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July 2, 2018

Week in Review

By Nick Crudele
Edited by Elissa D. Hecker

The Supreme Court Allows Trump Administration's Travel Ban

The U.S. Supreme Court agreed that President Trump had the authority to protect the country through the implementation of a travel ban. The Court said that the law allows the president to bar those deemed to be detrimental to U.S. interests.


Justices Side with American Express

The Supreme Court sided with American Express, ruling that the company's policy of forbidding merchants from encouraging customers to use rival cards does not violate federal antitrust law.


The Supreme Court Backs Anti-Abortion Pregnancy Centers

The Supreme Court ruled in favor of anti-abortion centers who opposed a California law requiring them to provide women seeking counsel about pregnancy to be informed about abortions. The Court said that the law violated the center's free speech rights.


California Passes Tough New Online Privacy Law

California passed a powerful online privacy law rooted in its constitution. The California Consumer Privacy Act, which goes into effect in January 2020, provides California residents with the right to know what data is being collected on them, the purpose of the collection, and with whom it is being shared.


Trump Does Not Want Due Process for Illegal Immigrants

President Trump said that illegal immigrants crossing the border should be sent immediately back to their countries instead of the U.S. courts. Trump Tweeted: "People must simply be stopped at the Border and told they cannot come into the U.S. illegally."


NSA Contractor To Plead Guilty to in Classified Leak

Former NSA contractor Reality Winner will plead guilty to charges of espionage for allegedly leaking information about Russian interference in the 2016 election to media outlet The Intercept. Winner could face up to 10 years in jail.


General Motors Warns Trump About Tariffs

General Motors (GM) warned President Trump that his planned tariffs could lead to less investment, fewer jobs, and lower wages for its employees. GM also said that the cost of cars could increase. Other big businesses have made similar statements, with business leaders concerned about reciprocal tariffs affecting them negatively.


Man Charged After Threats to Federal Communications Commission Chairman

A California man was arrested and charged with threatening to murder the family of the chairman of the Federal Communications Commission (FCC). Markara Man said that he was angry at the FCC's decision to repeal net neutrality and wanted to scare the chairman.


Poland Weakens Holocaust Law

Poland weakened it Holocaust Law, which had made it illegal to accuse the Polish authorities of complicity in the Holocaust after heavy criticism. The Polish Parliament voted to remove criminal penalties.


Turkey's President Extends Reign

Turkey's President Recep Erdogan extended his 15-year grip on power in a decisive election victory. Erdogan's crackdown on lawyers, judges, and journalists in recent years and last year's referendum giving him unchecked power over the legislature and judiciary have stoked fears of Turkey becoming an authoritarian state.


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


Senate Judiciary Committee Votes in Favor of Music Modernization Act

The Senate Judiciary Committee voted in favor of a bill that would modernize the music copyright laws for the digital age. The Committee voted in favor of the Music Modernization Act, which was drafted to correct flaws and loopholes that have led musicians to complain about streaming services, including low compensation and unnecessary protections for such services.


MTV's "Catfish" Will Continue

MTV's show "Catfish" will resume filming after an investigation into sexual harassment claims turned up with no evidence of wrongdoing. The show's co-host Nev Schulman was accused by a guest of sexual harassment and a sexual encounter in which she was "in and out of consciousness." An independent investigation found the claims to be without merit.


Grammys Seek to Increase Diversity

In an attempt to increase gender diversity among its nominees, the Grammy Awards will expand the number of nominees in some of its top categories from five to eight. The Grammys were criticized in the past, including last year's award ceremony, where the only woman nominated for album of the year was not given a solo performance, and only one women was given a solo award in the handful of televised categories.


China Blocks HBO Website Over John Oliver Joke

China blocked HBO's website after comedian John Oliver, on his show "Last Week Tonight", denunciated China's human rights abuses and suppression of dissent and made fun of Chinese President Xi Jinping, saying: "Clamping down on Winnie-the-Pooh comparisons doesn't exactly project strength. It suggests a weird insecurity."



Wilder Name Dropped from Prestigious Award

The American Library Association will drop Laura Ingalls Wilder's name from its prestigious children's award because her books, published in the 1930's and '40s, contained prejudicial portrayals of Native American's and African Americans.


Artist Delivers Giant Heroin Spoon Sculpture to Purdue Pharma Headquarters

Artist Domenic Esposito unloaded a sculpture of a giant heroin spoon at the headquarters of Purdue Pharma to shame the company for what many see as the pharmacy industry's role in the growing opioid addiction crisis. The spoon, a depiction of a bent spoon used to cook heroin, was unloaded at the entrance of the headquarters. Esposito was issued a ticket and the spoon was eventually removed.


The British Museum Accepts Chinese Ivory Carvings

The British Museum accepted a donation of 556 Chinese ivory carvings. The museum's director, Hartwig Fischer, condemned the ivory trade but defended his decision to accept the donation by saying that nothing would be gained by destroying the ancient carvings.



Court Upholds NCAA Transfer Rule

The 7th Circuit upheld the NCAA's rule that student-athletes who transfer to another school must sit out a year. The court said that the rule doesn't undermine the amateur character of college athletics. A former Northern Illinois football player brought the suit, claiming the rule was an unreasonable restraint on trade.


Nassar Faces New Sex Abuse Charges

Disgraced gymnastics doctor Larry Nassar was charged by Texas authorities with six counts of sexual assault at the former U.S.A Gymnastics training facility. Ex-Trainer Debbie Van Horn was also charged with one count of sexual assault. The incidents date back to the early 2000's. Nassar is serving a life term in prison for sexual assault of minors.


Suit Claims That NYC's Black and Latino Students Suffer From Racial Inequity in Sports Programs

A class-action lawsuit filed in New York State Supreme Court says that black and Latino students suffer from racial inequity in the NYC's public-school sports programs. It states that: "On average, Black and Latino students have access to far fewer teams and sports, and the city spends much less per student than for students of other races. Black and Latino students are twice as likely as students of other races to lack access to any public high school sports team whatsoever."


Court Rules That Lochte Can Be Prosecuted in Olympic Case

A Brazilian Court ruled that the swimmer Ryan Lochte can be prosecuted for filing a false police report during the Rio Olympics. An earlier case against Lochte was dismissed.


World Cup and Politics

FIFA, soccer's governing body, has had its fair share of political drama to go along with the drama on the field at the World Cup in Russia. In one instance, a Swiss player made a so-called double-eagle symbol after a goal against Serbia. The double-eagle is a nationalist sign rooted in the Albanian flag and viewed as a provocation in Serbia. In another instance, Egypt's star player Mohamed Salah was given honorary citizenship to the Chechen Republic by controversial Chechen leader Ramzan Kadyrov.


Police Commander to Face Trial for 95 Killed at Soccer Match in 1989

The police commander in charge during a 1989 soccer match in England where 96 people were trampled and crushed to death will face prosecution for 95 of those deaths. A 2016 inquiry into the tragedy found that the fans had been "unlawfully killed", citing errors and omissions in the planning and security by the police. This reversed the claims from the original investigation, which said that those who died had been responsible for their own deaths.



New York Times Cries Foul After FBI Seizes Reporter's Note From Illicit Affair

An affair between a 57-year-old senior aide to the Senate Intelligence Committee and 22-year old intern turned political journalist digging for dirt on President Trump, has lead to an arrest and confusion and fear in the Washington D.C. media. Former aide James Wolfe was arrested on June 7th for lying to investigators about his contacts with journalist including Ali Watkins. The investigators were searching for the source of leaks of classified information to the press. Watkins, a national security reporter for Politico, BuzzFeed, The Huffington Post, and the New York Times, and Wolfe, started the affair in 2013, and continued to see each other until last fall. Since Wolfe's arrest, the FBI seized Watkins's files in search of the source of the classified information leaked to her.


New York Times Reporter Must Testify in Baby Hope Murder Trial

The New York State Court of Appeals rules that New York Times reporter Frances Robles must testify about her jailhouse interview with the suspect in the Baby Hope Murder. The court declared that Robles could not appeal the trial court's rejection of her motion to quash the subpoena to testify, as only direct participants in a criminal proceeding can appeal a trial court's decision.


Facebook, Twitter Aim to Improve Transparency Around Advertisements

Facebook and Twitter unveiled tools to help bring transparency around advertisements. Twitter started requiring a verification process for any advertisers and will introduce a public searchable archive, which will allow anyone to view all ads run on its platform. Facebook announced a database of political ads for the public to view and made it easier to see background details, such as the buyers, of those ads.


Gunman Kills 5 at Maryland Newspaper

A gunman apparently angry at a newspaper over a column written about him in 2012, shot and killed 5 people at its offices. Jarrod Ramos barged into the offices of the Capital Gazette in Annapolis, Maryland and opened fire. Ramos apparently held a grudge about an article published in the Gazette about a court case that Ramos filed and lost.


BBC Apologizes to Editor Over Pay Gap

The BBC apologized to Carrie Gracie, its former China editor, over pay inequalities. In January, Gracie stepped down from her position citing discrepancy in her pay compared to her male colleagues. In a joint statement with Gracie, the BBC acknowledged the pay gap and apologized the Gracie and corrected its wrong.


July 5, 2018

National Football League Files Motion for Summary Judgment to End Colin Kaepernick's Collusion Case

By Michael Kusi
Edited by Elissa D. Hecker

Colin Kaepernick, a former San Francisco quarterback and unrestricted free agent, is suing the National Football League (NFL, league) for collusion, alleging that the NFL willfully kept him from playing after his public national anthem protests before NFL games. The NFL filed a Motion for Summary Judgment with arbitrator Stephen Burbank, requesting him to examine the 14 depositions that Kaepernick's legal team had taken to determine where there is adequate evidence to support any finding. The NFL also cited Article 17, Subsection 5, which states that if the complainant's evidence was insufficient, the arbitrator may dismiss the claim.

In Kaepernick's collusion filing, the plaintiff argues that he was blackballed from the league because of his anthem protest. Kaepernick's proposed visit with the Seattle Seahawks was abruptly ended when Kaepernick would not say that he would stand for the anthem. The NFL owners had approved a new national anthem policy requiring players to stand for the anthem, or as an alternative, to be in the locker room during the anthem.

July 9, 2018

Week in Review

By Leslie Berman
Edited by Elissa Hecker


Trump Administration Says That It Needs More Time to Reunite Migrant Families

The Trump administration asked a federal judge for more time to reunite migrant families separated by authorities at the southwest border. Some parents separated from their children have already been deported, while the children remain here. The government says the parents' whereabouts are unknown, making it difficult to reunite the families. Judge Dana M. Sabraw of the Federal District Court in San Diego gave the government a hard deadline by which to come up with a list naming all 101 of the youngest children, along with an explanation of why it would be impossible to promptly restore each of them to a parent.


Trump Officials Reverse Obama's Policy on Affirmative Action in Schools

The Education and Justice Departments have announced that they rescinded seven Obama-era policy guidelines on affirmative action, which called on universities to consider race as a factor in admissions, in order to diversify incoming classes. The Trump administration will promote race-blind admissions standards.


Supreme Court Labor Decision Wasn't Just a Loss for Unions

The Supreme Court struck down mandatory union fees for government workers. This will certainly result in fewer dollars in union coffers. One effect of the decision will likely be the loss of public sector dollars that have been used to fund liberal causes - such as immigrants and civil rights - and turning out voters or placing ads in Democrats' campaigns.


Court Blocks Trump Administration From Blanket Detention of Asylum Seekers

In a sharply worded ruling, Judge James Boasberg of the Federal District Court for the District of Columbia blocked the systematic detention of migrants who have shown credible evidence that they were fleeing persecution in their home countries, finding that the government's own directive calling for asylum applicants to be freed when appropriate while their cases are pending "has been honored more in the breach than the observance." While the government is entitled to hold asylum seekers in detention, a 2009 directive provides that those who have shown what is known as a "credible fear" in an initial interview have a right to be considered for release. In a court challenge, lawyers for nine plaintiffs who had been held in detention presented evidence that parole rates under the Trump administration have plummeted more than 90% to "nearly zero."


Lawyers for Neo-Nazi to Defend Alex Jones in Sandy Hook Case

The conspiracy theorist Alex Jones, who claims the Sandy Hook massacre that killed 20 children and six adults was a hoax, has hired lawyers representing a founder of the neo-Nazi Daily Stormer website to defend him against defamation claims brought in Connecticut by families of seven Sandy Hook victims. Jones has spread theories that the families were "crisis actors" in a government plot to confiscate firearms. His online supporters have harassed and threatened the families as a result. Jones is being sued in Texas by two more Sandy Hook families, but is represented by different lawyers in that State.


Emergency Rooms Run Out of Vital Drugs, and Patients Are Feeling It

Supplies of painkillers, heart medications, and many other sterile injectable drugs like morphine have virtually disappeared from emergency rooms around the country, endangering patients and limiting doctors' options for optimal care. These shortages are the result of several problems that have hit the pharmaceutical industry simultaneously. Pfizer, which produces the majority of generic injectable drugs, has had serious manufacturing problems at several of its plants. Puerto Rico, which manufactures many pharma products, was slammed by Hurricane Maria, and for a long period was unable to produce the small saline bags that are emergency room mainstays, adding to a years-long problem with keeping intravenous fluids in stock. Lowered profit margins for generic drugs have caused some pharmaceutical manufacturers to limit or even cancel production of those medicines.


Merkel, to Survive, Agrees to Border Camps for Migrants

Germany's Chancellor Angela Merkel - a standard bearer of the EU - planned on welcoming hundreds of thousands of migrants into Germany, but recent political shifts at home as in many EU countries have brought conservative anti-immigrant parties into power. In order to keep her seat and her party in power, Merkel announced that Germany would build border camps for asylum seekers and tighten the border. The nationalism and anti-migrant sentiment that has challenged multilateralism elsewhere in Europe is taking quickly root in mainstream German politics.


Austria Could Be the Next EU Country to Tighten Its Borders

Hours after Chancellor Angela Merkel's conservative bloc agreed to measures that would tighten Germany's southern border, Austrian leaders announced plans for similar actions that would further threaten Europe's system of free movement.


Russians Protest Over Retirement Age Hike

Russians protested over a government decision to increase the retirement age, but there were no demonstrations in the cities hosting the World Cup because of security restrictions in force during the tournament. Most of the rallies had been approved by local authorities, and there were no reports of arrests.


Same-Sex Couples Entitled to Equal Visa Rights, Hong Kong Court Says

Hong Kong's top court ruled that committed same-sex couples have the same rights to spousal visas as married heterosexual couples, a decision that advocates said could have ripple effects in advancing gay rights. Banks and law firms had pushed for such recognition to lure and keep top talent in the financial and business center. The woman at the center of the case came to Hong Kong as a visitor in 2011, several months after entering a same-sex civil partnership in Britain with a woman of South African and British nationality who had taken a job in Hong Kong. Their application for a dependent visa was refused on the basis that marriage is defined in Hong Kong as the union of one man and one woman.


Poland Purges Supreme Court and Protesters Take to Streets, with its Supreme Court in Disarray After Judges Defy the Order

Tens of thousands of protesters took to the streets of Warsaw in opposition to the forcible retirement of nearly one third of Poland's Supreme Court justices, including the Chief Justice, by lowering the mandatory retirement age from 70 to 65. The right wing Law and Justice Party, which has taken control over the Constitutional Tribunal, has asserted new powers to select judges and created a judicial disciplinary chamber. These actions erode the judiciary's independence, and are likely to force a confrontation with the EU over the rule of law.

However, despite their firing, Poland's Supreme Court Judges showed up for work the following day, supported by demonstrators. Former president Lech Walesa was among those in the streets.



In Denmark, Harsh New Laws for Immigrant 'Ghettos'

Denmark has had trouble integrating immigrants into its homogeneous society, so it is taking steps to train Muslims, among others, living in "ghettos" - urban centers in which immigrants are a sizable community - in the culture of the country, including Christmas and Easter traditions and the Danish language. This controversial process starts with children as young as one-year olds for 25 hours per week.


López Obrador, an Atypical Leftist, Wins Mexico Presidency in Landslide

The leftist Andrés Manuel López Obrador was elected president of Mexico in a landslide victory upending the nation's centrist and globalist political establishment. López Obrador promised to end corruption, reduce violence and address Mexico's endemic poverty - issues that were immensely popular with voters angry at Elites. Now the trick will be to deliver on those promises without shaking up the already-fragile economy, and without retaining some "bad actors" who were instrumental in the presidential campaign.



Star Flutist Sues Boston Symphony Over Pay Equity

The Boston Symphony Orchestra's principal flutist and one of its most prominent musicians has filed a gender pay discrimination, claiming that her compensation is only about 75% that of her closest comparable colleague, the orchestra's principal oboist, who is a man. The suit is the first under a new law in Massachusetts requiring equal pay for "comparable work" that became effective this week, after employers had two years to rectify disparities.


Harvey Weinstein Faces New Sex Assault Charges in Manhattan

A grand jury in State Supreme Court in Manhattan has voted to allow an amended indictment against Harvey Weinstein, adding a third victim and
new charges against the former film mogul. The new charges carry higher penalties than the charges of sexual assault on which Weinstein is currently bound for trial. Although more than 80 women have accused Weinstein of sexually harassing or assaulting them, usually after luring them with a promise of a business meeting, prosecutors have had difficulty finding other victims whose allegations fall within the statute of limitations and are willing to testify.


Unwelcome Sound on Germany's Stages: Musicians Who Boycott Israel

The Scottish rappers Young Fathers were dropped from an arts festival in Germany last month because they openly support the Boycott, Divestment and Sanctions movement, also known as B.D.S., which asks companies and people to avoid doing business with Israel in protest of its treatment of Palestinians. Another B.D.S. supporter, the musician Roger Waters of Pink Floyd, who is revered in Germany, has feuded with the mayor of Munich over the boycott. In Germany, where calling for a boycott against the Jewish state carries deep historical associations with the Nazis, the movement is widely viewed as anti-Semitic.



Statue of Liberty Stamp Mistake to Cost Postal Service $3.5 Million

The United States Postal Service mistook a Las Vegas-based replica for the real Statue of Liberty, and used it as the basis for a 2010 Forever Lady Liberty postage stamp. The replica's sculptor has now been awarded $3.5 million from the Post Office for violating his copyright. The sculptor filed the infringement lawsuit in 2013, claiming that his sculpture was sufficiently different from the original, thereby deserving protection.


French and Swiss Museums to Share a Cézanne With a Murky Past

The family of Paul Cézanne and the museum in Switzerland that holds the controversial art collection of Cornelius Gurlitt have settled a dispute over the ownership of a majestic landscape, "Montagne Sainte-Victoire", painted by Cezanne in 1897. Gurlitt, a recluse who hoarded about 1,500 artworks, some looted by the Nazis, bequeathed the painting to the Kunstmuseum Bern. Gurlitt inherited many of the works, including the Cézanne, from his father, Hildebrand Gurlitt, a dealer who purchased art in occupied France for Adolf Hitler's planned Führermuseum in Linz, Austria. The Cézanne is known to have been in the possession of the artist's family until at least 1940. Under the terms of the agreement, the Bern museum will loan the painting to the Musée Granet in Cézanne's hometown Aix-en-Provence, France, for about three months a year.


Curator Says MoMA PS1 Wanted Her, Until She Had a Baby

MoMA PS1, the Queens museum known partly for its inventive live art, music and dance series, courted a new creative hire for months before formally offering her the position as curator of performance last August. However, within a few weeks and after she mentioned to the museum's chief curator that she had just had a baby, the offer was rescinded. Now she has filed a complaint with the New York City Commission on Human Rights, asserting that the museum discriminated against her in violation of the city's laws on caregivers, pregnancy, and women's rights. The complaint said that the museum tried to assert, inaccurately, that she had turned down its job offer.


Turmoil at Lincoln Center: Infighting, Money Troubles, Scrapped Projects

Lincoln Center has had four leaders in five years, and that instability has affected every aspect of the institution. There have been shuffled and abandoned priorities and financial difficulties, just when major cultural institutions are struggling to retain and build donors and audiences. There will be no Lincoln Center Festival this summer, the promised Hall of Fame hasn't happened, and the Philharmonic's Geffen concert hall renovation is being "rethought."


The Philadelphia History Museum Is Closing Its Doors (Maybe for Good)

Falling revenues and the abrupt abandonment of a proposed partnership with Temple University have placed the Philadelphia History Museum's future in doubt. It will certainly be closed for at least six months, and may never reopen. Philadelphia is home to many well-known tourist attractions, such as the Liberty Bell, but the History Museum is home to some of the city's most valuable artifacts, including a desk used by President George Washington, the preserved body of a small dog named Philly who once served on the front lines during World War I, and boxing gloves worn by Joe Frazier during a championship match in the 1970s.


Protests Shutter a Show That Cast White Singers as Black Slaves

When the show "Slav", featuring performances by white women as slaves picking cotton, premiered at the Montreal International Jazz Festival, it immediately spawned a backlash and criticism that white artists had recklessly appropriated black culture. Critics called the work an insulting and insensitive performance. The production by the celebrated Quebec director Robert Lepage claims to be inspired by traditional African-American slave and work songs, and featured white and black performers. The backlash was swift and severe, causing the show to close after two performances of 16 scheduled.



When Sports Betting Is Legal, the Value of Game Data Soars

England has dealt with the issue of official versus unofficial sports data sources for years, and has not been able to curtail unofficial sources, which create lucrative niches for private betting companies. Just like bootleggers steal music and films by recording them during live performances using hidden miniature equipment, data collectors attend sports events incognito. Using various types of electronic equipment, they can send real-time play-by-play info that may beat the official data collectors' captures by just a few seconds, which can be enough to give the unofficial collectors a competitive edge. These practices raise many important questions: How should sports data from any source, official or unofficial, be regulated, monitored and purchased? Who should settle a dispute over whether an in-play bet was won or lost? Does real-time data from a sporting event, like the sounds of a musical performance, have a claim to royalties and copyright protection for those who produce it? By creating a sort of monopoly, could a mandate for official data actually do more harm than good?


Jim Jordan Is Defiant as Allegations Mount, and Supporters Point to 'Deep State'

New accusers have come forward to say that Jim Jordan, the wrestling coach turned six-term congressman, was aware of sexual misconduct at Ohio State University but did nothing to stop it. The Ohio Republican's stalwart supporters are already defending the conservative powerhouse, saying that he is the victim of the same "deep state" conspirators -- liberal bureaucrats embedded in the government -- who are trying to bring down President Trump. In a Fox News interview, Jordan disparaged some of the former college wrestlers who have come forward to say that he knew of allegations that the team doctor, Richard H. Strauss, had fondled them. He said he could not explain why other more friendly wrestlers had leveled similar charges.


Jenrry Mejia, Barred for Life in 2016, May Return to the Mets Next Season

Jenrry Mejia, the Mets closer who became the first player in Major League Baseball (MLB) to be barred for life for using performance-enhancing drugs, has been conditionally reinstated. According to the provisions of the MLB's Joint Drug Prevention and Treatment Program, a player who receives a lifetime ban may apply for reinstatement after two years. Mejia will be allowed to begin workouts under the Mets' supervision after the All-Star Game this month and to start a minor league rehabilitation assignment in mid-August.


For Tennis Players, Numbers in Antidoping Program Don't Add Up

Some players are never tested, some are tested occasionally, and some are tested frequently for performance enhancing drug use. Serena Williams expressed no qualms about antidoping officers showing up unannounced to collect urine and, on occasion, blood samples. She wasn't even bothered when it happened twice in the same week in the lead-up to this year's French Open until she saw numbers, plucked from the United States Anti-Doping Agency's public database and included in a recent Deadspin article, that seemed to suggest that she was being tested three times and five times more often than her competitors.


Canadian Police Charge Truck Driver in Hockey Team Bus Crash

Canadian police filed charges against a truck driver whose semi-trailer rig collided with a bus carrying a junior hockey team in April, killing 16 people, in one of the worst disasters to strike the country's sporting community.


The World Cup's Hot New Accessory Comes With a Few Questions

The must-have World Cup 2018 accessory is a laminated credential badge hanging from a FIFA lanyard, called a Fan ID, without which no fan can get into a World Cup stadium. It also grants access to perks like visa-free entry into Russia, free transport in and occasionally between host cities, and discounts in certain shops and restaurants. However, it has also raised concerns about privacy in a country that has been a base for international hackers and that has a long history of closely monitoring its citizens. The Russian authorities said the only purpose of the badges is to improve the security and comfort of fans. The badges, however, do give World Cup organizers and security officials the ability to track the location of fans during the tournament and provide the authorities those fans' personal information.


Russia Win in World Cup Offers Distraction as Putin Benefits

Russia's surprise victory over Spain in the World Cup has changed official policy on wild in the streets celebrations, as Moscow became a giant street party with the eager support of the Kremlin. With the anticipation of a Russia-U.S. summit the day after the tournament final, President Vladimir Putin is basking in good news. Even protests against a government plan to raise the retirement age (see above in General News) were drowned out by the cheers.




Instagram Account That Sought Harassment Tales May Be Unmasked

The now-removed anonymous Instagram account "Diet Madison Avenue," which solicited and published reports of sexual misconduct in the advertising field, has been named in a defamation lawsuit filed by Ralph Watson, former Chief Creative Officer of the Boulder, Colorado location of advertising agency Crispin Porter & Bogusky (CP&B). As a result, the identities of the account owners of Diet Madison Avenue may be required to be revealed by Instagram. Posts on the Instagram account claimed that Watson was a serial sexual predator and demanded that CP&B to fire him to prove that it supported its staffers and the tenets of #MeToo. Watson was fired by the agency shortly thereafter.


Hard News. Angry Administration. Teenage Journalists Know What It's Like

High school educators across the country have been clamping down on students who publish articles on protests, sexuality, and other hot-button issues. In Prosper, Texas, a suburb of Dallas, Prosper High School's principal fired the faculty advisor to the school's student-run newspaper, Eagle Nation Online, after he forbade publication of three articles written by students, including an opinion piece on the National School Walkout protest.


Yelp Can't Be Ordered to Remove Negative Posts, California Court Rules

In a decision widely scrutinized by free speech advocates, the California Supreme Court has ruled that Yelp, the local search and review site, does not need to remove negative comments posted by a user. In a 4-to-3 opinion, the court said that federal law protected internet companies from liability for statements written by others. Forcing a site to remove user-generated posts could interfere with and undermine the viability of an online platform. The role of moderating speech on online platforms has become a hotly contested topic, as the reach and influence of companies like Facebook and Google have grown. Such companies have long argued that they are not liable for posts published by others on their platforms.


New York Times Reassigns Reporter in Leak Case

The New York Times reporter whose email and phone records were secretly seized by the Trump administration will be transferred out of the newspaper's Washington bureau and reassigned to a new beat in New York. The reporter had been the subject of an internal review by the newspaper after revelations that she had a three-year affair with a high-ranking aide on the Senate Intelligence Committee, which she covered for several news organizations before joining The New York Times in December. The aide, who handled classified material for the committee, was arrested last month as part of a leak investigation in which the Justice Department also seized the reporter's communications, an unusually aggressive move against a journalist that prompted an outcry from press advocates.


Sri Lankan Lawmakers Target Reporters in New York Times Investigation

A New York Times investigation into the seizure by China of a Sri Lankan seaport caused a backlash by Sri Lankan lawmakers, who denounced the paper, and focused on two local journalists. The lawmakers, who are allies of the former president Mahinda Rajapaksa, held a televised news conference in which they claimed that the journalists, Dharisha Bastians and Arthur Wamanan, were working on behalf of the current government to malign Rajapaksa.


July 13, 2018

Should You Require Your Employees to Sign Arbitration Agreements with Class Waivers?

By Kristine A. Sova

In late May, the Supreme Court upheld the lawfulness of class action waivers in arbitration agreements (Epic Systems Corp. v. Lewis, 584 U.S. ____ (2018)). This means that employers are free to not only require employees to sign an agreement mandating that all of their employment disputes go to binding, private arbitration rather than courts, but also that employers can include waivers where employees lose their right to bring claims collectively as a class.

The decision in Epic has been touted as a victory for employers. Now that employers can have an arbitration agreement with a class action waiver (under federal law, at least), does it mean all employers should? Arbitration has its pros, the most notable being a private forum for the resolution of claims, but arbitration has its cons as well. Moreover, a pro for one employer might be considered a con for another. Consider the following pros and cons.

Pros of arbitration

-Private / confidential process
-No juries (juries tend to be employee-friendly, overly generous, and unpredictable)
-Less expensive than litigation in court, but not always the case once arbitrator fees are factored in
-Faster than litigation in court
-Less formal process
-More finality (avenues for appeal are very limited so this could be a con as well)
-Ability to select arbitrator (or arbitrators, as the case may be)

Cons of arbitration

-No formal rules of evidence and arbitrators may end up considering evidence that a judge would not consider
-Arbitrators have a tendency to "split the baby" and may issue an award to give the employee "something" rather than dismiss the case
-Arbitrator fees can be significant (this can add up if there is a class waiver and an employer has to deal with a multitude of individual claims

Class action waivers might not be a pro either when one considers the cost of defending individual claims. The considerations are complex. -
Therefore, if you're considering having your employees sign arbitration agreements with, or even without, class action waivers, you should definitely consult with counsel before doing so.

July 16, 2018

Week in Review

By Jana S. Farmer
Edited by Elissa D. Hecker

President Trump Nominates Judge Brett Kavanaugh For The Supreme Court

Judge Kavanaugh, 53, is a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit, former aide to President George W. Bush, and onetime investigator of President Bill Clinton. Democrats, who view Judge Kavanaugh as an archconservative, who would roll back abortion rights, undo health care protections, ease gun restrictions, and protect President Trump against the threat of indictment, have begun to mount their battle to defeat the nomination.




Special Counsel Indicts 12 Russian Agents

Deputy Attorney General Rod J. Rosenstein issued a 29-page indictment against 12 Russian military officers accused of interfering with the 2016 presidential election days before President Trump's scheduled meeting with President Putin of Russia.


President Trump's Visit To Britain

During his visit to Britain, President Trump gave an interview to The Sun, in which he undercut Prime Minister Theresa May for her handling of the issue of how Britain should cut ties to the European Union; implied unwillingness to negotiate a new trade deal between Britain and the U.S., and praised May's political rival, Boris Johnson, as a potentially great prime minister. The following day, Trump said that May was doing a "fantastic job" and blamed the news media for the scandal.



Dan Coats States That U.S. Digital Infrastructure Is Under Attack Daily

Director of National Intelligence Dan Coats stated that Russia, China, Iran, and North Korea are launching daily cyber strikes on the computer networks of federal, state, and local government agencies, and U.S. businesses. He compared the warning signs to those U.S. faced before the September 11th terrorist attacks.


U.S. Government Settles Suit With Downloadable Gun Creator

The US government settled a lawsuit with a Texas man, who created online instruction manuals for an untraceable, unregistered firearm without a serial number that can be made by anyone with a 3-D printer. Pro-gun-control activists are alarmed at the implications.


Papa John's Founder Pulled From Company's Marketing Materials After a Racial Slur

Papa John's founder, John Schnatter, was removed as the face of the company in marketing materials and is no longer the company's board chairman after accusations that he made a racial slur in a comment about black people during a conference call in May. Schnatter also issued an apology for his comment.



In China, Has Facial Recognition Turned Into Big-Brother-esque Mass Surveillance?

China's police and security state have been enthusiastic about embracing facial recognition and artificial intelligence technology. A pilot project is underway to connect the security cameras that already scan roads, shopping malls and transport hubs with private cameras on compounds and buildings, with a goal to spot suspicious behaviors and even predict crime. Private companies are encouraging staff to use their technology and are tracking the comings and goings of their employees.



Chinese Engineer Caught Stealing Apple's Intellectual Property

Former Apple hardware engineer, Xiaolang Zhang, downloaded the company's secret plans for a self-driving car and attempted to flee to his native China.


Below, for your browsing convenience, are media reports in categories divided into Entertainment, Art, Sports, and Media


Weinstein Released on Bail; Meanwhile, His Brother Leaves Weinstein Company

Harvey Weinstein was released on $1 million bail after pleading not guilty in New York State Supreme Court on sexual assault charges. Justice James Burke denied the prosecution's request to order him held under house arrest despite evidence that Weinstein sold his home in Connecticut without telling the prosecutors. Bob Weinstein, chairman of the bankrupt film and television studio, stepped down from the board of the Weinstein Company in a planned exit as the company tries to rebuild.



New Rape Accusations Against Russell Simmons

Alexia Norton Jones accused hip-hop mogul and co-founder of Def Jam Russell Simmons of raping her in his Manhattan apartment after a date in November 1990. Mr. Simmons denied Ms. Norton Jones' allegations and his representative released a statement from the mogul's driver, who claimed he drove the pair on 10 to 12 dates in or about 1990. More than a dozen women have reportedly previously accused Mr. Simmons of sexual misconduct, harassment and rape.


XXXTentacion Signed Album Deal Before His Death

20-year-old rapper XXXTentacion, who was shot and killed last month, signed an album deal worth about $10 Million with Empire, an independent music company, a few weeks before his death. The artist also apparently had finished a significant amount of material. Meanwhile, Florida police arrested Michael Boatwright, 22, who is the second of two armed suspects who confronted XXXTentacion in his car the afternoon of his death in Deerfield Beach, Florida, attempting to rob him.



Johansson Withdraws From Playing A Transgender Role Following Backlash

Actress Scarlett Johansson withdrew from the role of transgender male Dante Tex Gill in an upcoming film about his life, "Rub & Tug", following backlash over a cisgender woman playing a transgender man.


First Transgender Woman To Compete At Miss Universe

Ángela Ponce, winner of Spain's national beauty contest, is the first transgender woman to compete in the Miss Universe pageant. By competing, she seeks to challenge traditional concepts of gender and beauty.


Beauty Contestant Returns Crown After Hearing A #MeToo Joke On Stage at Miss Massachusetts Competition

Maude Gorman resigned from her title of Miss Plymouth County 2018 after hearing a controversial skit onstage at the final Miss Massachusetts competition, which made light of the #MeToo movement. The Miss Massachusetts Board of Directors offered an apology and stated that the skit was not in the script.


The "Slav" Show Will Go On Despite Backlash

Quebec theaters will not cancel "Slav", a "theatrical odyssey based on slave songs," performed by white actors, despite accusations of racial myopia.



Art and Cultural Heritage

Ninth Circuit Rules On California Resale Royalties Act

The Ninth Circuit Court of Appeals struck down the majority of the provisions of the California Resale Royalties Act, which purported to give artists a 5% royalty for secondary market sales of their artwork, finding that the Act conflicted with the federal Copyright Act. The federal bill to grant artists resale rights in the U.S. has not gained much traction so far.


"Distress" Flag Mural Under Review

The upside-down flag was painted on the Tijuana side of the U.S.-Mexico border fence by a group of deported military veterans to raise awareness of their struggle to receive benefits and return to the U.S. The practice of displaying a flag upside-down is a signal of distress "in instances of extreme danger to life or property". U.S. Customs and Border Protection are evaluating whether to remove the mural amid the national debate over this administration's immigration policy.



Dali Foundation Sues California Museum Over Use Of Artist's Name And Image

The Fundació Gala-Salvador Dalí, which controls the artist's intellectual property rights for the Kingdom of Spain, sued the museum Dalí17 in Monterey, California, over the use of Dali's likeness in the museum's logo and the alleged unauthorized use of Dali's work on the museum's website, merchandise and on social media.


Leading Art World Figures Speak Out Against President Trump's Policies As He Visits The UK

Norman Rosenthal, former exhibitions secretary at London's Royal Academy of Arts, stated that past shows at Blenheim Palace by politically prominent artists Ai Weiwei and Jenny Holzer were "severely compromised" by Trump's banquet at the venue. Other British art world figures also expressed their discontent for Trump's policies. The activist behind the inflatable Trump Baby that was flown above Parliament during the Trump's visit announced that the blimp will go on a world tour.


Canadian Museum Changes The Conversation Over Native Art

Art Gallery of Ontario has decided to remove the word "Indian" from artworks and devote nearly one third of the museum space to indigenous artists. It recently renamed Emily Carr's painting, originally titled "Indian Church," on the grounds that the old terminology ''denigrates and discriminates.'' The museum's J.S. McLean Center for Indigenous and Canadian Art rendered wall texts for all the works first in Anishinaabe, one of the oldest North American languages.


Sales of Banksy's Works Approach Record Highs As The Artist's Exhibition Opens In London

Within hours of the opening of Banksy's "greatest hits" exhibition in London, three works were sold for between £500,000 and £1.5 million. Banksy's most expensive work previously sold is a spot painting by Damien Hirst that Banksy stenciled over; it sold for $1.9 million (£970,000) at Sotheby's New York in 2008.


Art Basel Owner To Launch A Fair In Singapore Next Year

MCH Group, owner of the Art Basel franchise, is launching an art event ART SG in Singapore next Fall in a joint venture with Sandy Angus of
Angus Montgomery Arts and the events organizer Tim Etchells.


Art Exhibit Gets Results

Beijing's artist and activist Brother Nut filled thousands of Nongfu Spring water bottles with filthy groundwater from Xiaohaotu, a village in central China, and put them on display at an art gallery in Beijing's popular 798 Art District to draw attention to the village's pollution problem. The authorities in Shaanxi, the province in which the village is situated, opened an investigation into the water quality.



Possible Match-Fixing At Wimbledon

In Wimbledon, the first-round men's doubles match involving David Marrero and Fernando Verdasco losing to João Sousa and Leonardo Mayer was flagged for suspicious activity when a series of bets were made within an hour before the start of the match and from accounts with a history of betting on suspicious matches. With sports betting recently allowed in the U.S., some wonder if American sports are now facing the risk of match-fixing that has been plaguing European sports.



Baylor University Settles Alleged Gang Rape Suit

Baylor University settled the federal Title IX lawsuit brought by a former volleyball player, who claimed that she was drugged and gang raped by up to 8 Bears' football players in 2012, and that the school mishandled her complaint and allowed a "rape culture" to persist.



National Football Players' Union Files Grievance Over National Anthem Policy

The union filed a grievance against the National Football League (NFL), claiming that the NFL imposed its national anthem policy without consultation with the NFL Players' Association, the policy is inconsistent with the collective league's bargaining agreement and infringes on players' rights. The policy, adopted in May 2018, allows players to protest during the national anthem by staying in the locker room, but not by sitting or taking a knee on the field or on the sidelines.


Union Director Suggests That National Basketball Association, and Not the Players, Are To Blame For Imbalance

Michele Roberts, the executive director of the National Basketball Association's (NBA) players' union, commented that the spike in salary cap, allowing teams salary cap space to sign free agents, is not to blame for the recent claims that the NBA is becoming lopsided. She pointed out that there have always been dominant teams in the NBA, and they come in cycles.


Brandon Browner Charged With Attempted Murder

Former Patriots' cornerback Brandon Browner was charged with attempted murder of his ex-girlfriend after he allegedly broke into her home in La Verne, California.


LeSean McCoy Denies Accusations Of Assault On Women

The Buffalo Bills' running back denied accusations of abuse made against him on social media after a purported photograph of his former girlfriend, Delicia Cordon, with a bloodied face, was posted on Instagram.



Charles Oakley Arrested For Gambling Fraud

Former NBA player Charles Oakley was arrested by Nevada Gaming Control Board Enforcement Agents at the Cosmopolitan of Las Vegas on suspicion of adding to or reducing his wager on a gambling game after the outcome was known.


Kellen Winslow Jr. Is Charged With Another Rape

Former Jets tight end Kellen Winslow Jr. was charged with rape of an unconscious 17-year-old female in a San Diego home in 2003. Winslow will also stand trial for alleged kidnapping and rape of two women in their 50s.




Federal Government Mounts A New Effort To Unravel AT&T-Time Warner Deal

The Department of Justice filed its notice of appeal of the federal court's decision, which rejected the government's argument that AT&T's $85.4 billion merger with Time Warner would harm competition and consumers.


Twitter Deletes Accounts Of Fake Followers

Twitter is purging its platform of fake accounts in an effort to restore the trust in its platform and the power of influence. As a result, some celebrities/influencers lost over a million followers.


Billboard's Top Executive Resigns After Claims Of Suppression Of Coverage Of Harassment Allegations Against Charlie Walk

John Amato, the CEO of Billboard, resigned in light of an investigation into handling the coverage of harassment allegations in the music industry. In May, the Daily Beast reported claims that Billboard's CEO suppressed articles critical of Charlie Walk, a record executive accused of sexual misconduct by multiple women.


Facebook Faces £500,000 Fine In the UK For Misuse Of Data

The British Information Commissioner's Office, an independent government agency that enforces the country's data-protection laws, levied the maximum possible fine of £500,000, or about $660,000, against Facebook for allowing the political consulting firm Cambridge Analytica to harvest the information of millions of people without their consent.



Two Reuters Reporters Will Be Tried In Myanmar

Reuters reporters Wa Lone, 32, and Kyaw Soe Oo, 28, will stand trial in Myanmar for allegedly violating state secrets when they reported on a massacre of members of Rohingya Muslim minority. The matter is being condemned as an attempt by Myanmar to stifle free press in the country.


Iranian Teenager Arrested For Dancing On Instagram

Maedeh Hojabri, a teenager from Iran, was arrested for dancing in an Instagram video to western pop and rap music without wearing a hijab, which is required in public.


BBC Works To Close the Gender Pay Gap But Top Earners Are Still Mostly Men

Last week, the BBC released a list detailing the pay of its top talent. The top highest paid presenters are men. Only two women ranked in the top 20. While the BBC has committed to closing the gender pay gap, some comment that the speed of change is glacial.



July 17, 2018

Lombardo v. Seuss

By David Faux

The Second Circuit affirmed that the adult-themed play, "Who's Holiday!" is a fair use of Dr. Seuss's original, "How the Grinch Stole Christmas!" (Grinch) and did not infringe any trademarks. In Lombardo, Who's Holiday Limited Liability Company v. Dr. Seuss Enterprises, L.P., the Southern District of New York granted summary judgment on the pleadings to the plaintiffs. This enabled the plaintiffs, essentially a playwright close to the beginning of his career, to avoid costly discovery. The Southern District had decided that "Who's Holiday" was a parody with each of the four factors of a standard fair use analysis weighing in the plaintiffs' favor. Dr. Seuss Enterprises (DSE) argued strenuously that some of those factors should not have been decided without discovery and appealed.

According to DSE, "Who's Holiday" is essentially a sequel, similar to the facts in Salinger v. Colton. Lombardo's play begins a few decades where Grinch left off. Unexpectedly, though, since that Christmas when the Grinch joined Whoville in its non-materialistic celebration, Cindy Lou Who had the Grinch's child out of wedlock, developed drug problems, and more. While the Circuit Court asked DSE about this position at oral argument, it did not address these claims in its opinion.

The Court found that the play was clearly a parody (the first factor in the plaintiff's favor) and that the second factor "is rarely useful 'in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works,'" quoting from Campbell (the second factor in the plaintiffs' favor).

DSE also argued that much of the first act of "Who's Holiday" was simple regurgitation of the events from the underlying work, taking a larger quantity than necessary for the audience to recognize the subject of the parody. Lombardo's position, which the Second Circuit adopted, was that nothing was taken verbatim, nor quoted, and the material is used simply to recount the plot of Grinch, invoking the original work (the third factor in the plaintiffs' favor).

Regarding the fourth factor in a standard fair use analysis, potential harm to the market for the underlying work and any derivative works, DSE espoused its active licensing for many Seuss properties, including Grinch, and including so-called "adult" versions of Seuss properties. The Court disagreed, affirming the district court's analysis that there is little likelihood of harm to those markets arising from this particular parody.

Finally, the Second Circuit affirmed the district court's analysis of trademark claims, finding that, under Rogers v. Grimaldi, no trademark infringement had occurred.

All in all, this was an important case because it was a loss for DSE, a voracious protector of its valuable IP. However, in many ways, this was a run-of-the-mill case, confirming, rather than expanding, any notions of what constitutes fair use under the Copyright Act.

July 22, 2018

Week In review

By Angela Peco
Edited By Elissa D. Hecker


Federal Judge Suspends Deportations of Reunited Immigrant Families

A federal judge temporarily barred the United States government from the rapid deportation of immigrant parents reunited with their children. Many of these parents have final orders of deportation, meaning that they may be removed as soon as they are reunited. The judge sided with the American Civil Liberties Union, which argued that once reunited, immigrant parents who face deportation should have a week to decide if they want to leave their children in the U.S. to pursue asylum separately.


Physicians Say That Detaining Migrant Families "Poses High Risk of Harm"

Pediatricians are warning that detention puts children at risk for abnormal development. They note that even short periods of detention can cause psychological trauma and mental health risks, and that is true even if the children are accompanied by their families. In addition, minors may face a number of potential long-term health risks, such as cardiac disease, cancer, and behavioral problems. Doctors are also recommending use of alternative methods to custody, including placing families in a community-based setting as they await immigration court proceedings.


President Trump Questions U.S. Intelligence on 2016 Election; Invites Putin to Washington

President Trump publicly challenged the conclusion of American intelligence agencies that Russia interfered in the 2016 presidential election during a press conference alongside President Putin. More specifically, he said that he had "confidence in both parties." Trump's words and demeanor at the press conference drew sharp criticism from Democrats and a few Republicans, with some individuals calling the president's behavior "treasonous." Trump plans to invite Putin to Washington this fall, an invitation that stunned the nation's top intelligence official, Dan Coats.



Michael Cohen Secretly Taped Trump Discussing Payment to Playboy Model

The New York Times reported that the Federal Bureau of Investigations (FBI) is in possession of a recording Cohen made of Trump. The recording predates the 2016 election and in it the two reportedly discuss "payments" to former Playboy model Karen McDougal, who claims she had an affair with Trump. Trump called it "inconceivable" that the government would break into a lawyer's office [to seize the recording] and that a lawyer would tape a client.


The IRS Will no Longer Require Certain Non-profit Organizations to Disclose Donors

The U.S. Treasury will no longer require some politically active non-profit groups to identify their financial donors. The new rules will apply to organizations that do not receive tax-exempt funds, such as labor unions, veterans groups, and issue-advocacy organizations. Critics fear that the move will allow organizations such as the National Rifle Association (NRA) to receive "dark-money" contributions without scrutiny.


Judge Denies Paul Manafort's Request to Move Trial Away from Washington

Former Trump campaign chairman Paul Manafort requested to move his trial from Alexandria, Virginia to Roanoke, Virginia, citing alleged bias in the D.C. area, where his name is well known. Manafort argued that the media saturation would not allow him a fair and impartial trial, violating his 6th Amendment right. In denying the request, the federal judge wrote that "the mere fact that a case has drawn substantial media attention does not, by itself, warrant a change in venue" and that Alexandria is large enough to provide an impartial jury pool. Manafort faces bank and tax fraud charged related to his business dealings.


White House Withdraws Appeals Court Nominee after Opposition Over his Racially Insensitive Writing

Senate Majority Leader Mitch McConnell withdrew the judicial nomination of Ryan Bounds just before a confirmation vote this week. President Trump had nominated the assistant U.S. attorney in Oregon to be a judge on the Ninth Circuit Court of Appeals. Bounds faced opposition over his writings in college, which included a column in which he railed against "race-focused groups" on campus and "race-think." Republicans had no room for error given the party's 51-49 majority. The Democratic caucus seemed united in opposition and at least two Republican senators, Tim Scott and Marco Rubio, announced they would not support the nomination.


Trump Administration Proposes Major Changes to Endangered Species Act

The Interior Department proposed sweeping changes to the Endangered Species Act. The proposed changes are anticipated to make it easier to gain approvals for roads, oil and gas drilling, pipelines and other construction projects. One change, for instance, would allow decision-makers to consider economic factors when deciding whether or not a species should be protected.


NRA Sues Seattle over 'Safe Storage' Gun Law

The NRA is suing the city of Seattle over its new gun safety law. It argues that the law violates Washington State law, which prevents cities from regulating guns. The new law carries escalating fines if a firearm is not locked, if an "at-risk person" accesses the weapon, or if someone uses the weapon to injure someone or commit a crime.


New York and New Jersey Are Among Four States Suing the Trump Administration Over Tax Plan

A lawsuit was filed in Federal District Court in Manhattan on the grounds that Trump's tax overhaul is an "unconstitutional assault" on state sovereignty. Governor Cuomo called the limits on state and local tax deductions an "economic missile" in an "attempt to hurt Democratic states." At issue is the interpretation of the 10th and 16th Amendments - states' rights and the establishment of federal powers of income taxation. The states argue that the new law overturns longstanding precedent that "the federal government's income tax power was and would remain subject to federalism constraints." They also argue that limits on the deduction "deliberately seek to compel certain states to reduce their public spending."


New York City and State File Suit Over Grants Linked to Immigration and Customs Enforcement Cooperation

New York City and State officials, along with other "sanctuary" jurisdictions, are suing the Justice Department over public safety grants that are conditional on cities cooperating with immigration authorities. The state views these conditions as illegal and coercive, and it has yet to receive federal justice assistance money. Chicago won a nationwide injunction that would have required the Justice Department to disburse money, despite the city's sanctuary status, but an appeals court narrowed that ruling to apply only to Chicago.


New York State Launches Inquiry Into Trump Foundation

Tax authorities in New York are investigating the Donald J. Trump Foundation for possible violations of state tax law. It could lead to a criminal referral if any evidence of illegal activity is uncovered. It could also reportedly lead to the release of Trump's tax returns. It is not clear what activities are under review, but last month, New York Attorney General Barbara Underwood accused the Donald J. Trump Foundation of violating campaign finance laws and illegally coordinating with Trump's 2016 presidential campaign.


Former New York State Senate Leader Dean Skelos is Convicted of Corruption in Retrial

Dean Skelos was found guilty of bribery, extortion, and conspiracy following three days of jury deliberations. Prosecutors said that Skelos, the former leader of the Senate's Republican majority, had used his political clout and control of lucrative state contracts to pressure business executives into sending his son about $300,000 for no-show or low-show jobs. Skelos had been granted a retrial after winning an appeal of his conviction last year in the wake of a 2016 Supreme Court decision that limited the definition of public corruption.


Iran Sues the United States Over Nuclear Deal and Reimposed Sanctions

Iran has sued the United States at the International Court of Justice (ICJ) in a new strategy to nullify the nuclear sanctions reimposed by the Trump administration after the U.S. withdrew from the 2015 nuclear agreement. The lawsuit is based on the Treaty of Amity, Economic Relations and Consular Rights, signed by Iran and the U.S. in 1955. The lawsuit asks the ICJ to order the U.S. to terminate the sanctions and demands that the U.S. compensate Iran for financial damage caused by the reimposed sanctions.


Theresa May Survives Parliamentary Test by Six Votes

British Prime Minister Theresa May survived a close vote in Parliament following a pro-European Union coup that would have thrown her Brexit
strategy into disarray. The conservative government defeated a proposed amendment to a trade bill introduced by its own backbenchers that would have kept Britain in a customs union with the EU if Britain fails to agree to a free trade deal.


Europe Cultivates New Partners with Japan Trade Deal

The European Union signed its largest trade deal ever, a pact with Japan that will reportedly cover a quarter of the global economy. The move comes as European officials intensify efforts to strike trade agreements with other countries and Europe grows more assertive as it looks past a frosty relationship with the United States, still its largest trading partner.


Eritrea Names First Ambassador to Ethiopia in Two Decades

The appointment comes after the countries signed an agreement earlier this month to restore ties. They continue their rapprochement after the Ethiopian prime minister announced in April that he wanted to implement a peace deal between the two neighboring countries.



Disney Fires 'Guardians of the Galaxy' Director Over Offensive Tweets Days After Paramount TV President Is Fired Over Inappropriate Comments

Disney fired James Gunn after jokes he wrote on Twitter several years ago involving pedophilia and rape resurfaced this week. Walt Disney Studios Chairman Alan F. Horn said that the offensive attitudes and statements discovered on James's Twitter feed were indefensible and inconsistent with the studio's values. Paramount Pictures used similar language on Thursday to describe its reasoning for firing the president of Paramount Television, Amy Powell, over insensitive racial remarks she had made while on a conference call.



British Pop Star, Cliff Richard, Wins Privacy Suit against the BBC

Cliff Richard was awarded $280,000 in damages for invasion of privacy after the BBC used a helicopter hovering over the singer's apartment to report on a police raid on his home in 2014. The raid followed a sexual allegation against Richard relating to a teenage boy in the 1980s. No charges were brought against him. British journalists are concerned by the ruling because it could make it illegal to identify suspects before they are formally charged by the police.



Artist Sues General Motors for Using his Graffiti in Ad Campaign

The law is struggling to address the issue of when graffiti, an ephemeral form of art, deserves the safeguards of a copyright. At the center of the latest lawsuit is a mural originally commissioned by businessman and Cavaliers owner Dan Gilbert for a Detroit garage that doubles as a public art gallery. General Motors used the mural in photos for a Cadillac ad campaign, posting the images to social media without the artist's knowledge or consent. Although federal copyright law grants broad safeguards to graffiti as an original creative work that is "fixed in a tangible medium of expression," this lawsuit could determine if graffiti wins new protections, or if companies can use it for commercial purposes without having to compensate the artists.

Falkner v. General Motors Company: http://www.autonews.com/assets/PDF/CA114075125.PDF


Court of Appeals for the District of Columbia Reverses Holding Regarding Private Standards

The D.C. Circuit reversed a district court's holding that privately created standards that are subsequently incorporated into law can be owned and enforced as the copyright property of the private creators. The Circuit ducked the "far thornier question of whether standards retain their copyright after they are incorporated by reference into law" and limited its ruling to detailed analyses of "fair use" under the Copyright Act and "nominative fair use" under the Lanham Act. The Court remanded the case for further consideration of both issues.


Claim for the Guelph Treasure, a Collection of Medieval Works, Can Now Go To Trial in U.S. Federal Court

An appeals court in Washington, D.C. has ruled that a claim for the Guelph Treasure can go to trial in the United States. The Guelph Treasure is a group of 42 medieval and religious works from the 11th to the 15th centuries housed in a Berlin museum. Heirs of the Jewish art dealers who owned the works argue that the objects were sold under duress due to Nazi persecution, and at only 35% of the works' value. The heirs brought the case in the U.S. in 2015 after a German advisory board set up to facilitate the return of Nazi-looted objects turned down their request. They demanded the return of the objects or $250 million.

The case is one of the first affected by America's recently enacted Holocaust Expropriated Art Recovery (HEAR) Act, which makes it easier for the heirs of victims of the Nazi regime to file restitution claims in the U.S.. Both Germany and the Prussian Cultural Foundation, which oversees the Berlin museum, argued that: 1) this was not a forced sale; 2) U.S. courts had no authority over the dispute; and 3) private litigation interfered with foreign policy between Germany and the U.S..


Indian Supreme Court Tells Government to Demolish or Restore Discoloured Taj Mahal

The court directed the environment ministry to either demolish the Taj Mahal or restore it after noting that the white marble monument is changing color due to pollution and insect dung. It subsequently requested an action plan to save the UNESCO World Heritage site. The Taj Mahal was built in the 17th century by the Mughal emperor Shah Jahan as a mausoleum to his wife, who died giving birth to their 14th child.


President Trump Has Not Awarded National Arts Medals Since 2016

The White House says a plan is underway to distribute the medals and they are currently evaluating candidates. It appears that the delay is administrative and not a policy decision, but the holdup around the arts medals is notable because of President Trump's rocky relationship with the National Endowment for Arts and the National Endowment for the Humanities. His first proposed federal budget would have eliminated these agencies that recommend candidates for the national medals to the president.



Judge Overseeing the National Football League's Concussion Settlement Finds Evidence of Fraud; Estimated Payout Could Jump by $400 Million

A federal judge in Philadelphia said that she found "sufficient evidence of probable fraud" from those seeking payouts to "warrant serious concerns." The settlement, which took effect in January 2017, resolved thousands of lawsuits that accused the National Football League (NFL) of hiding what it knew about the risks of repeated concussions.

Judge Anita Brody, however, denied the NFL's request to appoint a special investigator to look into what the NFL said are extensive fraudulent claims against the settlement fund. Fraud poses a particular worry to the NFL because the total amount of the settlement is not capped. Lawyers representing former NFL players estimated that payouts could jump by $400 million.



NFL and NFL Players Association Halt Enforcement of Anthem Policy After Dolphins Float Suspensions Among Punishments for Player Protests

The NFL and the National Football League Players Association (NFLPA) issued a joint statement noting that "no new rules relating to the anthem will be issued or enforced for the next several weeks" while both sides continue to hold discussions. In effect, they have also come to a standstill agreement on the NFLPA's grievance filed against the NFL just last week. The move comes as the Miami Dolphins submitted required paperwork to the NFL that included potential disciplinary measures for player protests during the national anthem. This was in line with the new anthem policy, which left the punishment of players up to the team. With teams about to report to camp, the NFL would have been up against another PR mess as the focus would turn toward the other 31 teams making similar filings on player discipline.



U.S. District Court Judge Denies Class Action Status to Lawsuit Brought Against the National Hockey League

A federal judge in Minnesota denied class action status to a lawsuit brought by former National Hockey League (NHL) players. The players accuse the NHL of failing to protect them from head injuries and deliberately concealing information about the long term effects of concussions. The lawsuit proposed creating two classes of plaintiffs: one comprised of all living retired NHL players, and the other of those living and dead who were clinically diagnosed as suffering from neurological disorders linked to head trauma. She cited "widespread differences in applicable state laws" that govern the kind of medical monitoring the players sought as a remedy, saying that these disparities would pose "significant case management difficulties."


NHL and NHL Players Association Could Strike Informal Deal on Players' Marijuana Use

Leadership at the NFL Players Association (NHLPA) has signaled that Canada's legalization of marijuana has generated discussion internally and that it is possible that the NHL and the NHLPA could come to an informal understanding about marijuana usage among players, at least as far as medicinal and therapeutic use is concerned. The NHL is already the most "progressive" of the four major sports leagues in the way that it treats marijuana. Marijuana is currently not on its banned drugs list and it is not a drug that is tested under the collectively-bargained for drug policy. It is still difficult to imagine the two sides reaching a formal, explicit agreement on the recreational front.


USA Diving Has Been Sued over Sexual Abuse Claims

Two former divers are accusing the national governing body of ignoring or obstructing inquiries into allegations that a coach sexually abused them when they were young athletes. The suit alleges that diving coach Will Bohonyi, who had also coached at Ohio State and was fired by that school in 2014, coerced and forced divers into sex. Bohonyi has been on USA Diving's list of banned coach since 2015, but the lawsuit alleges that that did not occur until six months after Ohio State fired him, even though the school had provided USA Diving with its investigative report in 2014.


Two Lawsuits Claim That Ohio State University Ignored Repeated Complaints About Sexual Misconduct by Team Doctor

Allegations of sexual misconduct are now the focus of another investigation at Ohio State, with more than 100 former Ohio State students coming forward with allegations of abuse against team doctor Richard Strauss. The scope of the inquiry has widened beyond Strauss and the athletic department, to investigate whether school administrators knew about and failed to act on the complaints, and whether Strauss abused any high school students. One of the lawsuits implicates Representative Jim Jordan, Republican of Ohio, alleging that he ignored reports of sexual misconduct as an assistant coach for Ohio State's wrestling team.



Gamblers Bet on Sports for the First Time at New Jersey's Meadowlands Racetrack

Thousands of gamblers wagered on sporting events during the first day of sports betting at the Meadowlands Racetrack. The Meadowlands has a clear advantage over other sports books in Atlantic City given its proximity to densely populated northern New Jersey and to MetLife Stadium. It also helps that it has no rivals near New York City, since New York State has yet to legalize sports betting after the U.S. Supreme Court overturned the longstanding ban.


World Cup Demonstrators Sentenced to 15 Days in Jail

The four protesters who ran onto the field at the World Cup final have been sentenced to 15 days in jail and are banned from attending sports events for three years. The protesters were members of the Pussy Riot punk collective. The outspoken critics of President Putin also posted a list of demands that included releasing political prisoners, putting an end to fabricated criminal accusations to keep people in prison, and allowing political competition in Russia.



Hulk Hogan Reinstated to World Wrestling Entertainment Inc. Hall of Fame

World Wrestling Entertainment Inc. (WWE) has reinstated Hulk Hogan to its Hall of Fame, calling it a "second chance" for Hogan and citing his numerous public apologies and volunteer work with young people. The move comes three years after Hogan was found to have used racial slurs in a conversation caught on a sex tape that became the subject of an invasion of privacy lawsuit settled with Gawker for $31 million.



Federal Judge Lifts Controversial Order Requiring the Los Angeles Times to Delete Part of a Published Article About Ex-Glendale Detective

The Los Angeles Times was ordered to remove information from an article about a plea Justice Walter had issued, citing concern for the safety of the detective and his family. As the plea had been sealed by the court, the judge had also been unable to confirm that the Los Angeles Times had obtained the document legally. The newspaper successfully appealed the order, arguing it was an unlawful violation of its First Amendment rights, and maintaining that it had published truthful information released by the government. It later became clear that the paper obtained the document after it had been erroneously posted on a publicly-accessible court database.

http://www.latimes.com/local/lanow/la-me-ln-balian-order-lifted-20180717-story.html https://www.nytimes.com/2018/07/15/us/judge-los-angeles-times-delete-article.html

Federal Communications Commission Delays Sinclair's Tribune Media Deal

The Federal Communications Commission (FCC) voted unanimously to delay Sinclair Broadcast Group's potential acquisition of Tribune Media by putting it through an administrative process. Chairman Ajit Pai said the $3.9 billion deal would put Sinclair in control of certain media stations in violation of the law. Sinclair is already the largest owner of local television stations in the U.S. and has emerged as a significant platform for conservative viewpoints. It has tried to placate federal regulators by proposing to sell 23 television stations after the deal was complete, but Pai has "serious concerns" with those planned divestitures.

https://www.nytimes.com/2018/07/16/business/media/fcc-sinclair-tribune-pai.html https://www.nytimes.com/2018/07/18/business/media/sinclair-

New Details Emerging in Contentious CBS-Viacom Lawsuit

In May 2018, CBS chose the "nuclear option" and sued its controlling shareholder, Shari Redstone, to thwart her effort to push through a merger of CBS and Viacom Inc., the media company controlled by the Redstone family. The lawsuit followed weeks of tension between CBS Chairman and Chief Executive Leslie Moonves and Redstone. Citing interviews and court filings, the New York Times is now detailing how the two media moguls' once-warm friendship inevitably turned frigid.


Tabloid Company at the Center of Michael Cohen Investigation for Reportedly Aiding Trump Campaign

American Media Inc. (AMI) was recently subpoenaed by federal authorities investigating Michael Cohen. AMI reportedly arranged a $150,000 payment to a former Playboy model to silence the woman's claims of an affair with Donald Trump by buying the rights to her story and not publishing it. Cohen and Trump reportedly discuss the deal in the recording that authorities seized when raiding Cohen's office. Authorities believe that the company was not always operating in what campaign finance law calls a "legitimate press function." This may be why the Justice Department did not follow protocol when it subpoenaed AMI without advance warning. AMI's involvement raises the question of when coverage that is favorable to a candidate strays into overt political activity, and when First Amendment protections should apply.


US-Funded Broadcaster, Radio Free Europe/Radio Liberty, Directed Ads to Americans in Potential Violation of Domestic Propaganda Law

Radio Free Europe is a Prague-based organization funded by the US that typically broadcasts to audiences in Europe, Asia, and the Middle East. This past week it was uncovered that it bought several ads on Facebook targeting users in the US that were since removed. Its actions are a potential violation of the 1984 Smith Mundt Act that restricts U.S.-funded broadcasters from promoting its content in the US except on request. Radio Free Europe was formed during the Cold War as a counterforce to Soviet propaganda programs, and it is perhaps fitting that its recent ads on Facebook included stories about Russia and a graphic about NATO's popularity.


European Union Fines Google $5.1 Billion in Android Antitrust Case

Google will be fined a record $5.1 billion over its Android operating system. The tech giant's alleged anti-competitive behavior includes requiring Android handset manufacturers to set its search engine as the default and pre-installing the Chrome browser; preventing manufacturers from selling mobile devices powered by rival operating systems; and giving manufacturers financial incentives to pre-install its search service.


Facebook Will Start Removing Misleading Posts that Incite Violence

Facebook's new policy changes are meant to reduce "misinformation" on its platform by removing posts that are both misleading and created to incite violence. It has already implemented the policy in Sri Lanka, where Facebook posts falsely claimed that Muslims were poisoning food being sold to Buddhists. Similar posts spreading false stories about Muslims in Myanmar spurred violence against Rohingya Muslims.


Two Jailed Reporters in Myanmar Challenge the Prosecution's Version of Their Arrests

The trial of two Reuters reporters is now underway in Myanmar. Both have been charged with possessing documents that contained secret information and face up to 14 years in prison. The reporters were investigating violence against the persecuted Rohingya ethnic minority at the time of their arrests, when they claim that they were entrapped by local police at a restaurant. Tensions between the government and the news media are tense as the government continues to deny that the arrests were in connection with the reporters' coverage of the Rohingya issue.


July 26, 2018

Center for Art Law Case Updates

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

Khochinsky v. Republic of Poland, No. 1:18-cv-01532 (D.D.C. filed June 27, 2018). Alexander Khochinsky, the son of a Polish Jew who was forced to flee her land in Przemysl, Poland before the Nazi invasion of the country, has filed a complaint in the U.S. Supreme Court against the Republic of Poland for its efforts to extradite him in 2015 on criminal charges in Poland. In 2010, Khockinsky became aware of the existence of a painting, "Girl with Dove", by Antoine Pesne, that was in his family's possession before the Nazi invasion. The painting appeared on display in a museum in Poznan, Poland, and Khochinsky began efforts to seek restitution of the painting. In 2014, the Polish government filed criminal charges against Khochinsky, claiming that he came into possession of the painting "despite being aware of the fact that the painting originated from a prohibited act--looting of property in 1943 by the then authorities of the German Third Reich." Khochinsky was arrested in 2015 in the United States for a brief period of time but was soon cleared of charges by the Supreme Court.

According to attorney Matthew O'Donnell, this case is no doubt the product of the current Polish government's complicated relationship with the history and memory of the Holocaust (Shoah). The complaint can be found at https://lootedart.com/web_images/pdf2018/Khochinsky%20v.%20Poland(B2298407).pdf?mc_cid=cfa78d44f8&mc_eid=8a2eda70d8.

Zuckerman/Leffman v. Metropolitan Museum of Art, No. 18-0634-c (2nd Cir. filed June 1, 2018). This brief amicus curiae pertains to the subject of "Flight Art" in the case of Zuckerman v. the Metropolitan Museum of Art, in which the court ruled in favor of the Museum's rights to ownership and to display "The Actor", by Pablo Picasso. Paul Leffman, the former owner of the painting in question, was forced to sell the piece to the Nazis at an exceedingly low price in order to escape persecution during the war. This brief is intended to demonstrate to the court the historical nuances of "flight art", such as "The Actor", and better inform its members to make future decisions taking into consideration these nuances. This brief is supported by a number of foundations' experts in the field of Nazi-looted art, including The Simon Wiesenthal Center, Lucille A. Roussin, and Ambassador Stuart E. Eizenstat. The brief can be found at https://docs.wixstatic.com/ugd/4843f4_7e3fafcedffe47d1a0534a2035f700ce.pdf?mc_cid=cfa78d44f8&mc_eid=8a2eda70d8.

The state is petitioning for the lower court to re-hear the case. The museum is claiming to have the petition rejected because the sale was not made under duress.

Close. v. Frieze Sotheby's, Inc., 1:18-cv-05134 (N.Y.S.D. June 8, 2018). A recent decision was made by the 9th Circuit U.S. Court of Appeals in the case brought by artist Chuck Close against Sotheby's Inc. concerning the California Resale Royalties Act (CRRA). Under the CRRA, artists were entitled to 5% of the proceeds of any resales of their works. The plaintiff in this case was seeking resale royalties covered under the CRRA since the statue's effective date of January 1, 1977. The court ruled in two parts; dismissing the plaintiff's claims covered by the 1976 Copyright Act (i.e. those that come after the effective date of this act, January 1, 1978) and reversing the dismissal of claims covered by the 1909 Copyright Act concerning sales that occurred between the CRRA's effective date of January 1, 1977, and that of the 1976 Act. This decision will effectively put an end to the last remaining remnants of droit de suite in American legal code concerning artists rights to profits made from the sale and re-sale of their works.

Davidson v. United States, No. 13-942C, 2018 U.S. Claims Lexis 801 (Fed. Cl. June 29, 2018). In a case involving the USPS putting a Getty Image photo of artist Robert S. Davidson's Las Vegas version of the Statue of Liberty on approximately 3.5 billion stamps (https://gizmodo.com/usps-ordered-to-pay-3-5-million-after-putting-artists-1827305357?mc_cid=cfa78d44f8&mc_eid=8a2eda70d8), Judge Bruggink of the Court of Federal Claims ruled that plaintiff's work was "sufficiently original to be afforded copyright protection" and the USPS's use of the image was not authorized under federal copyright law. The court ordered the Postal Service to pay the artist $3.5 million, plus interest.

Brammer v. Violent Hues Prods., LLC, No. 1-17-cv-01009, 2018 WL 2921089 (E.D. Va. June 11, 2018). In a major blow to photographers, a federal judge in Virginia ruled that a commercial website's re-use of another's photograph found on the internet is fair use and is not subject to copyright infringement (https://www.scribd.com/document/383050982/Brammer-v-Violent-Hues-Productions?mc_cid=cfa78d44f8&mc_eid=8a2eda70d8). The case revolves around plaintiff/photographer Russell Brammer's time-lapse photograph of the Adams-Morgan area of Washington, D.C., which was copyrighted by plaintiff. Defendant Violent Hues found the photo online and used it in an informational section of a website created for its Northern Virginia Film Festival. The judge granted the defendant's motion for summary judgment in a decision that is being challenged by many in the copyright community. https://petapixel.com/2018/07/02/court-rules-copying-photos-found-on-internet-is-fair-use/?mc_cid=cfa78d44f8&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.

July 29, 2018

Week in Review

By Eric Lanter
Edited by Elissa D. Hecker

General News

Over 450 Migrant Parents May Have Been Deported Without Children, but Feds Say They Met Deadline to Reunite Families

The federal government has admitted in federal court that more than 450 migrants parents may have been deported after having already been separated from their children. This is the first acknowledgement by the federal government that its policy of "zero-tolerance" had harsh consequences not foreseen when the policy was implemented. Nonetheless, it expected to meet its deadline of reuniting all "eligible" families by the deadline of Thursday night. There were significant questions as to what "eligible" meant, and also whether the government did in fact reunite the families by the deadline, as reports of failed reunifications emerged.



Lawmakers and Lobbyists Join Forces to Overhaul Endangered Species Act

The White House, lawmakers, and lobbyists are coming together to attack the Endangered Species Act. The 45-year-old law has protected wildlife by prohibiting "ranching, logging, and oil drilling in protected habitats," but bills are being floated in Congress that would erode those protections. Analysts see the bills as a "wish list assembled over decades by oil and gas companies, libertarians and ranchers" who have viewed federal regulations as impediments on their lives. Lobbyists and others have viewed the next six months as being the last chance to get the bills through Congress, as the midterm elections may see a wave of Democrats retake one or both chambers of Congress.


Democrats Will Not Meet with Judge Kavanaugh Until Deal is Completed On Documents

The Democrats in the Senate have requested volumes of documents related to Supreme Court nominee Brett Kavanaugh's past work in government. As they have not yet received those documents, and Republicans have not yet agreed to turn them over, the vast majority of Democratic Senators have agreed not to receive "courtesy visits" from Kavanaugh. Those meetings may commence, however, should the top ranking members of the Senate Judiciary Committee, Senators Dianne Feinstein and Charles Grassley, come to an agreement as to which documents must be turned over for review.


In Ruling Against Trump, Judge Defines Anticorruption Clauses in Constitution for First Time

Judge Peter Messitte of the United States District Court in Greenbelt, Maryland has issued the first decision in American history on the Constitution's anticorruption clause being applied to a sitting president. He has allowed the lawsuit to proceed, the substance of which is centered on President Trump's potential violation of the clause based on his maintaining a financial interest in the Trump Organization's Washington hotel. The Department of Justice is expected to seek an emergency stay of the action and appeal Judge Messitte's ruling.


Trump Weighs Stripping Security Clearances from Critics

President Trump has threatened to strip security clearances from those who have been critical of his administration, including former CIA director John Brennan, and James Clapper, the former director of national intelligence. The pretext for the revoking of the clearances, according to White House Press Secretary Sarah Huckabee Sanders, is that those individuals had politicized and monetized their security clearances after having been public servants. The stripping of their credentials would be a rare politicizing of the security clearances that many former public servants utilize.


Trump Orders $12 Billion in Aid for Farmers

Despite critics in the Republican Party calling it a policy more likely to come from a planned Soviet-like economy, the Trump administration has announced that it will provide up to $12 billion in emergency relief to farmers that have been hurt in the recent trade war. The move is seen as a way to shore up damage to the agriculture industry as well as to preserve Republican political capital in the heartland of the country, the very region that delivered Trump's electoral victory in 2016 and may play a significant part in the midterm elections in a few months' time. The relief package is also an indicator that Trump plans to continue the tariff wars, leaving open the chance for more emergency relief for damaged industries.


Judge Delays Start of Manafort Trial for Six Days

Next Tuesday, the trial of former Trump campaign manager Paul Manafort is set to begin in United States District Court in Alexandria, Virginia. Judge T. S. Ellis III delayed the trial by six days to permit Manafort's lawyers to review tens of thousands of documents recently received that could play a critical role in his defense. Judge Ellis has advised prosecutors to keep the trial limited to issues of money laundering and tax evasion and not to wade into collusion with Russia as it may taint the jurors.


Judge Allows Lawsuit Trying to Block Citizenship Question From Census

In the Southern District of New York, Judge Jesse Furman gave the green light this week for a lawsuit to proceed seeking to block "the addition of a citizenship question to the 2020 census." The addition of the question is alleged to be an attempt by the Trump administration to discriminate against immigrants. The effect of the question, allege the plaintiffs, is to reduce the count of immigrants and reduce Democratic representation when districts are redrawn in 2021. One of Judge Furman's considerations in his decision to permit the action to proceed was President Trump's rhetoric, characterized by "racially charged" statements that have targeted immigrant minorities.


Sheldon Silver Gets 7-Year Prison Sentence

The former speaker of the New York State Assembly, Sheldon Silver, has been sentenced to seven years in prison for federal corruption charges. His conviction comes after a career of being one of New York's most powerful politicians. Silver served as the speaker for more than two decades and had a significant influence on state politics. Judge Valerie Caproni characterized his actions as being "driven by unmitigated greed" as he used his "public position to richly line his own pockets." In a statement, Silver said that he prayed he "will not die in prison."


New York State Senators Ordered to Return Campaign Money

Eight Democratic state senators are in the process of returning hundreds of thousands of dollars in donations after New York's top election enforcement officer, Risa Sugarman, determined that the group had received donations "far in excess of statutory contribution limits." The senators belonged to a group called the Independent Democratic Conference, which was known for its closeness with the Republicans in the State Senate. Several of those who have been ordered to return the funds are facing primary challenges in the next several months.


Ivanka Trump Shuttering Fashion Brand

President Trump's daughter Ivanka Trump announced that she is shutting down her namesake fashion brand, citing her work in Washington and the uncertainty of when she will be able to return to operating the business. A spokesman for the brand announced that its 18 employees will began leaving in the coming weeks and the business will begin winding down, with products being sold through next spring.


No Break for Nestlé in Trademark Dispute

Despite Nestlé's arguments, the European Court of Justice found against the company in its ruling that the Kit-Kat candy cannot be protected by trademark laws. The signature four-fingered wafer has many competitors throughout Europe, including Norway's Kvikk Lunsj, which is a wafer that has been popular in that country for over 80 years. The lower court determined that Nestlé had to prove that Kit-Kats could be recognizable in every country in the European Union, but no evidence was submitted for that being the case in Belgium, Ireland, Greece, or Portugal. Ultimately, because Nestlé did not show that the snack was iconic in all markets of the bloc, it could not prevail on its trademark claim.


Visa Restrictions for Chinese Students Alarm Academia

American academic and research institutions have had the benefit of Chinese citizens contributing to their programs for years, but President Trump's cracking down on China has raised concerns that the era of cooperation may be coming to an end. Under the Obama administration, Chinese students were routinely given five-year student visas, but the State Department on June 11th rolled back the policy and require reapplying each year for graduate students in sensitive research fields. This move comes after a study was published last year that found that in a 10-year period, nearly 90% of Chinese students who earned Ph.D.s in the United States intended to remain in the country for work.


Russian Hackers Appear to Shift Focus to U.S. Power Grid

Intelligence officials and technology company executives have announced that Russian hackers appear to be targeting the domestic utility grid rather than institutions that may affect the midterm elections. The state-sponsored hackers appear to be focused on installing malware into the electric grid to cause disruptions of service, and the Department of Homeland Security has confirmed that there have been "hundreds of victims" thus far. The hackers are believed to have been involved in hacking into the electric grid in Ukraine in 2015 and 2016.


Despite Egypt's Dismal Human Rights Record, U.S. Restores Military Aid

Egypt, under President Abdel Fattah el-Sisi, has a reputation for being harsh: it has arrested a tourist who complained about Egypt on Facebook, an activist who spoke out about sexual harassment, and a student who was researching the judiciary. Nonetheless, the State Department, led by Secretary of State Mike Pompeo, has lifted restrictions on $195 million in military aid. The restriction was placed on Egypt last year because of its human rights record and relationship with North Korea, and its lifting has prompted outrage from human rights groups. It also raised concerns about what el-Sisi's regime may do next, now that it has no incentive to back down from its harsh policies.


Cubans Approve New Constitution

Cuban lawmakers have approved a new Constitution that would recognize the right to own private property and potentially pave the way for other rights, such as same-sex marriage. The Constitution would also divide power between a president and prime minister in contrast to the Soviet-era Constitution currently in place. The Constitution is set for a national referendum, which is expected to take months to complete.


Pakistan's Next Leader Set to Take Power

Imran Khan, a former cricket star and man of many hats, is set to take power as prime minister of Pakistan. He has vowed to fight corruption, become closer to China, and to achieve a "mutually beneficial" relationship with the United States. He has been known for his charm and looks, but has turned to politics in an effort to fight corruption and to restore faith in the government. His path to becoming prime minister opened up with the publishing of the Panama Papers, as the actions of the incriminated then-prime minister Nawaz Sharif reinforced the suggestion of a government that was plagued by corruption and ripe for cleansing and reinvention.


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


Panel Finds Bill Cosby to Be Sexually Violent Predator

Following Bill Cosby's trial in Pennsylvania for sexual assault, a Pennsylvania state board has determined that he is a "sexually violent predator." This determination may affect his sentence for the crime, which is scheduled for September in Judge Steven T. O'Neill's courtroom in Montgomery County. There is a possibility that Cosby will be sentenced up to 30 years in prison.


Fyre Festival Organizer Pleads Guilty to Selling Fraudulent Tickets

In the Southern District of New York, Billy McFarland pleaded guilty to a new set of federal charges related to a fraudulent ticket-selling scheme that he ran. Up until the new charges were announced, McFarland was facing wire fraud charges in relation to the Fyre Festival, but the federal prosecutors also charged him with selling fictitious tickets to Burning Man, the Super Bowl, and Coachella. The government alleged that he duped over 30 people out of $150,000 for the tickets.


Third Arrest Made in Killing of Rapper XXXTentacion

Robert Allen of Florida has been arrested in connection with last week's killing of 20-year-old rapper XXXTentacion in what appeared to be a robbery in broad daylight. Four men thus far have been indicted in relation to the killing, and Allen is the third of those four to be arrested.


Disney and Fox Shareholders Approve Deal

Shareholders for both Walt Disney Company and 21st Century Fox have agreed to a $71.3 billion plan that would give Disney the bulk of Rupert Murdoch's media empire. The deal still must be approved by regulators in over a dozen countries, but if approved, it will be a massive shift in the media industry. Some in Hollywood fear that this deal will set off more mergers in the film business, an industry where the last major consolidation was in 1935, when 20th Century Pictures and Fox Film merged to become 20th Century Fox.


Matt Lauer's New Zealand Ranch in Battle for Access Over Nearby Park

The former "Today" show co-host, Matt Lauer, is embroiled in a fight in New Zealand. He has requested the New Zealand government to pay him hundreds of thousands of dollars if hikers are permitted to use his property to access a nearby park. He has a 16,000-acre ranch that borders the Hawea Conservation Park, known as "one of the jewels of the New Zealand landscape." This fight comes after his firing earlier this year amidst allegations of inappropriate sexual behavior working on the "Today" show.



House Rejected Amendment to Cut National Endowments for the Arts Funding, With Senate's Vote Imminent

The House of Representatives rejected the Grothman Amendment, which proposed funding reductions to both the National Endowment for the Arts and the National Endowment for the Humanities. The Senate was scheduled to vote shortly on the issue of funding as well.


U.S. Art Dealers Move Against Trump's Proposed 10% Tariff On Chinese Art and Antiques

President Trump's trade war with China has found its way to art and antiques, raising concerns among art dealers. Art and antiques are typically not subject to customs duties, with the public policy being that there is a widespread interest in having open access to foreign arts, but some dealers have said that the tariffs would have the opposite effect, as they are more likely to reinforce the Chinese government's "dominance and monopoly on Chinese art."


Judge Orders Return of Ancient Limestone Relief to Iran

A New York State Supreme Court judge has ordered that Iran should receive a bas-relief dating from 500 B.C. The relief, which has a Persian guard, was found for sale at an art fair and investigators seized it. The work was stolen decades ago, and the district attorney then argued that any subsequent holder of the art could not be a legitimate owner. Consequently, the work must be returned to from where it was stolen seven decades ago.


Cleveland Orchestra Suspends Star After Accusation of Assault

Violinist William Preucil of the Cleveland Orchestra has been suspended after allegations emerged that he sexually assaulted a student in 1998. The student disclosed to the Washington Post that he aggressively kissed and pushed her onto his hotel bed, and after she fled, he called her to threaten to blacklist her if she told anyone. The Cleveland Orchestra has vowed to conduct an independent investigation and maintain the suspension in the meantime.



Ohio State Abuse Scandal Widens

At least 100 former Ohio State University students have reported sexual misconduct from at least 1979 to 1997 by Dr. Richard Strauss, who was a team doctor. The university has investigators working on the case, but it also has other scandals exploding: this month, a student filed a federal class-action lawsuit against the school, claiming that an assistant coach, Will Bohonyi, forced her to have sex with him starting in 2014. The scandals are part of a flurry of sexual misconduct cases in sports and universities, which include Dr. Larry Nassar's molestation of more than 200 girls and women at Michigan State and Dr. George Tyndall abusing hundreds of patients at the University of Southern California (USC).


50 More Women Sue USC as Accusations Grow Against Gynecologist

More than 50 women have sued USC, alleging that it failed to protect them from a former gynecologist, Dr. George Tyndall, who sexually abused and harassed them. Tyndall had worked for the university for over three decades in its student health center and had seen thousands of student patients. His lawyer said that Tyndall's "practice of medicine was consistent with the standard of care," and no criminal charges have yet been filed against Tyndall, even though the Los Angeles Police Department has received dozens of potential cases regarding his actions from 1990 to 2016.


Larry Nassar Wants New Sentence From a New Judge

The disgraced former USA Gymnastics team doctor, Larry Nassar, is now seeking to have his conviction for sexually abusing numerous young women reviewed, as he claims that the judge overstepped her bounds in sentencing him to 40 to 175 years in prison. The sentencing hearing lasted seven days and had over 150 young women testify as to the impact of Nassar's actions, and since Nassar has been imprisoned, he has been physically attacked at least once.


USA Gymnastics' Talk of Reform Falls on Skeptical Ears in Senate

Following the revelation of the sexual abuse that Dr. Larry Nassar perpetrated at Michigan State, some immediately blamed USA Gymnastics for not protecting the athletes. The organization appeared before the Senate and promised that the USA Gymnastics is now athlete-centric and has made it easier to report abuse, but skeptics abound. Former and current athletes said to The New York Times that nothing has changed since the abuse scandal erupted, and that they are fearful someone else could perpetrate abuse without consequence in the way that Nassar did for a period of years.


In National Hockey League Concussion Lawsuit, Gary Bettman Opts to Fight

Several retired National Hockey League (NHL) players have sued the league for damages they sustained while playing the game. The NHL has not dealt with the issue in the same way as the National Football League (NFL), the latter of which has settled cases and kept the allegations from developing: the NHL Commissioner Gary Bettman has opted to not settle, but to "vigorously question the growing evidence linking head hits and brain trauma." Thus far, the strategy has worked, as the NHL has paid out less than the NFL and has prevented a case pending in federal court from getting class-action status.


Ryan Lochte Suspended 14 Months for Getting an IV

American swimmer Ryan Lochte, who has won six Olympic gold medals, has received and accepted a 14-month suspension for posting a photo on Instagram showing him receiving an intravenous infusion. While the substance he was receiving was not illegal, the United States Anti-Doping Agency does not permit any athletes to receive IVs unless they have been hospitalized or have received an exemption to receive the IV.


Nike Set to Raise Wages After Outcry

Nike's internal review of pay practices has concluded and the result is that over 7,000 Nike employees will be getting raises. Earlier this year, top executives departed in protest of the pay practices and workplace misconduct, and the chief executive, Mark Parker, pledged the review of the pay practices and apologized for missing the "signs of discontent" in the company. Nike's actions are rare in the corporate world and illustrate how other companies can tackle issues in their pay practices and address problems in the workplace.


National Basketball Association Power Brokers Gather with No Men Allowed

A recent study found that the National Basketball Association had "the highest percentage of women working at the league office and with individual teams," placing it ahead of the NFL and Major League Baseball. This was evident when a group of more than 60 executives met in Las Vegas this month who were all women. Women are not just working in the league office, however; in the summer league, women have been refereeing games, drawing up plays as assistants, and crunching the numbers as statisticians for teams. The spirit of the women in the NBA has been one of bringing everyone together in the industry, helping, and empowering each other.


Jones Says Cowboys Will Require Players to Stand for Anthem

The owner of the Dallas Cowboys, Jerry Jones, announced that he will require all of the Cowboys to stand during the national anthem, regardless of the NFL's policy on the issue. The NFL in May announced that if a player was not going to stand for the national anthem, that player could remain in the locker room until just before the beginning of the game, but the NFL rescinded the policy last week after the players filed a grievance and threatened legal action. While negotiations remain ongoing, Jones was not going to wait for the players and the NFL to strike a deal.


International Olympic Committee Tells US to Clean Up Doping

On Thursday, the International Olympic Committee (IOC) told the United States that it must fight against doping before "putting athletes from other countries under threat of punishment for breaking U.S. law." The IOC told Congress to pass a bill to crack down on performance-enhancing drugs and name it after Grigory Rodchenkov, a former anti-doping chief in Russia, who became a whistleblower as depicted in the film "Icarus". The IOC also encouraged the United States government to join The International Partnership against Corruption in Sport, where the IOC has worked with other major governments to stop doping and corruption in all sports.


Mesut Ozil Quits German National Team, Citing Racism

One of Germany biggest soccer stars, Mesut Ozil, has quit the national soccer team. He claimed that it was due to racism and "double standards in the treatment of people with Turkish roots," and also comes just weeks after he posed for a picture with Turkish President Recep Tayyip Erdogan, a strongman president that has consolidated power in recent years in Turkey. Following the publication of the picture, some in Germany questioned Ozil's loyalty to Germany. Ozil, however, noted that he was not being treated equally with Germans, as former Germany captain Lothar Matthaeus met with Russian President Vladimir Putin with little attention.


Ethiopia and Eritrea to Play First Soccer Match in Two Decades

In August, in the Eritrean capital, Asmara, Ethiopia and Eritrea are set to play a friendly soccer match just weeks after the 20-year-old war between the two east African states came to an end. The match is part of an effort to bring the countries peacefully together, which was furthered last week when Ethiopia's national carrier Ethiopia Airlines made its first flight to Asmara in two decades and was received by dancers waving flags and flowers.


Cristiano Ronaldo Settles Tax Dispute With Spain

Portuguese soccer star Cristiano Ronaldo has agreed to pay $22 million in back taxes and fines after reaching a deal with Spanish tax authorities on the undeclared earnings that he received from advertising contracts. The settlement comes as he is switching from playing Spanish soccer at Real Madrid to Italian soccer in Torino at the team Juventus. His transfer from club to club earned him a fee of $110 million. As part of the deal with Spanish tax authorities, he agreed to serve a two-year prison sentence, but Spanish law waives the prison time if the offender is a first-timer. Ronaldo is not the only player to have a run-in with the Spanish tax authorities: Lionel Messi of Barcelona was sentenced to 21 months in prison (first-time offender as well) and had to pay back taxes plus interest to the government in 2016.



Daily News Cuts Newsroom in Half

Tronc, the media company that bought The Daily News last year, laid off half the newsroom staff and the editor in chief this week. The Daily News, which was once the largest-circulation paper in the country, is undergoing significant changes: Robert York, a media executive who has worked in San Diego for most of his career, is prepared to replace the chief executive of the newspaper. The Daily News had lost millions of dollars in recent years, as fewer people bought the paper form of the newspaper, cutting into the advertising revenues and leading the paper to also adopt a subscription digital service.


White House Bars CNN Reporter From Presidential Event

CNN journalist Kaitlan Collins was barred from attending a public appearance in the Rose Garden by President Trump. The administration announced that her exclusion was owing to her asking "inappropriate" questions earlier in the day at the end of a photo opportunity at the White House. She was heard asking after a photo opportunity, amidst the other questions from reporters: "Did Michael Cohen betray you, Mr. President?" Then: "Mr. President, are you worried about what Michael Cohen is about to say to the prosecutors?" Journalists roundly criticized the administration's move, citing it as a hallmark of authoritarianism.


Les Moonves Faces Inquiry Over Misconduct Allegations

One of the most powerful people in the media business and chief executive of the CBS Corporation, Leslie Moonves, is facing an investigation after reports emerged of him sexually harassing six women. CBS shares fell by more than 6% on Friday after reports came out that The New Yorker's Ronan Farrow was going to publish an article detailing the allegations. The board of directors has vowed to conduct an investigation. Moonves, who collects $69.3 million a year, has been known as the one person that transformed CBS from last place in the ratings to being the most-watched television network. He acknowledged that he may have made advances that made some women uncomfortable, but always abided by the principal of "'no' means 'no'" and never misused his "position to harm or hinder anyone's career."


Anti-Breitbart Twitter Account Operators Revealed

A Twitter account called Sleeping Giants began shortly after the 2016 election. It urged people to collect screenshots of advertisements on Breitbart's website and question brands about their support of the conservative website. While the account was anonymous, conservative news and opinion website The Daily Caller has revealed the identity of the founder to be Matt Rivitz, a freelance copywriter in San Francisco. He acknowledged publicly that he operates the site with another freelance copywriter and marketing consultant, with the aid of anonymous contributors. The aim of the site was to undermine support for Breitbart by pressuring advertisers, but the site's effectiveness led to scrutiny and attention from conservatives, making his anonymity harder to preserve.


Google Shrugs Off $5.1 Billion Fine with Big Quarter

Alphabet, Google's parent company, announced that in the most recent quarter, it made $3.2 billion in profits even after paying a record $5.1 billion fee to the European Union for "abusing its dominance in the smartphone market." Its stock rose 3.5%, and Google has said that it is going back to focusing on selling advertisements across the internet. This quarter echoes one from last year when the European Union fined Google $2.7 billion for "unfairly favoring its comparison-shopping service in its search results", but Google still made a profit of $3.5 billion.


Amazon's Facial Recognition Wrongly Identifies 28 Lawmakers

Amazon had received scrutiny in recent weeks as news organizations reported that the company had developed facial recognition software and provided it to police departments and other organizations. The American Civil Liberties Union (ACLU) has reported that the facial recognition technology incorrectly identified African-American and Latino members of Congress as being people in 25,000 publicly available mugshots. The error rate was a staggering 5% among legislators. By the afternoon that the ACLU announced its findings, Jeff Bezos, the chief executive of Amazon, had received a letter from legislators stating that there were serious questions about whether law enforcement should be using the software at this time.


New York Moves to Kick Spectrum Out of State

New York State's Public Service Commission, at the direction of Governor Andrew Cuomo, has ordered Charter Communications to leave the state and hand its business over to a different company after it failed to comply with the terms of its 2016 merger with Time Warner Cable. The company has said that Cuomo's actions are politically motivated, given that the election is approaching, and he wants to be seen as tough on big business. The Commission has ordered that Charter must file a plan within 60 days to find a replacement provider. It is expected that Charter will challenge the order.


July 30, 2018

'Blurred Lines' Verdict Affirmed: Has the Sky Fallen?

By Robert J. Bernstein and Robert W. Clarida

Now that a divided panel of the U.S. Court of Appeals for the Ninth Circuit has issued an amended opinion affirming the denial of a new trial motion and an order denying rehearing en banc in Williams v. Gaye (Williams), 2018 WL 3382875, No. 15-56880, Order and Amended Opinion (9th Cir. July 11, 2018) (the Amended Opinion), it is timely to consider whether the final affirmance of the jury verdict is likely to wreak havoc on musical creativity as some, including the dissent, have argued. The short answer is no. Our reasoning is set forth below.

The Debate

From the time that lawyers for Pharrell Williams and Robin Thicke (Williams-Thicke) commenced a declaratory judgment action in response to a claim letter from attorneys for the heirs of Marvin Gaye (The Gayes) alleging that Gayes' 1977 hit "Got to Give It Up" (Got To) was infringed by the Williams-Thicke's 2013 best-selling single "Blurred Lines", a public debate has unfolded parallel to developments in court. Most recently, this debate has found purchase in the impassioned dissent from the Amended Opinion by Judge Jacqueline H. Nguyen, wherein she concludes by warning The Gayes, and, by extension, all songwriters, to be careful for what they wish: "The Gayes, no doubt, are pleased by this outcome. They shouldn't be. They own copyrights in many musical works, each of which (including "Got to Give It Up") now potentially infringes the copyright of any famous song that preceded it."

Judge Nguyen's observation echoes the closing argument of Howard E. King, trial counsel for Williams-Thicke, that "Blurred Lines" only emulates the genre of music represented by "Got To," but not any original expression protected by its copyright, and therefore that a finding of infringement would stifle creativity by granting a prohibited monopoly on a musical style: "I believe Pharrell Williams and Robin Thicke are proud to stand on the shoulders of Margin Gaye, Stevie Wonder, Lionel Richie, dozens of other performers, and honor their legacies and honor their works by creating their own works in the same style and genre."

The jury, however, chose to accept the argument of The Gayes' trial counsel, Richard S. Busch, and the expert testimony of their musicologist, Judith Finell, that the similarities between the two works included copyrightable elements, rather than merely a shared style. In contrast to King's parade of horribles predicting the end of musical creativity, Busch focused on two salient evidentiary points--the specific similarities between the two songs and the unprompted reaction of an executive of one of the record company defendants upon hearing "Blurred Lines":

This is a copyright infringement case where Mr. Thicke and Mr. Williams created a song from Got to Give It Up and in so doing, ... copied eight different elements from "Got to Give It Up." This is not about the copying of an era. This is not about the copying of a genre. This is not about the copyright of a style. Harry Weinger is a senior executive at UMG and [he said that] "Blurred Lines" was "utterly based on "Got to Give It Up." He didn't say it was a genre. He didn't say it was a style ... He flat out said it was a copy. He works for them ... Their own people internally said it was a copy. I guess at the end of the day--I guess at the end of the day it boils down to who do you believe? That's what it boils down to.

The 'Amended Opinion'

In the majority Amended Opinion, written by Judge Milan D. Smith, Jr. and joined by the Judge Mary H. Murgula, the Ninth Circuit placed great weight on both procedural and credibility issues. Procedurally, because the case was on review of the denial of a motion for a new trial, the court applied the highest standard of deferential review:

We are bound by the limited nature of our appellate function in reviewing the district court's denial of a motion for a new trial ... based on its ruling that the verdict is not against the weight of the evidence, ... When that is the case, we reverse only when there is an absolute absence of evidence to support the jury's verdict ... It is not the courts' place to substitute our evaluations for those of the jurors ... Of note, we are reluctant to reverse jury verdicts in music cases on appeal, given the difficulty of proving access and substantial similarity.

Applying this stringent standard, it was not surprising that the Court of Appeals affirmed the denial of a new trial.

In addition to its review of the district court's denial of the motion for a new trial, the Ninth Circuit considered two separate arguments for reversal asserted by the Thicke-Williams parties: That the jury instructions regarding "subconscious copying" and "substantial similarity" were erroneous and that the district court improperly admitted certain testimony of The Gaye parties' experts. On the jury instructions, the court concluded that they accurately reflected Ninth Circuit law, and that, when considered along with the jury instructions as a whole, they provided correct legal guidance for the jury. On the experts' testimony, the court held that there was no error in its admission, because there was a sufficient basis for their musicologist's testimony comparing musical elements implied in the lead sheet for "Got To" with elements of "Blurred Lines", and that the testimony of their second expert, Dr. Monson, using "mash-ups" to demonstrate structural, harmonic and melodic commonalities between the songs, was similar to expert testimony permitted in prior Ninth Circuit cases.

The court also noted that both Judith Finell and Dr. Monson were subject to extensive cross-examination, and the jury also had an opportunity to consider the equally detailed expert testimony of Sandy Wilbur, the musicologist for Williams-Thicke, who disagreed in virtually every respect with The Gaye parties' musicologist. The jury's resolution of the resulting credibility issues was not deemed appropriate for reconsideration on appeal.

In contrast, the dissent characterized much of the expert testimony as comprising improper legal opinion rather than legitimate factual debate. In the Ninth Circuit, an extrinsic (or objective) test is applied to determine copying, and on this prong of the infringement analysis expert testimony and comparison is permitted. However, expert testimony is not permitted on the second prong of the Ninth Circuit determination of infringement--the "intrinsic" (or subjective) test. The dissent would have treated the contrasting experts' testimony as calling for a judicial determination under the extrinsic test, as a matter of law, concerning whether the proffered similarities comprise protected (copyrightable) expression, rather than as a factual dispute suitable for a credibility determination by the jury. The dissent would have remanded with instructions for the district court to enter a judgment of non-infringement as a matter of law based on her view that the similarities were in the nature of nonprotectable elements of a genre.

Sui Generis Factors

There are a number of factors that led to the jury verdict that were not discussed in the Amended Opinion, but nevertheless were significant in the result below. These factors concern an issue that is most basic to every trial--credibility. As noted above, trial counsel for The Gaye parties focused on credibility in his closing argument, and we quoted above his reference to the record executive who spontaneously, in a pre-litigation statement, observed the great similarity between "Blurred Lines" and "Got To". Of perhaps even greater impact were pre-litigation statements made by Williams and Thicke revealing how inspired they were by "Got To" and how they tried to create the same feeling with "Blurred Lines."

Of course, these statements could arguably be merely indicative of an attempt by Williams and Thicke to create a song in the same genre, but using terms such as "the same feeling", the "same groove", and "inspired by" could also be interpreted by the jury as falling within one of the Ninth Circuit's legal definition of "substantial similarity" under the intrinsic test: "[The intrinsic test asks whether the ordinary reasonable person would find the total concept and feel of the works to be substantially similar." Although the jury instructions stated that "substantial similarity requires similarity of protected expression", once the issue is put to members of the jury, it is anybody's guess whether, in considering the works' "total concept and feel", they could effectively denude the works' nonprotectable elements, or, for that matter, whether even trained lawyers and judges could do so.

For these reasons, and particularly in this case, pre-litigation admissions of overall similarity of feel, inspiration, and intention by the accused authors, even if later watered down or re-contextualized at trial, may have led the jury to find infringement, notwithstanding the infringers' proclaimed purest of intentions to replicate only a style, or to create a new work within a genre. When combined with other pre-litigation statements, such as the record executive's, and the impression conveyed by an online interviewer that Williams had "sampled" "Got To" in "Blurred Lines", it would appear that an unusual confluence of factors negatively impacting Williams-Thicke's credibility is unlikely to find a comparable fact pattern in future infringement litigation. Thus, this jury verdict, as affirmed in the Amended Opinion, is more sui generis than indicative of a possible trend toward improper protection of a genre. We would therefore venture to say that the sky is still the sky, and that the forecasts for a resulting constriction in the output of American songwriters will not stand the test of time.

Robert J. Bernstein practices law in The Law Office of Robert J. Bernstein. Robert W. Clarida is a partner at Reitler, Kailas & Rosenblatt and author of the treatise Copyright Law Deskbook (BNA).

About July 2018

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

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