a proposed tax cut after Delta ended its discount fare program for travelers attending the National Rifle Association's ("NRA's") 2018 annual meeting. Delta's decision was meant to reflect its "neutral status in the current national debate over gun control amid recent school shootings."

The tax bill would grant a $50 million sales tax exemption on jet fuel, primarily benefiting Delta. The governor's office said that the bill was necessary to encourage airlines to open direct routes from Georgia to global destinations.


Contractors Leaving Puerto Rico Despite Many Still Lacking Power

The Army Corps of Engineers will begin a "responsible drawdown" of its work force in Puerto Rico. The Army Corps of Engineers is in charge of the federal effort to repair the power grid in the island, coordinating the work of two major contractors with the efforts of the island's government-run power utility. While an estimated 86% of customers have had power restored, some areas are still reporting widespread power outages and continue to lack access to basic services.


U.S. Ambassador to Mexico Will Resign

Ambassador Roberta S. Jacobson plans to step down in May after two years in the post, and 31 years in the State Department. Hers is one of several recent departures from high-ranking officials with expertise in Latin America.


Panama Hotel Owners Try to Oust Trump Company

The owners association of a Panama City hotel voted to end its relationship with the Trump Organization, which manages the property, citing declining revenues due to the hotel's affiliation with the Trump brand. A Miami-based investor, whose firm holds a majority stake in the hotel, attempted to hand-deliver termination notices to property managers at the hotel this week. This led to a standoff with Trump Organization staff, who called police and barred the owners from entering a room where the building's computer servers and CCTV system are stored. The owners' group accuses the Trump team of improperly destroying documents during the power shut-off that followed.


Supreme Court Hears Arguments in Microsoft Case

Supreme Court justices called on Congress to define the limits of privacy in the digital era, expressing concerns about adapting a 1986 law that pre-dated cloud computing. The issue is whether Stored Communications Act ("SCA")warrants can be used to obtain data, specifically a suspect's emails, located in servers outside the U.S.

Microsoft contends that the SCA warrants only apply within the U.S. and that compelling disclosure of data stored in a foreign country requires execution of a warrant there, thus violating the presumption against extraterritorial application of statutes. The government argues that the warrant will be executed domestically, since Microsoft could access the foreign server from within the U.S.


"Invasion of Privacy" Debate in Missouri

Missouri governor Eric Greitens hwas charged with invasion of privacy for taking a nude photograph of a woman without consent and threatening to publicize the image if the woman went public with their affair.

Greitens was charged under a 1995 state law that makes it a felony to knowingly photograph or film a nude person without consent in a place where he or she would reasonably expect privacy, and to distribute that recording.


Russia Vetoes United Nations Resolution Against Iran

Russia vetoed a British-drafted United Nations ("UN") resolution that took aim at Iran over a report by UN experts that Iran violated a 2015 arms embargo on Yemen by failing to prevent missiles and drones from being supplied to Shiite rebels there. A rival Russian resolution was adopted unanimously, extending sanctions against Yemen until 2019.


Putin Unveils "Invincible" Nuclear Weapons

According to Putin, Russia has developed a new array of 'invincible' nuclear weapons, including a cruise missile and new nuclear delivery systems that he said could evade detection. In his annual State of the Union speech, Putin said that the weapons were in response to U.S. development of its missile defense system. A concept video showed missiles mock- attacking Florida.


Despite Cease-Fire, Syrian Forces Began New Ground Attacks

The UN Security Council unanimously approved a resolution that called for a 30-day ceasefire "without delay" across Syria after a suspected chlorine attack and bombings in the eastern Ghouta region caused thousands of casualties. Despite the resolution, Syrian government forces began a new ground attack against a rebel-held enclave east of Damascus.


UN Links North Korea to Syria's Chemical Weapons Program

UN experts contend that North Korea has been shipping supplies to the Syrian government that could be used in the production of chemical weapons. North Korean missile technicians have also been spotted working at chemical weapons and missile facilities inside Syria. The report includes copies of contracts between North Korean and Syrian companies, as well as bills of lading indicating the materials shipped. If confirmed, that would mean that shipments have eluded detection, despite highly restrictive sanctions and surveillance.


China Plans to Rewrite Constitution, Xi Could Rule Indefinitely

China's Communist Party has proposed removing the two-term limit on the presidency from the constitution. President Xi's ideology, "Xi Jinping Thought," has also become the new official political doctrine and will be incorporated into the constitution's preamble. The doctrine emphasizes: (1) China's rise as a political power; (2) its single-party rule; and (3) the need for a decisive leader to maintain its rule, hence the amendment to abolish term limits that would allow Xi to remain in power indefinitely.


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


Agreement Reached to Sell Weistein Co.

The women-led group will invest $275 million to fund operations in the new studio and assume the company's $225 million debt. Sale talks had stalled as New York Attorney General Eric Schneiderman filed a lawsuit alleging that the studio and the Weinstein brothers repeatedly violated state and city laws barring gender discrimination, sexual harassment and coercion.

In a meeting that he hosted between the two sides, Schneiderman received express commitments from the parties that the new company will earmark up to $90 million for a victim compensation fund and implement Human Resources policies to protect employees.


Insurer Chubb Refuses to Pay for Weinstein's Legal Defense

Weinstein's insurance policies included coverage for personal liability, which would normally cover legal costs to defend against claims of damage or injury caused accidentally. Chubb has asked the New York State Supreme Court to declare that the policies' terms exclude defending sexual assault, discrimination and intentional acts.


Judge Rejects Disney's Bid for Injunction Against Redbox

Disney alleged that Redbox's sale of download codes for Disney movies constituted copyright infringement. Redbox obtains the codes by buying DVD combo packs that include a DVD, Blue-ray and a download code, and sells them individually. Disney typically includes a warning that "codes are not for sale or transfer".

A California federal court found that the restrictive language on the product did not constitute a valid "shrink-wrap" or "box-top" license. On the issue of unauthorized reproduction of the digital codes, the court found that Redbox was reselling the codes under the First Sale Doctrine and not reproducing them. As a result, Disney was misusing its copyright by attempting to control the reselling of its product.


Seacrest to Host E! Oscars Show Despite Sexual Harassment Allegations

NBC Universal defended talk show host Ryan Seacrest from allegations made by his former personal stylist, citing the results of an independent investigation in its decision not to remove Seacrest from Oscars coverage on E!. Seacrest denies the allegations.



Photographer Loses Appeal over Nike's Jumpman Logo

In a 2-1 decision, the Court of Appeals for the 9th Circuit affirmed the district court's dismissal of a copyright infringement action brought by photographer Jacobus Rentmeester against Nike. Rentmeester's 1984 photo of Jordan was taken for a magazine feature when Jordan was still at North Carolina. Nike then commissioned a similarly posed photo, changing the background to the Chicago skyline to reflect Jordan's time with the Bulls and using the photo to market Air Jordan sneakers.

The court held that Rentmeester's photo was entitled to broad, rather than thin protection, because the range of creative choices open to him in producing the photo was exceptionally broad. Nonetheless, the photos were not "substantially similar" because of differences in setting, lighting and other elements. The logo was also not substantially similar, and Jordan's pose by itself could not be copyrighted.


Harper Lee's Will Is Unsealed

An Alabama court unsealed Harper Lee's will, which was signed eight days before her death in 2016. The will directs that the bulk of Lee's assets, including her literary properties, be transferred into a trust she formed in 2011.

The will was unsealed following a lawsuit filed by The New York Times, which argued that wills filed in probate court in Alabama are typically public records, and that Lee's privacy concerns were no different from those of others whose wills are processed through the court system. The estate withdrew its opposition to making the will public, but did not disclose its reasoning. According to court documents, "To Kill a Mockingbird" sells more than a million copies a year worldwide, generating $3 million in royalties.


Virginia Judge Orders Tarps Removed from Charlottesville Confederate Statues

The statues of Gens. Robert E. Lee and Stonewall Jackson were shielded from public view out of respect for the woman who died during violent clashes between white nationalists and counter-protesters last August. The judge had denied previous attempts to force the city to uncover them, but scolded city leaders in his latest ruling for what he called an "after-the-fact attempt" to claim that the plan had always been to cover them for one year.

The City Council had voted to remove the Lee statue months before the rally, and planned to rename the park with the Jackson monument. Several groups sued the city last year to block those efforts. That ruling is expected later this year.


Chinese Relics Damaged on Loan

The cultural center that arranged the loan of 10 terracotta warriors is seeking compensation from Philadelphia's Franklin Institute after a visit damaged one of the statues, valued at $4.5 million. It is not the first time that Chinese artworks and cultural relics on loan have been vandalized or damaged during shipping - another terracotta warrior had been damaged in Osaka, Japan.



The Metropolitan Museum of New York Begins Charging Mandatory Admission Fee

Nonresidents of New York State are now required to pay the $25 entrance fee in a move that marks the end of the Metropolitan Museum of New York's 50-year policy of "pay what you wish". The fee is aimed at giving the museum a reliable revenue stream of $6 million a year.


Scanners Discover Secrets From Picasso's 'Blue Period'

Researchers have peered through the canvas of "The Crouching Woman" to show once again that Picasso painted his work over another artist's landscape. Scientists are using tools originally developed for medicine, manufacturing and geology, including X-rays and a technique that NASA's Mars Reconnaissance Orbiter uses to figure out the makeup of Martian rocks from orbit.



Russia's Membership in International Olympic Committee Restored

The International Olympic Committee ("IOC") reinstated Russia effective on February 25th, lifting the suspension it had imposed following revelations about Russia's state-backed doping program.

The IOC allowed more than 160 Russian athletes to compete in South Korea, with a prohibition on the national anthem or flag in venues. Two Russian athletes tested positive in Pyeongchang, but the IOC reported that all remaining test results were negative.


Michigan State University Faces a Federal Inquiry

U.S. Secretary of Education Betsy DeVos announced a new investigation of the university's probe of Dr. Larry Nassar related to complaints under Title IX. A federal education team is on site to examine the Michigan State's compliance with the Clery Act, a federal law requiring colleges to report campus crimes.


U.S. Olympic Committee CEO Resigns

USOC CEO Scott Blackmun stepped down after eight years at the helm, citing health concerns. Praised for bringing financial and executive stability, Blackmun could not escape criticism over the USOC's handling of the USA Gymnastics scandal. Interim CEO Susanne Lyons gathered a working group to review the relationship between the federally-chartered USOC and the NGBs. She calls for more USOC authority to oversee governing boards and intervene when necessary to protect athletes.


Raisman Sues USOC and USA Gymnastics

Olympic gold medalist Aly Raisman filed a lawsuit against both organizations, claiming that they "knew or should have known" about Nassar's abuse. The filing alleges negligence for failing to make sure appropriate protocols were followed in regards to monitoring Nassar. More than 100 civil actions were also filed against Nassar and USA Gymnastics, as well as a federal suit against Michigan State University.


USA Swimming Faces Claims of Ignored Abuse

Two top USA Swimming officials, including the athlete protection officer, resigned after a series of reports allege that the organization ignored sexual abuse by coaches and chose not to pursue cases even after being presented with direct complaints.


Biathletes from U.S. to Boycott Russia Event

The U.S. team will boycott the World Cup Final in Russia amid continuing concerns about the lack of a functioning anti-doping agency there.


The United States Tennis Association, Eugenie Bouchard Reach Settlement Over Locker Room Fall

The United States Tennis Association ("USTA") and Canadian player Eugenie Bouchard reached a settlement after a New York City jury found the USTA mostly liable for Bouchard's fall on a wet locker room floor at the 2015 U.S. Open. The fall left Bouchard with a concussion and a serious head injury, forcing her to withdraw from three tournaments.


Dallas Mavericks Name New CEO in Wake of Scandal

Owner Mark Cuban has named Cynthia Marshall as the Mavericks' interim CEO. The move comes in the wake of a Sports Illustrated investigation exposing rampant sexual harassment allegations against the team's former president, as well as two domestic violence incidents involving a former team web writer, one of which resulted in his arrest at the team business offices in 2011. An internal investigation is also underway.


ESPN Stands By Sean Miller FBI Wiretap Story

ESPN is standing by its report that FBI wiretaps intercepted conversations between Arizona basketball coach Sean Miller and sports agent Christian Dawkins discussing a $100,000 payment to ensure that freshman DeAndre Ayton signed with Arizona. Dawkins is one of the defendants in the FBI's ongoing probe into corruption and bribery in college basketball. DeAndre Ayton announced that he will declare for the 2018 National Basketball Association draft.

Miller denied the allegations, and asserted that he and Ayton have suffered "defamation" by the manner in which the media reported the allegations. If Miller is fired for cause, the university would have to pay his base salary through 2022, entitling him to an unprecedented $10.3 million. The contract has no provision that waives Arizona's obligation to pay Miller what he is owed based on an NCAA violation.



Jalen Rose Calls for Player Boycott of NCAA Tournament

An outspoken critic of the current NCAA model, former Wolverine Jalen Rose called for players to boycott the NCAA Tournament to gain leverage in the debate over player compensation. The issue resurfaced after the FBI allegedly discovered that several high-profile current and former players received payments during the recruiting process. In recent days, Kentucky coach Calipari advocated for players being able to earn income from their names, signatures and likenesses.



Turbulent Year for Iditarod Sled Dog Race

The Iditarod's future is in question, following a turbulent year marked by the loss of major sponsor Wells Fargo and escalating pressure from animal rights activists. At the center of the controversy is also the governing board's failure to hold four-time winner Dallas Seavey liable for his four dogs testing positive to a banned substance. Rules were recently changed to hold mushers liable for dogs' positive drug tests.


Jets Linebacker Charged After Tunnel Crash

Dylan Donahue was arrested and charged with DWI and reckless driving following a wrong-way car crash at the Lincoln Tunnel.



Country's Largest Broadcaster Takes Steps to Finalize Tribune Media Takeover

Sinclair Broadcast Group filed an amended plan to win federal approval of its proposed $3.9 billion takeover of Tribune Media. Justice Department antitrust officials seek more divestitures over concerns that the merger will harm competition in several cities. In a separate review, the Federal Communications Commission ("FCC")is focusing on whether the deal could give Sinclair too much power over TV advertising and licensing deals with cable and satellite companies.

Sinclair's latest proposal would put many of the local stations in trust, an arrangement that consumer groups say will pave the way for Sinclair to operate them through partners down the road. It has also arranged to sell other stations to third parties, in an effort to get near the FCC threshold of owning stations that reach no more than 39% of American households.


House of Representatives Passes Anti-Trafficking Bill that Penalizes Websites Hosting Illicit Ads

Website operators could be held liable for knowingly "facilitating" sex trafficking under a House bill that passed by a vote of 388 to 25. The legislation amends section 230 of the 1996 Communications Decency Act, which protects websites from criminal investigation and civil lawsuits over user-generated content. The legislation targets sites like Backpage, which has been accused of hosting ads that promoted the trafficking of minors and is now the subject of a long-running Senate investigation.


Facebook Ends News Feed Experiment

In an effort to grapple with its role in spreading fake news, Facebook launched the Explore experiment in six countries last October. The Explore function separated posts from news sites and publishers from other material on the social network. Independent news sites and Non Governmental Organizations were quick to criticize Explore for reducing traffic to their sites and making it harder for trusted sources of information to reach local populations, including during a government crackdown in Cambodia, when Facebook had emerged as an important and
more independent channel for information.


Newspapers Launch Political Action Committee, Want Anti-Trust Pass to Take On Google, Facebook

News Media Alliance, a trade group of more than 2,000 U.S. newspapers, is launching the industry's first political action committee to raise money to fight for a safe-harbor exemption to compete against their internet rivals and stop Canadian newsprint tariffs. Last year, newspaper publishers argued for an anti-trust exemption to bargain collectively with Google and Facebook, which control more than 53% of the digital ad market in the U.S.


Treasury Sec. Mnuchin Blocks Release of UCLA Heckling Video

A video shows Treasury Sec. Mnuchin being heckled at an event arranged by UCLA's Burkle Center for International Relations. Treasury Department officials withdrew consent for the video to be posted on the school's website.


China Bans Phrases, Letter 'N' Online to Stop Xi Dissent

China temporarily banned words, phrases and even solitary letters from internet searches over concerns that they might be used to attack the decision to abolish constitutional term limits for China's president. Among the blocked search terms were the hybrid name "Xi Zedong," Orwell's 1984 and Animal Farm, "disagree" and "shameless".


China Detains Relatives of Five Reporters

Chinese authorities detained relatives of reporters who covered a government crackdown in the Xinjiang region for Radio Free Asia, funded by and based in the U.S. Network officials questioned whether the detentions were ordered in retaliation for their reporting of China's campaign against what it called separatism and religious extremism among the Uighurs, a predominantly Muslim ethnic group native to the region.


March 6, 2018

Founder of Tower Records Dies at 92 While Drinking Whiskey and Watching the Oscars

By Barry Skidelsky

For those of you who remember (or at least may have heard about) the days when music was distributed on physical media, such as vinyl records and compact discs, perhaps you also know of Russ Solomon. Russ was inter alia a visionary entrepreneur who founded Tower Records in Sacramento, which he built up to become a global empire that truly revolutionized music retailing. Russ died last Sunday night at home from an apparent heart attack while (and reportedly unrelated to) drinking whiskey and watching the Oscars on television.

For more info, see: http://www.sacbee.com/latest-news/article203542104.html

Street Artists Awarded $6.75 Million in Damages Against Developer Who Whitewashed Artworks Covering His Buildings

By, Jana S. Farmer
Edited by Elissa D. Hecker

In one of the most important decisions to date applying the Visual Artists Rights Act of 1990 ("VARA") since its adoption, on February 12, 2018, New York's Eastern District awarded $6.75 million in statutory damages to 21 aerosol artists whose works were intentionally destroyed by the owner of the buildings on which they were painted.

Gerald Wolkoff and his four real estate entities owned several dilapidated warehouses in a formerly crime-infested neighborhood in Long Island City, known as 5 Pointz. Around 2002, Wolkoff agreed to let Jonathan Cohen, one of the world's most accomplished aerosol artists (known professionally as Meres One), curate the artworks that were put on the walls of 5 Pointz to cover random graffiti. Cohen created a veritable competition among street artists who vied to win a place on one of the project's "long-standing walls." Ultimately, Cohen's efforts led to a change in the quality of the neighborhood, turning 5 Pointz into a world renowned "graffiti Mecca." The site, featured on television, in video games, and the 2013 motion picture "Now You See Me", became a destination for weddings and school trips, and a major tourist attraction.

Around 2013, after the economic conditions in the area improved significantly, Wolkoff sought municipal approvals to demolish the warehouses and erect luxury condominiums. The artists brought a preliminary injunction to preserve 5 Pointz for street artists. The injunction was denied by the court in November 2013 in a ruling from the bench, with a caveat that a written opinion would follow shortly. Without waiting for the written opinion, Wolkoff had the walls of 5 Pointz painted, covering some artworks completely, and some only partially. Unfortunately, none of the artworks was salvageable. Twenty-one artists filed suit, seeking damages for the destruction of their works under VARA.

VARA was enacted to protect the moral rights of artists in their works of visual art as distinguished from the ownership rights in the works. The statute gives artists the right to sue to prevent the destruction of a work of "recognized stature," an undefined term. Additionally, an artist may seek money damages if his/her/their work is distorted, mutilated or otherwise modified to the prejudice of the artist's honor or reputation. With respect to artworks made part of a building, VARA distinguishes between removable and non-removable artworks. The artist may sue to prevent the destruction of non-removable artwork unless he/she/they had a written agreement with the owner of the building that specified that the artwork may subject to "destruction, distortion, mutilation, or other modification, by reason of its removal." See 17 U.S.C. §113(d)(1)(B). Wolkoff had no such agreements with the artists.

VARA gives the artists an opportunity to remove their works upon 90 days' notice that the building's owner wishes to remove the artwork. See 17 U.S.C. §113(d)(2)(A)-(B). If the artist fails to remove the artwork, or if the owner could not notify the artist despite a good faith effort to do so, the owner may destroy the work without consequences. Id. The 5 Pointz artists were never afforded the opportunity to remove their works.

The 5 Pointz trial began in mid-October 2017 and lasted three weeks. At the eleventh hour, the plaintiffs decided to convert the case to a bench trial. The court, acknowledging the work of eight jurors that followed the case with rapt attention for weeks and − recognizing the cultural significance 5 Pointz had achieved in the local community and worldwide − chose to try the case with the advisory jury, meaning that the court is not bound by the jury's findings, but may choose to be guided by them. In November 2017, the jury issued a non-binding verdict that 36 of the works at 5 Pointz were art of "recognized stature." Judge Block did more than merely adopt the jury's findings; he found that an additional nine works qualified for liability and found Wolkoff's actions to be willful, warranting harsher damages.

Judge Frederic Block of the Eastern District made several important rulings that will likely impact future interpretations of VARA nationwide.

• First, Judge Block gave a road map of the kind of proof needed to demonstrate that an artwork is of "recognized stature," and whether its distortion would be detrimental to the artist's honor and reputation. Specifically, the plaintiff artists demonstrated an impressive array of professional achievements and recognition in the form of fellowships, teaching positions, public and private commissions, media coverage and social media buzz. The plaintiffs submitted the testimony of high-profile luminaries in the field to assert quality, stature, value and potential removability of each work. Judge Block even cited with approval the decision in Martin v. City of Indianapolis, 192 F.3d 608 (7th Cir. 1999), suggesting that "recognized stature" may be sufficiently shown by "certain newspaper and magazine articles" and recommendation letters from the art community.

• Significantly, Judge Block determined that even artworks that are temporary in nature are protected under VARA, regardless of whether VARA does not directly address this issue. Noting that VARA is part of the Copyright Act, under which a work is "created" when fixed sufficiently to be perceived for a period of more than transitory duration, Judge Block pronounced that fixation even for a short period will suffice. Possible short life span of artworks is an issue with street art, as it may be, and frequently is, covered over by new street art, although the 5 Pointz previous artworks were not destroyed or painted over by incoming artists without permission.

• Finally, Judge Block analyzed the artists' proof of damages and found that actual damages could not be shown, as the plaintiffs did not establish a reliable market value of their works, some of which were the size of an entire building wall and thus hard to sell. The court did award the maximum available statutory damages for each of the destroyed artworks at issue, at $150,000 each for the 45 works found to be of "recognized stature," holding that Wolkoff acted willfully and has been insolent and "singularly unrepentant." Thus, Judge Block significantly increased the award that the jury would have given to the artists, which was $545,750 in actual damages and $651,750 in statutory damages.

This case was appealed to the Second Circuit Court of Appeals within days of the decision. As this is a case of first impression for the Second Circuit on issues such as what is considered an artwork of "recognized stature" under VARA, it will be an important case to watch for street artists and property owners.

March 11, 2018

Week in Review

By Eric Lanter
Edited by Elissa D. Hecker

Trump Nominates New Chair for National Endowment for the Humanities

President Donald Trump has nominated Jon Parrish Peede to be the chairman of the National Endowment of the Humanities. Peede has worked in "various capacities at the National Endowment for the Arts," which is a sister agency. One supporter of Peede's has argued that he will keep his door "open to conversation and debate."


Trump's Tariffs and Trade War Escalation Nearly Derails Korean Security Talks as Gary Cohn Leaves White House

President Trump announced the imminent implementation of tariffs on aluminum and steel imports, with the exception of those coming from Canada and Mexico. While the threat of a trade war looms, some analysts supposed that the tariffs would endanger the talks between the U.S. and the Korean peninsula, but those talks have survived and now, Trump and North Korean leader Kim Jong-Un are scheduled to meet in the next two months to discuss denuclearization and the lifting of sanctions. Regardless of the effects of the tariffs on the world economy, there has already been one casualty: Gary Cohn, an economic advisor to Trump and a former Goldman Sachs executive. Cohn, along with many of Trump's Republican allies, are concerned that a trade war may begin and that protectionist policies will not advance U.S. interests nearly as much as Trump has claimed.


Florida Has a New Gun Law

Florida's legislature passed, and Governor Rick Scott signed, a law that regulates guns in Florida, following the shooting in Parkland. The bill raises the minimum age for buying guns from 18 to 21, and creates a wait of three days or until a background check is completed for a prospective gun buyer. The law also bans bump stocks, the type of device that can be attached to a rifle to make it a fully automatic weapon. In an effort to stop any further school shootings, some employees in schools could be trained and armed, on a volunteer basis, as well as fund more school security and expand mental health services and regulations. The law does not suspend the sale of assault rifles or AR-15s (the gun used in the Parkland shooting), ban high-capacity magazines, or strengthen background checks.


Court Weighs Sanctions in Infringement Case

U.S. District Judge Denise Cote labeled copyright attorney Richard Liebowitz as a copyright "troll" and sanctioned him $10,000 for failing to give a defendant notice of a hearing. She noted in her Memorandum Opinion and Order that he has filed more than 500 cases in the Southern District of New York in the past two years, and his tactics in this matter caused "undue stress to a small business owner."


Trademark War for Joe's Pizza

Famous Joe's Pizza has been called a New York institution. Famous Joe's Pizza of the Village, located in Brooklyn, has been called "good at 2 a.m. when 'you're drunk.'" Nonetheless, when the Brooklyn location opened, Famous Joe's Pizza took notice of the similarity between the two locations and asked the Brooklyn location to change its sign, as it looked nearly exactly alike. When the Brooklyn sign changed just slightly, with a straightening of the slanted "Joe's" being the biggest change, a lawsuit was filed in federal court. While the Brooklyn store's lawyer indicated that his client is not "looking for trouble," he insists that the store will not go down to the New York institution's "zealous pizza lawyers."


Melania Trump Entered the U.S. on EB-1 Visa

Reports have emerged that the First Lady, Melania Trump, entered the U.S. with an EB-1 visa, a visa typically reserved for nuclear scientists, Nobel laureates, and doctors. However, it is not uncommon for models to get the visa as well, and several immigration lawyers have opined to the New York Times that Trump very likely could have been qualified to get the visa, given her work in the modeling industry. Thus far, at a time when immigration policies are receiving intense scrutiny, the EB-1 visa program has escaped the criticism that the visa lottery and family-based migration has received.


State Department Holds Funds Aimed to Fight Russian Meddling

Following the revelations that Russia was meddling in the 2016 presidential election, the State Department was allotted $120 million to counter any foreign efforts to meddle in elections or to "sow distrust in democracy." However, Rex Tillerson has not spent any of it. This has left the Global Engagement Center, consisting of 23 analysts, without the ability to hire Russian-speaking individuals or computer experts to track Russian efforts. The failure to spend the money is part of a pattern of the Trump administration of having a tepid response to the Russian meddling in the 2016 election.


United Nations Chief Picks Bloomberg for Climate Job

Michael Bloomberg, the former mayor of New York City, was appointed as the special envoy for climate action for the United Nations ("UN") secretary general. After leaving his mayoral post, he became a "prominent advocate in the fight against climate change. Secretary General Antonio Guterres is planning a summit next year for climate change, and wants Bloomberg to lead the preparation for the summit by encouraging governments and businesses to reduce their emissions and meet the targets of the Paris climate accord.


UN Panel Links Russia to Potential War Crime in Syria

A group of UN investigators has found that Russian forces were responsible for an airstrike in Syria that killed at least 84 people and injured over 150 people in a town west of Aleppo. While the panel has not concluded that the bombing was targeting civilians, the Russian forces used blast bombs "in a densely populated area," which may rise to the level of a war crime. The panel, formally called the UN Commission of Inquiry on Syria, has released 15 reports on the conflict in Syria and noted disregard for the rules of war.


Tillerson Pledges New Aid to Africa

Weeks after President Trump denounced African countries, Secretary of State Rex Tillerson has embarked on a tour of the continent. He promised $533 million in aid to improve access to electricity and medication for people with HIV/AIDS. As chief executive of Exxon Mobil, he oversaw a significant amount of business on the continent, but received criticism for the work that the company did in Nigeria, where it may have struck illegal license renewal deals that remain under investigation.


Adviser to Emirates Cooperating with Special Counsel

George Nader, an adviser to the United Arab Emirates who has ties to President Trump and his aides, began cooperating with special counsel Robert Mueller. Nader testified before a grand jury on topicss likely regarding the influence of foreign money on President Trump's campaign and political activities. Some sources have indicated that Nader may have been involved in funneling money toward Trump's campaign through other foreign entities, and that he may have organized a meeting between Trump's transition team and a representative of Russian President Vladimir Putin in the Seychelles to set up a back channel of communications.


U.S. Justice Department Sues California Over 'Sanctuary' Policies

Attorney General Jeff Sessions announced that the U.S. Justice Department sued the State of California for "not doing enough to find and punish unauthorized immigrants," in what is set to be a battle between states' rights and the federal government's authority. In 2012, a similar case arose between the Obama administration and the State of Arizona for its policy of finding and punishing unauthorized immigrants too harshly. In that case, Justice Anthony Kennedy wrote for the majority that: "The state may not pursue policies that undermine federal law." Analysts expect that the latest action against California is likely to end up in the Supreme Court.


Trump's Lawyer Obtained a Restraining Order to Silence Porn Actress

Adult film actress Stephanie Clifford, whose stage-name is Stormy Daniels, filed a lawsuit against President Trump and his personal lawyer, Michael Cohen. Trump's legal team sought to prevent her from filing in court and compel her to go to arbitration, and it is expected that the defense will file a motion to compel arbitration in this matter. If the matter were to proceed, it may lead to Trump and Cohen having to be deposed and questioned about the alleged affair that Trump had with Clifford in 2006, as well as the money that Cohen paid her to keep quiet in the weeks leading up to the 2016 election. Significantly, there is a question as to whether Cohen issued the payment from a Trump campaign-related account, which carries consequences with campaign finance disclosures.


U.S. Lifts Ban on Some Elephant and Lion Trophies

The federal government, through its Fish and Wildlife Service, overturned an Obama-era ban on elephant trophies from Zimbabwe and Zambia. Rather than ban those trophies, the agency announced that it will review each trophy on a case-by-case basis, but that the same standards of conservation and sustainability will remain. Those standards require someone bringing the trophy to demonstrate that the hunting "enhances survival of a particular species in the wild" by "reinvesting the money into conservation, for example, and by supporting local communities." While hunting organizations argue that big-game hunters spend hundreds of thousands of dollars, a portion of which goes to funding conservation, animal rights activists insist that the hunting of endangered wildlife should not be subject to a case-by-case basis, but an outright ban.


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


Olivia de Havilland Sues FX

The California Court of Appeals is set to hear arguments over whether Dame Olivia de Havilland may proceed with her lawsuit alleging that FX used her name and likeness to endorse a product. Last year, the network and Ryan Murphy Productions released a docudrama called "Feud: Bette and Joan" that portrays the "rivalry between Bette Davis and Joan Crawford." Catherine Zeta-Jones plays de Havilland in the film, and it is alleged that the work portrays her as being a vulgar hypocrite, when in fact she has had a reputation in Hollywood of honesty and integrity for decades before most of the current stars were born. While she is aware that courts have supported First Amendment protections for movies and shows about figures in the public interest, she remains "undaunted", and wants to show that FX crossed a line with its portrayal of her.


Cosby Retrial Proceeds After Motions to Dismiss and #MeToo Movement Grows

Bill Cosby will have to continue with a retrial of the case involving 19 women who accuse him of sexual assault. While his lawyers have argued that the #MeToo movement has created an atmosphere where it is difficult for Cosby to have a fair trial, the case is set to move forward. The judge in the previous trial, Judge Steven T. O'Neill, only allowed two of the 13 women to testify for reasons that still remain unclear. Given the revelations in Hollywood and several other industries as to sexual assault and harassment, some analysts speculate that a jury may have a different view on the allegations surrounding Cosby. Prosecutors are also changing their strategy, relying on the "doctrine of chances", which argues that "the more times an event takes place, the less plausible it becomes that it happened by mistake." If the prosecution is permitted to put its witnesses on the stand, it would seek to establish that there has been a clear pattern of predatory conduct by Cosby, mirroring that of Harvey Weinstein and other prominent Hollywood men recently flagged for their misconduct.


Taylor Swift Wins 'Shake It Off' Lyrics Suit

A California federal judge has granted a win to Taylor Swift in a copyright lawsuit brought in relation to her 2014 song "Shake It Off." Two songwriters brought the suit against Swift alleging that Swift stole the song from them. Judge Michael Fitzgerald dismissed the suit with prejudice this week after giving the plaintiffs a month to file an amended complaint, which came and went without the plaintiffs having done so.


Question Arises as to Internet Providers' Liability for Subscriber Copyright Infringement

A recent case, UMG v. Grande, has raised the question of how far liability extends for copyright infringement. When internet service providers allow users to download the program BitTorrent, which is nearly impossible to stop, those users can then download content that may infringe on copyrights. The practical implication from the case, if the plaintiff were to prevail, is that copyright owners will be able to sue many defendants beyond the direct infringer, including internet service providers. Currently, there is a Copyright Alert System, which has a six-strikes system that allows for copyright infringement six times in a peer-to-peer system like BitTorrent. While no case has yet resolved whether internet service providers may have liability for their users' actions, UMG is hoping to impose some liability, given its numerous notices to Grande that the latter's users were infringing.


Organizer of Fyre Festival Pleads Guilty to Fraud

When concertgoers showed up to the Fyre Festival, they found soggy tents and cheese sandwiches. What they expected was a top level festival with top performers like Blink 182. William McFarland was one of the main organizers, and he has pleaded guilty to two counts of wire fraud related to the festival, as he cost investors $26 million in losses after lying to investors about his personal finances and those of Fyre Media.


Planned Sale of Weinstein Company Collapses Again

The group of potential investors that were planning to acquire the Weinstein Company backed down this week after learning of "disappointing information." Maria Contreras-Sweet, who ran the Small Business Administration under President Obama, announced that the group was prepared to purchase the Weinstein Company and avoid bankruptcy for the company, but the group learned that the company had significantly more debt than was previously disclosed. The current board has vowed that it would continue to find ways to avoid bankruptcy.


Judge Rules That Shkreli's Wu-Tang Album Can Be Seized

In the Eastern District of New York, Judge Kiyo Matsumoto has ruled that Martin Shkreli, convicted of fraud and set to serve a sentence of seven years, can have his prized Wu-Tang Clan album seized if he cannot pay the $7.36 million that he owes the government as reparations for his fraud. He paid approximately $1 million for the Wu-Tang Clan album, and because he commingled his assets with the proceeds derived from the fraud, until he pays the full reparations, Judge Matsumoto has decided that all property is subject to seizure and sale at auction.



Court Rebuffs Ninth Circuit's Copyright 'Server Test'

A New York district court strayed from the Ninth Circuit test, and found that embedded tweets, which had unauthorized uploads of a copyrighted photograph, "violated the plaintiff's exclusive display right, despite the fact that the image at issue was hosted on a server owned and operated by an unrelated third party." The decision may lead to an appeal to the Second Circuit, but if it holds, may increase the due diligence that publishers perform before displaying videos or photos.


Boston Symphony Finds Accusations Credible

Four women have come forward with accusations that the frequent guest conductor of the Boston Symphony, Charles Dutoit, was the perpetrator of sexual misconduct against them. Boston opened an independent investigation into Dutoit, and determined that the accusations were credible. Dutoit, who is 81 years old, has denied any wrongdoing and instead issued a statement that he found "informal physical contact is commonplace in the arts world as a mutual gesture of friendship."


Whose Mondrians Are They?

A dispute has erupted as to who the owner is of four paintings by Piet Mondrian, even after the paintings have sat in the Kaiser Wilhelm Museum since at least 1950. The heirs of Mondrian have argued that the artist lent the paintings to the museum almost 90 years ago and left them there when he fled Europe amidst World War II, but the city of Krefeld, where the museum is situated, has argued that the paintings were a gift from Mondrian (absent any evidence to support that claim).


France Moves Toward Plan to Return African Artifacts

Emmanuel Macron, the French President, has announced that two experts will oversee returning African artifacts currently housed in French museums. This announcement is part of his pledge in 2017 to free African heritage from European museums. Benin's president has long pushed for this announcement, as France invaded it in 1892 and began a period of colonial rule. Until now, the French government has opposed restitution, as it found the artifacts to be "property of the public."


Rome's Subway Project Keeps Digging Up Archaeological Marvels

In Rome, diggers have uncovered a house with a courtyard, fountain, and 14 rooms near a military barracks that was excavated two years ago. The discoveries were found as part of Rome's construction of a third subway line going through the center of the city. The subway lines travel approximately 100 feet below the ground, and archaeologists have found extraordinary things, including wood beams and artifacts that ordinarily deteriorate before archaeologists can capture and preserve them.


Frida Kahlo is a Barbie Doll Now

Mexican artist Frida Kahlo has been associated with many products before, but coinciding with International Women's Day, she is now a Barbie doll that is part of the "Inspiring Women" line of dolls. One of her family members took issue with the doll as it does not show a unibrow, which Kahlo was known to sport and was a reflection of "her striking and beautiful refusal to give in to certain sexist societal pressures." Mattel said in a statement that it properly "secured permission" from "the Frida Kahlo Corporation, the owner of all rights related to Frida Kahlo, to make this doll."



Family Court Involved in Determining Whether Children Should Play Football

While the precise number of cases is not known due to records being sealed in family court, there has been a spike of proceedings in family courts where judges have had to settle disputes between divorcing couples as to whether their children can play football, given the health risks that it presents. With the risk of concussions leading to the fatal brain disease CTE, parents have increasingly been concerned about allowing children to play, but parts of the country, such as the Midwest and the South, have not had a drop off in children playing football like in the Northeast. This has led to some divorced couples seeking to modify their custody agreements to settle disputes as to whether football should be allowed for the children, and has even led to some parents filing emergency requests to courts to allow children to play in upcoming games.


Roger Goodell Forces Jerry Jones to Pay Millions

The Commissioner of the National Football League ("NFL"), Roger Goodell, has won another victory over the owner of the Dallas Cowboys, Jerry Jones, in what has been a string of disputes. Jones is required to pay the NFL approximately $2 million, which represents the legal fees that the NFL accrued in litigating the issue of whether Cowboys running back Ezekiel Elliott's suspension would hold. The dispute went to federal court as Elliott was subject to a six-game ban for domestic-assault allegations, which Jones fought against, as Elliott was one of the top players in the NFL. Goodell's latest victory was 20 years in the making, as a provision was added to the NFL's constitution that allowed the commissioner "to demand reimbursement of legal fees from owners who cause" legal disputes.


Sebastian Coe Misled Parliamentary Investigators in Track and Field Probe as Russia Faces Expulsion for Doping

The IAAF, the world's track and field governing body, has warned Russia's athletes that it will face permanent expulsion from the sport if they do not "begin complying with a series of two-year-old antidoping requirements." Sebastian Coe, the president of the IAAF, announced that the organization will meet in July of this year to discuss additional punishment for the Russians. Coe is facing a controversy himself, however, as a group of British lawmakers have released a report alleging that he may have covered up an extortion scheme that involved blackmailing Russian athletes who had failed drug tests. At the very least, the report concludes, he failed to fully inform himself of the scheme, which he should have known, given that he was vice president of IAAF when it began.


In Fight for Equality, U.S. Women's Soccer Leads the Way

With the U.S. women's soccer team having shown that it is capable of making progress toward pay equality has come an expansion of the players' role beyond being soccer athletes. They are now advising others on how to achieve progress in their fields: WNBA players, Canada's soccer team, and the U.S. women's hockey team have contacted the U.S. women's soccer team for advice. In the two years since it began fighting for equal pay, the women's soccer team has inspired others around the world, such as Spain, Ireland, Brazil, Nigeria, Norway, and Australia's women soccer teams to take steps toward equal pay.


Winter Paralympics Open in Cheery Mood

In the opening ceremony of the Paralympics in Pyeongchang, a record 567 athletes paraded into the Olympic Stadium to begin the 10-day Games. Unlike with the Winter Olympics, athletes from the two Koreas did not enter the stadium unified.



Washington Becomes First State to Revive Net Neutrality Rules

The State of Washington has positioned itself to strike up a conflict with the Trump administration after it enacted its own net-neutrality rules. With the Federal Communications Commission having voted in late 2017 to repeal the Obama-era regulations that are designed to keep the internet a "level playing field," Washington has passed a law that bans "internet providers from blocking content or interfering with online traffic." The governor of Washington, Jay Inslee, said that he welcomes a legal challenge to the law, as the state has a right to protect its citizens.


Fourth Circuit Will Not Rehear Intellectual Property Verdict Against Cox

The Fourth Circuit will not reconsider its February decision to dismiss a $25 million music piracy verdict that was entered against Cox Communications. BMG Rights Management requested an en banc rehearing, but the appeals court has declined to rehear the case and did not disclose its reasons for doing so. The original dismissal of the case was based on improper jury instructions.


Judge Floats Idea to Settle Trump Twitter Blocking Case

A New York federal judge is presiding over a case where seven Twitter users joined a lawsuit against President Trump after he blocked them on Twitter. The lawyers for the users have argued that Trump's Twitter feed is "an official government account and that blocking users from following it was a violation of their First Amendment rights." The Department of Justice has argued that Twitter is not a public forum and that the users have not been "meaningfully excluded from it." In the most recent hearing, Judge Naomi Reice Buchwald was questioning not the First Amendment or jurisdictional issues but how Twitter works and what it is. She is expected to rule on the issue, but she urged parties to consider having Trump mute users he did not wish to hear.


App Released for Fake Videos

An anonymous developer has created a program called FakeApp which can take a famous face and superimpose it on another person to create a realistic video. The issues are abound with the technology: one familiar with the software can take one's appearance and use it in any way imaginable, including pornographic depictions. The sinister uses for the technology are of prime concern, even as presently it is more often used to make one a guest on a late night show or the host of an awards show.


Why Companies and Countries are Battling for Ascendancy in 5G

Fifth-generation wireless technology, also known as 5G, will bring "ultrafast wireless speeds" to users, allowing them to download movies in seconds. As 5G is expected to be the goal for the industry, the U.S. government intervened in Broadcom's $117 billion bid for Qualcomm, because it would "leave an opening for China to expand its influence on the 5G standard-setting process." Broadcom is based in Singapore and is set to take over Qualcomm, one of the leaders in the industry of cellular technology.


Ad Agencies' Reckoning on Sexual Harassment Comes on Instagram

An Instagram account, @DietMadisonAve, is suspected to be operated by 17 people and has the goal of revealing sexual harassment and discrimination in the advertising industry. When it was brought down in recent weeks, some feared that it was disabled by Instagram or hacked by those seeking to silence the victims. Others have attacked it for leading to trial-by-strangers on social media, where those accused do not have an opportunity to defend themselves before being publicized.


Sri Lanka Blocks Facebook After Mob Violence

In Sri Lanka, amidst mob violence against its Muslim minority, the government has banned Facebook, WhatsApp, and Instagram in an effort to stop coordinating further attacks. The government spokesman announced that the platforms were "spreading hate speeches and amplifying them," which has become a pattern in countries where social media has posed a threat to oppressive governments. In Myanmar, the government has blamed Facebook for spreading information about the ethnic cleansing of the Rohingya, but in the Philippines, Facebook has been used to spread pro-government propaganda.


Ex-Model, Mob Suspect and Murder Could Bring Down Slovakia's Government

Jan Kuciak, an investigative reporter, began digging into connections between government officials and organized crime in Slovakia, and he and his fiancee were killed just days later. The killings created a swell of public anger about corruption, with tens of thousands of people gathering in Bratislava to show solidarity. Prime Minister Robert Fico may be a victim of the public outcry, but he is known to blame the press and journalists before Trump ever used the phrase "fake news." Some analysts have speculated whether this will lead to a revolution similar to the 1989 Velvet Revolution that overturned the Communist government in Slovakia.


March 13, 2018

Constructing a Sports Gambling System for New York

By Bennett Liebman
Government Lawyer in Residence
Government Law Center, Albany Law School
Edited by Elissa D. Hecker

It is now conventional wisdom that the U.S. Supreme Court will soon find the 1992 Professional and Amateur Sports Protection Act ("PASPA") unconstitutional. PASPA is the federal law that requires states (except for those that had sports gambling before 1992) to make sports gambling illegal. If PASPA is unconstitutional, then the individual states would be free to determine whether to legalize sports gambling.

However, it's not that easy in New York State. Key and complex decisions need to be made by the legislature and the electorate before New York can establish a comprehensive system to legalize sports gambling.

The initial hurdle is New York State's constitution, which bans all of forms of gambling with certain specified exceptions. In terms of sports, the key exceptions are pari-mutuel horse racing and casino gambling. Since casino gambling can be viewed in the U.S. to encompass sports gambling, in 2013, as a part of the casino authorization legislation, New York State authorized the four upstate casinos to have sports gambling if PASPA were to be amended or found unconstitutional. Thus, if the Supreme Court finds PASPA unconstitutional, once the Gaming Commission establishes regulations, the four upstate casinos could begin sports gambling. For all the other entities in the state, sports gambling would need a constitutional change. If both the Senate and Assembly pass a sports gambling authorization in 2018, a newly elected legislature could then pass a second authorization in 2019. The amendment would then be submitted to the electorate in November of 2019. Full sports gambling could conceivably begin in 2020.

What, then, would occur? Who will be able to offer sports gambling, besides the casinos? Could the racinos, combined tracks and casinos, the individual racing associations, Off Track Betting ("OTB"), the state lottery, or the fantasy sports groups? The OTBs have been requesting sports gambling for over 40 years, and the fantasy sports companies would be harmed significantly from direct competition from sports gambling. Using the lottery system would bring a virtual army of retailers to sell sports gambling products. Perhaps individual bars, taverns, and even airport terminal managers would want to be part of any sports gambling network.

How would the federal and state governments tax revenue resulting from sports gambling? The federal government already taxes it. Some of the sports leagues are suggesting that they receive funds to preserve the integrity of their sports. What would the state tax rate be? Would state tax revenue, like the lottery, be funneled to education? If the state's tax is too high, would this open the way for tribal sports gambling to offer better odds and services to bettors?

How would revenues to OTBs make their way to local governments? Further, how would revenues from Video Lottery Terminals operated by racetracks be distributed to horsemen and to the state's horse breeders?

Would there only be in-person betting from individual tellers, or could there be slot-like machines that offer sports bets? Would telephone wagers and computerized bets be authorized, and would exchange wagering, where individual bettors offer their own lines to other bettors, be allowed? The state could authorize only one technology operator, or it could license several technology companies to oversee sports gambling.

What sports would be authorized as wagering products? Will games played by in-state colleges be the subject of bets? How about betting on minor league professional sports or on non-U.S. sports leagues? Will there be in-game wagering? Must one bet on individual games, or could one bet on the potential Super Bowl or World Series champion?

There is also the issue of proposition wagering, which involves betting on events not directly connected with the outcome of the event. Who wins the coin toss? How many completions will Tom Brady have? What's the over and under for the length of the national anthem? A decision will be needed regarding what proposition bets will be allowed.

On its face, sports gambling looks like the easiest game to operate. It should be a mortal lock for any operator to make money. However, legalizing sports gambling is actually a labyrinth. Given its past performances, it is even money that the state government will get tangled up in this maze. Mistakes in the maze have consequences. It can be a cruel game, with winners and losers. Authorizing sports betting is far closer to Jumanji than to Candyland.

Judge Cote and Richard Liebowitz

By Cynthia Arato

For the third time in two weeks, SDNY Judge Cote has skewered Richard Liebowitz, this time ordering his client to post a $10,000 bond for costs. Below is part of the decision: (citations and footnotes omitted)

Mr. Liebowitz has filed over 500 cases in this district in the past twenty-four months. He has been labelled a copyright "troll." . . . Mr. Liebowitz has been sanctioned by this Court for failure to comply with court orders and for filing misleading documents with the Court. . . . (imposing sanctions on Mr. Liebowitz and listing cases where Mr. Liebowitz has failed to comply with court orders). A number Mr. Liebwoitz's cases have been dismissed from the bench as frivolous. . . . (Judge Kaplan noted that he "awarded over $121,000 in attorney's fees against a client of Mr. Liebowitz in three other, related copyright infringement cases that were dismissed from the bench." . . . In this case as with others, there is no record that Mr. Liebowitz complied with the court order that required him to serve a notice of the initial pretrial conference on the defendant and to file proof of such service. Multiple courts, on their own initiative, have ordered Mr. Liebowitz to show cause why he should not be required to post security for costs as a condition of proceeding further with an action. . . . (Mr. Liebowitz voluntarily dismissed the case before responding to the Judge Abrams' Show Cause Order.); . . . (Mr. Liebowitz informed the court that the parties had settled the case before responding to Judge Kaplan's Show Cause Order.). . . . (Judge Torres ordered Mr. Liebowitz to show cause why the action should not be transferred. Mr. Liebowitz voluntarily dismissed the case before responding to the Order to Show Cause.); . . .

Based on this record, the imposition of a bond is entirely appropriate. The defendant seeks a bond of at least $105,000. This is in large part based on the attorney' fees that Hearst would be entitled to if it prevailed in this action. The plaintiff asserts that he lives paycheck to paycheck and cannot pay a bond.

The plaintiff argues that his claims are not frivolous and so a bond is inappropriate in this case. Frivolousness is one ground for imposition of a bond; a bond may be justified based on a variety of other factors, see supra. If the Campaign violated the plaintiff's rights in providing the photograph to the defendant, the plaintiff's case may have merit. But, to this point, it has been irresponsibly litigated.

For example, in opposition to this motion, Mr. Liebowitz argues that his client's sworn testimony definitively precludes the possibility that he granted the Campaign the right to distribute his photograph. But Mr. Reynold's testimony does no such thing: he merely asserts that he did not have the "intention" of allowing the Campaign to distribute his work for publication. Plaintiff describes no communication between him and the Campaign that could justify the claim made in the opposition brief.

Mr. Liebowitz also argues that plaintiff has not willfully disobeyed court orders, obstructed discovery, or increased the cost of litigation. This is demonstrably false. . . .

The opinion is available at: Reynolds v. Hearst Communs._ Inc._ 2018 U.S. Dist. LEXIS 35453.PDF

March 15, 2018

De Havilland v. Pacific 2.1 Entertainment Group, Inc. et al

By Pamela Jones

Oral argument in De Havilland v. Pacific 2.1 Entertainment Group, Inc. et al will take place on Tuesday, March 20, 2018, at 1:30 pm, before the California Court of Appeals Second Appellate District Division 3. Appellants and amicus curiae in support of the Appellants will go first followed by the Respondents and amicus curiae in support of Respondents. Special arrangements have been made for oral argument in this case to be presented to the court at University of Southern California's Gould School of Law. Appellants were unsuccessful in their effort to have the case dismissed under California's Anti-SLAPP statute, and filed a notice of appeal on October 10th. On October 26th, the Court granted De Havilland's attorney's request for "calendar preference" and directed the parties to submit briefs, on an expedited basis, no later than December 26, 2017. De Havilland, whose age is 101, resides in France and is not expected to attend in person.

All eyes are focused on the outcome of this highly-visible California "right of publicity" case, and its potential impact on depictions of real people in docudramas and "biopics", as well as Porco v Lifetime Entertainment Serv., LLC case, a New York case that similarly challenges First Amendment protection of expressive works and statutory case law. Amicus curiae briefs in support of the Appellant have been submitted by Netflix, Electronic Frontier Foundation, Motion Picture Association of America, Organization of Transformative Works, Wiki Media Foundation, and a group including A&E Television Networks, LLC, Discovery Communications LLC, Imperative Entertainment LCC, Urban One Inc., Critical Content LLC, the Reporters Committee for Freedom of the Press and the First Amendment Coalition. An amicus curiae brief in support of the Respondent was submitted by SAG/AFTRA.

March 18, 2018

Week In Review

By Nick Crudele
Edited by Elissa D. Hecker

Trump Insists That the U.S. Has a Trade Deficit With Canada

President Trump is sticking to his claim that the United States has a trade deficit with Canada, following reports that he stated such at a fundraiser. Trump insisted on Twitter that "We do have a Trade Deficit with Canada..." when, in fact, the U.S. runs a surplus with that country when the value of services is included. Trump claimed at a fundraiser that when he spoke with Canadian Prime Minister Trudeau about trade, he had "no idea" whether or not the U.S. had a trade deficit. Trudeau's office denies that the conversation ever took place.


Trump's Tough Talk Rattles Trade

President Trump's steep tariffs on imported steel and aluminum might be the first shot in what some see as a global trade war, or worse. Experts believe that Trump's tariffs, which exempt some countries but not others, and his threats to remove the exemptions if NAFTA is not renegotiated, could upset the economic prosperity and security the United States and its allies have experienced for the last few decades.


Tillerson Ousted

President Trump fired Secretary of State Rex Tillerson after months of speculation about the turbulent relationship between the two. Trump made the announcement of Twitter before calling Tillerson. CIA Director Mike Pompeo was nominated to take over for Tillerson.


ICE Spokesman Resigns in Protest

ICE spokesperson James Schwab resigned from the San Francisco Division, citing what he called falsehoods being spread by members of the Trump administration. Schwab said, "he just couldn't bear the burden continuing on as a representative...knowing that the information was false."


Kudlow Becomes Presidential Advisor

Television host Larry Kudlow accepted the role to become President Trump's chief economic advisor, replacing Gary Cohn, who resigned after losing a battle over steel and aluminum tariffs. Kudlow, an advocate for lowering taxes on the rich, is one of many TV personalities under consideration for top White House positions.


Employee Diversity Still Eludes Google

Google has made little progress in its attempt to diversify its workforce. Google, one of the first tech companies to release its race and gender statistics, has struggled to diversify its largely white and Asian male workforce. A series of lawsuits brought by former employees have accused Google of discriminating against white men in its attempt to be more inclusive.


Mass Protests Unites Students Against Gun Violence

Students across the country left class on Wednesday to protest gun violence after the school shooting at Stoneman Douglas High School. This was the first major student-led coordinated movement against gun violence. Two more protests are set for March 24th and April 20th, the latter being the anniversary of the Columbine shooting.


Trump Backtracks on Gun Control

President Trump's tough talk on gun control and opposing the NRA has turned into a whimper, bowing to the group, and backing away from any real gun control. Instead, Trump is pushing the idea of arming teachers and small improvements to background checks.


Democrat Lamb Wins House Seat in Trump Country

Democrat Conor Lamb won a tightly contested special election for a House seat in southwestern Pennsylvania, the same area where Donald Trump carried the 2016 presidential election by more than 20 percentage points. Lamb campaigned as an independent-minded, anti-Pelosi candidate, echoing themes of unions' rights and economic fairness, while taking a conservative approach to the issue of guns.


Trump Succeeds in Blocking Broadcom from Buying Qualcomm

Days after President Trump blocked Singapore based Broadcom's hostile takeover bid for U.S. based Qualcomm, Broadcom officially withdraw its $117 billion bid. Trump blocked the deal after a government panel reviewing the deal disclosed serious concerns about national security.


Texas Law Banning Sanctuary Cities Moves Forward

A federal appeals court ruled that Texas can move forward with its law banning sanctuary city policies. The Court upheld most provisions of the law, which established civil penalties for local governments and law enforcement that do not comply with immigration laws and detention requests. The law was blocked by a lower court in August. The appeals court struck one provision of the law, which punished officials for "endorsing" policies that limit immigration law enforcement.


House Republicans Opposed to Intel Community on Russian Meddling

Republicans on the House Intelligence Committee concluded that Russian President Vladimir Putin was not trying to help Donald Trump win the 2016 election, despite the intelligence community, which they oversee, reaching the opposite conclusion. The Committee Republicans said that they found no evidence of collusion between the Trump campaign and Russia, but did say that Russia meddled in the election to cause chaos.
Special counsel Robert Mueller continues his probe.


Jackpot Winner Can Remain Anonymous

A judge held that the winner of one of the country's biggest lottery jackpots can remain anonymous. The women, who won $560 million, argued that she feared being overwhelmed with requests for a share and was concerned about her safety. The state of New Hampshire argued that the name must be disclosed to ensure the prizes are distributed fairly, and that the winners are not related to lottery employees. The judge sided with the woman, writing that "she will be subject to an alarming amount of harassment, solicitation and other unwanted communications."


White House Aides Blur Legal Line with Media Messages

White House aides, including Kellyanne Conway and Jared Kushner, are blurring the legal lines barring them from using their positions to engage in partisan politics with their media presence. At least eight complaints have been filed against aides for potential violations of the Hatch Act, the 1939 law barring government officials from using their positions to engage in partisan politics. Conway's alleged violation occurred when she weighed in on the Alabama Senate race during a televisioninterview. Kushner used his White House title on a news release about President Trump's re-election bid. During the eight years of the Obama administration, only six complaints were filed.


F.B.I. Agent McCabe Fired Over Candor Questions

F.B.I. Agent Andrew McCabe, a frequent target of President Trump's ire and Twitter taunts, who stepped down from the F.B.I. in January after accusations surfaced that he failed to be forthcoming about conversations between the F.B.I. and a journalist, was fired just days before he was set to retire. In a yet to be released report, an F.B.I. internal investigation found that McCabe had shown a lack of candor under oath on multiple occasions, a fireable offense.


Ex-Cuomo Aide Found Guilty of Taking Bribes

Governor Cuomo's former aide Joseph Percoco was found guilty of taking bribes from two executives at companies seeking to do business with the State government. The prosecutors alleged that Percoco was bribed by the executives when they give his wife a no-show job and when he received cash bribes through shell companies.


President Xi Given Indefinite Rule

In a vote of 2,958 to 2, Chinese legislatures voted to amend the constitution to remove term limits for the president, thus giving President Xi the power to rule indefinitely. The amendment, along with other amendments that included adding a salute to Xi in the constitution, gave constitutional backing to the Communist Party.


Philippines Will Withdraw From International Criminal Court

Philippine President Rodrigo Duterte announced that his country would withdraw from the International Criminal Court ("ICC"), claiming that its withdrawal would trigger the "beginning of the end" for the ICC. The announcement comes weeks after the ICC opened an investigation into possible crimes against humanity as part of Duterte's deadly war on drugs.


Myanmar Disputes United Nations Accusations of Human Rights Violations

Myanmar disputed United Nations reports claiming that there was evidence of genocide and ethnic cleansing in Rakhine state. The Myanmar army is accused of murder and rape of Rohingya Muslims, as well as the burning of their villages. Government officials insist that threats from militant group Arakan Rohingya Salvation Army and the lack of jobs and food force the Rohingya from their homes and has denied any human rights violations.


Putin Suggests Jews Behind 2016 Election Hacks, Dems Demand Russian Extradition

Democratic leaders implored President Trump to do everything in his power to extradite 13 Russians charged with subverting the presidential election, after Russian President Putin suggested that Jews might have been behind the hack. Putin, in an interview with NBC, said about the 13 Russians, "Maybe they are not even Russians but Ukrainians, Tatars or Jews...Maybe the U.S. paid them for this."


Human Rights Court - Burning Picture of King and Queen is Free Speech

The European Court of Human Rights held that burning the picture of the Spanish King and Queen is justifiable political criticism and overturned the convictions of two men sentenced to 15 months in prison for insulting the monarchy. The Court said the burning "had not been a personal attack on the king...but a denunciation of what the king represented."


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


Visual Effects Firm Fights Hollywood Studios with New Copyright Theory

Rearden LLC ("Rearden"), the visual effects firms that claims ownership to a widely used facial motion-capture technology, is continuing its copyright fight against Hollywood. Rearden, which successfully sued two technology companies for stealing its product, is continuing its fight against Hollywood studios who used the stolen technology. In Rearden's original complaint against the studios, it alleged patent, trademark, and copyright claims. The district judge allowed the patent and trademark claims to move forward. Rearden's copyright claim, which alleged that it owned the copyright in a software program's output, and therefore anything derived from that software, was dismissed with prejudice, with the judge writing that the software's output is not plausible without any substantial contribution from the actors or directors. Rearden amended its complaint on the theory that the studios are vicariously and contributorily liable for infringement, because they were in a position to police the technology companies that stole the technology.


Stormy Daniels Sued By Trump After Lawyers Trade Barbs over "60 Minutes" Interview

President Trump's lawyers filed a lawsuit against porn star Stormy Daniels for allegedly violating a confidentiality agreement she signed after a supposed affair with the Trump. This is the first time that Trump has formally joined his legal team's fight against Daniels. Prior legal wrangling was conducted by Trump's lawyers on behalf of a shell company.

Previously, Trump's lawyer Michael Cohen and Daniel's attorney Michael Avenatti had a war of words in the media. Avenatti was on a media blitz trying to pressure Trump into releasing Daniel from a non-disclosure agreement that she signed after an alleged affair with Trump. Avenatti recently tweeted a photo of his client speaking with Anderson Copper of "60 Minutes" for a yet-to-be aired segment.



Harper Lee Estate Sues Aaron Sorkin over Mockingbird Portrayal

The estate of author Harper Lee has sued screenwriter Aaron Sorkin over his depiction of Atticus Finch in Lee's classic novel "To Kill a Mockingbird." Lee's original story portrays Finch as a heroic figure crusading against the unjust accusation of a black man on trial for rape. Lee's estate alleges that Sorkin's betrayal of Finch as naïve apologist for the racial status quo breaches the contract of the parties to "not derogate or depart in any manner from the spirit of the Novel nor alter its characters."


Bankrupt IHeartMedia Has Plan To Halve Debt

IHeartMedia Inc. filed bankruptcy plans to halve its debt load by more than $20 billion. The largest U.S. radio station owner has been hurt by its legacy of leveraged buyout and the increase of new digital rivals.


Cosby Judge Allows Five More Accusers to Testify

The judge in the Bill Cosby sexual assault case said that prosecutors can present up to five more accusers as witnesses. The judge is letting the prosecution choose five witnesses out of a list of eight who have accused the comedian of sexual assault dating back to the 1980's, including model Janice Dickenson. Cosby's lawyers said that the prosecution's attempt to bring up "ancient allegations" shows "how desperate they are and that this is a very weak case."


Saudi Kingdom Building Entertainment Industry

Notoriously conservative Saudi Arabia has started to lighten up, allowing its citizens to enjoy entertainment that is common-place to most of the world. The kingdom is now allowing events such as comic book festivals, dance performances, concerts, and truck rallies, all of which would have been strictly forbidden years ago. This is an attempt by Saudi Arabia to create jobs by keeping Saudis from going abroad in search of fun and employment.



Pepe the Frog Artist Sues for Copyright Infringement

Pepe the Frog artist Matt Furie sued right-wing conspiracy theorist Alex Jones for copyright infringement over a poster sold on Furie's Infowars website. The pro-Trump poster featured an image of the frog among right-wing figures, including Milo Yiannopoulos and Ann Coulter, with the acronym "MAGA". Furie has been waging a fight against Jones for months to reclaim his "peaceful frog-dude".



Sotheby's Ends Meier Show Amid Harassment Claims

Prominent architect Richard Meier had his exhibition closed at Sotheby's amid New York Times reports on sexual harassment allegations. The show, which opened onFebruary 28th and was scheduled to close on March 29th, featured collages and silk-screens. The harassment claims include Meier exposing himself to female assistants and asking a former female employee to help with a collage that included images of female genitalia.



The Metropolitan Opera Fires Levine After Investigation; Levine Sues

The Metropolitan Opera ("the Met") has fired former director emeritus James Levine after its investigation into sexual abuse and harassment allegations. The investigation found that Levine "engaged in sexually abusive and harassing conduct towards vulnerable artists in the early stages of their careers." Levine, who served as the musical director for 40 years until he retired, was suspended by the Met during the investigation. Levine filed a lawsuit saying that the company exploited baseless allegations to tarnish his reputation and fire him.



Levine's Firing and Lawsuit Reveals Fractured Relationship With Met

Conductor James Levine's firing from the Met amid an investigation into sexual harassment conduct and his lawsuit that followed reveals the fractured relationship between the two parties, despite their outward appearance. Only seven years ago, the Met marked Levine's 40th anniversary with the company with two lavish boxed sets surveying his career and a PBS produced documentary. Yet behind the scenes, the relationship was fracturing. Levine, who for health reasons had to step down as conductor, said in his lawsuit that the company "brazenly seized" on allegations of misconduct as a pretext to end its relationship with him. The lawsuit goes on to say that the Met's general manager Peter Gelb routinely made jokes and comments about Levine's physical condition.


Rubble Makes Protest Art in Beijing

Chinese artist Yang Qian has turned the ruble from the government-demolished homes of migrant workers into protest art. Qian hopes that his work - a display of crystallized sealed objects from the homes, including stuffed animals, broken glasses, and children's shoes - will convey the idea that wealthier people treat migrants like garbage.



FIFA Hopes to Launch Women's Soccer League

FIFA plans to launch a new global women's soccer league as early as 2019. FIFA's president Gianni Infantino will ask the organization's executive council to approve the plan. The league would feature 16 of the world's top women's national teams and four regional leagues to encourage the development of women's soccer globally.


Pacific-12 Recommends Sweeping Changes Amid NCAA Investigation

The Pacific-12 (Pac-12") Conference announced its support for several reforms to college basketball amid federal investigations into recruiting practices. The reforms include encouraging the National Basketball Association ("NBA") and NBA Players Association to end the "one-and-done" rule and allow high school players to be drafted, but if they choose to go to college, they must stay three years. The report by the Pac-12 Conference also recommended barring summer basketball programs from being run by shoe companies and full transparency of apparel deals with coaches and universities.


U.S. Looking into Ways to Punish Russian Doping Officials

The United States Anti-Doping Agency is exploring the use of government sanctions normally reserved for terrorists and murderers to punish Russian doping officials. The agency wants to sanction the Russian officials who were responsible for the state-sponsored doping program that embroiled the 2014 Sochi Olympics. Any sanctions would freeze the assets of the Russian officials.


Clyde Drexler Takes Over as Big3 Commissioner

Clyde Drexler was named the commissioner of the Big3 three-on-three basketball league. Drexler takes over for Roger Mason Jr., who was dismissed after allegations of an inappropriate relationship with two Qatari investors.


John Skipper Explains His Sudden Departure From ESPN

John Skipper, the former president of ESPN and co-chairman of Disney, told The Hollywood Reporter that an extortion plot by someone from whom he bought cocaine led to his resignation. Skipper, who in his resignation letter cited substance addiction, was with Disney for 27 years. Skipper gave his resignation to Disney CEO Bob Iger after telling Iger about the plot.



Parkland Students Take Their Battle to Social Media

The students of Marjory Stoneman Douglas High School learned quickly that the best way to get their message out about gun control is through social media; particularly Twitter. Harnessing their millions of followers, the students confronted politicians and the media head-on with their messages. However, the social media activism has come at a cost, including the stresses of managing their message and dealing with competing views.


AT&T Antitrust Trial Begins

The government's antitrust trial against AT&T's attempted acquisition of Time Warner begins this week. The government argues that if the acquisition is allowed to proceed, consumers will end up paying more to watch television shows, whether on a television screen or other mobile device, because of the decrease in competition. AT&T says that it needs Time Warner to compete against Amazon, Google, and similar companies. Experts believe that if deal is allowed to move forward, it could spur other similar acquisitions. If it is blocked, big internet players will have to build out their own content.


Trump Consultants Accused of exploiting Facebook User Data

A whistleblower at voter-profiling company Cambridge Analytica accused the company of harvesting the private information of millions of Facebook users to help the Trump administration influence their behavior in the run-up to the 2016 presidential election. Cambridge Analytica apparently paid a third-party, who claimed to be collecting it for academic purposes, to acquire the personal information of the users.


Facebook Blocks Hate Group in England

Facebook blocked far-right group Britain First for breaking rules against inciting hatred. Facebook said that it took down the group's page and those of its leaders for repeatedly violating rules designed to hatred against minority groups. Britain First received global attention when President Trump retweeted one of its anti-Islamic posts.


National Geographic Accepts Racist Past

A report commissioned by National Geographic to examine the magazine's troubled history on race found that the magazine "reproduced a racial hierarchy with brown and black people at the bottom, and white people at the top", with a complete absence of urban, educated Africans. University of Virginia professor John Edwin Mason's report was featured prominently in the magazine under a headline "For Decades, Our Coverage Was Racist. To Rise Above Our Past, We Must Acknowledge It."


Seth Rich's Family Sues Fox News

The family of Seth Rich, the former Democratic aide whose murder fueled conspiracies about his involvement with leaking DNC emails prior to the 2016 presidential election, sued Fox News for causing them "extreme and outrageous" conduct. The suit stems from Fox News' publication of an article, which implied that Rich was murdered in retaliation for his having leaked DNC emails. Fox News later retracted the story.


Slovak Leader Clings to Power After Murder and Protests

Slovakian Prime Minister Robert Fico and his party are clinging to power after mass protests over the murder of journalist Jan Kuciak and his fiancée. It is believed Kuciak was killed because he was investigating ties between an Italian crime syndicate and the Slovakian government. The protesters took to the streets calling for Fico's resignation and expressing their anger over the government's handling of the murder investigation.


March 21, 2018

Ninth Circuit Affirms, 2-1, "Blurred Lines" Infringement Judgment

By Cynthia Arato

​There is a strong dissent stating that "Blurred Lines" and "Got To Give It Up" were not objectively similar as a matter of law under the extrinsic test because they differed in melody, harmony, and rhythm, and the majority's refusal to compare the two works improperly allowed the defendants to copyright a musical style.

The decision is available at blurred lines.pdf

March 25, 2018

Week in Review

By Eric Lanter
Edited by Elissa D. Hecker

Students Lead Rallies Against Gun Violence Around World

From Parkland, Florida, to Washington, to Los Angeles, students gathered on March 24th to protest gun violence just five weeks after the tragic school shooting. The students argue that more attention must be directed to the ease with which one can obtain and use a high powered gun to commit atrocities, and they have shown that they will lead the effort to hold politicians accountable for allowing the gun lobby to have such a strong pull on Congress. For many involved in the March for Our Lives, it was their first taste of protest or collective action, and with 800 "sibling" marches across the country and around the world, many found "eloquent calls for gun control and pledged to exercise their newfound political power in the midterm elections this fall."


Skepticism by the Court For a Law That Requires A Discussion of Abortion

California's law requiring "crisis pregnancy centers" to provide visitors with information about abortion is facing scrutiny in the United States Supreme Court. The centers encourage women to avoid abortion or to place the baby for adoption, and the law requires that notices are posted advising women that abortions, contraception, and prenatal care are available. At oral argument, the Justices seemed concerned that the law posed a "serious First Amendment problem." There is a second part of the law with which they took issue as well: the law requires unlicensed centers to disclose in large font that they are not licensed by the State.


Bolton Appointed to Trump's Cabinet, Joining Other Television Talents in Administration

President Trump has appointed John Bolton, the former U.S. Ambassador to the United Nations, to the position of National Security Advisor. Bolton replaces H.R. McMaster. Known for his hawkish views, it is expected that he will take more aggressive positions against Iran, North Korea, and China, and potentially Russia. Allies of the U.S., however, are not optimistic about Bolton's appointment, as they fear he may "goad Mr. Trump into seeking military solutions to diplomatic problems."



Trump Signs Spending Bill, Reversing Veto Threat and Avoiding Government Shutdown

After Congress passed a $1.3 trillion spending bill to avert a government shutdown at midnight on Friday, President Trump announced that he was considering a veto of the bill, as it did not fully fund the border wall and did not deal with the Dreamers (immigrants who came to the country as children illegally). However, after backlash grew, Trump announced that he would sign the spending bill and reluctantly did so shortly thereafter. This reversal came just hours after two of his advisers assured reporters that Trump would sign the spending bill without hesitation once it was on his desk.


Trump Hits China With Stiff Trade Measures

The Trump administration accused China of "stealing valuable technological know-how from American companies" and proposed tariffs on $60 billion in Chinese goods. China responded with its own penalties "aimed at American products," which raised questions of whether the two powers can resolve their differences and avert a trade war. Those questions rattled markets in the world as well, as it has illustrated the Trump administration's rejection of free trade, which may carry consequences throughout the tech industry, and also the American and Chinese economies more generally.



Transgender Workers Gain New Protection Under Court Ruling

The Sixth Circuit Court of Appeals in Cincinnati held that job discrimination on the basis of transgender status "was inherently sex discrimination, and that the employer in this case could not claim an exemption from the law because of his religious beliefs." The case was brought by the Equal Employment Opportunity Commission on behalf of a funeral director who transitioned from male to female, but was then fired by his employer, a Michigan funeral home. Attorney General Jeff Sessions last year circulated a memorandum that claimed Title VII did not apply to sexual discrimination on the basis of transgender status, but only to discrimination between men and women. The Court's decision indicated that as a person may transition, a dress code cannot be enforced so as to terminate that person's employment for that reason, even despite the Religious Freedom Restoration Act of 1993, which the employer attempted to claim applied in this matter.


Justice Department Revives Push to Mandate a Way to Unlock Phones

The FBI and Justice Department officials met with security researchers to work toward getting a "legal mandate that tech companies build tools into smartphones" that would allow access to encrypted data, for the purpose of advancing criminal investigations. The Justice Department has found that there are existing mechanisms that allow access to encrypted data without exposing the devices to hacking. Whereas under the Obama administration, this effort was not openly discussed, that has changed under the Trump administration, with both Deputy Attorney General Rod Rosenstein and the FBI director Christopher Wray discussing the issue of individuals "going dark," or encrypting data before investigators are able to get wiretaps or search warrants.


President's Call to Putin Dodges Talk of Foul Play as Trump's Lead Lawyer Resigns

On Tuesday, President Trump called Russian President Vladimir Putin and congratulated him for his re-election, even as it was reported that an advisor noted that he should not congratulate Putin on the victory, given the improprieties of the voting process. Trump told reporters that the two were likely to meet "in the not-too-distant future," but this talk came five days after the administration "imposed sanctions on Russia for its interference in the election and for other 'malicious cyberattacks.'" In the past week, the administration has shown its reluctance to criticize President Putin as well as its half-hearted attempts at dissuading Russia from further meddling.



Fed Up, Teachers in Oklahoma May Walk Next

After last month's walkout of teachers in West Virginia that resulted in a pay raise, teachers in Oklahoma started to band together to protest not having had a raise in 10 years. They vowed to stage their own walkout on April 2nd if the state legislature does not increase pay and education budgets. Some teachers have taken second jobs as "luggage handlers, Uber drivers or in lawn maintenance," because their wages have not been sufficient to pay their bills. In 1990, teachers in Oklahoma last went on strike and earned a raise and limitations on class sizes, and teachers now are hoping to recreate that success, especially following the West Virginia teachers' victory.


A Subspecies of Rhino Has Lost Its Last Male

In Kenya, the last northern white rhinoceros has died. It was 45 years old, and its death was expected, as it was elderly. There now are two female white rhinoceros remaining, which are both in conservation, and scientists are hoping to reproduce the species that once numbered in the thousands. Poaching caused the extinction of the species, and scientists are hoping that frozen cell cultures from northern white rhinos may be able to create stem cells and lead to creation of an embryo.


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


"The Apprentice" Contestant Can Sue President

New York Supreme Court Justice Jennifer Schecter ruled that a former contestant on "The Apprentice", Summer Zervos, may sue President Trump for defamation based on statements he made about her in the lead-up to the 2016 presidential election. She previously said that Trump made unwanted sexual advances, and the lawsuit proceeding may require Trump to be deposed and to speak to the accusations of sexual harassment prior to his taking office. Judge Schecter, in her opinion, wrote that "[n]o one is above the law," and that it "is settled that the president of the United States has no immunity and is 'subject to the laws' for purely private acts."


Ex-Model Sues To Void Muzzle By Trump Ally

Karen McDougal, a former Playboy model, has alleged that she had an affair with President Trump and has sued to be released from a 2016 legal agreement that prohibited her from speaking about the affair. She joins Stormy Daniels, also known as Stephanie Clifford, in suing the president for this reason. McDougal is suing The National Enquirer, which paid her $150,000 for her silence, as it is suspected that its owner coordinated with Trump to silence the women by buying their stories and then burying them. Both women have described the affairs as being consensual, but Trump denied them, and sought to arbitrate the claims rather than litigate them in court.


Cuomo Orders Review of Decision Not to Prosecute Weinstein in 2015

Governor Andrew Cuomo ordered the state Attorney General, Eric Schneiderman, to investigate why Manhattan District Attorney Cyrus Vance did not file charges for sexual harassment against Harvey Weinstein. Vance has drawn scrutiny for not filing charges after having accepted campaign donations from Weinstein's lawyers. Cuomo's action may be partly owing to the pressure from the entertainment industry, with the Time's Up and MeToo movements gaining traction throughout the industry.


Cosby Wants to Replace Judge

Bill Cosby's attorneys have filed a motion stating that Judge Steven O'Neill has shown a "clear appearance of partiality" and should be replaced by a randomly selected judge. The basis for the motion is that Judge O'Neill's wife is an advocate for victims of sexual assault and leads the University of Pennsylvania's Sexual Trauma Treatment Outreach and Prevention program. She has also given money to V-Day UPenn, a campus organization that is planning to rally outside the courthouse when Cosby's trial proceeds. Cosby's attorneys explain in the motion that these actions have created a situation where the judge's wife "donated marital assets to the very organization that will be protesting against Mr. Cosby at his upcoming retrial."


The Actor Incorporates

When Congress and President Trump enacted the new tax law at the end of 2017, it was rumored that they had not thought through all of its implications. Now, as a result of the tax law, New York actors have been approaching accountants that are trained in setting up S-corporations to take advantage of tax deductions. An individual actor is no longer able to claim expenses, such as buying scripts or taking classes as being deductible, but when a corporation is formed, an actor is free to claim those deductions. While the incorporation process may cost as much as $20,000, for performers making over $200,000 a year, there are significant savings to be had under the new law.



Despite Trump Threat, National Endowment for the Arts and the National Endowment for the Humanities Spared in Spending Bill

In the spending bill that President Trump signed on Friday, endowments for the National Endowment for the Arts and the National Endowment for the Humanities received an increase of approximately $3 million to their funding, putting both at around $153 million. Trump had called for an end to the Endowments in 2017, and arts groups around the country began an effort to lobby to preserve the funding that has existed since 1965.



Curveball in New Tax Law: Trades are Trickier

The tax law that Congress and President Trump passed has also had a significant effect on trades within the Major League Baseball (MLB) and the National Basketball Association (NBA). There is a new requirement that subjects manufacturers and farmers to pay additional capital gains taxes "if they trade an asset for something more valuable," which the Joint Committee on Taxation estimates will bring in revenue of $31 billion in the next 10 years. Baseball teams, however, will now have to pay capital gains taxes when they trade or exchange highly paid players as well. One analyst expects the MLB and NBA to lobby Congress to make a change to the law to exempt sports teams, as it will have an adverse impact on revenue streams.



Security Officer to Exit Facebook as Outcry Grows

The chief information security officer of Facebook, Alex Stamos, is set to depart after tension has broken out in the senior leadership of the company following reports about how the social media platform has been misused to influence election results. Stamos advocated more disclosure surrounding the Russian activity in the months leading up to the 2016 election and to prepare for the 2018 midterm elections. The exit comes as Facebook is dealing with one of its biggest crises to date: the disclosure that 50 million of its user profiles were harvested by Cambridge Analytica, a "voter-profiling company." To date, Chief Executive Officer Mark Zuckerberg's reaction to the news has struck analysts as tone deaf, but lawmakers in England and the U.S. are prepared to bring Zuckerberg or other Facebook executives in to testify publicly. Additionally, Cambridge Analytica's chief executive has stepped aside as British authorities raided its London office.




Video Giant Leaves Facts To the Crowd

YouTube, owned by Google, has been increasingly concerned about the ability for videos to spread conspiracy theories and misinform viewers on its website. Its chief executive, Susan Wojcicki, has indicated that YouTube will enlist Wikipedia's help in sorting out those "conspiracy theories and misinformation" on YouTube, as it will experiment with "information cues" that will appear as captions and articles when certain subjects are raised in videos. Those in the industry have had negative reactions about YouTube's approach, and Wikipedia's parent Wikimedia Foundation apparently had not been contacted by YouTube prior to the announcement at South by Southwest in Austin.


Analyst at Fox Quits, Calling Network a 'Propaganda Machine'

Longtime Fox News analyst Ralph Peters has attacked the network and said that he cannot "in good conscience" remain with the organization, as it is "now wittingly harming our system of government for profit." As a retired lieutenant colonel in the Army, Peters said that the network had devolved from an outlet for conservative viewpoints to "a mere propaganda machine for a destructive and ethically ruinous administration." The network responded by saying that it was "extremely proud of our top-rated prime-time hosts and all of our opinion programming."


O'Reilly and Fox Seek to Dismiss Defamation Suit as Fourth Woman Files Defamation Suit Against O'Reilly

A former Fox News anchor, Laurie Dhue, has sued Bill O'Reilly, the former Fox News host. She is one of several women who reached a settlement after accusing O'Reilly of sexual harassment, but she has filed the lawsuit based on O'Reilly having depicted her "as a liar, tarnished her reputation and damaged her career prospects." Even with the network having paid Dhue in exchange for her dropping a claim for sexual harassment, O'Reilly accused her of having fabricated allegations for either financial or political gain. Dhue's suit is not unique, however; three women also filed defamation suits against O'Reilly after he disparaged them. O'Reilly and Fox News attorneys have filed a motion to dismiss the defamation lawsuit on the basis that O'Reilly was not referring to the women with his comments, and also stating that they had violated their contracts by not bringing their claims to arbitration prior to court.



March 27, 2018

Artists' Rights: Practical Considerations

Tuesday, May 01, 2018
4:00 PM - 6:30 PM

31 Mamaroneck Ave, 9th Floor
White Plains, NY 10601

This program is FREE to all who attend, but capacity is limited so registration is required. This event is for information only, no CLE will be provided.


Join the EASL Section (http://www.nysba.org/easl), ArtsWestchester (https://artswestchester.org/) and Wilson Elser for a discussion on practical ways for artists to protect their copyright and moral rights. The discussion will including licensing, appropriation art, and collaborations.


Jana S. Farmer, Esq., Wilson Elser. Jana is an art lawyer representing art market participants in all stages of the creation, licensing, sale, lending, gifting, merchandising and display of art.

Jill A. Ellman, Esq., M. Ross & Associates LLC. Jill's intellectual property practice incorporates transactional and litigation matters on copyright and trademark issues ranging from registration through enforcement for creative clients in the retail, apparel and luxury goods industries.

Donna Frosco, Esq., Dunnington, Bartholow & Miller. Donna Frosco is a partner with the law firm of Dunnington, Bartholow and Miller LLP in the firm's Intellectual Property and Art Law, and International Practice Groups concentrating on representation of clients in relation to intellectual property and brand protection.


Nisa Ojalvo, VP, Legal Affairs, LVMH Moët Hennessy Louis Vuitton Inc. Nisa joined LVMH's New York office in 2001, and worked previously in Japan and Hong Kong. She is an internationally published photographer and has exhibited her work in Scandinavia, Asia and Europe.

To register over the phone please contact the Member Resource Center at 1-800-582-2452 for questions please contact Beth Gould at Bgould@nysba.org

Great Minds v. FedEx Office & Print Servs., Inc.

By Barry Werbin

The Second Circuit decision issued on March 31st in Great Minds v. FedEx Office & Print Servs., Inc. (No. 17-808-cv) (Great Minds v. FedEx (2d Cir.).pdf) found that the terms of a Creative Commons open license granted by the publisher of a "Eureka Math" curriculum that permitted copying and use of the free downloaded course materials by anyone for a non-profit purpose, required dismissal of an infringement claim against FedEx whose stores had made copies of the curriculum for school districts and charged for those copies. The download license terms did not expressly restrict further copying assistance by third parties at the direction of the authorized non-profit licensees. Note that FedEx had disclaimed reliance on a fair use defense.

The Court held:

"Because FedEx acted as the mere agent of licensee school districts when it reproduced Great Minds' materials, and because there is no dispute that the school districts themselves sought to use Great Minds' materials for permissible purposes, we conclude that FedEx's activities did not breach the license or violate Great Minds' copyright....

We hold that, under long‐established principles of agency law, a licensee under a non‐exclusive copyright license may use third‐party assistance in exercising its license rights unless the license expressly provides otherwise. We therefore affirm the District Court's conclusion that FedEx did not infringe Great Minds' copyright. FedEx reproduced the Materials at the direction of Great Minds' authorized licensees, and nothing in the License prohibited the licensees from seeking FedEx's services...."

"[W]e conclude that Great Minds' licensees may rely on non‐employee agents in carrying out permitted uses without converting those agents into independent licensees. The License text provides no basis for distinguishing between a school that directs its employees to make copies on the school's machines and a school that achieves an identical result by enlisting a temporary independent contractor--or a commercial duplication service."

About March 2018

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

February 2018 is the previous archive.

April 2018 is the next archive.

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